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Why India's LGBT movement fizzled out after Supreme Court ‘read down’ Section 377

By Gajanan Khergamker*
In United Kingdom, four schools have joined the Parkfield Community School at Birmingham to halt equity lessons on ‘Diversity and LGBT issues’ following complaints by parents. Earlier, five Birmingham schools suspended teaching the award winning 'No Outsiders' equality and LGBT rights programme, run by the Leigh Trust. The project taught tolerance of diverse groups, including those of different races, genders and sexual orientation.
Students were also taught about the positive values of diversity, tolerance and acceptance, in a broad curriculum encompassing LGBT rights, same-sex relationships, gender identity, race, religion and colour but the sparked off protests, with mothers and fathers objecting to the teaching of the No Outsiders project.
This is 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.
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.
Concurrently, in another part of the world, 3,960 kms away, from November 2017, Turkey 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 lesbian, gay, bisexual, transgender and intersex (LGBTI) community has been fixated on Section 377 of the Indian Penal Code, which was ‘struck down’ by the Supreme Court in a 2018 verdict. The verdict followed a vociferous campaigning against a ‘Victorian law’.
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, criminalise homosexuality, gay sex or LGBTIs, in any manner. And, the LGBTI community was exhilarated at what they 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.

Male-dominated 'aberrations'?

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.
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.
But, the Supreme Court’s recent ruling has laid down that the interpretation of Section 377 to criminalise 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.
Sadly, the harbingers of LGBTI rights are silent on the absence of laws to govern their lives. 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 lest we go the UK or Turkey way. About time!
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*Editor, The Draft. A version of this article previously appeared here

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