Section 377 judgment on same sex relations: One year later, has anything changed?

Celebrations at Town Hall, Bengaluru, after the Section 377 judgement   | Photo Credit: V Sreenivasa Murthy

September 6 marks one year since the historic judgment by the five-judge Constitution Bench of the Supreme Court in reading down the provisions of Section 377 of the Indian Penal Code and decriminalising consensual same sex relations. We talk to queer people and lawyers in Bengaluru to find out what their reactions were to the Navtej Singh Johar judgement, whether things have changed in the last year, and what needs to be done next

We need more conversations

Last year when the judgement came out, for the first few hours, my reaction was very academic. And then the emotional significance of it hit, which was a very overwhelming feeling.

I think things have changed in the last year, in the sense that, people are openly accepting of the queer community. Many from the community have come out to their families and in their workplaces. There are certainly more open conversations about the queer community that are happening now. But broadly, when talking about social acceptance and the rights and privileges the community has, I don’t see much of a change. The police has not been sensitised and the government has to do something as per the Supreme Court judgement. Many doctors still consider homosexuality a disease.

Section 377 judgment on same sex relations: One year later, has anything changed?

We need more conversations around queer identities, who are they and what their lives are like. Even though there is a lot more open conversation, it is in a celebratory sense of the community, especially in mainstream spaces. Corporates will run Diversity and Inclusion initiatives to hire from the community without any understanding of who the community actually is. There should also be more sensitisation which will happen with more conversations.

One of the things that the Section 377 judgement has done unfortunately, is that it has fragmented the queer movement. Because it was something that the various identities within the queer community could rally behind. Now that the law has been read down, people, who are on the more privileged end, don’t want to engage in any of the fights on gender and sexuality.

Anirudh G, social worker and human rights activist

The missing years

For us, the rightness – both morally and legally was very clear. When the 2013 Supreme Court judgement overturned the 2009 Delhi High Court judgement that had read down Section 377, that was a blow. There is a lot of argument about the law such as how important is it, is it that important and so on. But the fact remains that we were asking for very little; we were asking not to be criminals for existing. And that phrase ‘miniscule minority’ was used by the judges (while delivering the verdict in 2013). It was terrible. So, when the judgement came out last year, I was like ‘About time!’.

The law was about one specific thing, that is the right to love in private and we say ‘Ok, now we have the right to love in private’. Being free of that particular burden, freed a lot of people. That one very big stick to beat us with has gone.

Section 377 judgment on same sex relations: One year later, has anything changed?

In terms of what has changed, one of the first things you saw at the pride march was just the number of people who were there without masks; people who wouldn’t have come there before. The movement has been kind of driven by transgender activists, sex worker activists, lawyers and organisations. But the transgender community is still fighting against the Transgender Bill.

Some of us are still vulnerable to violence on the street but it’s on paper that we can’t be put in jail. Some things change and some things don’t. There is still a lot to do. If you consider the Surrogacy Bill which prohibits commercial surrogacy. It also drastically limits who can be a surrogate for you; it has to be a family member.

Rohini Malur, writer, poet and founding member of All Sorts of Queer

Mass change in the courts

My part was to represent the transgender perspective. In 2014, the NALSA judgement was passed by the Supreme Court where they recognised the right to gender identity. Because of that, from 2015, we started exploring how we could use the judgement in the ongoing case. At that time we were looking at many trans rights issues as well. Akkai Padmashali was keen to do something about it and we thought instead of trying to revive the curative petition that was there, we should file a new petition. Also, there was no transgender person among the petitioners. We filed the new petition in 2016.

All along we were working on other trans rights issues in Andhra Pradesh and Karnataka. Then in 2017, we had the Right to Privacy judgement, which, of course, gave a big boost to the issue as it specifically spoke about gender identity and sexual orientation.

As for whether there have been changes, I think so. Complete transformation is not going to happen so quickly. But there are certainly positive changes on the ground.

Discrimination is still there but there is a social acceptance of sexual orientation and gender identity rights. Because of the strong judgement, people do have to accept that gender identity or sexual orientation may be different but the Constitution protects it. So, one level there is an openness in talking about these issues and a positive response by people.

Second, we see that there has been a mass change in the courts. After September 2018, we have got positive judgements from different courts on trans rights. It is going to take a long time for many other things to happen but it has already started.

Jayna Kothari, Senior Advocate, Supreme Court, who represented petitioner Akkai Padmashali

Remaining work goes beyond the legal

I was happy when the judgement was delivered last year. It marked a watershed moment in national conversations around queer rights. The judges made references to queer literature, and art and talked about the culture of love in society. Most significantly, they recognised that the historical wrongs done to the queer community needed to be atoned for at a policy level.

Section 377 judgment on same sex relations: One year later, has anything changed?

However, a lot needs to be done at the socio-cultural level. The judgement has limitedly helped transgender people and those targeted by the police, but familial and social acceptance is still a pipe dream for many. It continues to be difficult to be open at workplaces and many are still forced into heterosexual marriages or are ostracised.

As a lawyer and drag queen, I think the remaining work goes beyond just the legal and has to percolate into the social and cultural. What I hope to see after this verdict is more conversations around the remaining rights of all queer people. We need to talk about violence, mental health, community, labour and work. Those with minimal access to platforms or venues need to be enabled to express their struggles and activism.

There remains a universe of socio-legal benefits available to heterosexual cisgendered people that is out of reach for the rest. In terms of legal rights, beggary and medical laws, provisions around gender identity and medical welfare are the elephant in the room. One must look at family law: inheritance, adoption, and parental rights. Marriage and divorce are some other domains that queer people have no scope to authentically access.

Kushboo, environment lawyer and drag queen

A lot of miles left to cover

The 2013 judgement broke our hearts. Last year, when the judgement came through, it was an emotional moment because it had been a struggle that queer people had been going through their entire lifetime.

There have been a lot of changes. The biggest being that queer people are a little more confident about themselves. There are a lot of people who have been able to find courage and come out post the judgement and even argue their case in front of their parents and peers.

Section 377 judgment on same sex relations: One year later, has anything changed?

Secondly, over the last year, corporates have jumped on to the celebrating queerness bandwagon. Irrespective of whether they are coming from a purely commercial perspective, there are more organisations who are either openly supporting queer rights in their own workplaces or paying for events and advertising and supporting causes such as the pride march and so on. Thirdly, from what I have seen, for queer people, especially gay men, blackmailing was always a cause of fear. Now post-judgement, that spectre has gone away. The fourth is that there is a lot more conversation about it. It has become more mainstream, not just in the media but also among peers and colleagues and so on. I think the decision has had an impact on multiple levels.

As for where we go from here, there are a lot of other rights such as marriage and adoption that come into play. Though it is now legal, there are a lot of miles to cover before it reaches social sanction. The social awareness and discussion needs to continue.

Rovan Varghese, queer affirmative counsellor, and co-director, BQFF

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Printable version | Dec 8, 2021 2:54:00 AM |

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