To enjoy the freedoms ranging from Speech and Expression to the Freedom to Movement and others lies the concurrent need for legislation to protect the community. However, protagonists of LGBTI rights are mostly silent on the absence of laws to govern their lives and give meaning to the true sense of their ‘freedom’, observes Manu Shrivastava.
Interestingly and contrary to popular notions within India, a while back, joining the Parkfield Community School at Birmingham in United Kingdom were four more schools putting an end to lessons on ‘Diversity and LGBT issues.’ These followed following complaints by, none other than, parents and the authorities complied.
The Leigh Trust suspended the ‘No Outsiders’ project, which teaches tolerance of diverse groups, including those of different races, genders and sexual orientation, until an agreement with parents had been reached.
Students were taught about the positive values of diversity, tolerance and acceptance, in a broad curriculum encompassing LGBT (lesbian, gay, bisexual and transgender) rights, same-sex relationships, gender identity, race, religion and colour but this sparked off protests, with mothers and fathers objecting to the teaching of the ‘No Outsiders’ project.
While this was appalling, to say the least, especially coming from United Kingdom which has, the Equality Act 2010 that brought together over 116 separate pieces of legislation into one single Act to provide a legal framework to protect the rights of individuals and advance equality of opportunity to all, it was indicative of the mood of the nation. The pieces of legislation merged into the Equality Act 2010 included: The Sex Discrimination Act 1975, The Employment Equality (Sexual Orientation) Regulations 2003, and The Equality Act (Sexual Orientation) Regulations 2007. All the resistance, despite the legislations being in place.
Concurrently, in another part of the world, 3,960 kms away, from November 2017, Turkey has banned all events by lesbian, gay, bisexual, trans and intersex rights groups to protect “public security” in its capital city, Ankara. The ban imposed to last for an ‘indefinite’ period, applied to all LGBTI film screenings, theatres, panels and exhibitions.
The governor’s office maintained that such events may cause animosity between different groups and endanger “health and morality”, as well as the rights and freedoms of others. It warned some groups may be provoked by LGBTI events and take action against participants due to “certain social sensitivities”. And, homosexuality is ‘not a crime’ in Turkey and numerous LGBTI associations are even legally registered with the state.
In India, the entire LGBTI community has been fixated on Section 377 of the Indian Penal Code that has been, in a shocking display of ignorance, reported by the media across the world as having been ‘struck down’ by the Supreme Court in a 2018 verdict preceding vociferous campaigning against a ‘Victorian law’ and, concurrently, tumultuous joy at the verdict.
Sadly, following the 2018 verdict which, factually, ‘read down’ the Section, the LGBTI movement has literally fizzled out. The Apex Court had then, underlining the prerequisite processes of law, laid down that Section 377 cannot, in any way, criminalize homosexuality, gay sex or LGBTIs, in any manner.
And, the LGBTI community was exhilarated at what it perceived as a vindication of their position in law: A position that was anyway not threatened in law, surely not by the letter of the law and arguably not by the spirit.
For a mostly heterosexual community that’s mostly male-dominated in form, the risks of a male-perpetrated molestation, rape and sexual assault of females are the more obvious aberrations. So, the development of jurisprudence in such societies leans towards identification of crimes against women and preventing them or deterring potential criminals by way of punitive measures is the norm.
So, Section 375 of IPC identifies and tackles the scourge of rape and, with time amended by the more-recent Criminal Amendment Act of 2013 following the Delhi gang rape, to extend the punishment for gang rape and the commission of more heinous offences to extend to the death sentence. In 2018, a Criminal Amendment Act was introduced to include child rapes, amend relevant Acts and sections including Section 375 and further the punishment to death for child rapist. However, despite all the amendments to Section 375, it remains gender-specific and can be applied only against a man perpetrating an offence against a woman.
There are no attempts to make Section 375 gender neutral for if that happens, the need for the presence of Section 377 itself would be defeated. Also, with rape not restricted to physical abuse but extending – by definition – to the manipulation and extraction of ‘consent’ by myriad means, the law ought to extend to rape committed by women on men. Yet, there is no space to fathom this within the existing, skewed and narrow framework of Section 375 of the Indian Penal Code. There is an urgent need to take a relook at this.
Now, for a homosexual community that interacts primarily with members of the same sex, the crimes that may occur are those that are perpetrated to the same sex; i.e., men being raped by men or women being molested by women. Members of LGBTI community are at high risk of rapes, molestation and forced sexual encounters and, a gender-specific Section 375 of the Indian Penal Code that tackles the issue of rape offers absolutely no protection to them.
Ironically, it is Section 377 of the Indian Penal Code that documents the term ‘unnatural sex’ and ‘against the order of nature’ flayed by the LGBTI community finding the terminology politically flawed that will be applied in case a member of the LGBTI community is sexually assaulted. It, actually, is an extension of the range of freedoms enjoyed by members of the LGBTI community. A law specifically enacted to prevent abuse and risk to members of the community could be well in place…but till that happens, Section 377 of the Indian Penal Code would suffice.
The Supreme Court’s recent ruling has laid down that the interpretation of Section 377 to criminalize homosexual behavior done in private among consenting adults violated fundamental rights putting to rest the vitriolic on the issue restricting its reach even if warranted. In view of this, the police will – and for obvious reasons, be completely reluctant to apply Section 377 against anyone however realistic may seem the ‘accusation’ of the commission of an offence. This may only defeat the purpose of the Section that was often misused by the authorities in British India and is mostly feared, albeit wrongly, in present-day context.
To enjoy the Freedoms ranging from Speech and Expression to the Freedom to Movement and others lies the concurrent need for legislation to protect the community and pose a deterrent for crimes of hate. Section 377 works in this direction and the spurt in cases against the LGBTI community only indicate the need for more.
Sadly, the harbingers of LGBTI rights are mostly silent on the absence of laws to govern their lives and give meaning to the true sense of their ‘freedom’. So much more needs to be done for a member of the LGBTI community to ‘live’ in free India as one. So much that is being completely overlooked.
The interpretation of Section 377 done and dusted, it’s time to initiate meaningful legislation like a LGBTI Marriage Act, a LGBTI Adoption and Guardianship Act, a LGBTI Justice Act to provide for the community parched for pertinent laws to tackle issues affecting them. They need to be framed in letter and followed through in the right spirit. If this doesn’t happen and fast, we could well go the UK or Turkey way.
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Manu Shrivastava
Manu Shrivastava is a media legal researcher with DraftCraft International, and co-convener of ‘The Woman Survivor’ initiative that documents abuse of women and children within families.
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