Supreme Court Verdict On Section 377- My Understanding.

Episode 3 of Satyamev Jayate looks at the unfounded perceptions and biases that the LGBT – Lesbian, Gay, Bisexual and Transgender – communities in India have to battle.




Please view this video to get an idea about Section 377.


Full text of Supreme Court's verdict on Section 377 on September 6, 2018

Supreme Court verdict on Section 377 on September 6, 2018.


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How I wish, the world had only 2 sexes and that both were equal? How I wish, everybody abided by the law or there was no need for a law at all? How I wish, everyone respected each other and followed a live and let live policy? How I wish, there was no discrimination practised in any sphere of life? A utopic world is a mirage. We live in a world that has survived on exploitation and discrimination in the name of religion, caste, colour, race, region and sex.

Who made these rulebooks? Obviously someone smarter, powerful, selfish, dominant… Agreed that to keep a system working in a disciplined manner certain rules and regulations are necessary but what happens when the rules are draconian, exploitative or discriminatory? Who will safeguard the interests of the minority or the suppressed? Is it wrong to demand a rightful share of dignity?

Well, some people seem to think so! The ‘normal’ people had such apprehensions and reservations before allowing women to seek education, work to earn, seek a way out of suffocating marriages and even have equal voting rights! When democracy came into being in Athens, only slaves and women were kept away as ineligibles!

(Some women in the Isle of Man (geographically part of the British Isles but not part of the United Kingdom) gained the right to vote in 1881[1]. Though it did not achieve nationhood until 1907, the colony of New Zealand was the first self-governing country in the world in which all women had the right to vote in, but not to stand for, parliamentary elections in 1893, followed closely by the colony of South Australia in 1894 (which, unlike New Zealand, allowed women to stand for Parliament).[2] In Sweden, conditional women's suffrage was granted during the age of liberty between 1718 and 1772.[3]

In 1906, the autonomous Grand Duchy of Finland, which became the republic of Finland, was the first country in the world to implement truly universal full suffrage, i.e. both active and passive suffrage, by being the first country in the world to give women full political rights, i.e. the rights both to vote and to run for office. It was the second country in the world and the first in Europe to give women the right to vote.[4][5] The world's first female members of parliament were elected in Finland the following year. In Europe, the last jurisdiction to grant women the right to vote was the Swiss canton of Appenzell Innerrhoden (AI), in 1991; AI is the smallest Swiss canton with c. 14,100 inhabitants in 1990.[6]Women in Switzerland obtained the right to vote at federal level in 1971,[7] and at local cantonal level between 1959 and 1972, except for Appenzell in 1989/1990,[8] see Women's suffrage in Switzerland. In Saudi Arabia women were first allowed to vote in December 2015 in the municipal elections.[9] Ref:Timeline of women's suffrage - Wikipedia)

HIV was first detected in India in 1986. But almost for the next one decade, the general awareness was virtually nonexistent. I remember when HIV made its National presence felt with a lot of Government sponsored advertisements and articles, sometimes in 1995-97, the kind of panic we all went through! I remember discussing at length how the world would come to an end, I remember men wondering about their immediate concerns like the haircut and shave! The neighbourhood centre point-the Barbershop/ Saloon seemed like an untouchable centre! But with awareness and knowledge trickling in, that fear has now vanished! Today any surgical procedure mandatorily requires an HIV test! OMG!

The current ruling of the Indian Supreme court has decriminalized only the consensual sex between adults. That means, it has allowed people of alternative sex to practice their orientation and lead their lives with dignity, without any sort of discrimination.

"LGBT Community has same rights as of any ordinary citizen. Respect for individual choice is the essence of liberty; LGBT community possesses equal rights under the constitution.

Criminalising gay sex is irrational and indefensible," said Chief Justice Dipak Misra, who headed the five-judge bench hearing the case.

It has kept pedophilia, bestiality and such aberrations out of this ambit. This is what I have understood from my brief reading. Since I compiled this article in haste, if I have missed out anything, that we, the normal people, have to worry about, please feel free to educate all.

Even in animals scientists have noted the occasional alternate sexual orientation. There have been many scientific studies done on this subject and it has been categorically declared that it is not a mental illness or a fashionable trend. Only those people with biological disposition indulge in these alternate sexual behaviours. So, ‘normal’ people can relax for now.

