The agony of being Dutee Chand

Prem Chowdhry
Author and academic, Delhi University

Advertisement

The recent acknowledgement of Dutee Chand, one of our foremost international sprinters and winner of several medals, about her same-sex relationship has once again foregrounded the issue forcefully. Within days of this declaration, a 19-year-old girl in Odisha’s Jagatpur district was beaten up and tied to a tree for being in a lesbian relationship. How long will this penalisation continue?

Homosexuality legalised

India inherited the criminalisation of same-sex relationship from the British who had criminalised anal sex and oral sex (for both heterosexuals and homosexuals) under Section 377 of the Indian Penal Code in 1861. This made it an offence for a person to voluntarily have ‘carnal intercourse against the order of nature’. After 157 years, the Supreme Court, in September 2018, legalised homosexuality by adjudging Section 377 to be unconstitutional and declaring it to be infringing on the fundamental rights of autonomy, intimacy and identity. It pronounced the criminalising of carnal intercourse as irrational, arbitrary and manifestly unconstitutional. 

In 2009, the Delhi High Court had decriminalised Section 377, but this order was set aside in 2013 by an SC Bench. In 2018, the SC overturned its earlier 2013 judgment. Homosexuality, it was declared, was a part of human sexuality and consensual sexual acts of adults came to be allowed for the LGBT (lesbian, gay, bisexual, transgender) community. The SC also directed the government to take measures to create public awareness and eliminate the stigma faced by the members of the LGBT community, also referred to as the gay community. However, the Court did not recognise same-sex marriages, despite legal experts urging it to do so. 

Khaps oppose same-sex marriage

Within two months of the SC verdict in November 2018, a sarv-khap panchayat (caste council), was held at Charkhi village of Haryana’s Charkhi Dadri district which called for a ban on gay sex and live-in relationships. Held at the behest of the Sangwan khap, the largest and most influential khap, the panchayat was attended by various khaps from across Haryana. Despite legal recognition of homosexuality in India, the khaps continue to see gays and lesbians as enemies of traditional values and as a source of social instability. 

The attitude of the khaps has compelled gay couples to seek protections through the courts. In 2011, a Haryana court stepped in to grant recognition to a same-sex marriage, involving lesbian women Beena and Savita at Khedka village in Gurgaon district. They married each other by signing an affidavit before a public notary in Gurgaon. Beena was unmarried while Savita’s marriage had been dissolved by a khap panchayat in Bagpat district. The couple had begun to receive threats from friends and relatives in their village. Consequently, the couple submitted a petition before the court, stating that they had known each other for 15 years and in June, 2011, they decided to live with each other.  Their counsel told the court that both the petitioners had conveyed their intention to their parents, who did not give their consent. Beena’s relatives and villagers had threatened them with ‘dire consequences’. The danger from the khaps was even more acute as they would have imposed extreme punishment (even death) on them. In this case, however, the police gave them full protection and against heavy odds, the court helped them. Several same-sex marriage petitions are pending with the courts in Haryana.

In another incident, a 21-year-old woman from Haryana, who underwent a sex-change surgery so that she and her lover could be together, is in turmoil. The woman who is now the husband has filed a police complaint that the family is not allowing his wife to meet him. In his complaint, this husband stated that the couple fell in love when they were in school and she/he had to undergo sex-change as both their families didn’t agree to the same-sex marriage. Another young couple in Haryana similarly defied their families to stage India's first gay wedding in a Hindu temple.

Taint of ‘sin’

It is not hard to see that despite its official and legal recognition, homosexuality is still tainted with sin and perversion in the mainstream public discourse. Swamis and politicians have spoken against homosexuality. Ramdev, in his petition to the Supreme Court declared homosexuality as a ‘disease’. He stated that it was a ‘curable’ disease and that there was a cure for it in yoga. Senior BJP leader Subramanian Swamy said that homosexuality was ‘against Hindutva’ and that medical research was needed to see if homosexuality could be cured. Yogi Adityanath, CM of Uttar Pradesh, said, “The disease of men having sex with men (MSM) is unnatural and not good for India.” 

Although the BJP remained by and large silent, the Congress  welcomed the Supreme Court verdict on gay sex. 

The portrayal of homosexuals in cinema and TV is also somewhat uneasy. While cinema has been more forthcoming, TV has its own set of restraints. Despite that, there are some shows that have shown same-sex relationship.  

Religions have split opinion

All religions, whether Hinduism, Islam, Christianity or Buddhism, have split opinion on homosexuality, which they can and do justify on the arguments drawn from their texts. 

Yet, it is clear that an overwhelming majority of people, not withstanding their personal religion, perceive homosexuality as ‘abnormal’, ‘unnatural’ and at best ‘an illness’. Homosexuality is also juxtaposed with social ills, such as substance abuse and HIV/AIDS. 

Politically incorrect terms, such as ‘homosexual addiction’, ‘becoming homosexual’ and ‘infected with homosexuality’, still occur regularly.

The media generally reports on gay people victimised in crimes, including blackmail, robbery and sexual assault, by adopting a certain ‘you-deserve-it point of view to drive home the point that their victimhood had its roots in some inherent weaknesses or flaws due to their sexual orientation, such as promiscuity, cowardice and stupidity. Gays and lesbians have been described as violent subjects and media reports connect their love life (and sexual behaviour) to violence and depict gays as enemies of conventional values. 

This means that despite its official and legal recognition, homosexuality is still tainted with sin and perversion in the mainstream public discourse. 

The attitude of the society and individuals that stigmatise gays needs to change and, for this, more needs to be done than legal and legislative attempts. 

Till then, the homosexuals and gays have to live like Dutee Chand with, as she put it, ‘negative publicity’. The Supreme Court ruling has certainly given courage to the LBGT community to speak about their sexual orientation but the ground-level realities need a change for its proper reception.