India's premier luxury lifestyle women's magazine
September 17, 2018

What Lies Beyond The Rainbow

What’s the way forward after the historic verdict on Section 377? Varun Rana speculates

“So you don’t have any ‘normal’ friends?” he asked, straight-faced. And the room fell silent. This was possibly his first encounter with a gay person, and as my friend’s — let’s call him Amit — living room stood still for a good minute, I held my breath, expecting Amit to cut him down with a single, well-placed remark. Instead he calmly replied: “Well, all my friends are ‘normal’, and some of them happen to be gay.”

This exchange took place over three years ago, and I was reminded of it on September 6th when the Supreme Court passed its landmark verdict on Section 377. With a single judgment, the judiciary had changed the way people will look at the LGBTQ community going forward, just like Amit’s sincere and cool response had done with his straight guest back then. And so, in the wake of the Supreme Court’s reading down of some parts of the infamous Section 377, I began to reflect on what has really happened.

I’m inclined to compare it to the Dowry Prohibition Act of 1961. I find them somewhat similar — in the way they affect the subjects they address. Dowry was, and still is, widely practiced in India. As is the persecution of sexual minorities. And both are, according to scholars, fairly recent practices that took root in the 18th and 19th centuries. You only need to read the brilliant Devdutt Pattanaik’s writings on homosexuality in Hindu mythology to get a glimpse into how liberally one of India’s majority religions viewed the practice. But for now, what interests me are the aftereffects of the Dowry Prohibition Act.

Why? Because in spite of its very real failings, the DPA has enjoyed some social and cultural success over time. True, people didn’t magically stop giving or receiving dowry in 1961. And the newly amended Section 377 will not immediately erase all ignorance about the LGBTQ community, nor will it sensitise people towards their struggles in a second. But like the DPA, it will be a constant reminder that they are, by definition, going against the law.

Today, when two families discuss marriage, the words ‘gift’, ‘exchange’, ‘len-den’, ‘assets’, are used…couched in the practicality of two young people needing to set up their own household. But it’s tenuous territory, and you don’t want to seem like you’re asking for dowry—in essence, making it a shameful thing to do.

Similarly, the reading down of those aspects of Section 377 that criminalised supposedly deviant sexual behaviour (yes even for straight people) sets a moral precedent for the country at large, and for law enforcers in particular. Now, by law, no adult belonging to the LGBTQ community can be harassed or accused because of their private, consensual sexual acts. But like the DPA, its application and execution will take time.

So, what are the steps ahead? In 2009, when the Delhi High Court had decriminalized Section 377 in the state, it led to important conversations within the community. Many people came out to their families, and we saw a surge in public participation in the capital’s Gay Pride parade. The fact that it was no longer criminal to be who you are emboldened many LGBTQ persons to claim the identities they had been forced, even trained, to hide. But that dream ended in 2013 when the Supreme Court overturned that ruling, and even Reuters reported an upsurge in violence against sexual minorities afterwards. In effect, the law had protected them, for however short a while.

Now, with Section 377 corrected by the country’s apex judicial body, that process will begin again. Already, social media is flooded with pictures, messages, and even memes celebrating the verdict. And though same-sex marriage is still not legalized, it is now a distinct possibility that can be explored in the future. In mainstream media, we have already seen the path-breaking covers of one of India’s most widely-read magazines, India Today. The fortnightly publication recently featured fashion designer Suneet Varma and his partner Rahul Arora on its English-language edition’s cover, while the Hindi edition had entrepreneur Mallika Vadehra and her partner Cynthia Marquez. These covers are replicated on all of India Today’s regional-language editions as well, taking the conversation into the homes of millions of Indians. But a lot still remains to be done, and not just in terms of generating acceptance.

One main concern that emerged as soon as news of the Supreme Court’s verdict spread across the country was that it wouldn’t apply to Jammu & Kashmir. To me, this trumps the issue of same sex marriage for now. Because under Article 370 of the Indian Constitution, J&K has a ‘special status’ that allows its criminal cases to be tried under their own, unique, Ranbir Penal Code (RPC). This also includes Section 377, exactly as it existed in the Indian Penal Code (IPC) till 6th September. But unfortunately, the corrections made to it in the Indian constitution don’t automatically extend to J&K.

Activist and ally Shuddhabrata Sengupta summed it up eloquently: “I am not for a moment saying that the partial autonomy of the legal system within J&K is a bad thing. But it is also important to realize that the maintenance of bad colonial-era laws framed within the RPC is also an instrument of occupation,”— exactly like it was for India when it was introduced in 1861 by the British. He adds that the freedom that Kashmiri people seek must be equal for everyone, straight or queer. And in a sense, that’s what the LGBTQ community across the country yearns for. The freedom that comes with equality. And it’ll come, but slowly, with a lot of effort, and with patience. So now, we get to work.

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