Will the Queer community in India finally get justice in the apex court of India? Social Networking sites are abuzz today with the queer community anticipating some sense of justice to finally prevail. Some of facebook status go like this-
In a few hours, the supreme court will decide on whether it wants to right the wrong committed in 2013. But it’s important to realise that this is not the last hope, or the end of the road. The court doesn’t determine our destinies, we do. We did it when we fought our demons at 13, when we were bullied, beaten and ridiculed in schools and colleges, when our families disowned us and when our rights and desires were criminalised. Those among us who are homeless, sex workers, visibly queer face unimaginable brutality every day. Yes, we hope. But that hope is backed with the belief that we have fought bigger battles and won everyday, and no matter what happens, we won’t go back.#nogoingback
It was another 2nd of a month when the Delhi High Court delivered its fabulous verdict on 2nd July 2009.
Hope 2nd February 2016 will also mark a happy day when the Supreme Court decides to admit the curative petition.
BUT whatever the outcome today at the Supreme Court, let us stand united & forge ahead, smiling and loving.
Love you all
Chapal Mehra wrote on the 1st of February in The Hindu
If personal liberty, freedom and justice are the foundations of this republic, surely tolerance and diversity are its strongest pillars
Nations are born of ideals and ideals are what preserve them. Few Indians would disagree that the ideals behind a diverse and inclusive democracy and society like India are plurality, equality and justice. Yet, every now and then comes a moment when a nation or a society must stand up and defend its ethos.
India’s Supreme Court faced such a moment this week — to review its own flawed judgment upholding a discriminatory Victorian law against “unnatural” sexual acts between consenting adults. The Court’s decision not to review this judgment laid bare not only its lack of concern for minority rights but also its intention not to protect the ideas of justice, liberty, and equality guaranteed to all Indian citizens by our Constitution.
Several questions arise from the stand of the Court. Should the law control and discipline our bodies and our right to choose our sexualities, our right to love? Would you as an Indian allow the state to dictate whom you can love and how you choose to love within the confines of your own private spaces? If not, then how can any court, however supreme, deny this right to some Indians or even one?
The law that this judgment upholds makes criminals of all Indians whose desire for sexual intimacy does not abide by a certain definition, regardless of sexual orientation.
For a moment, let’s consider who gave us this definition. And does it stand up to any scrutiny? We, the argumentative Indians, have never adhered to any particular definition of sexual pleasure. Strangely, the Court ignored the rich and diverse cultural, historical material placed before it to prove that sexual diversity and same-sex love have been an essential part of Indian history. Why was our history, our celebrated diversity, our inclusiveness ignored in this case? Are sexual minorities, any less Indian because they seek the right to love that many may not approve of?
Even though this law applies to every Indian, it has primarily been used to harass, coerce and terrorise India’s sexual minorities. There exist countless testimonies illustrating this misuse. By refusing to review an unjust judgment, the Court has strengthened oppressive forces and encouraged intolerance, increasing the fear with which India’s sexual minorities live everyday. How can any court in a democracy allow for the deliberate persecution of a minority? Can our love be so unequal in the eyes of the law?
During the hearings, the earlier bench admitted they didn’t know of any gay people and later termed them minuscule. Well, minuscule or not — we exist. India’s sexual minorities are now a visible part of its mainstream. We work in diverse professions, pay taxes, vote, and abide by the rulebook — like other Indians. We also feel fear, joy and sadness and want to love with dignity and seek happiness — like all other human beings. The Court cannot, on account of majoritarianism or its ignorance or prejudice, deny us our fundamental human right to love and seek happiness. As acts go, this one is truly unnatural.
Perhaps, the Court does not realise that its position on this matter will determine and shape the discourse on not just the rights for sexual minorities but all minorities in India. The Court need only to have remembered the multiple histories of the women’s movement, the Dalit movement, the movements for workers’ rights. Would equal rights ever have been possible for any of these constituencies if ideas of equality, justice and inclusiveness had been dispensed with? Were not ideas of inter-caste or inter-religious marriage radical and socially unacceptable till some time ago? Yet, we did not allow the curtailment of the right to love on the basis of social acceptability. Then why should it be constrained on the basis of sexual orientation?
It was our hope that the Court would introspect and discover in itself the courage to self-correct a regressive and erroneous judgment. Instead, it dismissed us tersely without explanation or compassion. It has upheld an unjust colonial law inserted into the Constitution by a prudish colonising power. By doing so it takes away hope and dignity, making millions into criminals. We are disappointed but not defeated. We are determined to fight every day — in our homes, in our workplaces, on the streets — you will see us everywhere, seeking our right to love. We will not be silenced.
We will also not forget the just and compassionate 2009 judgment decriminalising homosexuality that gave us sanctuary in constitutional ideas of equality and justice, reinforcing the inclusiveness of the Indian state. It will strengthen our resolve to fight till we can love with freedom and dignity. A right the Court could not find the strength and the courage to give to us.
(Chapal Mehra is an independent writer based in New Delhi.)
Gautam Bhan wrote in The Hindu today:
A test of dignity and democracy
Today, as the Supreme Court hears the curative petition on Section 377, it has an opportunity to remember its promise to be the last resort of the oppressed, to let dignity be the domain of all.
