CHENNAI: Chennai's LGBTQ (lesbian, gay, bisexual, transgender, queer) community members mobilised and gathered for a candle light vigil near Chepauk on Sunday ahead of the Supreme Court's review petition on section 377 set for a hearing coming Tuesday (Feb.2).
Various gay rights activists gathered for the vigil organised by the Tamilnadu Rainbow Coalition and registered their contention against the section, deemed unconstitutional and draconian.
A December 2013 verdict by the apex court had reinstated a ban on 'gay sex' criminalising any sexual activity, 'against the order of nature'. In simple terms, anything besides man-to-woman sex is considered criminal. The verdict overturned the Delhi High Court judgment in 2009 which decriminalized consensual homosexual acts among adults, considered a landmark judgment then.
"The section goes against the very essence of the Constitution by persecuting people on the basis of who they choose as partners. Section 377 goes against several fundamental rights, most importantly, the right to equality," Vikram Sundarraman, founder, Nirangal said.
If this section stays, it could lead to fear among the members, whom he claimed have faced bullying, extortion and other crimes in the past.
"This makes people unable to report abusers for fear of being found out and it only creates additional pressure," Vikram added.
"The SC ruling declared that only a 'miniscule minority' is affected by section 377. There are various international studies to prove that at least 8-10 per cent are of a fluid-sexual orientation (not strictly heterosexual," said Namitha, an activist.
Pointing out the inconsistencies in the judiciary, the activists referred to a subsequent ruling by the apex court after passing the section 377 which holds that discrimination based on sexual orientation is unconstitutional.
The Congress MP Shashi Tharoor's recent private member's bill to decriminalize homosexuality was a welcome move, the protestors said. "Although well intended, the Bill was shot down in the Lok Sabha. In spite of voices from people from several spheres, there has been no political move to repeal this section," a member said, stressing that political parties should take the position of the community into consideration while drafting their election manifestos for the upcoming assembly elections.
Why not a separate status?
Why should not homosexuals or lesbians be given a separate status to safeguard their rights, including right of privacy guaranteed under Article 21 of the Constitution to lead a dignified life?
When the sexual orientation of a society's section is different, is it not obligatory on the part of the Central Government to recognise their sex orientation as a separate group? And, when more than 30 countries, including the conservative Ireland which decriminalised homosexuality and legalised gay marriages by way of referendum by getting 62.07 per cent votes in favour, why should not the Indian Government follow suit?
These questions were raised not by the organisations representing those from alternate sexuality groups, but by Justice N Kirubakaran of the Madras High Court recently.
The judge noted that it had been reported in newspapers that same sex relationship had become common nowadays.
In view of the existing circumstances, it would be appropriate to make the Indian government, represented by its Health Secretary, Law Secretary and the Law Commission in New Delhi as parties in similar matters pending before the High Court, the judge observed, and accordingly impleaded them and directed them to submit their views on the questions he raised.
Justice Kirubakaran was dealing with two cases in which either of the spouses was gay or lesbian. As there was no hope or chance of uniting them, the judge granted mutual divorce. However, he kept the matter alive to find a permanent remedy to the problem which is on the rise.
He didn't stop with those questions. Among the questions the judge raised for answers from the Union government included: when heterosexual orientation exhibited by a majority persons is accepted by all, why not the sexual orientation of a section of the people (LGBT,(Lesbians, Gays, Bisexuals, Transgenders) be recognised as they are born with different expression of human sexuality? Can LGBT be considered offenders for exhibiting their natural sexual orientation/expression and their sexual acts, which were different? Is it not a fact that same sex relationship has become a problem to the institution of marriage nowadays as alleged in the cases on hand affecting innocent spouses?
Is it not essential and important to decriminalize homosex and recognise the rights of LGBT to prevent homosexuals getting married to innocent, heterosexual persons? Is there any scientific survey by the Centre to find out the number of gays and lesbians in the country? And, if the survey was already done, what is the population of gays and lesbians in the country?
Now that the Supreme Court had agreed to entertain on February 2 a curative petition against Sec. 377 of the Indian Penal Code which criminalised gay sex, homosexual activities and lesbianism, the judge was pinning hopes that his queries would find answers.