This isn’t really “my” victory, because I’m not Indian. I had nothing to do with changing the country and the way people feel, and I shouldn’t even be celebrating really, because there is still so much I should be doing in MY country and I shouldn’t be distracted by celebrating something in another country. On the other hand, I do care about people in India, so I can celebrate for them and be happy for them. And then go back to working for my own people.
Do you have Deja Vu? Do you remember we were here 9 years ago in 2009 and then everything moved back in 2013? I am having a “don’t celebrate too soon” feeling, but this time feels different. Last time Section 377 was struck down by the Delhi High Court as unconstitutional. The government did not appeal, and so the law was dead. But religious groups took up the call and appealed the decision, bringing it all the way to the Supreme Court who gave a terribly misguided and short sighted decision in favor of upholding the law:
We hold that Section 377 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 High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years, less than 200 persons have been prosecuted for committing offence under Section 377.
[Parliament has not overturned it] This shows that Parliament, which is undisputedly the representative body of the people of India, has not thought it proper to delete the provision. Such a conclusion is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in the law.
Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General.
This time, the case against the law hinged on that opening statement, that only a “miniscule fraction of the country’s population” is gay. And that few people are prosecuted under this law. Essentially the court was saying “why bother changing it? Everyone ignores it and it only affects a few people anyway”. So this time the lawyer filed on behalf of 5 petitioners, representing the queer people of India. And gave arguments explaining how the law was a threat held over everyone, it didn’t have to be enforced, it just had to be there. And told the same stories I have read over and over again, police officers blackmailing gay men and raping them, rape survivors unwilling to file petitions, and just generally the fear of being yourself. And this time the Supreme Court decision was not only different in its conclusion, but different in its entire tone:
Consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter if individual choice. Section 377 results in discrimination and is violative of constitutional principles.
Section 377 is irrational, arbitrary and incomprehensible as it fetters the right to equality for the LGBT community…LGBT community possesses the same equality as other citizens.
Social morality cannot violate the rights of even one single individual.
Members of the LGBT community and their family members are an apology from society for being denied equal rights over the years.
So, yaaaaaay! Good news! In our little filmi world, Karan Johar and Aamir Khan both tweeted in support, Aamir reposting a video from his episode of Satyamav Jayate that dealt with gay rights. Generally people are happy. Sonam is retweeting celebrations like mad, Alia Bhatt changed her profile to a rainbow flag, Hrithik was pleased. Ekta Kapoor posted a clip from one of her old shows with a same sex couple that included a plot point of 377 being struck down, Amitabh, Salman, and Shahrukh still haven’t been heard from but I feel fairly confident they will say something nice. But my favorite I think is Anil Kapoor’s tweet, just because I like picturing him saying it with a big Anil Kapoor smile:
Indian film has been dealing with gay rights for years, in their own special hidden “don’t worry, we are just joking” kind of way. So I’m going to throw up a couple songs that, now, could have been part of a REAL movie plot, not just a “don’t worry, nothing to see here, all a joke” plot.
This is what I don’t understand: can the whole thing happen again? Could religious groups come and appeal AGAIN? Our poor Shah, he can’t comment. Everyone goes BESERK beserk when he does.
It’s a Supreme Court judgement, so they would have to reverse themselves. And their judgement was very emphatic with little room for a reversal. But anything can always happen.
I think people are celebrating equal the judgement itself, and the wording of it, the clear statement that queer people have rights. And no matter what kind of appeal is put forth, that statement will still stand.
Kind of like in America, the Dred Scott decision set us back decades in human rights, but it came with a dissenting opinion that put us forward decades. In this case the decision and the opinion are going together, but even if the decision falls, the opinion will still be there.
Yay, so happy to wake up to this news.
Challenging your first paragraph – A victory for civil right anywhere is a victory for all of us everywhere, and calls for worldwide celebration. When the USA supreme court made its marriage equality decision in 2015, the whole world rejoiced. When over a billion people are now allowed to be homosexual with a single decision, the whole world should celebrate. This goes beyond national boundaries and even beyond sexuality boundaries, as it speaks to shifting mores worldwide on privacy, individuality, and dignity.
