By Saine Paul:
Last year in Mumbai, a 31-year-old marketing professional was followed by two men into a public toilet and forced to perform oral sex on them. He was then taken to an ATM and forced to withdraw Rs. 15,000/- cash.
Though attitudes towards homosexuality have undergone significant changes, it would be naïve not to acknowledge that it is still a divisive issue even today in many parts of the world. Deeply entrenched homophobic and transphobic attitudes in society often combined with the absence of adequate legal safeguards against discrimination expose the LGBT+ community in all regions of the world to flagrant human rights abuse. Under such circumstances, legal provisions like [envoke_twitter_link]Section 377 of the IPC perpetuates and feeds the already existing homophobia and hate crimes[/envoke_twitter_link] committed against these people, marginalising them further.
In India, the LGBT+ community suffers human rights abuse and discrimination both at the hands of the state and the society. Extortion, illegal detention and physical abuse by the police, discrimination in schools, hospitals, and mistreatment by public in general is not uncommon. Homosexuality is still considered a mental illness or disease and administering behavioural therapies including electric shock treatment, psychiatric drugs and hormones to cure homosexuals are still in existence.
Justice, we must understand is not an abstract legal theory. It is not a footnote in a legal compendium. It is not institutions in isolation; it is a necessary combination of just institutions and actual correspondent behaviours that make a society reasonable and fair. It is about how our laws affect the daily reality of people’s lives. As Amartya Sen pointed out in his book ‘Idea of Justice’ and I quote “What happens to people must be a central concern for a theory of justice”.
In this era of 21st century, in a democracy like India, there is no room for a provision as vitriolic and intolerant as this one. India has always been about diversity, differences, debates and discussions. In such context, it is important to assert here that queer freedoms are primordial and inseparable to a broader culture of respect for dissent and difference. Indispensable to such a culture of respect in the social context is the idea of acceptance and solidarity. It is imperative to accept the difference as a natural phenomenon and not a psychological issue. The freedom to love is fundamental to an individual’s existence and knows no boundaries. It cannot be constrained on the grounds of an individual’s sexual orientation. It cannot be compartmentalised. However, this cannot exist in isolation and has to be fleshed out by other substantial rights that are fundamentally recognised under the constitution.
The state has no legitimate power to either determine or regulate people’s private morality in a pluralist country. Rather, a state that upholds equality, liberty and justice under its constitution has a duty and an obligation towards its people by eliminating discriminatory practices and extending equal protection of the law for each member.
The recent decision of the Hon’ble Supreme Court of India to refer the curative petition challenging the constitutionality of Section 377 of the Indian Penal Code to a Constitution Bench has given the LGBT community some hope. Section 377 was decriminalised by a two-judge bench of the Delhi High Court in the seminal case of Naz Foundation vs Government of NCT of Delhi. The judgement held that treating sexual activity between two consenting adult individuals of the same sex is a violation of the right to privacy and dignity which is implicit in Article 21 of the Constitution. The court also held the law arbitrary as it creates an unreasonable classification based on no intelligible differentia and targets homosexuals as a class, thus violating the fundamental right to equality under Article 14. However, on December 11, 2013, the apex Court went a step back in history and gave a severe blow to the homosexual community and their age-old battle for legitimacy by overruling the decision of the Delhi High Court. Hence the curative petition.
One could only hope that the apex court takes no more years than what it took to realise that the issue poses questions with “constitutional dimensions of importance” and finally upholds the citizen’s fundamental right.