analysis

Updated: Jul 10, 2018 11:01 IST

Five years ago, a two-judge bench of the Supreme Court delivered a verdict that upheld the validity of Section 377, an Indian Penal Code law that criminalises adult same-sex intercourse regardless of consent. The memorable phrase, “minuscule fraction” stuck in the craw of those who had challenged the section in a legal battle that began in the early 2000s. A Delhi High Court judgment from 2009 had said that the law should not apply to consenting adults, and the apex court reversed it in 2013. Many queer people who had come out about their gender identity and sexual orientation in the intervening years felt as though the rug had been pulled from under them.

Retired Supreme Court justice GS Singhvi, who used the phrase in his judgment, had meant to say that less than 200 homosexuals had been prosecuted for committing offences under the section in the 150-year history of the law. Thus, the question of the law’s constitutional validity had no merit. His judgment upheld the plea of several respondents, which included religious groups such as the Apostolic Churches Alliance and the All India Muslim Personal Law Board, organisations such as the Krantikari Manuvadi Morcha Party and Joint Action Council Kannur and Delhi-based astrologer Suresh Kumar Koushal.

On Tuesday, 35 individual petitioners who identify as lesbian, gay, bisexual, and transgender will stand before the court with the plea that Section 377 not be applied to consenting adults. Organisations such as the Naz Foundation and the Humsafar Trust, collectives such as Voices Against 377, groups of academicians, mental health professionals and parents of queer persons have also challenged this section on multiple grounds. This is historic, not least because it turns the idea that the community is a “minuscule fraction” on its head. Each petitioner attests to a range of experiences in their own lives — of discriminations, suicide attempts, sexual violence, extortions, of not mattering. Each petition is a portmanteau that contains within it the shared histories of thousands of other queer lives. The plea before the court is to uphold the dignity of a queer person’s life, and, viewed in this context, one can no longer narrowly imagine the effect of Section 377, as the 2013 Supreme Court judgment had done.

Each petition and intervention attests to the diverse implications of being criminalised. For instance, while lesbian and bisexual women may not be directly implicated, they are affected by the law. The reality of queer women’s lives—forced marriages, homelessness, corrective rape, false cases of kidnapping, suicide pacts—finds no legal redressal, because of their perceived criminality. This is as much a testimony to the usage of Section 377 in non-legal ways as it is to the failure of the law to address certain kinds of violence faced by queer persons.

To wit, the number of petitioners who are survivors of sexual violence is astounding, and begs the question: what are we doing to address it? The law does not recognise the continuum of violence that trans persons or gay men face; in many instances, it doesn’t even recognise them as victims. There is a crisis in our imagination of violence because we are inured to it. Caste and gender-based discriminations normalise all manner of violation, and this must be read into the queer experience, too. The caste atrocities faced by a Dalit transperson have a different history from the gender-based atrocities that a same-sex desiring woman faces. But both experiences are dehumanising. Now, add to this the stigma of criminalisation due to Section 377. Queer lives are often shaped by violence. They experience it from family, teachers, classmates, policemen, or even intimate partners.

These petitions ask the court to take cognisance of not just their numbers, but the depth and breadth of their experiences. These petitions are witness to all the aspects of life that stand affected by Section 377, and show that the law is not only about ‘gay sex’.

There is nothing minuscule about these experiences; nothing fractional about the repetition of these narratives.

Dhamini.Ratnam@htlive.com