In my previous post, I was wondering if Aamir Khan is brave enough to take up the issue of LGBT rights in the 3rd episode of Season  3 of Satyamev Jayate. Turned out he is indeed that brave. The topic was homosexuality and freedom of lesbian, gay, bisexual and transgender community from the discriminatory law Section 377 of the Indian Penal Code.

Brief notes on the episode:freedom for lgbt poster smj

In first segment we heard the story of Ghazal, a woman born with a male body, who subsequently went through a sex change operation. The highlight of Ghazal’s story was her parents support through her journey from being trapped in a wrong body to a new life as a woman, their  heroic support for their daughter have hopefully inspired millions of young and future parents today to accept their children’s sexual orientation without bias and prejudice. Then we met Deepak, an openly homosexual man and heard his story, how he was suicidal at one point because couldn’t accept his identity and was ashamed of who he was. As we heard their stories, the narrative reiterated over and over again that homosexuality is not a disease, not a choice, its as natural and normal as heterosexuality.

While the first segment steered clear of the exact words and focused on personal stories, in the second segment, for the first time in the history of general entertainment channels on TV, words like gay, lesbian, bisexual, transgender, sexuality were dropped into the drawing rooms of the unsuspecting naive Indian middle class – the people who until today wanted to believe that sex is a cultural aberration imported from the west and babies fall from tree. Two big myths were busted 1) Homosexuality cannot be cured by any kind of therapy or counseling including the shock treatment or YOGA (hope Baba Ramdev would stop lying now). The psychiatrist made us aware that just like you can’t change a heterosexual to be a homosexual by any treatment, similarly you can’t do the vice versa 2) LGBT people are also NORMAL people. Then we heard the story of a lesbian woman who was into a happy marriage once only to realize after almost 10 years that she was a lesbian. Her story highlighted the importance of accepting the truth about our identities rather than carry on with a meaning less marriage or relationship. She described how her ex-mother in law heartily accepted her when she came out to her and how her ex-husband is still her friend. These were stories of courage and positivity that would inspire the youth to get rid of the taboo attached to homosexuality.

In the third segment we met Simran, a transexual man whose gender identity wasn’t accepted by his family. Unable to tolerate any more reprimand, he ran away from home at 14 and landed at Mumbai Central station. From there, life took him to the Hijra community, sex work, dance bar, 5 yrs of college, a job at HIV Alliance and today she is managing a project at national level. There she was sitting in front of Aamir in all her grace, wearing a saree and looking gorgeous, this member of the hijra community, the community which is often labelled with the worst possible abuses. We see them as de-humanized freaks. She spoke of acceptance and respect for and stigma and discrimination towards the hijra community.

Though immensely happy with the topic of today’s episode, till the middle of this segment, I had my doubts about Aamir touching upon Section 377 of IPC. I thought he would just talk about a change in social mindset, the taboo, stigma etc but not discuss the legal aspect as that would be too much risk taking, particularly because the Supreme Court has now given a verdict on it. But I was wrong. In the fourth segment, activists Gautam Bhan talked about the history of the law and its discriminatory nature, how cops misuse it. Introduced by colonial rulers in 1860, we are still stuck with the law while the British themselves have abolished it 50 years ago. IRONY cannot be any more cruel than this. Gautam raised the point that the word ‘unnatural sex’ is given in the law, how can a law say it is unnatural as long as it is between consenting adults? At this point, Aamir said, “this implies we don’t have a right to our own body.”Anjali Gopalan talked about the petition filed by Naz Foundation (of which she is the Founder) via Lawyer’s Collective against Section 377, the Delhi High Court’s judgement decriminalizing homosexuality followed by Supreme Court’s order re-criminalizing it.

The big call for change at the end of today’s episode was to amend Section 377 and decriminalize homosexuality. The NGOs supported were Humsafar Trust and Naz Foundation.

