In the wake of Human Rights Day which was observed on Tuesday, it is an irony that our nation marked it with denying the human rights of the minority community comprising of lesbian, gay, bisexual and transgenders (LGBT). The Supreme Court on the magical day of 11.12.13 held that consensual sex between adults of the same gender is an offence.
In 2009, the Delhi High Court struck down the provision of Section 377 of the Indian Penal Code which criminalised consensual sexual acts of adults in private, holding that it violated the fundamental right of life and liberty and the right to equality as guaranteed by the Constitution. And thus “carnal acts against the order of nature” was decriminalised.
As per the new verdict, gay sex between consenting adults will go back to being a criminal offence under Section 377. “From yesterday night we had great anticipation that the verdict will be positive and will be in our favour. Everyone gathered for a celebration for the gay sex acceptance but the Supreme Court’s verdict has come as a shocker and almost all of us were in the verge of tears,” says Jijo Kuriakose, an open gay from Kochi. “As per the new law we are born as a criminal and have to die as criminals,” he laments.
Having a different sexual orientation is a case of science, psychology and human rights. “Being a gay or lesbian or transgender is a state of mind of an individual and often our judicial bodies do not make laws taking into consideration the humanistic element of an issue. By considering gay sex as a crime will only have a negative impact on society. Out of fear of discrimination, this minority group will not open up, thereby leading a stressful and frustrated life. Because of societal pressure, gay and lesbian people will be forced to marry someone and their partners will be the victims of an unhappy marriage,” says C J John, chief psychiatrist, Medical Trust Hospital.
“I think as straight people have the right to live in this society, gays and lesbians too have equal rights to live here irrespective of their sexual orientation. I would say society should atleast have the mindset to accept and give them a space to live their own life too,” says Reji Paul, a media professional.
With the new verdict, there will be no legal protection for LGBT people, opines Nishad C A, an open gay from Kannur and a social activist working for MSM project. “By this verdict it will be the youngsters who will be affected the most. From morning I am getting queries from young gay and lesbian people whether they will be arrested by police and whether they are criminals due to their sexual orientation. Supreme Court’s decision has made the years of work by various organisations to make a progressive change in the society go in vain. Till now there was a hope for youngsters that soon society will accept them but as a result of the decision they will again shrink back to their cocoon,” he adds.
Another contradiction that social activists point out is the presence of various community-based organisations and projects working for LGBT rights that were present in the country for over some years.
“Even when Section 377 existed, there were organisations supported by Indian government which worked for the upliftment of the minority class. And with this new law, there comes a question if gay sex is crime and gay people criminals, then whether these organisations are safe guarding criminals?,” quips Nishad.
“It is a complete denial of human rights and freedom. We still don’t know whether the decision is politically driven or religious. At a time when the Pope himself has supported the LGBT, this decision from the Indian judiciary comes as a disappointment,” says Shyam C S, counsellor in Voice (a community-based organisation in Thrissur) and an open gay who is living with his partner in Kerala.
“The verdict has come as a lack of understanding of science, human rights and psychological behaviour of individuals. It has taken away hope from young people. Police can harass LGBT people as it is a crime. But above all, I think people who are straight have started to accept and protest for having brought out such a verdict which is rather a change in the society,” feels Deepak Kashyap, counselling psychologist and a gay himself working for LGBT rights in Bombay.