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A Historic Judgement Against Homophobia, But Does It Extend To Jammu & Kashmir?

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‘Against the order of nature’.

But who decides what is natural or unnatural? The answer should not be what the majority of people think. It should be what is rational. So, on the day Section 377 of the Indian Penal Code (IPC) was read down to decriminalise homosexuality, while giving the verdict, what Chief Justice of India Dipak Mishra said  is important. He asserted that “Majoritarian views and popular morality cannot dictate constitutional rights. We have to vanquish prejudices, embrace inclusion and ensure equal rights.” 

There was hardly any news that could give us any relief these days. But then this historic judgment arrived and gave essence to the term ‘liberal India’.

We had been free for 71 years now, but still, some of us were not. Because the society we live in is majoritarian and irrational. So many people do not find ‘non-consensual sex’ (rape or marital rape) to be a mental illness, but they have a problem with consenting adults, especially of the same gender. We must acknowledge Justice Indu Malhotra’s call for a national apology to the LGBTQ community.

Everyone is happy because of this judgement except certain religious ‘mentors’ who seem a little hurt, as they might lose some of their customers now. Frankly, nobody wants to leave their real identity. After all, “hum jo hain so hain” (we are what we are) is a precious attitude. But I often wonder how were they planning to cure this so-called disease? And what inspires them to claim they can, and that too with so much confidence?

A Long Struggle For Equal Rights

157 years of hate is a long time, and it was a huge struggle for the community. In India, the movement to repeal Section 377 was initiated by Aids Bhedbhav Virodhi Andolan in 1991, after the historic publication of “Less than Gay: A Citizen’s Report.”

In 2001, the NAZ Foundation filed a Public Interest Litigation for the same in the Delhi High Court.

In 2003, the High Court refused to consider the petition. And when the NAZ Foundation appealed against the High Court’s decision, to the Supreme Court, the latter sent back the petition.

In 2008, at the time of the hearing, there was uncertainty between the home and health ministries of the government. Later, July 2, 2009, the high court overturned the then 149-year-old section, and legalised consensual sex between same-sex adults.

Indian members and supporters of the lesbian, gay, bisexual, transgender (LGBT) community attend a Rainbow Pride Walk in Kolkata on December 13, 2015. Marching in solidarity and in celebration of their diversity, the LGBT community demanded equal legal, social and medical rights.
Photo credits: DIBYANGSHU SARKAR/AFP/Getty Images

But on December 11, 2013, the Supreme Court reinstated this judgment. Many of our politicians supported it. Sadly, the ruling party leaders also endorsed the judgement, except for a few such as MPs Piyush Goyal, Arun Jaitley and Shaina NC. It is shocking that all the religious leaders came together to support this verdict too like it was some spiritual decision and their beliefs were reinforced by it. I wonder why sex hurts them all so much and how do they think they came into this world exactly? Almost all Congress leaders spoke on how the judgment was worth considering (though that they had not promptly contributed even a dry stand meant something in the regressive scenario). For them, it became an agenda for the 2014 general elections. Even Sonia Gandhi asked Parliament to put an end to Section 377. Brinda Karat, Shivanand Tiwari, Derek O’ Brien—all representatives from different parties—and Aam Aadami Party also expressed their disappointment with the judgment. Then, on December 22, 2013, the Central government filed a review petition against this verdict. But on January 28, 2014, the Supreme Court dismissed the petitions filed by the Centre, NAZ foundation, and many others. It was on December 18, 2015, that MP Shashi Tharoor introduced a private member bill to replace section 377 in the IPC and decriminalise consensual same-sex relations. But the bill was defeated in the first reading (what else one could expect in 2015?). In March 2016, he reintroduced the private bill, but it was voted down again.

A New Hope For The LGBTQ Community

Now, finally, in 2018, five judges—Rohinton Fali Nariman, A. M. Khanwilkar, D. Y. Chandrachud, Indu Malhotra and CJI Dipak Mishra—gave a unanimous verdict.

Nariman stated, “Homosexuality cannot be regarded as a mental disorder, and homosexuals have the right to live with dignity.” 

A. M. Khanwilkar said, “To deny the LGBT community of their right to sexual orientation is a denial of their citizenship and a violation of their privacy. They cannot be pushed into obscurity by an oppressive colonial legislation. And Decriminalisation is but the first step; the Constitution envisages much more.” 

Indu Malhotra said, “History owes an apology to those who have been persecuted and socially ostracised because of section 377.” 

And Justice Dipak Mishra remarked that “Sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of freedom of expression.”

What Lies Ahead?

Activist Bindu Madhav Khare said he was afraid that this moment would be scattered. As initially, all were fighting for the whole LGBTQ community. One community can’t be separated from another. It is necessary to be united, as important issues like adoption, property rights and more have not been sorted out yet. I read a few stories of how parents are happy for their children from the community. Even if society will take time to accept the truth, the law is on the side of justice now. And it is a positive side. It’s always best to live our life on our terms. The society will always find faults with you so, it’s better to follow your heart and not to think about them.

Photo by Sonu Mehta/Hindustan Times via Getty Images.

Law and order are not going to punish queer people for being themselves anymore, so it is time to celebrate this hard-earned freedom, and never forget these words from Justice Misra—“Not to express is equivalent to death.” So, express yourself, love yourself, love the person you want to, and make your life simpler.

Queer Rights In Jammu & Kashmir

The world needs to accept love and liberty. India has recognised it. The state of Jammu and Kashmir is still away from this judgment, as the IPC does not automatically extend to it, and it has its own Constitution, and Ranbir Penal Code (RPC). But this judgment is a ray of hope for activists. An advocate for LGBTQ rights, Dr. Bund is fighting in J&K for the rights of this community. Leaders like Mehbooba Mufti and Omar Abdullah, who are always up to date with social media, have not uttered a word on this issue. So, in J&K, homosexuality is as sensitive as the state itself.

Now, provisions of Section 377 will only continue to govern non-consensual sexual acts against adults, all acts of intercourse against minors, and acts of bestiality. At last, we have come a long way, but we have to go further, so this is truly historic judgment becomes accessible to every single person belonging to this community.

Kudos to the judiciary!

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

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Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

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Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

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MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

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A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

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A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on has already gathered support from over 90000 people and continues to grow.

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