“No pride for some of us without liberation for all of us.”
— Marsha P Johnson
Every year, the month of June celebrates individuality, inclusivity and pride. The historic Stonewall riots of 1969 in New York serve as an important reminder of the struggles of the queer liberation movement.
India has, in the past half-century, made great strides in queer protection and empowerment, and the support for the community has been growing exponentially within the population. The Supreme Court of India, in its various judgements, has recognised the rights of the LGBTQIA+ community. In National Legal Services Authority vs Union of India, the SC held that Articles 14 to 16 and Articles 19 and 21 of the Constitution recognise gender identity and discriminating against someone based on their gender identity would amount to a violation of their fundamental rights. In Navtej Singh Johar vs Union of India (2018), the SC interpreted that Articles 21, 14, 15 and 19 of the Constitution include the fundamental rights to sexual identity, sexual autonomy, sexual privacy, and choice of partner. In 2019, the Transgender Persons (Protection of Rights) Act was passed.
Madras High Court judge N Anand Venkatesh in S Sushma vs Commissioner of Police, 2021, issued interim directions for proper recognition of the rights of the LGBTQIA+ community and to ensure their safety and security to lead a life of their choice. The bench itself went under a counselling session to help them understand ground realities, emotions, social discrimination and exclusion, and several other difficulties faced by the community.
However, as we draw the curtain on the 2024 pride month celebrations, a jarring change in the name of the Bharatiya Nyaya Sanhita, 2023 came into effect on July 1, 2024, replacing the Indian Penal Code.
In 2018, a constitution bench of the SC declared consensual sexual acts between adults were decriminalised and was seen as a historic win for the LGBTQIA+ community. However, the court withheld that non-consensual sexual acts, acts against minors and bestiality would still be governed by Section 377. The omission of these protections in the Bharatiya Nyaya Sanhita is a grave misstep that misreads the jurisprudence developed around IPC 377 and ignores the multifaceted nature of sexual violence in India. The Act, as it stands today, turns a blind eye towards sexual violence against male-identifying individuals, trans men and bestiality. It fails to acknowledge the struggles of the queer community.
I am reminded of a 2022 Punjabi film directed by Ramandeep Bhuttar titled ‘Jaggi’. Based on true events, the film highlights the sexual exploitation faced by men and the societal silence surrounding such experiences. In a society that perpetuates patriarchal norms, the victimhood of men remains taboo. According to the National Crime Records Bureau of India, 826 and 955 cases were registered under IPC 377 in 2020 and 2021 respectively. These figures likely represent only a fraction of actual incidents, with under-reporting rampant due to stigma, lack of awareness and police mishandling.
The Centre could pick a few pages from the playbook on governance from Tamil Nadu and learn how to build a more inclusive society, not a polarised nation. Under the leadership of CM M K Stalin, the TN government is currently working on establishing an LGBTQIA+ policy that promises a variety of empowerment initiatives, including horizontal reservations for trans and intersex individuals, stigma-free healthcare, the right to inheritance, etc. The former chief minister M Karunanidhi was known for a variety of policy inclusions and for coining the term ‘Thirunangai’ and ‘Thirunambi’, championing an era of the betterment of the lives of individuals from the LGBTQIA+ community.
I have, both during my time as an academician and later as a representative of the people, had the opportunity to interact with many individuals from the community. Their struggle for basic rights even after 75 years of independence, is unfortunate. In my time as a member of the Lok Sabha, I have spoken about many issues, including surrogacy laws and queer empowerment. On July 19, 2022, I spoke about the discrimination of the LGBTQIA+ community members as Matters Under Rule 377.
In a nation that prides itself on being a constitutional democracy, ignoring the plight of these marginalised groups is unacceptable. The home ministry needs to rectify this grave injustice by reviewing the legal deficiencies in the Bharatiya Nyaya Sanhita and include comprehensive provisions that protect all individuals—men, transgender persons, women, and animals—against sexual assault and carnal rape.
The omission of 377 is not merely a legal oversight but a failure to uphold the constitutional values of equality and justice. The Indian government must recognise the diverse experiences of sexual violence and ensure that the legal framework protects all individuals, regardless of gender or sexual orientation. Ignoring this critical issue only further perpetuates systematic injustice and undermines the progress we have made as a nation. Sexual abuse towards any individual regardless of their sex or gender should be considered a grave offence and should be severely punishable under the laws of this country.
Only through such inclusive legislation can we hope to build a just and equitable society. The time to act is now. The home ministry must heed this call for a comprehensive review and amendment of the Bharatiya Nyaya Sanhita Act to safeguard the rights and dignity of every citizen.
(Views are personal)
Thamizhachi Thangapandian | Member of the Lok Sabha from South Chennai constituency