Thursday, December 05, 2013

Bring on the verdict

Vartanama, Dec '13
By Pawan Dhall

A 12-year period may not be too long by the standards of the Indian judicial system in terms of delivering judgments. But if time is golden, then the Supreme Court must not delay any further a verdict on the matter of the Delhi High Court ruling of July 2009 reading down Section 377 of the Indian Penal Code. The issue at hand is not just decriminalization of lesbian, gay, bisexual, transgender and other queer people and their sexual relationships, but one of testing our resolve as a nation in applying the highest principles of the Constitution to a matter that is at once both intimate and public, and challenges our reluctance to look at gender and sexual inequity square in the face and deal with it.

The matter actually goes back to 2001, when NGO Naz Foundation (India) Trust filed a public interest litigation against Section 377 in Delhi High Court. Since then the petition has had a rather high profile life, drawing in both widespread support and opposition from civil society, government, media, academic, political, religious and other quarters. It also saw at least one highly visible instance of Section 377 being cruelly misused by the police to falsely arrest and harass a number of queer men for a crime they never committed – having sex in a public park (Lucknow, 2006). Not to speak about the numerous other incidents of extortion and sexual violence suffered by queer people away from the media glare – thanks to the pincer grip of legal stigma (Section 377) on one side and social stigma (queer phobia) on the other.

A scene from the Kolkata Rainbow Pride Walk 2008.
Photo credit: Pawan Dhall
After the Delhi High Court set the cat among the pigeons in July 2009 by declaring Section 377 in default of constitutional morality, the matter went to the Supreme Court and the court finished hearing arguments in favour of and against the Delhi High Court ruling by March 2012. Parallel to this, the number of Indian towns and cities holding queer pride marches swelled to more than a dozen. Winds of change also blew on the legal front with more progressive laws around sexual assault and child sexual abuse.

Now, for the first time since March 2012, there is ‘news’ that one of the Supreme Court judges in the bench charged with the matter of Section 377 is about to retire and would like to read out the verdict before his retirement (see Preparing for Section 377 Verdict in this issue of Varta). Good for everyone if the verdict sees the light of day now, and all parties concerned get to know where they stand on the matter and what they need to do next.

For India’s queer movement, the verdict will be a key watershed. Will it uphold the Delhi High Court ruling or not? If yes, to what extent? Will it test the queer movement’s resolve to face disappointment and still carry on the arduous battle for social and legal acceptance? Or will it finally provide an opportunity for India to cut short, if not undo, 153 years (that is how old Section 377 is) of injustice and loss of self-esteem, health and life brought upon countless people who live and love beyond unnaturally rigid gender and sexual mores? Will India continue to be more British than the British while the heavenly figurines of Konark and Khajuraho look on in helpless amazement? Time now for the Supreme Court to come out!

Pawan Dhall aspires to be a rainbow journalist and believes in taking a stand, even if it’s on the fence – the view is better from there!

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