‘Lifting the Veil’: The battle hasn’t ended with Navtej Singh Johar Judgement

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Photo © iStock/SoumenNath

By Vagmi Singh 

“It is a marvel that those red rose-leaf lips of yours should be made no less for the madness of music and song than for the madness of kissing.” – Oscar Wilde to his lover, Lord Douglas (January 1893) 

Under the atrocious and draconian law, The Criminal Law Amendment Act of 1885, Oscar Wilde was charged for being himself, for loving a human and for expressing the love that he could not exists without. In Regina v. Wilde, he was prosecuted for the crimes of sodomy and gross indecency and served two years in prison where he wrote letters to his lover professing love and his utter disdain for society (later published as De Profundis). This is one of many instances wherein non-heteronormative tendencies were punished highlighting the prudish intolerance of a ‘decent’ society. This was the case, even, in India before the 2018 judgement (Navtej Singh Johar & Ors v. Union of India & Ors, 2018). However, even after legalising same-sex relationships, there has not been a drastic change in accepting what is not predominantly heteronormative in both the legal fraternity as well as society.

Recently, petitioners Supriya Chakraborty and Abhay Dang, and Parth Phiroze Mehrotra and Uday Raj Anand have sought the solemnisation of same-sex marriage under the Special Marriage act of 1954. The non-inclusive laws are a point of concern. Civic rights such as the right of wages, right of gratuity, right to surrogacy, right to adoption and right to marriage et al, are enjoyed by heterosexuals and cisgenders, but they do not extend to the LGBTQ+ community. The political temper and the reluctance shown by political representatives add to their current situation. Apart from this, people identifying as LGBTQ+ often come across social discrimination such as difficulty in finding rental places to live together, in workspaces, and in educational institutions, wherein they are identified not as who they are and what abilities they have but as what their sexuality is.

This article attempts to examine the response of the legal fraternity and society towards the community.

Lihaaf: beyond what meets the eye 

The acronym ‘LGBTQIA+’ stands for Lesbian, Gay, Bisexual, Transgender, Queer/questioning, Intersex and Asexual et al. Gender is not biological but a social, psychological and cultural construct and, therefore, one is open to identifying as any of them without going through the surgical process. However, for ages, homosexuality was restricted to scientific explanation and did not gain its relevance in human sciences. Therefore, people had to resort to art and literature to express themselves beyond what science formally examines. From The Picture of Dorian Gray by Oscar Wilde to “Lihaaf” by Ismat Chugtai, the writers and their work have gained both the authority’s wrath and society’s displeasure on the subject. Nevertheless, through this, the emotional, as well as the psychological aspect of homosexuality, came to be known to the masses.

However, there was a dearth of literature on the subject in India which has not changed much, with Chugtai’s “Lihaaf” breaking the barriers. Not many attempted the same taking into consideration the obscenity charges that followed. Shakuntala Devi’s The World of Homosexual (1977) is one such attempt to investigate and humanise society towards it. Recently, Cobalt Blue (2022) based on a novel by the same name, released on Netflix, helps the mainstream understand that homosexual relations are like any other heterosexual relations, having ups and downs of their own. However, societal pressure and the lack of civic rights often result in psychological problems, making it, if not more, difficult to have homosexual relationships in contemporary times.

Legal Labyrinth 

During Wilde’s trial, the Prosecutor, referring to homosexual love, asked him, “What is ‘the love that dare not speak its name’?” Wilde responded:

“The love that dare not speak its name” in this century is such a great affection of an elder for a younger man as there was between David and Jonathan, such as Plato made the very basis of his philosophy, and such as you find in the sonnets of Michelangelo and Shakespeare. It is that deep spiritual affection that is as pure as it is perfect. It dictates and pervades great works of art, like those of Shakespeare and Michelangelo, and those two letters of mine, such as they are. It is in this century misunderstood, so much misunderstood that it may be described as “the love that dare not speak its name,” and on that account of it I am placed where I am now.

In the above excerpt, Oscar Wilde precisely explains, what was missing from the common-sensical understanding of homosexuality, that it translates itself into transcendental aspects of love which no one has successfully quantified. However, the law is lacking in this understanding.

The Netherlands, being at the forefront, is the first country to legalise homosexual marriages in 2001. However, it still is yet to ban conversion therapy, staining its progressive outlook. The picture in India is far bleaker than it may look. Although conversion therapy and discrimination are illegal in India, there is a partial restriction on changing gender, and adoption and donating blood are banned, classifying them as persons ‘at risk’ of infections including HIV-AIDS. In making a comparison between the LGBTQIA+ statistics and the HIV statistics in India, the likelihood of gay men or transgender people proving a safety risk to blood donation is negligible. Rather, this ban constitutes group discrimination, violating Article 14 of the Constitution which guarantees the right to equality. Furthermore, LGBTQ+ people cannot serve in the Indian Armed Forces. Section 45 of the Army Act of 1950 talks about the “unbecoming conduct” of officers without detailing it. And section 46 (a) says any person guilty of any disgraceful conduct of a “cruel, indecent or unnatural kind” will, on conviction by court-martial, face up to seven years in jail. Therefore, under the Army Act of 1950, homosexuality is a crime in Armed Forces, thereby limiting their access to only civilian jobs. This is outright discrimination, violative of Article 14 of the constitution, and should be held unconstitutional. However, the political temper and institutional reluctance are a different ball game altogether, making it difficult to live up to the values enshrined in the Constitution of India.