The giant leaps taken by today’s episode:

  • Over and over again through various stories and narratives, it was reiterated that homosexuality is not a disease, not a choice, not abnormal, and it is nobody’s fault. There is no reason to be ashamed of it, or be afraid of it. Some have long hair, some have curly hair, some are heterosexual, some are homosexual, as simple as that.
  • For the first time words like gender identity, homosexuality, sexual orientation, have been used on a general entertainment program aired at prime time distributed through two of the largest networks, Star and Doordarshan.
  • For the first time the concept of ‘my body my right’ was used anywhere outside the NGO / activist / academic circle.
  • For the first time stories of Simrans and Ghazals came out of the NGO / activist / academic circle and entered the general public’s imagination to shake them up and make them realize there is a world outside their bubbles, where so many lives are struggling just to be accepted as human beings.
  • Hijras extort money, but they do it because we haven’t provided them with jobs, for the first time somebody said this out and loud to the nation
  • The hashtag #FreedomForLGBT was trending at no.1, not just in India but world wide on Twitter. Who would have thought an issue affecting the so called ‘miniscule minority’ would trend world wide, even on a day when Modi wave was sweeping Haryana and Maharashtra (looks like the power of minority stole Modi’s thunder)
  • On the Mumkin Hai live talk show, which is aired right after the episode ends, Aamir made further appeals to the government to gather the political will to amend the archaic law. He said, the government shouldn’t worry about vote banks, they already got the votes, they are now here for 5 years, now they should do what is right, they can call the best medical authorities from across the world, they can consult any subject matter experts they want and then decide what is just and take the just action.

I think today’s episode of Satyamev Jayate was a milestone in the queer movement in India. It has given a huge push to the movement, since such an appeal in such unequivocal terms from such a big star hasn’t come before. The fact that this issue is being talked at the national level would now inspire the queer activists to lobby with the government to bring an amendment, since that’s the only option Supreme Court has given.

A change in law or a change in social mindset – which should happen first?

Does law make the society or does the society make the law? Many legal theorists and philosophers have tried to answer this question. Naturalist theorists (Aristotle, Thomas Aquinas) believed that the foundation of human created law (legal statutes) is in the natural logic and reason of the human life. On the other hand, legal positivists believed that laws are commands of the sovereign, enforced by sanctions and obeyed by the majority (John Austin). Exponents of a comparatively younger theory Critical Legal Theory believe that laws are expression of policy goals of the dominant social groups (Roberto Mangabeira Unger).

Owing to various theories it cannot conclusively be said whether a change in societal mindset should precede a legal change or vice versa. Perhaps both should happen simultaneously. I personally feel that since in the modern times our very identities, from birth to death, are created by law, a legal change should precede the societal change. Because law has the ability to enforce change by sanction, and law gives us identity.

Section 377 assigns a criminal identity to all homosexual people purely on the basis of their sexual orientation without having any regard to age and consent, thereby adversely affecting their dignity and self-worth. Police have routinely used this law to harass, extort and blackmail homosexuals. Section 377 has been one of the main hindrances for homosexual men and men who have sex with men (MSM) in gaining access to health facilities due to fear of criminal prosecution. Therefore while we would keep working on the change in societal mindset, I think the change in law should be the priority of the queer movement.

History of Anti homosexual law

The law has its origin in the early British Anti Sodomy practices dating as far back as 1290. Parliament of England officially enacted the Buggery Act in 1533 and it prescribed capital punishment for act of sodomy. It was first introduced in India in 1828 by the British rule as an attempt to ‘improve’ the criminal justice system in Indi. In 1860 it became part of Indian Penal Code. The law is neither relevant to protect child sexual abuse, nor does it add any value to rape law, nor is it important to preserve the so called Indian culture and social fabric. It is known that in Britain, with the anti sodomy law in place, several homosexuals faced violence and persecution. As a result they left England and came to India to find a safe haven. Section 377 was a reaction to these phenomena. “Introduction of Section 377 in India was not a reflection of existing Indian values and traditions. Rather, it was imposed upon Indian society due to the moral views of the colonisers.” Mr. Goolam E Vahanvati, Attorney General of India wrote recently.