Interpreting the Constitution is not an easy task. It requires deft manoeuvering through its lanes and by lanes, without losing sight of the broad road map laid down by the founding fathers.The Naz Foundation, an NGO filed a public interest petition in 2004 to challenge the constitutional validity of Section 377 of the Indian Penal Code, which criminally penalises “unnatural offences”. Section 377 of the IPC is read as follows: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life…”.
Based on the PIL filed by the Foundation, the High Court's judgement lies in the favour of India's transition from a supressed to a more open and diverse nation that accepts human nature as it is triggered by the principle of non-discrimination and equality.
According to a survey, it has been found that the Union of India has the number of “men who have sex with men” (MSM) at around 25 lakhs and the number of lesbians and transgenders at several lakhs. We can say that the Delhi High Court has given a broader meaning to the expression of sex because one cannot be guaranteed the Right to Equality (Article 15) on one hand and be discriminated under sexual orientation on the other.
India can only emerge as a modern democracy when it will be based on the principle of majority rule implicitly recognising the need to protect the fundamental rights of all. In fact, where the society can display inclusiveness and understanding, those perceived by the majority as deviants can be assured of a better living by the policy of non-discrimination. The significance of the judgment, I feel, lies in the fact that it will give an altogether new dimension to the identity politics in the country.
The Naz Foundation’s endeavour should thus be applauded because they, by creating a common note of unity among the people who are termed as queer has actually recognised the emergence of new identities. They have also sidestepped the lingering concerns about the elite roots and urban biases of the queers. This is so because homosexuality has always been considered the sex or the fashion of the urban society, a completely metropolitan concern.
When the Delhi High Court struck down the provision of Section 377 of the Indian Penal Code (IPC) that criminalises even consensual sex between same sex individuals, it also effectively opened up public space – ling inaccessible for the queer movement in India. This historic decision not only permits the queer community to carry out a much more democratic struggle, it also complicates class and gender issues in the country.
The decision, thus has given the queer community basic access to law. Previously one could not be identified as a homosexual because it was a crime. And when there occurred any breach of their civil rights, they could not go to the police station because their identity could not be disclosed. This law was actually during the rule of the British. The British wanted to enter the Indian family space and dictate even our private matters. But after Independence, this law should have been done away with, since it discriminates on the ground of sex, essentially a private concern.
One might argue that in a country like India which is just in the stage of development, the relevance of the queer movement stands obscure, when there are much more pressing issues at hand. However this is not wholly true. A Dalit woman, who is attracted towards the same sex will have existential issues to deal with other than her sexuality. But her sexuality is an integral part of her life like any other individual and it cannot be isolated from her.
I feel that the queer movement need not be seen as a minority movement as it is as much a political movement as other democratic struggles. The movement thus cannot be sustained only in the courtrooms. How long would the seek justice? They should thus try to get involved at the legislative level.
There has been a great amount of debate regarding homosexuals and their unnatural sexuality. But the question that bothers me is “What is so natural about being a homosexual”? The religious groups are out on the streets protesting the decision of the Delhi High Court.
Till date they have not bothered much about our choice of food or the clothes we wear and other private matters, then why sexuality? Then there are questions of patriarchy that pop up. Legalisation of homosexuality would mean marriage between such individuals which essentially challenges the fabric of the patriarchal society, destabilising the religious status-quo.
Well, the legal battle has been partly won. But for the movement to flourish, it needs the support of people other than, who belong to the homosexual community. India is their country and they have an equal right to live as they wish. We should try to go beyond the pre-set social norms and structure of the society and concentrate on healthy human existence.
My article published in Meri News
curious stuff
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