What’s in a name? “A rose by any other name would smell as sweet” enunciated Chief Justice Misra, referring to William Shakespeare’s play Romeo and Juliet during the 377 IPC verdict. Any person whether straight or gay, irrespective of the label-name assigned to him, is, in essence, a human. We cannot dispossess a person's humaneness or humanness and categorise him a criminal based on his sexual orientation, inasmuch as a pattern of desire is not determined by his choice. By implying so, his lordship overturned the colonial-era section 377 IPC and thereby created history.
The decriminalisation of the gay law has brought to end centuries of infamy and social isolation suffered by the gay community. Justice Indu Malhotra’s averment that the gay community deserved an apology for being ruled down equal rights is worth emphasising. Supreme Court by correcting an age-old wrong has not only filled the hearts of the gays with infinite joy and happiness but has also heralded a new dawn for them.
Rock music is what I was crazy about since my college days. In 2011 a chance introduction to pop queen Lady Gaga’s number “Born this way” blew me away. Soon after its release, the number skyrocketed to number one on the charts and sold more than a million records in a week. It deeply resonated not just with the gay community as a gay anthem but with each and every one who heard the song. The song reinforced the recent research, that biological factors that start before birth could cause sexual orientation. Sexual preference, therefore, is not a choice it’s a quirk of one's identity. No one really understands why someone is gay, lesbian, straight, or bisexual. It's a natural variant of human sexuality, not an abnormality. Circumstances beyond one’s control like the genes, sex hormones and patterns of brain organisation impinge on the sexuality of a person. Therapy, treatment or persuasion too cannot change a person's sexual orientation. Much like the title of the song, people are just perchance born this way.
Our ancient Rigveda plausibly recognised homosexuality as natural. It states plainly, “Vikriti Evam Prakriti” which translates to “What seems unnatural is also natural”. Historical literary evidence indicates that homosexuality has been prevalent across the Indian subcontinent throughout history and that homosexuals were not naturally considered inferior in any way until about 18th century. The ancient Indian text, Kama Sutra, written by Vatsyayana has a complete chapter dedicated to homosexual gratification and the Khajuraho temple abounds with several depictions. Transgender individuals held high positions in courts of Mughal rulers in the 16th and 17th centuries, even as Hinduism has traditionally portrayed homosexuality as natural and joyful. Modern societal homophobia was introduced to India by the European colonists and the subsequent enactment of Section 377 IPC by the British.
To inscrutable Thomas Babington Macaulay goes the credit of drafting the Indian Penal Code including the section 377. He also chaired the first Law Commission. Section 377 was cobbled together on the lines of the Buggery Act of 1533. All sexual activities contrary to the order of nature were criminalised under this act. The first draft of IPC was prepared in 1837, but it came to affect only in January 1862 after a series of revisions. Writer/Poet Oscar Wilde and legendary computer scientist, Alan Turing were some famous personalities who suffered prosecution under this section. Section 377 IPC continued to exist after India's independence without any alteration until September 6, 2018, when the Supreme Court of India abrogated part of section 377 of the Indian penal code legitimising homosexuality in India by striking down a law pertaining to a colonial-era which made homosexuality punishable by about 10 years in prison. The application of section 377 relating to sex with minors, nonconsensual sexual acts a
nd bestiality would however still be applicable.
Much before this in July 2009, portions of section 377 were first struck down as unconstitutional by the Delhi High Court. The Supreme Court of India on 11 December 2013 in Suresh Kumar Koushal vs Naz foundation, however, overturned the judgment. The Supreme Court further affirmed that amending or repealing section 377 should be a matter left to Parliament, not the judiciary. On 6 February 2016, a three-member bench of the Supreme Court reviewed curative petitions submitted by the Naz Foundation and others and determined that they would be reviewed by a five-member Constitution bench.
On 24 August 2017, the Supreme Court upheld that the right to privacy is a fundamental right. In January 2018, the Supreme Court resolved to revisit the 2013 judgment. On 6 September 2018, the Supreme court ruled unanimously in Navtej Singh Johar vs Union of India that section 377 was unconstitutional.
As far as the LGBT population in India is concerned there were 2.5 million gays recorded in India in 2012. These figures were furnished by the Government of India to the Supreme Court but they do not reflect the truth as most of the gays in India are living clandestinely due to fear of discrimination.
According to the National Crime Records Bureau (NCRB), as many as 2,195 gay sex cases were registered under Section 377 in 2016, 1,347 in 2015 and 1,148 cases in 2014. Uttar Pradesh topped the list in 2016, with 999 such cases, followed by Kerala 207. However, among the 1,347 cases registered in the country in 2015, in 814 cases, the victims were children. Not a single case under 377 IPC was registered in Tamil Nadu in 2016. According to an estimate of 2015, about 16,380 people in Tamil Nadu identified themselves as LGBT. Harassment, bullying and intimidation are found to be serious concerns for the LGBT people. There is a deep need to sensitize police to gay issues and challenges.
India remains among the least friendly countries for lesbian, gay, bisexual, and transgender (LGBT) people. On 15 April 2014, the Supreme Court declared transgender people as a socially and economically backward class entitled to reservations in education and jobs, and also directed union and state governments to frame welfare schemes for them.
In this regard, Tamil Nadu Government is hands down the most LGBT-friendly government in the entire country. Tamil Nadu is also the first state to introduce a Transgender Welfare Policy and it's also the first state to constitute a Transgender Welfare Board. The Tamil Nadu government has provided ration cards and access to sex reassignment surgery (SRS) free of cost to change their sex at the Government General Hospitals. It has also issued an order to create a third gender for admission to government colleges and for employment. K. Prithika Yashini became the first transgender woman to be a police officer in India. She became the first trans woman sub-inspector in Tamil Nadu along with 21 others in April 2017 and Swapna became the first transgender person to clear TNPSC Group IV exams. Many of the transgender community face negative treatment while using public spaces like toilets/ restrooms, places of worship, schools/offices etc. One solution for the restroom design would be to construct, unisex air-plane type single room mini-bathrooms which would address the privacy concerns of all.
Shakespeare’s rose allegory quoted in the very beginning, speaks a different language, possibly a more profound one to me. The smell of rose in the versicle appears to signify the essence of all life which is the spirit. When we live by the spirit, the differences in the outer world begin to disappear because the inner has become more real than the outer. We become healed.
In order to heal and transform the planet and wipe out all kinds of discrimination from our minds, we may have to live by the paradigm that we are spiritual beings having a human experience, rather than human beings having a spiritual experience
(The author Dr K.Jayanth Murali, an IPS officer, is Director DVAC, Chennai)
