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Mainstream, VOL LVI No 39 New Delhi September 15, 2018

Talking Equality To a Conservative Majoritarian Society

Landmark SC Ruling on Section 377 furthers the Frontiers on Personal Rights

Saturday 15 September 2018, by Harsh Kapoor


by Harsh Kapoor

In four separate and combined judgments on September 6, 2018, in the Navtej Singh Johar case a Constitution Bench of the Supreme Court of India ruled that Section 377 of the Indian Penal Code (a colonial era provision from 1860) was discriminatory to the extent that it penalised consensual sex between adults. Chief Justice Dipak Misra introduced the verdict saying: ’vanish, prejudice and embrace inclusion and ensure equal rights’ . . . ’Any discrimination on the basis of sexual orientation violates fundamental rights.’ This ruling also overturned the retrogressive judicial error of the 2013 Suresh Kumar Koushal case, that had struck down a fine 2009 judgment of the Delhi High Court reading down Section 377. The ruling also said the Supreme Court had earlier recognised the right to choose a partner and the partner can also be a same sex partner.

This Court verdict recognises homosexuality as the right to freely conduct one’s sexual life, stands up for equality of all citizens as enshrined in the Constitution and gives hope for new jurisprudence challenging the thousand and one discriminations and exclusions that shape the realities of everyday life in India.

This victory in the courts has been possible through long sustained work over the past two- -and-a-half decades by a rare tribe of socially committed cosmopolitan lawyers and a movement challenging compulsory heterosexuality and homophobia and organising people facing discrimination due to their sexual orientation, resisting violence, arrests and by creating and sustaining LGBT groups and organisations in a very conservative social environment. Thousands of gay, lesbian citizens remain in the closet for fear of the society and their own families.

But, hang on, there is a considerable social distance between the Court decision and real world societal norms. While the LGBT groups celebrate, they also need to now open up (they too like much in India have been marked by a flourishing ’identitarian’ logic) and work with other movements on common issues of secular citizenship.

Burly men of the Muslim, Christian, Hindu Right-wing have already sounded the alarm, and they do call the shots among large numbers in India. The Hindu Mahasabha says the Court verdict was a threat to society and national interest and calls for Parliament to intervene ( Big guns of the All India Muslim Personal Law Board and some ulema types from Deoband say: ’Homosexuality is dirty, filthy and against nature.’ And the Apostolic Churches Alliance says: ’Homosexuality is an abomination as per the Bible.’ So here is another kind of Indian style ’Sarva Dharma Sambhava (all religions possible) masala’ secular alliance against our sinful, personal freedoms as citizens.

These chaps are no aliens, there is widespread prejudicial societal behaviour towards people with a different sexual orientation or all manner of social ’deviation’. We run the risk all the time of being mowed down by our own people and from the Left, Right and Centre (and now the new fashionable shoot-at-sight naming-shaming anonymous internet list-makers) for having chosen to go against the grain, to not be forced in marriage, to have the right to love and to show affection, to be able to dress, eat, write without offending someone, to have sex and to talk freely about it, to mock at society, to show irreverence, have the right to drop out of religion, caste, ethnicity and all manner of identity; without fear of binaries of majority, minority, national, foreign.

Independent India has long had a deafening taboo on sex and sexuality’ on all things that went against dominant sexual mores. The Censor Board used to decide whether you could show a kiss on the screen. There are schools that can expel someone from school if a student hugs a person of another sex. We remain a rigid and conservative place.

Even the progressive circles of the Left reflected that dominant sensibility, even though there have been exceptions in their midst. The progressive writers, Saadat Hasan Manto and Ismat Chughtai, who had been both charged with obscenity in the pre-independence days for their sensitive writings on the taboos of speaking of sexuality, also had much trouble with their comrades of the Left.

The political elites and all mainstream political parties have failed us to bring safeguards and equal protections on matters of sexuality and private lives of citizens and education in schools and outside towards an open-minded society with a healthy sexuality and a non-authoritarian culture.

There was a large social silence all around on sex, sexuality, sexual orientation.

In 1977 India’s famous math wizard, Shakuntla Devi, in her book, The World of Homosexuals, said that rather than pretending that homosexuals don’t exist’ it was time we face the facts squarely in the eye and find room for [homosexual people]’.

It’s important to recall the AIDS Bhedbhav Virodhi Andolan from the early 1990s ’the first AIDS activist movement in India that published Less Than Gay, a pioneering citizens report on the status of homosexuality (

The reaction from official circles then was that homosexuality doesn’t exist in India. They went on with this for many years.

In 1994 Vimla Farooqi, the Vice-President of the progressive National Federation of Indian Women (NFIW), had written to the then Prime Minister, Narasimha Rao, to stop a gay men’s conference in Bombay. Even in 2000 the same organisation found it difficult to include the issue of lesbian rights on the agenda of the International Women’s Rights Day. The Left had been very timid, puritanical and conventional on the question of sexual orientation and private life for a long time and rejected LGBT struggles as petty bourgeois/bourgeois reactionary fashionable behaviour coming from the West. In the past 15 years the old Left has changed track, being caught up with the times and supported the struggles for rights of lesbian, gay, trans-sexual citizens at least in their public statements, though they still continue to shy away from taking ’personal is political’ to their constituency of the working classes where too misogyny, homophobia and conservative tradition, prejudice of all shapes rule. It is thus a pleasure to see that the All India Democratic Women’s Association associated with the CPI-M has welcomed the September 6 ruling ( And the NFIW too has taken a similar position.

In the 21st century it’s time the people of the Left embraced personal rights/personal or private sphere in the wider agenda for social emancipation. As sexual violence is only going to grow in this country with a declining sex ratio, it’s time to challenge it not through more repressive laws and punishment. We are a violent and under-developed society; there is no privacy for most, they hide in parks, book hotel rooms under false names, no sexual education, try to access porn secretively. The progressive organisations don’t talk about sexual pleasure. How do you challenge moral policing of the Right-wing and by the state? It has to be challenged in very real terms by creating places for it within social movements and in society. It is time to promote open and healthy sexual culture and work for a sexual enlightenment.

A sexually repressed society will inevitably be a violent place. Of course the state should not have a place in our beds, but the lumpen mobs armed with ’social sanction’ that roam freely to check ’sin’ should be shown their place too.

Break the silence, break the taboo.

The author is an independent commentator .

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