“The LGBTQ communities are making a concerted and unified effort to fight Section 377 and get it off the statute books. First, we made it very clear that we wanted to just 'read down' the Section to keep "consensual sexual relations between two consenting adults in private" out of the purview of Section 377. This was because we were very concerned that the Section was utilised to prevent sexual abuse of children and we wished to protect children.

However, after the POSCO Act* was passed, all sexual abuse of children is handled very competently under this law. We, therefore, don't need Section 377 at all. And hence our new demand is Section 377 needs to be abolished as any kind of un-consensual sex is now well defined under the new rape laws.

…The Supreme Court recognising the Right to Privacy where 'privacy' included sexual orientation gave us immense hope. It was that glimmer of hope that we are now following with great sincerity and hope that the constitutional bench hears our pleas sympathetically. We are now armed with a huge amount of data and grass root experience working with gay men and other LGBT across Mumbai metro and India under the Global Fund programmes Pehchaan and Diva. So yes, the Supreme Court judgment on privacy has been a catalyst for us to jump into the fray.

…The Humsafar Trust (HST) works on various issues faced by the LGBTQ community — legal issues; crisis situations with families; cheating, extortion, blackmail and violence faced by the LGBTQ community due to the very real and imminent abuse of law under Section 377. Since 2010, the HST Crisis team has addressed 83 crises cases in Mumbai. Of these 83, six cases involved an adult, homosexual male being blackmailed by the police under the threat of Section 377. In 12 cases, adult, homosexual males were threatened with false accusations under Section 377 — they were victims of extortion by ordinary persons, with the amount asked for going up to Rs 1,00,000.

An online peer-reviewed research paper of HST revealed that around 57 percent of 448 MSM (men having sex with men) and TG (trans, gay) respondents reported fear of IPC 377 with 37 percent having experienced victimisation within the last 12 months at the time of the survey. The chief perpetrators were persons posing as potential partners who often initiated meetings with the intention to blackmail gay and bisexual males, sometimes with the connivance of the police. The research further revealed that of 16 cases of violence and discrimination the HST crisis team handled in the immediate aftermath of the full reinstatement of Section 377 in December 2013, only five persons sought any legal recourse.

A 2011 HST study on the impact of the decision of the Delhi High Court reported that participants felt more comfortable being themselves and open about their sexuality. However, after the December 2013 Supreme Court ruling, 54 percent of participants believed that the change in law was a major setback to the community (as per our 2016 study, Understanding the Impact of the Supreme Court judgment on Section 377 on LGBTQ Communities). While the decision of the Delhi HC significantly lessened if not eliminated discrimination, harassment and violence against LGBTQ persons by civilians and the police alike, the new findings (showed that) in the aftermath of the 2013 SC decision, harassment and violence not only significantly increased but also lead to blackmail. Around 41.2 percent of the participants had been subjected to blackmail or knew someone who had faced extortion.

HST conducted a study in 2017 with the transgender community in three cities (Mumbai, Delhi and Bengaluru) assessing their needs and situation: 59 percent of transgenders experienced violence from families, partners and police. HST has nurtured Umang, a support group of lesbian, bisexual and transpersons (LBT), and done a literature review of documented cases of violence against LBT between 2016 and 2017. The review details lesbian couples being harassed/dissuaded from staying together using Section 377. Between 2017 and 2018, HST — through Umang — handled four cases of lesbian couples facing harassment from police and their families for wanting to be in a same-sex relationship.”

Ref: SC judgment on privacy was catalyst: Humsafar Trust's Ashok Row Kavi on petition to quash Section 377 - Firstpost

*POSCO Act: Protection of Children from Sexual Offences Act (POCSO) - Arpan NGO

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Thanks, Lalithambigai, for the first positive feedback.

 

Thanks for your nice feedback, KP.

 

Thanks for the like, dear @satchitananda, but where is your erudite comment?

 

Thanks for the emotional feedback, Manisha. You are absolutely right; it is heartening to see some of those mothers and a few fathers supporting their children so wholeheartedly. It must be such an emotional journey for them.

Please go ahead and write your version on this topic, let us understand this matter better.