A law to accord an ex post facto pardon to those who were convicted under Section 377 of the Indian Penal Code (IPC) would do poetic justice to the LGBTQ+ community and Professor Ramchandra Siras. What happened to Siras is a perfect example of the persecution faced by the LGBTQ+ community in India. He was a Professor and head of the Department of Modern Indian Languages at Aligarh Muslim University. On a winter night in 2010, two men trespassed into Siras’ house and caught him having consensual sex with another man. Siras was suspended by AMU for “gross misconduct”. Hansal Mehta’s critically acclaimed biopic, Aligarh (2015) , portrayed the social ostracism and mental trauma suffered by Siras. Even though he won his case against the university in the Allahabad High Court and got his job back, Siras died a mysterious death on April 7, 2010.
Alan Turing law
From Oscar Wilde to Alan Turing, many well-known as well as unknown people were haunted by anti-LGBTQ+ laws, and many jurisdictions repented later. A memorial in honour of the gay and lesbian victims of National Socialism stands in the city of Cologne in Germany today. The U.K. passed the Alan Turing law in 2017, which grants amnesty and pardon to those convicted of consensual same-sex relationships. The law is named after Alan Turing, the computer scientist who was instrumental in cracking intercepted coded messages during World War II and was convicted of gross indecency in 1952. The Alan Turing law provides not only a posthumous pardon but also an automatic formal pardon for living people.
Also read | Section 377 and Aligarh Muslim University's Shrinivas Siras: Eight years later
R. Raj Rao, in Criminal Love?: Queer Theory, Culture and Politics in India (2017), says homosexuality has always been looked upon with disfavour by three agencies universal to mankind: religion, law and medicine. Among them, the law committed the “most unkindest cut of all”. From 1862, when Section 377 of the IPC came into effect, until September 6, 2018, when the Supreme Court of India ruled that the application of Section 377 of the IPC to consensual homosexual behaviour between adults was “unconstitutional, irrational, indefensible and manifestly arbitrary” , the LGBTQ+ community was treated as a criminal tribe in India.
Resurrection of Naz Foundation
The Delhi High Court’s verdict in Naz Foundation v. Govt. of NCT of Delhi (2009) resulted in the decriminalisation of homosexual acts involving consenting adults . The Court held that Section 377 offended the guarantee of equality enshrined in Article 14 of the Constitution, because it creates an unreasonable classification and targets homosexuals as a class. Justice A.P. Shah observed in the judgment that discrimination is the antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.
“Specifically, Naz Foundation understood that in promising non-discrimination and equal treatment before the law, the Constitution spoke to a past — and a present — where certain personal characteristics had become the sites of structural and systemic exclusion, marginalisation, disadvantage, and indignity. The jurisprudence of Naz Foundation was an attempt to fulfil the constitutional purpose of redressing this reality,” writes Gautam Bhatia in The Transformative Constitution: A Radical Biography in Nine Acts (2019). In a retrograde step, the Supreme Court, in Suresh Kumar Koushal vs. Naz Foundation (2013), reinstated Section 377 in the IPC. Fortunately India witnessed the resurrection of Naz Foundation through the apex court’s judgment in Navtej Singh Johar & Ors. v. Union of India (2018).
Also read | Two years since Article 377 annulment, LGBTQ community still battling prejudice
The spirit of Navtej Singh Johar should be pushed further. To make amends for the excesses committed against the LGBTQ+ community in the past and present, the Indian state should enact a ‘Siras Act’ on the lines of the Alan Turing law. Ex post facto pardon may be a novel concept in India, but it would do justice, even though delayed, to the prisoners of sexual conscience and Siras.
Faisal C.K. is an independent researcher
