India is a diverse country filled with various language,religion and cultures. With the Constitution upholding the notion of secularism in the country, it is evident that unity in diversity is a matter of utmost importance and is often celebrated. Ironically, the celebration of differences ceases to exist when it comes to observing the rights of the LGBTQ+ community in the country. Homophobia is rampant in the society due to prejudice and bigoted mindset. Homosexuality is a taboo subject which is often pushed under the rug and is treated as a matter of embarrassment.
On September 6,2018 the Supreme Court abolished Section 377 of the Indian Penal Code which criminalised consensual sex between two homosexuals and branded it as unnatural. This archaic law was inspired from the Buggery Act of 1533 which was introduced by King Henry VIII. The law criminalised anal penetration and, in a larger sense, homosexuality, and defined 'buggery' as an unnatural sexual act against God and man's will. Convictions under the Act were punishable by death. Prior to the passing of the judgement, queer folks were incessanty tormented by the public and law enforcement agencies. This resulted in many unfortunate souls loosing their lives to the prejudice. One such person is Professor Ramchandra Siras.
Professor Siras was a Marathi literature professor and the chairman of the Department of Modern Indian Languages at Aligarh Muslim University. He was also a profound poet whose collection of poem, Payakhali Hirval, bagged him the Maharashtra Sahitya Parishad. Siras' narrative is an important component of the debate over Section 377, which was partially read down by the Supreme Court of India two years ago in a landmark decision. Siras' court case and final death took place before Section 377 was enacted.
On February 8 of 2010, a local cable TV journalists surreptitiously taped Siras having sex with another guy, Abdul,a rickshaw puller, before barging into his Aligarh home to confront him. They didn't stop filming. The footage appears to show Siras pleading with them to stop filming in the tape. The video clips were subsequently given to AMU officials, who were forced to take action against Siras. After a prima facie case of "gross misconduct" was made out against Siras, the office of the AMU registrar, Dr V K Abdul Jalil, gave him a memo on February 9 under rule 403-C of the university's statute and upon framing charges, other disciplinary actions were followed. Prof.Siras later challenged this suspension and approached the Allahabad High Court.
The suspension by Aligarh Muslim University on charges of gay sex was stayed by the Allahabad High Court. The order requiring him to evacuate his official house and restricting his movements was also stayed by the court. The court agreed to the argument that his suspension was constitutionally wrong as it was an intrusion to his private life and action. Prof.Siras was later reinstated and he happily resumed with his work in the university.
Unfortunately, on April 8 of the same year, Ramchandra Siras was found dead in his home under mysterious circumstances. Serious doubts surrounded his death as his body was covered in maggots and the possibility of heart attack was ruled out by the coroners. His cellphone was gone, his ATM card had been used either before or after his death, and while the room where his body was discovered was locked from the inside, the house's front door was bolted and padlocked from the outside.It was alleged that he might have took his own life but there was little to no evidence to back this claim.
He had recently found solace from companionship and support among homosexual rights activists. Siras went virtually unnoticed till he was revealed. He was married, but separated, with divorce processes pending, like many other Indian homosexual guys. He appears to have had a small group of close friends.
Even when no fingers can be pointed for his death it is not wrong to say that the ridicule faced by Prof.Siras played a major role in his death. The society was complicit in ostracising him for his sexuality and treating him like a criminal for not fitting into the gender norms wrongly subscribed by the society. Professor Siras did not deserve to die for being queer. Like any other heterosexual person in the society, he too was entitled to have consensual sexual intercourse without any intrusion to his privacy. The sensationalization of his suspension fuelled the prejudice which ultimately led to his death.
The treatment of Professor Ramchandra Siras by the public is a testament of the stigmatisation faced by the LGBTQ+ community in India. Prof.Siras being gay overshadowed the fact of him being a celebrated poet. A man who had won laurels was treated like a fugitive for being queer. He was a closeted gay man who led a life of secrecy due to the fear of being outed to the whole world. The constant pestering by the media and the fear for his safety for being declared gay in the most inhumane manner were factors contributing to his death. After his death, the topic of justice takes on a new dimension. It places the entire burden of proof on the public, who are worried about the victim receiving justice from the state.
Siras represented a common cause that is homosexual rights and a dignified position in Indian culture for sexual diversity. Siras' case served as a reminder that the law needs to broaden its horizons in order to broaden its sense of justice. It requested the law to help persons with marginalised identities acquire a foothold in our society. People should have the right to sex, beliefs, and values based on their human proclivities in a democracy. The institutions of justice will not be able to persuade our society's hypocrisy and denial. If those who want to live honestly are forced to live in terror, it will be a national embarrassment.