In 2015, a student at the Indian Institute of Science (IISc) in Bengaluru was blackmailed and threatened with being publicly outed for being gay. When he refused to pay extortion money, the private letters turned into notices pinned on noticeboards on campus. The words were sharp, relentless and inhumane: “I think it’s completely shameful, bad, immoral and disgusting. You should go kill yourself. Why do you think it’s illegal to be gay in India?”
For many queer people, this moment is familiar. It is one that many of us have faced or live in a constant fear of facing. In some ways, it is the latter that is worse. We live our lives anticipating prejudice. Even before it comes, we are constantly censoring, moving, and shaping our lives to evade it or, if we can’t, to survive it. Those of us who have the privilege of privacy scan rooms to find allies, weigh what to tell our doctors, measure out information in our offices, and seek safe spaces. Those without this privilege face a much more direct battle to be who they are: an unrelenting and legitimised public violence that falls on working class bodies in our streets, police stations and public spaces. The law is not the only force behind this violence, but it is an important one. “Why do you think,” the blackmailer asks, “it’s illegal to be gay in India?” When petitioners in the Naz Foundation case argued that Section 377 of the Indian Penal Code played an important part in shrouding our lives in criminality and of legitimising violence, this letter was one of many that we wrote against in our heads.
Yet, what happened next is also a story of what has changed since 2001 when the case was filed. The student, at some point, answered his blackmailer. He pinned a reply on the same noticeboard and spoke about not being ashamed of his sexuality. Even before the Delhi High Court judgment of 2009, the language of how we talked about homosexuality and gender identity had begun to — slowly, but surely — shift. When we spoke about our lives, we spoke of dignity, not obscenity; of persons, not acts; of friendship, love and sex; of genders in the plural, not the fixed and dichotomous; of a full human life. We fought our demons, we marched on streets, we made support groups, we sheltered people who ran away. We lost many along the way. Too many. We will lose more still. Yet slowly, even if still incompletely, queer people have begun to win the greatest battle of our lives: we have begun to believe that we have the right to have rights. We have begun to believe that we have the right to dignity, the right to our bodies, the right to be happy. Whether these rights come through law or through struggle, they will come. In a moment where there are so many that are made to believe that they are redundant and negligible, the value of this cannot be underestimated. The Delhi High Court judgment made us believe it that much more — perhaps another generation has inherited only some of our fears. You cannot blackmail someone, said the student who isn’t ashamed.
Why a curative petition?
So then why does the curative hearing against Section 377 matter? The answer is the most basic principle of the quality and humanity of a democracy: dignity should not be a test. It should not take acts of courage, of defiance. For every queer person like the IISc student who wrote back to his blackmailer, there are dozens who didn’t, who won’t, who can’t. Professor Ramchandra Siras is not with us today. The law may not change our lives overnight, but neither can we undermine its oppressive force and what it takes to survive it. To be queer in India today requires an astonishing amount of economic, gender, and caste privilege. When dignity requires privilege, democracy has lost its way.
To make queer lives ordinary will take a number of different fights. The law is one such fight, and it is a critical one. In our lives, we feel the law not just as prosecution but as a moral register and ethical compass. It tells us how to think about ourselves and tells others how to think about us. It stands behind the gang rape in a police station, the forced conversion therapy in the psychiatrist’s office, in the drawing room of the family which disowns a gay child or forces a queer woman to marry.
It speaks not just to queer people but to the worlds we inhabit. From one of the most powerful paragraphs of the 2009 Delhi High Court judgment: “For every individual, whether homosexual or not, the sense of gender and sexual orientation of the person are so embedded in the individual that the individual carries this aspect of his or her identity wherever he or she goes. While recognising the unique worth of each person, the Constitution does not presuppose that the holder of rights is an isolated, lonely, and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times.”
The judges in Naz Foundation sought to use the law to build a space around our lives that would embrace, protect, nurture and even love queer people. They never spoke of tolerance. They imagined law at its best, its highest form, as a space that would not just protect difference but value it. When they asked us to embrace our constitutional morality, they gave us a way to be democratic — to separate our personal beliefs, our personal moralities, our faith, from our duties as citizens in a plural, open world. They urged us to breathe life into the spirit of our Constitution. They argued that the Supreme Court must, of all institutions, stand first and foremost to defend this spirit, to infuse the frozen letters of law with meaning and hope, to lead in a society scarred by layers of inequality and injustice. They argued that it should not need violence for us to want to ensure the dignity of our fellow citizens. They reminded us and themselves that they stand behind the rights inherent in us, and seek only to expand and protect them.
If we lose Naz, it is not gay rights we lose. We lose this imagination of our Constitution, of our court, of law and of the possibility of justice. We lose our ability to make dignity ordinary and injustice rare. We lose law at its most powerful and return it to its most penal.
Today, as the court hears the curative petition, it has an opportunity. An opportunity to defend not a “minuscule minority” but a democracy we all share. An opportunity to remember its promise to be the last resort of the bewildered and the oppressed, to remember that rights expand and grow and that they cannot be, must not be, taken back and shrunk. An opportunity, more than anything, to write back to the blackmailer’s letter and tell its author that they will not let dignity be the domain of the few and injustice the everyday of the many.
(Gautam Bhan is a writer and sexuality rights activist.)