8:57pm, 30th June, 2016


7 min

“I think it pisses God off if you walk by the color purple in a field somewhere and don’t notice it.”– These were the words of Alice walker in her Pulitzer-winning novel ‘The Color Purple’. And in India after long decades of ignoring the color purple (later turned rainbow) community, it seems the ignorance really pissed off the LGBTQ celebs and they finally are out for justice.

It is the first time in India that the affected people themselves moved to Supreme Court, against the Colonial-Era Section 377 of the Indian Penal Code, which restrict and criminalised homosexuality. The petitioners are the notable faces of the community, which Includes journalist Sunil Mehra, dancer N.S. Johar, chef Ritu Dalmia, hotelier Aman Nath, and business executive Ayesha Kapur.

What is the petition about?

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According to The Times of India report on June 28, 2016, the petitioners argued that section 377 hurts their Right to Life, guaranteed by the Indian Constitution.

The 716-page petition reads, “The petitioners are lesbian, gay and bisexual (LGBT) citizens of India whose rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity, and equality, along with the other fundamental rights guaranteed under Part-III of Constitution, are violated by Section 377,”

Their petition also talks about the huge contribution of the petitioners in their fields, and regardless of their achievements, IPC Section 377 make them criminal in their own nation, it quotes “Despite their achievements and contributions to India in various fields, they are being denied the right to sexuality, the most basic and inherent of fundamental rights. Section 377 renders them criminals in their own country,”

This petition which was drafted by a team of lawyers, including Saurabha Kripal, Arundhati Katju, Himanshu Suman and Menaka Guruswamy, further quotes, “Section 377 criminalizes the very existence of LGBT people by criminalizing their sexuality, an attribute which is as inherent and intrinsic to a person as their race or gender. Sexuality lies at the core of a human being’s persona. Sexual expression, in whatever form, between consenting adults in the privacy of a home ought to receive protection of fundamental rights.

However, on Wednesday, June 29, 2016, senior Indian National Congress leader and lawyer Kapil Sibal and Arvind Datar argued for petitioners after which a two-judge bench of Justice SA Bobde and Justice Ashok Bhushan referred the petition to chief Justice of India (CJI) TS Thakur for ‘appropriate orders’. ”A decision on similar petitions is already pending in the apex court. A five-judge constitution bench is looking into all the curative petitions in this regard.” said the apex court bench.

There’s a history to this:

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In February this year the Supreme Court has already agreed to hear a Curative Petition that challenges the validity of Section 377, and it will be heard by a 5-judge bench. It is most likely that this new petition might also be heard together with the earlier pending Curative petition, “The CJI will now decide if petition is to be heard along with curative petition already pending in SC,’’ -the apex court bench further added.

Earlier, in December 2013 the Supreme Court reversed a Delhi high court verdict that decriminalised consensual homosexual acts. The High Court in July 2013 declared unconstitutional a part of Section 377 that criminalises unnatural sex, saying, “the section denies a gay person a right to full personhood…”

Though it overturned the High Court order, the Supreme Court left it to Parliament to take the final call on the controversial law.

What is the take of political parties on Section 377?

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The majority view in the political class is against relaxing Section 377. During 2014 general elections parties like AAP and CPI (M) brought the issue on their manifesto but it is really hard to say if they’re serious about it or not. In the Winter and Budget session of the Parliament, the Indian National Congress MP Shashi Tharoor twice brought his private bill against section 377 but he not only failed but also had to suffer humiliating comments from his fellow MPs. While the governing BJP-led NDA government has no particular stand on the issue. Apparently, in the LGBTQ community it is considered that BJP and other saffron allies are not so okay with homosexuality; however after the statement of Finance Minister in support of scraping section 377, it appears BJP have softened their inflexible position against homosexuality.

Religion and their sentiments.

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When it comes to several religious groups, it seems they are also not okay with homosexuality. The All India Muslim personal law board and a Christian group are opposing changes in Section 377, saying they had “cogent” arguments against decriminalising homosexuality. In fact, they were among the petitioners who successfully opposed the High Court verdict in the Supreme Court. 

However, spiritual leader and the founder of Art of Living Foundation Sri Sri Ravi Shankar in his December 11, 2013, tweets revealed “Homosexuality has never been considered a crime in Hindu culture. In fact, Lord Ayyappa was born of Hari-Hara (Vishnu & Shiva). Homosexuality-not a crime in any Smriti. Everyone has male & female elements. According to their dominance, tendencies show up & may change.”  Sri Sri also mentioned it will be ridiculous to brand someone criminal because of their sexual preferences, “Nobody should face discrimination because of their sexual preferences. To be branded a criminal for this is absurd.”

It’s time…

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Not only LGBTQ community but also many supporters of equality are religiously waiting for the Supreme Court’s positive response. In their fight for the identity, privacy, dignity, equality, freedom of choice of sexual partner and the basic right to live with one’s own sexual preference without suffering discrimination, the LGBTQ community should always stay together and remember what author Larry Kramer said in his classic novel Faggots “There will always be enemies. Time to stop being your own.”


Article Source: PTI, Times of India, and
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