The dogmatic mindset possessed by the society acts to the detriment of queer folks as everyday life becomes a hard due to the hate projected on to them by the society. From hurling homophobic slurs to family commissioned rape, the tribulations faced by the queer community in India is numerous. Even though many nationalist groups in the country deny the existence of homosexuality in ancient India, evidence proves otherwise. "Tritiya-Prakriti: People of the Third Sex," by Amara Das Wilhelm, which comprises years of painstaking research of Sanskrit writings from mediaeval and ancient India, demonstrates that homosexuality and the "third gender" were not only present in Indian society at the time, but also universally tolerated. Similarly, the sculptures of Khajuraho also insinuates the existence of homosexuality in ancient times. Then why does India deny the existence of homosexuality in the 21st century? This can be blamed on the advent of the British who brought into force Henry VIII’s Buggery Act which placed gay sex at par with beastiality and marked it unatural. With time this notion of thought became imperious and the society boxed the entire spectrum of sexuality to fit into heterosexual standards.
Heteronormative culture in Indian society expects a person to subscribe to the gender they are assigned at birth and imposes a restriction to only be attracted to the opposite sex. Any deviation from this outlook calls for immediate shunning from the society. For a long time homosexuality was attributed to underlying mental illnesses until the Indian Psychiatry Society nullified it. Even with activism and certain legal changes, the view of society remains the same.
The decriminalisation of Section 377 is the tiniest ripple of change that was introduced by the centre as many laws in the country are still prejudiced to the LGBTQ+ community in India. As of 2021, the marriage between same sex couple is still not recognised under law. On February of this year, the central court in response to three petitions for legalisation of same sex marriages said that the court must take into consideration the ‘societal morality’ into consideration and dismissed the petitions. Many anticipated things were addressed in its 50-page rebuttal affidavit, but the statements on gays are the most striking. It claims that the Supreme Court's interpretation of Section 377, which criminalises gay sex, "neither intended to, nor did it in reality legitimise the human activity in question." This proves that even the system adheres to the age old notion of homosexualty being unnatural and close to sin. The non legalisation of gay marriages will lead to them being deprived of the advantages guaranteed under the law as marriage allows the couples to purchase property in their joint names, open joint bank accounts and lockers, and identify each other as a nominee in insurance, pension, and gratuity forms. In the event that one of the spouses dies or becomes disabled, the other spouse is legally entitled to a pension.
The law in India also brushes away provisions for adoption and surrogacy for the LGBTQ+ community. Even though right to reproductive autonomy an motherhood comes under the ambit of Article 21, it does not apply for LGBTQ+ individuals in the country. Most family law rules and rights in India, such as those relating to adoption, surrogacy, succession, guardianship, and so on, are in some way or another linked to marriage. Due to the LGBTQ+ group has been denied the ability to marry so far, access to all of these other legislation has been restricted as well. The Surrogacy Bill of 2019 has now banned commercial surrogacy and only permits altruistic surrogacy for straight couples. The Bill also explicitly prohibits the homosexual couples from option for surrogacy services. Denying adoption and surrogacy for homosexual and transgender couples not only violates their fundamental rights but also denies them the chance of normalcy like heterosexual couples.
In addition, the Transgender Persons (Protection of Rights) Act, 2019 which was intended to ‘protect’ the rights of the trangender community is India was ironically drafted without any consultation with the community. It also required the transgender person to mandatorily submit proof of sex reassignment surgery only after which a certificate will be issued by the District Magistrate validating them. This provision is not only violation of privacy but it also requires the person to undergo a surgery which is extremely expensive. It also states that a person's transgender identification is valid regardless of whether or not they have had sex reassignment surgery. This, however, violates the need that they obtain a certificate from a District Magistrate certifying that they have undergone surgery. The bill makes no exceptions for transgender people, who commonly come from low-income families and struggle to get mainstream professions or receive adequate education. By granting them reservations, the government would only be ensuring them access to the bare necessities of life, rather than taking away anyone else's rights. Protection against sexual abuse, subsidies for medical expenses, rehabilitaion facilities etc., are some of the issues which has not been addressed in the Act.
Attitudes regarding homosexuality are changing, partly as a result of greater political engagement and efforts by homosexuals to be viewed as individuals who differ only in their sexual orientation from “normal” people. In most societies in the twenty-first century, the conflicting views of homosexuality as a variant but normal human sexual behaviour on the one hand, and as psychologically deviant behaviour on the other remain, but they have been largely resolved in most developed countries. However, some religious groups continue to place a strong emphasis on correction therapy in the hopes of “curing” homosexuality through devotion, counselling and modification. However, their claims of success are never proven to be true. Human sexuality is a spectrum and sexual identity and expression are also more fluid on the sexuality spectrum. You might shift from one position to the next or travel throughout the spectrum. Large-scale studies have backed up both the notion that broad words can be deceptive for some people and that people's sexual orientations are often ranges rather than set. With the increasing acceptance of this outlook by the younger generation it is not wrong to hope that the queer community in India wil be treated as a norm rather than a taboo.
Name: Nidhi J Shetty
Class: 3rd year BBA LLB
College: Ramaiah College of Law, Bengaluru
Batch: May, 2021