Article 377 - Is India Ready For 'Homo Wapsi' ?
It is no doubt that scrapping article 377 of IPC which means decriminalising consensual gay-sex by the Supreme Court of India on September 6th, 2018 is a great milestone in our constitutional jurisprudence. While reviewing Navtej Singh Johar vs Union of India case, the apex court observed article 377 of IPC to be unconstitutional because it violates Article 14 (equality before law), Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), Article 19 (freedom of speech and expression, and to form associations or unions) and Article 21 (right to Life) of the constitution of India. This historical judgement has indeed not only given LGBTQ community people the constitutional right they deserve but also an opportunity to walk tall and openly with their heads proud and held high as equal citizens with dignity, liberty and fraternity. But does it solve the problem of atrocities against community? Does it ensure that they will be not be seen as different species altogether? Does it ensure that they will have as much as freedom as heterosexuals have? Does it prevent the community people from getting abused?
The point to be noted is that the very homosexuality which existed in India for more than till when we can even trace back has been crime till September 6th, 2018. What we learn from this is that homosexuality did prevail in India until some homophobic rulers came to our land and declare it as a crime. Before going into any detail one needs to understand abstruse phenomenon like Gender and Sex. I would only put it as- ‘sex is determined by what is between your legs but gender may or may not be the same as sex. Sex is what you can tell one’s sex is but gender is what one tells you one’s gender is.’ Traces of homosexuality can be found not only in the erotic sculptures on the walls of Indian temples but also in the literature. For example, if we were to believe Devdutt Pattanaik- a great mythologist and an eminent author, in the Valmiki Ramayana, Hanuman is said to have seen Rakshasa women kissing and embracing those women who have been kissed and embraced by Ravana. Padma Purana is the story of a king who dies before he can give his two queens the magic potion that will make them pregnant, eventually Bhagiratha was born by union of two widow wives. So, Indian soil did enjoy presence of homosexuality until Lord Macaulay drafted IPC section 377 in 1861 in British India which we have finally got rid of after almost 150 years.
Albeit homosexuality is decriminalised on paper, question remains how it will be abolished in so called orthodox mindset of Indians because most of the Indians are against it. That helps us understand why no government be it UPA or NDA came out on front foot for legislation for decriminalizing the same fearing they might offend the majority of voters. Congress parliamentarian Mr. Shashi Tharoor did try to introduce private member’s bill in lower house of the parliament in 2015 that sought to amend IPC section 377. Regrettably, it could not be introduced amid strong objections from ruling BJP and even his own party members walking out. Even when ruling government was asked to make their viewpoint clear they left it to ‘the wisdom of the court’ to which the Supreme Court had expressed its disappointment. People thought the Prime Minister would be having something to say about the landmark judgement unlike other issues in the country be it mob lynching or cow vigilantism. But old wine is only served in new bottle. After decriminalizing consensual gay-sex, strong demand has risen for allowing gay marriages, inheritance and adoption which can only be done by legislation which is I am afraid is not going to happen in near future because as stated earlier government is in no mood to offend majority of voters. Justice D Y Chandrachud, who was a member of the five-judge constitution bench which ruled that gay sex among consenting adults was no criminal offence expressed his criticism as reported by The Times of India-
"Why do politicians sometimes hand over power to judges and we see that happening in the Supreme Court everyday. We saw that in 377 where the government told us that we are leaving this to the wisdom of the court and this 'wisdom of the court' was too enticing a principle for me not to respond so I responded in my judgment the other day."
Back to the mindset of people, I have encountered several situations when people casually take a jibe at people by calling them gay/homo and according to them it is supposed to offend them. My sincere advise to these ‘trying to be extra cool’ people would be that keep your childlike behaviour to yourself and show some maturity because this may be a banter for you but someone who is even willing to come out will have a second thought and will live his/her whole life with the identity he/she so wants to get rid of. I can only imagine how this derision would be taking a form of ragging and bullying in higher educational institutes. This tells us a lot about our perception towards homosexuality. One would argue it is because of dearth of education. So, will quality education change the mindset of people? Not quite. BJP parliamentarian Mr. Subramanian Swamy – who is not only former IIT Delhi professor but also Harvard graduate in economist later assistant professor at Harvard- thinks Homosexuality is genetic disorder like having six fingers. But Indian Psychiatric Society has another thing to say. The Indian Psychiatric Society (IPS) has said “it is time to stop looking at homosexuality as a mental illness” stating there is no scientific evidence that sexual orientation can be altered by any treatment. IPS also states, “Homosexuality is not a psychiatric disorder and we recognise same sex sexuality as normal variant of human sexuality much like heterosexuality and bisexuality.”
LGBTQ community did get a fair share on silver screen, but mostly used as a tool for humour and comic relief. From early days of Indian cinema, Bollywood has misrepresented community and paved the way for homophobia. Movies like ‘Raja Hindustani’ in which Karishma Kapoor’s helpers were shown belonging to LGBTQ community but representation was utterly poor. In ‘Kal Ho Na Ho’ maid name Kantabai is seen shivering when she sees Shah Rukh Khan and Saif Ali Khan sleeping on the same bed. It only brought out point that having same sex partner is not ok and is against our acceptance. Not to mention ‘Dostana’ in which being gay is considered ‘Maa daa ladla bigad gaya!’ But in recent years content has evolved so has representation of LGBTQ community where films have shown struggle of community people to be accepted by society. Movies like ‘Aligarh’, ‘Margarita With A Straw’ and ‘Kapoor & Sons’ – are some of the movies which have shown sign of progress and carefully carved out reality.
In the US, when the court directed the legalisation of gay-marriages all over the country in 2015; verdict was widely accepted as large portion of American liberal society agreed with it. In India, however, case is opposite. Anderson Cooper or Don Lemon of the CNN or Tim Cook- CEO of Apple, or James Fitterling- CEO of Dow Chemical, can openly talk about their gay identity in US. But in India, homosexuality remains a matter of social stigma. A lot of Indians - even the educated ones - regard homosexuality as immoral, revolting and disgusting, law or no law. The country where people still struggle to accept dark skin people equal to fair skin ones, menstruation hygiene is still not discussed openly, there is a bloodshed on the basis of one’s ethnic identity; accepting same-sex partners is a very long way to go. Now it remains to see how some liberal Indians will perceive this historical victory of heterodoxy over orthodoxy. We can only hope this historical judgement does not end up abortive.