SC Order On Sec 377 Will Bring Tectonic Shifts In Indian Society

The line of questioning adopted by the judges while hearing the case has left LGBTQ activists sanguine. For instance, Justice Rohinton Nariman noted that the court will 바카라�not wait for majoritarian governments to enact or delete바카라� laws that violate fundamental rights, while Jus­tice D.Y. Chandrachud said that if same-sex intercourse is decriminalised under Section 377 on constitutional grounds, many other civil rights would necessarily flow to LGBTQ persons.

As a result, there are cautious whispers within (and outside) LGBTQ groups that the future may bring more than just the right to consensual sexual activity of one바카라�s choice within bedrooms. Though the Supreme Court had in 2013 struck down the 2009 Delhi High Court바카라�s 바카라�reading down바카라� of Section 377, its landmark privacy judgment of August 2017, inter alia, opined against Section 377. This May, the apex court also put its stamp of app­roval on live-in relationships. A convergence of tangentially related events seems to have created an enabling atmosphere of legal thinking that favours a certain liberalism, but will that extend to conferring on LGBTQs the same legal rights as live-in heterosexual couples?

LGBTQ groups are not pressing hard for a public debate on this aspect as they know civil rights바카라�such as the right to marry, bequeath and inherit property, adopt children, or care for sick or infirm partners바카라�will bring the conservative and liberal sections of society at loggerheads. They are also aware that, globally, LGBTQs got such civil rights piecemeal wherever laws were liberalised.

바카라�The floodgates will open for other rights, hopefully, but right now it바카라�s fingers crossed just to move away from LGBTQ laws that are similar to UAE, Pakistan, Bangladesh or Saudi Arabia,바카라� says Anjali Gopalan, who runs Naz Foundation, an NGO that works on HIV/AIDS and sexual health. 바카라�If same-sex intercourse is decri­minalised for consenting adults, more people will come out as gay. In future, how will we justify denying basic rights to a section of citizens when our Con­stitution is based on equality?바카라�

The Centre seems keen on a certain inc­rementalism. In its affidavit to the Supreme Court, it has left it to the 바카라�wisdom of the court바카라� to interpret Section 377, but declared it would oppose the examination of 바카라�any other question바카라� except the section바카라�s constitutional validity as it rel­ates to consensual acts of adults in private바카라�that is, it would oppose any discussion on giving LGBTQ persons 바카라�any other rights바카라� beyond decriminalisation.

Apparently, the government doesn바카라�t wish to be seen as an obstruction to private sexual freedom for LGBTQs despite being wary of conferring on them the ent­ire gamut of rights in the public arena. 바카라�Even those opposed to decriminalisation focus far too much on sexual matters,바카라� says Sunil Mehra, a petitioner in the ongoing case. 바카라�For those of us who are gay and reaching a certain age, other life questions take precedence바카라�inheritance, right to care for partners during exigencies, right to travel together as partners바카라�these are taken for granted by heterosexuals, not us.바카라� During emergencies, ill health or death of a partner, blood relatives get legal rights, not gay partners. 바카라�Families take over situations and cause tremendous distress, so it바카라�s not just a sexual matter바카라�but we understand change is slow,바카라� he says.

The current petitioners are asking for the right to 바카라�sexual autonomy바카라� and the right to choose their partner, citing the equality clause of the Constitution. 바카라�Sexual autonomy is not about sex or how you literally have sex,바카라� says a lawyer for the appellants, who spoke on condition of anonymity. 바카라�The Shakti Vahini case on khaps opposing same-gotra marriages or the Hadiya case were not about how you have sex, but about choice of partner and sexual autonomy.바카라�

Seen in this light, the government affidavit perhaps reflects the clash between Indian society바카라�s conservative moorings바카라�sections that are likely to be the votebank of the ruling BJP바카라�and the more liberal sections. In fact, few political parties other than the Left have spoken out in support of those who practise homosexuality. This, however, is changing. Now the Congress supports decriminalisation and same-sex marriage and AAP supports decriminalisation, but most others are silent. This is why activists pick the incremental app­roach. 바카라�Once you remove the tag of crime, I think the LGBTQ movement will kick in,바카라� says legal expert Upendra Baxi. 바카라�Also, the Centre is simply asserting its right in its affidavit, since Parliament has all the powers to enact a law.바카라�

Baxi expects important issues like housing, marriage and adoption to reach the courts on a case-by-case basis, depending on what the Supreme Court decides on Section 377. 바카라�Custodians of tradition, from all streams, feel the tradition will die if the law is amended, and politicians have to win elections. The gains of the women바카라�s movement were also incremental. Still, it바카라�s up to the court to send the matter of other rights to the legislature or give imm­ediate directions as it did in the NALSA (National Legal Services Authority) vs Union of India case,바카라� he says.

Chayanika Shah, who works for LABIA, a queer feminist LGBTQ collective in Mumbai, disagrees with the incremental approach. 바카라�It does not need to be stepwise,바카라� she says. 바카라�So far, certain sexual acts바카라�and not people바카라�were criminalised.바카라� Hence, Section 377 has a chilling effect that deters people from asserting their civil rights. 바카라�Their rights within their relationships ought to be protected. We expect the court to say their rights have been violated and they have been discriminated against바카라�the court should do what it did for trans people in the NALSA case,바카라� she adds.

According to Manoj V. George, an advocate who represented two Christian organisations against decri­minalisation in the Supreme Court, 바카라�the other side wants more than reading down Section 377바카라�. 바카라�They want all civil rights바카라�marriage, property, adoption바카라�which Indian society is not ready for,바카라� he argues. 바카라�The Union of India바카라�s stand did us a great disservice. If they didn바카라�t want to defend their own law in court, they should have scrapped it.바카라�

There is another perspective that hasn바카라�t got a hearing yet. Many feminists say marriage, as imagined by heterosexual couples, need not be the model for LGBTQ partners. Even while acknowledging that the right to marriage should exist for all, and that scores of legal rights and privileges flow from marriage바카라�from inheritance to insurance policies, joint accounts and investments바카라�the critique centres around reading marriage as an essentially conservative, heteronormative institution. They say the family model closes off imagining new kinds of support structures.

바카라�Our demand, as people who don바카라�t want to enter into family through marriage, is to be able to appoint a person or two as legal representatives, someone who takes charge when I바카라�m unable,바카라� says Shah. 바카라�As queer people, we don바카라�t want only natal family, but choice in what 바카라�family바카라� means.바카라� This means a lot for trans people, in particular. India allows gender self-identification today. Hence, a person assigned the male gender at birth who later becomes a woman, and has a child from her marriage바카라�the law is unclear on the status of such marriages and offspring. 바카라�People in such situations are too afraid to ask what the legal status is, because they don바카라�t know how the state will react,바카라� says Shah. 바카라�That is why you need to make the laws equal.바카라�

Clearly, the verdict on Section 377 will bring subtle tectonic shifts in India바카라�s whole social landscape.

(This article first appeared in July 30, 2018 issue of Outlook magazine.)