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Gay law worry under new regime

New Delhi, May 25: The rise of the “Right wing” BJP at the Centre has left at least one community, now at the crossroads of its battle towards reclaiming its sexual rights, worried.

The LGBT community of lesbians, gays, bisexuals and transgenders, waiting for a date from the Supreme Court to hear its curative petition against the recriminalisation of homosexuality, is “nervous” about whether the new government would support its campaign to reverse the ban on gay sex.

“There is heightened concern over the issue but, legally speaking, since the Supreme Court has maintained that it will hear the petition, the government has to make its stand clear in court. There they cannot take a political or populist stand. They have to make a legal case saying they disagree with the previous government’s stand against Section 377,” said Tripti Tadon of Lawyer’s Collective, which represented the community in the top court.

The court had in December last year reinstated Section 377, a law against gay sex, following a four-year period of decriminalisation that had helped bring homosexuality into the open in the country.

Section 377 of the Indian Penal Code is a 153-year-old colonial law that criminalises all “sex against the order of nature”, including gay sex. It was handed down by India’s then British rulers who have now legalised gay sex — even gay marriages — in their own country. The Supreme Court order, which had reversed a July 2009 Delhi High Court judgment that decriminalised adult consensual gay sex, said only Parliament could repeal the law.

Transgenders, however, had their day of rights last month when the top court, in a landmark judgment, ruled that they must be treated as the third gender.

Some of the judgment’s key implications for the country’s estimated 19 lakh transgenders, commonly known as hijras, were reservations in government jobs and educational institutions, like any other socially disadvantaged and backward community, and access to public toilets.

The judgment had come as a ray of hope for the entire LGBT community but the BJP’s victory, sources in the community said, was a potential “blow”.

“What is, however, assuring in some sense is that a major chunk of Narendra Modi’s electorate comprises the youth and he depends on the corporates. Both these sections have supported the decriminalisation of gay sex. So, it might not be easy for him to continue the ban. However, what also remains to be seen is the role the RSS plays in policy-making. We all know what their stand is on this,” Tandon added.

The UPA government had been a divided house in the Supreme Court over Section 377. While the home ministry supported it, the health ministry contended that it was against criminalisation of gay sex.

While several senior Congress leaders, including Rahul Gandhi and Kapil Sibal, criticised the Supreme Court order, with elections in mind, they didn’t actively seek to repeal the law in Parliament.

Activists say it is the BJP’s “lack of a clear stand” that could be dangerous. “The BJP does not appear to have officially taken a stand on Section 377 or the broader issue of LGBT rights. While party president Rajnath Singh has said the party supports Section 377, other senior members like the former leader of Opposition in the Rajya Sabha (Arun Jaitley) have indicated that there has not been a discussion on the issue within the party, and also said that some voices within the BJP support the decriminalisation of homosexuality,” said Shashikumar Velath, programmes director, Amnesty International India.

“The previous government had told the Supreme Court in 2013 that Section 377 was not a reflection of existing Indian values and traditions and had been imposed upon Indian society by colonisers. We urge the new government to uphold this position,” he added.

Rights activists are pinning hopes on the BJP manifesto, which pledged to refine and scrap outdated laws. “There are few better places to start than Section 377,” Velath said.

Even Prime Minister-elect Modi, who is extremely active on social media, had been silent amid scathing criticism of the Supreme Court judgment last year.

“This is definitely a setback for us as we now have to convince a new set of politicians to address the issue. It is now time for more aggressive advocacy, otherwise we don’t stand a chance given their huge mandate. The campaign would have been much easier with the previous government as they seemed to be on our side, but they didn’t have the gumption to take it forward,” said activist-lawyer Debojyoti Ghosh.