I wonder how LGBT community had been bearing the brunt of criminalization for their sexual orientation for so long. The community which has root in "Ardhnarishwar" and sustained long acceptance in the Indian society fell prey to "Victorian morality". The British law transmuted into IPC 377 criminalised the carnal intercourse calling it unnatural (and colonising other was natural, hypocrisy at best!).
But, irony is that this community lived on margin even after Independence. Everybody relished political freedom but LGBT still remained chained in 'biopolitical power' of the state. Perhaps, Who could know this pain better than famous philosopher Michel Foucault who was himself a gay and understood this phenomena closely. In his books, "History of Sexuality" and "punishment and discipline", he opined about the 'biopower' with state which could dictate the sexual behaviour of an individual. Here the very 377 is, perhaps, the manifestation of the same assertion. Even choosing of this number "77" was a cruel joke for the community to remind them always that this number resembled to their physical orientations.
Today, in the landmark judgment, the same Supreme Court corrected its 2013 judgment and unanimously affirmed the right to life and liberty of this wretched section. Now,point is who will take the responsibility of this long injustice? The state overpowered by conservatives, or so called natural moralist? Who will compensate the irreparable cost for thier ostracization for more than a century and half? Elizabethian ilk or our colonial mindset still having hangover?
We are yet to realise what cost this community is paying or have already paid.The collective social morality of ours, so called mainstream, have deprived them of any sort of education, good health, or just a bare minimum respectful employment; therefore forced them to beg on traffic signal/train compartment or live in ghettos or find a livelihood in brothel. And, this in turn have been annoying us, so called elite conscience keeper of Indian society.
Though our constitution makers aptly prescribed "sex" can never be a ground for any sort of discrimination, succeeding political leaders could not think meaning beyond the binary of male and female. Even conservatives who keep on referring culture and religious texts could not recall then that our sanskrit( Dev vani) literature well recognises third gender( Neuter , Napunshak ling).
Even Dr. Ambedkar, the main architect of the Constitution was obsessed mostly with caste atrocities, though he did aver " the contradiction" India was entering into. He vouched, "On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up."
Though this community was never so empowered, neither in number nor otherwise to revolt against society or state, the simmering undercurrent could not be suppressed long. The solution was bound to come from the Constitution itself, only it was the appropriate time awaited to see the light of the day.
Nevertheless, we couldn't mean Ambedkar's assertion beyond caste consideration and women backwardness.Perhaps the competitive politics of vote bank could not ever let political leaders imagine about this LGBT as vote bank. Even Shabnam Mausi Bano, a Transgender legislature of Madhya Pradesh(1998-03) unprecedentedly risen on political scene, could not scale up her success in politics for Queer community. Today, the disparate 2.5 million population may not even constitute any substantial political force, yet, can India as an emerging modern society afford to ransom this section any longer in the 21st century when the concern for human rights, minority rights and more is at its acme? Perhaps, No.
The SC, today, emphatically accepted, we owe a lot to this section, any furtherance of this law is indefensible and a slur on our collective human conscience. Though it was lately realised, the custodian of our constitution, judiciary started to hint wayback in 2009, thanks to Delhi HC and Naz foundation,a civil society. Later, NALSA judgment and right to privacy case paved the way for " achhe din" for this section. Hope, clash for credit shall not start among political vultures.
Now, it's time to go beyond constitutional morality. The herculean task is to align social morality with this new reality. Various fears unwarrantedly raised need to be assuaged by collective social will and by showing the society bigger picture. We have to increase our space to accommodate them well in all spheres. We have to understand even so called "natural order" is not above humanity. Every evil becomes banal and common sense when practised for longer as we had "sati" and else, but we did overcome. We have recognised human right of each, so is this case now and "sex" is the most fundamental need in even Maslowian need hierarchy, so how can they be deprived for any more moment . And, they are just asking for their expression in their own world.
