A year later, LGBTQ still face barriers

It is often said that one year is a short time in the lifetime of a country, and even law, but one year could be a long tumultuous one in an individual’s life. On 6th September, 2018, the lesbian, gay, bisexual, transgender and queer (LGBTQ) community changed forever, at least in law, if not in reality. On that day, the Supreme Court of India in Navtej Johar & Ors. V. Union of India struck down Section 377, IPC, to the extent that it criminalized sexual acts between consenting adults, especially between homosexual persons, as unconstitutional. In doing so, the SC overturned its own appalling decision in Suresh Kumar Koushal v. Naz Foundation (2013), which upheld the validity of Section 377, thereby bringing to curtain one of the longest litigations in the history of India, starting from November, 2001 in Delhi HC in Naz Foundation v. NCT of Delhi (2009), with its roots going even further in AIDS Bhedbhav Virodhi Andolan (‘ABVA’) v. Union of India (1994). For over 20 years, the entire LGBTQ community had rallied around to repeal the law, and to claim their fundamental rights to dignity, freedom and non-discrimination, while navigating their sexual identity in family, schools, colleges, workplaces, and in public spaces.

As a queer lawyer working on LGBTQ rights for over a decade, I have been intimately involved in the legal struggle against Section 377, and experienced the ‘highs’ and ‘lows’ of the journey. I witnessed first hand the effect of Naz Foundation in the next four years. Thousands of queer persons came out to their families, friends, peers and colleagues, support groups for queer people rose exponentially, police harassment reduced, and most importantly, for the first time, queer persons felt that they were an equal part of a democratic country, with its constitutional promises of equality and dignity within their reach.

Then came the horror of December 11, 2013, the completely wrong and atrocious judgment of the SC in overruling Naz Foundation. No act of decriminalization itself can compensate for the decades lost, bullying in childhood, loneliness and isolation suffered, and constant feeling of being considered ‘less than human’. Almost five years later, when the Supreme Court finally struck down Section 377 on September 6, 2018, the overwhelming feeling amongst most of the lawyers and activists in the courtroom was that of sheer relief. The Court for the first time enunciated ideas of ‘sexual privacy’, ‘fluidities of sexual experience’, ‘public manifestation of sexual identity’, and ‘right to intimacy’, amongst others, which would go a long way in entrenching and protecting the constitutional rights of not just LGBTQ persons, but also inter-caste and inter-faith couples in India. The entire judgment was underscored by an emphasis on constitutional morality, and the transformative power of the Constitution, whereby in matters of “consensual intimacies, the Constitution adopts a simple principle: the state has no business to intrude into personal matters.”

One year is too short a time to assess any judgment, that too a path-breaking one like Navtej Johar, but not for those who are working on the ground with LGBTQ persons on a daily basis. In our experience in Delhi, we have seen a noticeable decrease in the cases of extortion/blackmail, especially social media like Grindr related, which had reached enormous proportions before.

However, what we have seen is a huge spike in lesbian couples facing family/police violence. During this period, we have handled almost 12-15 cases of lesbian couples either leaving their families or trans men leaving with their female partner. In one case, we’ve had to go to Delhi HC to get the married partner of trans man released from her parental home, and the HC very reluctantly allowed the woman to stay with her partner, especially since she was married. In another case, the parents of one of the lesbian partners filed a police complaint in Noida, and when we went with the concerned woman to withdraw the complaint, the police officer threatened us with registering the case, if bribe was not paid. In a third case, a lesbian couple from Punjab and Delhi had to seek shelter in a women’s safe house in Delhi, facing severe family violence and harassment. While the High Court granted protection order to the couple easily, the Court failed to understand the intensity and degree of the family violence, and sought to tell the queer women to adjust with their families, and not to disappoint their parents.

Besides Delhi HC, other High Courts, including Calcutta and Kerala, following the SC decision in Navtej, have protected the rights of lesbian couples or transgender couples to live with each other. The Calcutta HC held that “fundamental right to life under Article 21 of the Constitution of India inheres within its wide amplitude an inherent right of self-determination with regard to one’s identity and freedom of choice with regard to sexual orientation or choice of partner.”

What all these cases indicate is that there are no systems in place to facilitate the exercise of queer people’s choices. There is a desperate need for shelter homes or safe houses. One needs more lawyers who can do both crisis cases and regular handholding of people needing legal services as well as risk assessment. Most people who have displaced their lives are from lower middle class or working class background, with limited social and financial capital, and making a fresh start is not easy.

The last one year also shown that movements are not fought in isolation, but on the basis of solidarity and alliances. In the same year, when the queer community got its freedom, the dalit and Muslim communities were facing mob lynching and violence almost on a daily basis, from a Hindutva establishment hellbent on destroying all democratic institutions and constitutional norms. In the run up to the one year of striking down of Section 377, the Central Government has unilaterally and undemocratically abrogated Article 370 of the Constitution. The principles that existed in fighting against Section 377, i.e., fundamental right to dignity, autonomy, choice and self-determination, apply equally to other struggles, including Kashmir. As Dr. Martin Luther King had famously said, “injustice anywhere is a threat to justice everywhere,” there is a dire need for coalescing and coalition of all progressive forces to fight against this onslaught of ‘New India’, and to preserve and protect the Constitution in its true letter and spirit.

--Amritananda Chakravorty

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