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The Triumph Of Colonial-Era Law Over India’s Very Own Constitution

The Triumph Of Colonial-Era Law Over India’s Very Own Constitution

In 2013, the Supreme Court of India delivered an enormous blow to all Indians, men and women, gay and straight. It declared that we the people are not free citizens, but mere subjects of the state whose bodies are subject to its jurisdiction even in the privacy of our bedroom.

Many of the straight folks, even the 'liberated' kind, believe that homosexuality is someone else's problem. Sure, we'd like it to be legal -- on the grounds of fairness etc. -- but we assume it makes no difference to our life, our freedom.

Well, it does.

Section 377 is not just directed at homosexuals. The section is a relic from the colonial age, introduced in the 1860s, and criminalises any kind of sexual act that is not peno-vaginal, including anal and oral sex. The SC held that Section 377 of the IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable. The apex court added that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary.

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History has witnessed a large number of gay men who have achieved incredible feats in various fields, despite having faced discrimination due to their alternative sexuality, at some point of their lives.

Jerry Johscverdictonsec377_3nson, a 34-year old gay man, living in Mumbai, orates the names of Michelangelo, Leonardo da Vinci, Alan Turing and Oscar Wilde among those historical figures. A self-confessed activist, but pertaining to the liberalist school of thought, Jerry accredits the accolades of these men to their sexuality, in a sociological perspective. The realisation of being different from the crowd and the acceptance of the same brings about a sense of curiosity as well as a knack for questioning among these men. Jerry believes that it is this inherent sense of reasoning, which developed ‘a highly attuned sense of identity’ which in turn, channeled the creativity of these men. In a fight for equality, such ideas of men like Jerry, looks beyond the legal recognition of the LGBTQ community into what it means to be a homosexual in todays’ society.

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Having studied philosophy, his ideas reflect the larger question of identity that he believes the LGBTQ community needs to address. From an early age, Jerry was aware of his sexual preferences to be different from the others boys he grew up with.

He admits, the realisation of being ‘different’, was compounded by feelings of “angst, regret, shame and guilt”, which was only made worse by being surrounded with the orthodox religious views of his Catholic upbringing.

Jerry found it much easier to accept his sexuality as he distanced himself from his religious upbringing to form his atheistic views. He believes that it is much easier to question every action based on its humanistic and naturalistic basis, when we rid ourselves of the religious constructs that bind us. He reiterates,

“There is simply no non-religious argument against homosexuality.”

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After finishing his schooling in India, Jerry moved to United States of America to continue his further education. It was in the States, that he addressed and accepted his sexuality and emerged from the closet. The open and accepting nature of the LGBTQ community in the States and his experiences abroad, built the courage and the confidence that he needed to accept his homosexuality.

On his return to India, at the age of 21, he confronted his friends and family about his alternative sexuality. He faced a lot of pressure from his family and also admits being made to visit priests, who claimed they could ‘cure’ him of his ‘ailment’. With a playful smirk, he reminisces,

“Despite all their efforts, here I am today, still gay. I guess God wants me to be gay!”

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With an air of nonchalance, he brushes past the topic of Section 377, saying, “It is irrelevant.”

Although he acknowledges the importance and urgency of abolishing this archaic law, imposed by the advent of ‘judeo-christian’ morality through the colonial rulers in 1860’s, he believes we need to talk beyond the legal recognition of the community. According to Jerry, laws such as Section 377 don’t just pose a threat for the LGBTQ community, but stand against the idea of personal choice for all citizens of the country, gay or straight. In India, laws such as Section 377 act as legal aids for discrimination against the LGBTQ community, doled out by the police and other homophobic sections of our society.

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The oppressed nature of the homosexual community masks the various issues that plague the community from within. Fearing discrimination, the homosexual community of India is slowly masking its identity and conforming to the norms of the heterosexual crowd. Jerry admits the presence of homophobia in its different forms that is seen within the LGBTQ community. Curbing of these characteristics, that make the homosexual community stand out in their own space, could lead to us losing out on the geniuses the LGBTQ community gave to the world.

As Jerry explains “We are not saints. We share the same prejudices that straight people do. We are not asking to be given special considerations, but simply be acknowledged as a part of the society and then be left alone.”

Written by Sarthak Chand