Wait, what? Are you wondering if you read the title right? You did, but before we plunge into democracy, let us first see where LGBTQ rights stand in India at this present moment and why the very essence of section 377 questions the fundamental ideology of both our constitution and age old Indian philosophies and denominations.
Section 377 of Indian Penal Code states, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.” The phrase ‘against the order of nature’ totally eliminates the L, G, B, T and Q of our community. Even though the Delhi High Court overturned the section in 2009, the apex court ruled out the decriminalization of same sex sexual activities in 2013 stating that the section 377 “does not suffer from the vice of unconstitutionality”. Curative petitions were filed by different associations and in 2016 the three-member bench headed by the Chief Justice of India said that all the curative petitions submitted would be reviewed again by an eight-member bench.
This law was introduced in the British Raj and goes back to 1860. More than 150 years and we still battling with the beliefs of colonial imperialists. We need to understand why the law was established in the first place. If we follow the time-line of LGBTQ history in UK, we will find that unnatural sexual activities were looked down upon and till a certain period of time, people involved in such activities were also punished. James Pratt and John Smith were the last British men to be executed for “unnatural sexual activities” in 1835. Though the death penalty was abolished a few decades later, same sex activities were looked down upon and people found to be indulged in those were prosecuted. LGBTQ community in Britain faced discrimination and prosecution until the very end of the 20th century. These beliefs was filtered down in the Indian Penal Code because of the colonial stronghold.
Interestingly, elements of non-heterosexual activities have been addressed in the Hindu scriptures and also regional folklores. Gender nonconformity, varied sexual orientations and gender identities have been addressed through different texts and the characters highlighted were not subjected to discrimination. A third gender has been acknowledged in Hinduism since Vedic times and this can be considered an umbrella term for the “unconventional” lot. An androgynous composite of Shiva and his wife, Parvoti is Ardhanarishvara. Vishnu frequently used to take up his female avatar of Mohini. Lord Shiva had a union with Vishnu in his Mohini avatar, resulting in the creation of Ayappan. To address your immediate question, this does not talk about homosexuality but it does focus on gender fluidity. So gender variance in deities has been fairly common and so is the gender variance in non divine figures like Shikandi and Arjuna from the Mahabharata. Even though direct references to homosexuality are hard to find, several hints have been dropped on this “unnatural” aspect of gender, defying the binary. These aspects haven’t been looked down upon, neither have they been subjected to persecution. Sexually liberal ideas have also found their way to sculptures and other forms of art, like the Konark temple of Orissa.
The astonishing part is the ignorance of the Indian community when it comes to LGBTQ rights. Hinduism, being followed by a majority of people in India should ideally revolve around the non-discrimination of the rights of the LGBTQ community. But still, this fundamental right is being questioned from time to time.
Same sex marriage has been legalized in many countries of the west, the fundamental rights of the people of LGBTQ community have also been addressed; but in India, it is still a punishable offence. Being the largest democracy, isn’t protecting the fundamental rights of people of utmost importance? Bullying, questioning, mocking, harassment and violence meted out to the members of the LBGTQ community can only be curtailed by advocating their rights without being subjected to differences with respect to any other normal citizen of the country. Section 377 violates the Indian constitution, which guarantees equality, freedom of expression and personal liberty to all its citizens; and upholding it will deny basic human rights to sexual minorities in the country.
Considering the social stigma around homosexuality, coming out to family and friends is still something unpredictable, which can lead to complete alienation of an individual if not met with love and understanding. Being at the receiving end of horizontal violence, only the change in the law would give the LGBTQ community a sense of victory after so many years of struggle. It would not only help more people to come out and talk about their sexuality more, it would also openly question the conservative mindset of a large part of the society. It would help the conservative section to understand that the rights of the LGBTQ minority are not an infringement on the values they hold dear; rather it is upholding the constitutional values on which their beliefs stand. So when someone questions rights of the LGBTQ community or just chooses to not give them the recognition they deserve, it exhibits their non-compliance with the fundamental ideas of our constitution on which the very idea of democracy stands which we take pride in. The only way out is to keep fighting as “the road to equality has never been straight”.
Source: facts- Wikipedia, pictures- google images