The recent petition filed in the Supreme Court of India stated that non-recognition of same-sex marriages is violative of Article 14, right to equality, and Article 21, right to life, of the Indian Constitution. Moreover, it is contradictory to Navtej Singh Johar & Ors v. Union of India & Ors, 2018 which held that homosexuals have the fundamental right to live with dignity, are “entitled to the protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them.” Furthermore, if we refer to NALSA v. Union of India, 2014, it held that the constitution protects non-binary individuals and that the protections envisaged under Articles 14, 15, 16, 19 and 21 cannot be restricted to the biological sex of “male” or “female”. Therefore, the plea argued that Section 4(c) of the Special Marriage Act, 1954, uses gendered language ‘male’ and ‘female’. This limits access to marriage to heterosexual couples. To add to this, it implicitly rejects the very notion that while sex is ‘biological’ but gender is ‘social’. Furthermore, it imposes restrictions upon non-heterosexuals to have other benefits arising out of formal wedlock such as the right to gratuity and the right to adopt et al. This crippling and shunning state of recognising the rights of LGBTQ+ is just the tip of the iceberg.  

 Social sanctions 

‘I am what I am, so take me as I am.” – Jonathan Wolfgang Von Goethe 

According to Britannica, sanction, in the social sciences, is a reaction (or the threat or promise of a reaction) by members of a social group indicating approval or disapproval of a mode of conduct and serving to enforce the behavioural standards of the group. Punishment (negative sanction) and reward (positive sanction) regulate conduct in conformity with social norms. The prevalence of social sanctions often goes unnoticed, as does the reason people form conformity as a result of them. They can be both formal, by the established law, and informal, the scorn and disdain by society. This gets even more oppressive in the case of the LGBTQ+ community and represses their voice through it.

LGBTQ+ people still face the derision of society from early childhood, despite much momentum in favour of acceptance of the community. According to the UNESCO Report of 2018, LGBTQ+ Children face a lot of bullying in schools, colleges, etc. and are also discriminated against. Around 60 per cent of the students who identify as LGBTQ+ faced bullying in middle or high school, whereas 43 per cent of the students reported being sexually harassed. This often translates into violent acts such as honour killing. Women suffer the worst as when a woman declares herself as a lesbian or a bisexual, then the family generally suggests them go for sanctioned corrective rapes in which a woman has sexual intercourse with a man without her will to treat the ‘Disease of Homosexuality’. Not to forget about the silent sufferers who get married without their will, to the opposite sex, just to keep their families’ pride intact and maintain their social status. Moreover, people from the community often struggle to find places to live together as land owners tend to take into account their sexuality before renting them the place. This is often based on the commonsensical understanding that homosexuality is irreligious and constitutes a sin. However, this isn’t the case in the quasi-historical text, which is regarded as sacred in Hinduism, Mahabharata, in which a warrior in the Kurukshetra War was born a girl, but later transitioned into a man named Shikandi. Moreover, Agni, the God of Fire, was married to both Svaha (a Goddess) and Soma (a God).

All the above-stated examples call for a need to sensitise people regarding the same. Although we organise ‘pride parades’, we often neglect the need to have debates and discussions that could in turn change societal perception for the good.

Conclusion                                                    

“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.” – Justice Indu Malhotra (2018)

To sum up, LGBTQ+ people still face widespread legal stigmatisation and societal persecution. The dilapidated state of our society and the institutional reluctance is doing grave injustice to the community. Therefore, there is a need to introduce policies and schemes in congruence with Articles 14, 15, 16 and 21 of the Indian Constitution, to uplift the LGBTQ+ community apart from giving them the basic civic rights, that cisgenders and homosexuals enjoy, that a person needs to live a dignified life. To begin with, the Special Marriage Act of 1954 should be made gender-neutral and should not take into account a person’s gender identity and sexuality. Furthermore, the political will rests on their vote bank and therefore, it is essential to change public perception towards the community. This may begin from the school level, by introducing inclusive textbooks, classroom discussions et al, to help students, as well as educators, become more accepting towards non-heterosexuals. Furthermore, political parties should extend their ticket to people identifying as LGBTQ+, to contest elections from constituencies. This would help increase their political representation, thereby, amplifying their voices. A long road lies ahead as the battle hasn’t ended yet, the onus is on us, the members of society, to choose the right path. 

Note: Part of the title of the article ‘Lifting the Veil’ is dedicated to the book of the same name, ‘Lifting the Veil: Selected Writings of Ismat Chugtai’, selected and translated by M. Asaduddin (Penguin Books India 2009) 

Bio:
Vagmi Singh
is an undergraduate student pursuing B.A. Sociology (Hons) at Hindu College, University of Delhi. She is interested in politics, law, economics and philosophy. She is also a national swimmer and has a keen interest in sports. Email – vagmisingh.vs.09@gmail.com

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Read the latest issue of Cafe Dissensus Magazine, “Thinking through the body: Fear, faith, and fluids”, edited by Dr. Papia Sengupta, Assistant Professor, Jawaharlal Nehru University, New Delhi, India.

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