It's been a year since gay sex was decriminalized by the Supreme Court but have things really changed?
"The mood was energetic and positive, yet unsaid apprehensions were lingering in the air," says Damini Gupta (name changed), a closet lesbian. “Hundreds of people from the LGBTQI+ community and their friends had gathered in and around Barakhamba Road in Delhi,” observed Damini. "We all were glued to our phones, waiting for alerts from the Supreme Court."
And then came that moment! In one of modern India's most historic judgments, the Supreme Court on September 6, 2018 decriminalized a part of Section 377 of the Indian Penal Code (IPC) to allow consensual sex among adults of the same gender, thus lifting a colonial-era law which made the very act of love ‘artificial and unnatural.’
The long-pending step to ensure the rights of the LGBTQI+ community was taken by the five-judge constitutional bench of CJI Dipak Misra and Justices Rohinton F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra who gave four separate but concurring judgments, bringing to light the struggles and voices of the LGBTQI+ community.
“Attitudes and mentalities have to change to accept the distinct identity of individuals and respect them for who they are rather than compelling them to become who they are not,” said CJI Misra and Justice Khanwilkar.
Massive celebrations took place across the country. Millennials, celebrities, and even a few politicians hailed the landmark judgment. “We didn’t have to look for a rainbow in the sky. The streets were filled with our very own rainbows,” said 24-year-old Damini, who despite holding her flag high that day, is finding it difficult to come out to her parents and relatives.
This throws up the question. Has the LGBTQI+ community really been accepted by society?
Some might say societal acceptance is increasing thanks to social media. We hear stories about couples coming out and professing their love without fear. In June, India’s fastest woman sprinter, Dutee Chand, announced she was in a relationship with a woman, making her the country's first openly gay athlete. But is everything as rosy as it appears to be?
“The gaze is everything for us. Who is looking at us? Those stares,” says a 26-year-old from Delhi, who goes by the name of Drake and is proudly gay. “As LGBTQ individuals, that's one of the most important struggles,” says Drake, who feels scrapping Section 377 gives the LGBTQI+ community immunity from prosecution for practising what has always been natural and not a choice.
“A colonial legislature made Section 377 criminal... It is an anachronistic colonial law... It has confined a group of citizens to the margins... It rests on deep-rooted gender stereotypes,” said Justice Chandrachud.
“A gay couple roaming in Connaught Place holding hands and kissing each other will invite a lot of that gaze. There is tension present even today. The law cannot change or dictate the behaviour of society towards us. It just provides us the immunity to practise our desires legally,” continues Drake who wants to tell his mother about his sexual orientation. “Now, with the law in place, Ma might change her stance towards our community,” he feels.
“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism they have suffered,” said Justice Malhotra.
“I was relieved when the verdict came out. Seeing Section 377 overturned and knowing that I wasn’t a criminal anymore in my birthplace was such a victory,” says Tanya, who now lives in the UK but was brought up in New Delhi. She recalls how she met her wife six years ago at a university event in the UK, fell in love and is now happily married. “I am sure the story would have been different if I was living in India,” says Tanya, who still hasn’t come out to her extended family back home because of the lack of societal acceptance. Telling her father, mother and sister was all that mattered to her.
“I am what I am. So take me as I am,” said CJI Misra and Justice Khanwilkar
Despite the judgment, many members of the community still find it difficult to tell their closest family members or friends for fear of being judged or discriminated against.
The King of Rock and Roll, Elvis Presley, once sang ‘I can’t help falling in love with you.’ He was right. Sexual attraction or romantic attraction is not a choice. Homosexuality is not a choice. Laws and amendments are just a tool to advance the cause but true acceptance comes from within.