Sunday, December 15, 2013
The 377 and beyond
http://www.cybervictims.org Blog by Dr.Debarati Halder
With almost every free-thinking Indian getting shocked and surprised by the recent Supreme court decision to set aside the High court decision on the constitutionality of S.377 of the Indian penal Code, I can’t stop but share my thoughts on the issue. S. 377 is one of those penal laws created by the British rulers which has become obsolete in the eyes of the modern society, but sitting like an obstinate law due to the recent ruling of the Supreme Court of India. What does S.377 say? It actually criminalises unnatural sexual relationship and thereby touches the Lesbian ,Gay, Bisexual and Transgender community as well. I am one of those, who as a child were quite afraid of those ‘women’ who were not completely women. I grew up watching them in the trains, bus stops, roads, eateries and sometimes at weddings and family functions where (I was told) their presence was needed as a good omen. I continued to be ‘afraid’ of them till the day I met one who is one of them. That was way back in 1990’s when they used to socialise with people rarely. I knew how wonderful human being this person was and they as a group are more reliable friends than those who cheat and harass others in the name of friendship. I was particularly interested in their on-line presence. I did get to see lots of communities and groups in Orkut way back in 2008 and afterwards. When Orkut started losing its popularity, I searched them in other popular social media like the Facebook and found that they existed in several public, private as well closed groups. A fascinating fact that I would like to share is, while transgender, in many academic writings who are described as ‘cross dressers’, openly advertise about their sexual as well as physical appearance choices, many gay, lesbians and bisexuals take to internet often to secretly share their choices. Nonetheless, I did deal with online victimisation of such people who were violently bullied in public forums as well as private chat messages. The pain is no less than that of any normal men or women suffering from adult bullying or hate messages. Why stopping with this? it has become a trend to tease a man by calling him a ‘gay’ or a woman a ‘lesbian’ and go on-line bragging about it if a perpetrator wishes to bring huge embarrassment to his/her victim with immediate effect. I consider this as an insult to the LGBT community. It is a personal choice of sexual affiliation and no one should tag a person who has straight likings to be like one from the LGBT community may have. Similarly, LGBT community should have their own privacy and they deserve respect even if it is in an on-line presence. Constitutionality of S.377 has actually encouraged those who feel bullying LGBT community people is their right as such sorts of sexual preferences are seen as ‘wrong’ not only by a major sect of the society, but by the court itself.
Now, look at the practical scenario:
i. In Tamil Nadu, one transgender was provided government health worker’s job, another was given a home guard’s job as a ‘woman’ (See http://www.bbc.co.uk/hindi/india/2013/12/131215_transgender_home_gaurd_sr.shtml?ocid=socialflow_facebook_hindi). If S.377 is constitutional, then these ‘government appointments’ are bound to be affected.
ii. On-line groups and communities speaking about LGBT rights, often share information about each other. Many put up their profile status as bi-sexual, gay or lesbian in their Facebook profiles. Would this not be considered a ‘crime’ if the individual is an Indian national? If anyone feels this can be considered so, think of right to equality, freedom of speech and expression and of course right to personal preferences and right to life which has extended its scope to cover right to privacy.
iii.While I am an ardent supporter of S.66A of the Information Technology Act, which restricts some categories of speech in the internet, I also fear that this provision would lose its power if any one belonging to LGBT community wishes to avail it to prevent and punish those who would have hurled hate speech, death threats, sexual assaults to him/her just because his/her sexual preferences.
The practical scenario becomes graver as majority of Indian families deject adolescent children to attend sex education classes. But see the irony: many mothers love to dress up their young male children as baby girls with ‘girlie’ gowns, fairy wings complete with lipsticks. Many mothers also prefer to dress up their baby girls in boy’s dresses with half pants, shorts , shirts and encourage them to pick up toys exclusively tagged for ‘boys’ just for a ‘photo-sake’. Well, young parents love to show off their children ‘cross dressed’ but they forget that once floated, these pictures, images or videos can stay back for a long time in the web; it can actually make the child extremely embarrassed when he/she starts using the social media and his/her friends and peers take a look at their ‘babyhood’ pictures and how their parents wanted show them off to the world. Many adult ‘cross-dressers’ did confess in many forums that they took up liking for what they are now, due to their childhood experiences. But do note that these adults are ‘net immigrants’ who have taken the internet as a part of their lives not very long ago. If the young parents are showing off their babies (who would be true netizens) in such fashion, ask yourself on whom the liability lies to show the path? If this is the legal scenario, would the parents be able to counsel their children who may go through major psychological changes due to this? Probably not. Couple of weeks ago I heard this painful story of a co-passenger who was telling her friend how no one in her family supports her since she has become a ‘she’ from being a ‘he’ and how the possible employers ask them to leave right from the door step by seeing a ‘manly woman’. Yes, she has a boyfriend, but he meets her secretly because he does not have courage to accept a ‘former man’ as his legal partner. Online bullying of LGBT people is almost always based on these very facts which are painful realities.
There is one silver line in this dark cloud: the Supreme Court did observe that S.377 is constitutional. But at the same time, it also stated that it is open for the parliament to decide the final fate of it ( See http://barandbench.com/comment/44159#.Uq6CStIW3g0), even though this is neither an ‘unchallenged fact’, (See http://www.thehindu.com/opinion/lead/the-wrongness-of-deference/article5463126.ece), Law makers, please consider. Law makers, please consider.
Please Note: Do not violate copyright of this blog. If you would like to use informations provided in this blog for your own assignment/writeup/project/blog/article, please cite it as “Halder D. (2013), “The 377 and beyond”, 16th December,2013, published in http://cybervictims.blogspot.com/”