Reading your excerpts of the decision, I cringe at the inexact wording, which leaves lots of holes for future attack. Eg. “which is not harmful to women or children” implies that gay male rape either doesn’t exist or isn’t harmful lol, and inadvertently excludes it from the decision, when ironically the phrase wasn’t necessary since the previous sentence said “*consensual* sex between *adults*”. Also, “in a private space”… What does that mean for a sane sex couple that kisses in public, in a country that views kissing as a private act of foreplay?
I see your concern of the ‘loopholes’. But it is an important step in the right direction…and other ones in the same direction can follow.
The “woman and children” stood out for me too. It also leaves the question of parental rights a bit open. If a man chooses to leave his wife and children and live openly with his partner, could the court decide that shared custody would be harmful to the children? There’s also the way the wording of the entire thing is so focused on male-male relationships. I think one of the petitioners was a woman, but the wording feels more male focused.
I didn’t notice the “private space”, which just shows how blind I am to Indian issues. But your point makes total sense. Oh well, this just gives more battles to win as time goes on, test cases defining “private space” more clearly, clarifying the conflict between “consenting adults” and “not harmful to woman”.
And now, on to making marital rape illegal!!!! It could happen! There could be another complete reversal!
On Thu, Sep 6, 2018 at 8:51 AM dontcallitbollywood wrote:
Adding in “Private Space” could also be code for Don’t Ask Don’t Tell, or at leaves the legal door open for that argument.
Yup, all non-hetero ppl are homosexual and they are all male. And all laws are written with men in mind, and all social movements are given credence when they benefit men. And not just in India.
Marital rape is a tough one, since women are conditioned to believe it is consensual, a necessary evil of the wedding night of an arranged marriage. The whole community is in on it, not just the couple, because if the groom complains that the bride wouldn’t have sex, the community would lecture the bride, even her parents would.
I got very distracted by the whole arranged/forced marriage question in my Ninnu Kori review, which I’m guessing you didn’t read because it was a minor Telugu film and why would you read a review of it? I really need to stop burying these big discussions in the SPOILER sections of obscure movies. Anyway, my point was that there is too much acceptance of forced marriages and not enough consideration of what the difference is between those and arranged marriages and how a forced marriage will never really be “okay”, that lack of choice will always poison it. And yet films and society show us over and over again that it all works out for the best, the couple (especially the woman) learns to stop complaining and “adjust” and then we can pretend it is fine.
I can’t remember, did you watch Lust Stories? That was one of my favorite things about Karan Johar’s film, it showed completely consensual sex within an arranged marriage that just happened to be unsatisfying. Not a line most people would bother to draw, consensual but unsatisfying versus rape instead of “that’s just what marriage is”.
Oh, and yes to the “private” thing! It could easily slide back to where society is already, “it’s fine if you are a man who sleeps with men so long as you never talk about it and live your life as though it wasn’t the case”.
On Thu, Sep 6, 2018 at 12:49 PM dontcallitbollywood wrote:
Forced marriage, forced sex, and arranged marriage are three different things, though they can overlap. I was speaking to the situation where the arranged marriage is consensual, or even desired, (it’s not a forced marriage), but one partner is not ready to have sex on the wedding night, so the other partner rapes them, either in an act of control and power, or because they have been told by their family and community that forcing yourself on your partner is the necessary first step to get the partner over that hurdle, I.e. they will enjoy sex once they have tried it, they are just scared right now.
So even forced sex can be different things depending on the how and why.
I think that often was the problem in arranged marriages during centuries especially when the husband, too, had no or rather brothel-based sexual education.
Yep, I think, it is worth celebrations…and I am confident that the law will not be changed if the global (say western) approach to the legal situation of non-heterosexual people will remain. However, that is only a legal change…a first step in accepting transsexuality and homosexuality the mayor ‘work’ of acceptance still to do.
The Chief Justice of India Dipak Misra will leave the Supreme Court early in October (65 years old the 3rd of October) and the only female judge of the five joined the SC in April this year. I think, both these incidents have to do with scrapping §377 finally giving in to the petitions.
One of the pionieers of the HIndi filmindustry was, btw, the director Onir who did not only made honest movies about the pronlems of queer people and sexuality in general but also campaigned the abolition of §377.
I was just thinking about Onir, because he was thanked in the opening credits of Stree. There was also Rituparno Ghosh who directed Raincoat, and transitioned from male to female in the last few years of her life before her early death from diabetes.
On Thu, Sep 6, 2018 at 9:13 AM dontcallitbollywood wrote: