advertisement
(This story was first published on 20 June 2021. It has been republished from The Quint's archives in the run-up to the third anniversary of the decriminalisation of homosexuality in India on 6 September.)
Jennifer was just 14 when an ambulance arrived at the doorstep of her biological family’s household in Kerala. A few minutes later, a group of people entered the house, faces she had never seen before.
They approached her calmly, but as she stepped back to resist the invasion, they became aggressive. They drugged her, picked her up, put her in that ambulance, and drove her to a place where she would be subjected to the “worst form of torture” she could imagine.
Jennifer is one of the many from the LGBTQIA+ community who are subjected to “uncodified crimes” against body and mind by their biological families. These uncodified crimes – conversion therapies, surveillance, and missing person complaints – are tools through which the state-family-society nexus of the heterosexual community tries to control and attack the very being of the LGBTQIA+ community.
On 6 September 2018, the Supreme Court attempted to remedy the wrongs perpetrated against the LGBTQIA+ community for generations. In Navtej Johar v. Union of India, which is celebrated as a “landmark judgment”, Section 377 of the Indian Penal Code was read down to decriminalise homosexuality in India.
An elaborately worded judgment affirmed principles such as “the Constitution must guide society’s transformation from an archaic to a pragmatic society”, and “not only must the law not discriminate against same-sex relationships, it must take positive steps to achieve equal protection and to grant the community equal citizenship in all its manifestations.”
However, even after the decriminalisation of same-sex intercourse, many individuals who identify as a part of the LGBTQIA+ community continue to feel like “unconvicted felons”. The sexual act has been decentred (not completely) from the practices that subject sexual minorities to the criminal justice system.
Missing person complaints, surveillance, and conversion therapies reflect the violent paternalism of hegemonic heteronormative identities and the social structures they perpetuate. This violent paternalism becomes a state-sanctioned attack on the fundamental rights of equality, dignity, and privacy when the criminal justice system is set in motion to “rescue sexual minorities” and “restore them to natural households”.
On 29 May, Vinay finally mustered up the courage to approach the police station in Gurugram, Haryana, with two sheets of paper pulled out of his journal. He had thought about doing this at least five times earlier but hesitated each time. The sixth time, after taking advice from a couple of lawyers, he finally covered that last mile.
Sexual minorities are subjected to the violent paternalism of uncodified crimes by a state-family-society nexus. The criminal justice system and the family work in tandem to suppress sexual minorities, as their very existence is a radical departure from the exclusionary and stratified society that this nexus envisages.
Sexual minorities undermine the well-calibrated system of heteronormative social control that help perpetuate the discrimination, exclusion, and violence that the prevailing system benefits from. The central government itself exposed this nexus in its affidavit filed on 26 February before the Delhi High Court opposing marriage equality for LGBTQIA+ couples.
The central government opposed pleas seeking recognition of same-sex marriage, citing the concept of the Indian family system.
Many individuals and couples who were subjected to the violence of these uncodified crimes found the strength to resist and reclaim themselves. Post Navtej Johar, many such couples moved the high courts challenging the “missing person complaints” and seeking protection from police and biological family abuse.
One such person is Chinmayee Jena (he/him/his), who approached the Orissa High Court seeking reunification with and protection of her partner Rashmi (name changed) who was forcefully held hostage by her biological family. Throughout the proceedings, the counsel for the state and the family deliberately kept on misgendering while referring to Jena.
While these judgments are celebrated for seeing sexual minorities as “equal citizens” capable of taking ownership of their lives, such litigation is an unnecessary burden these individuals have to carry to resist the violent paternalism of uncodified crimes.
A step towards lifting this burden was taken by Justice Anand Venkatesh of the Madras High Court while hearing a petition moved by a lesbian couple seeking protection.
Justice Venkatesh’s order is a significant as well as an ambitious step towards dismantling the violence of uncodified crimes against the LGBTQIA+ community. However, the real challenge lies in its actual implementation by the state-family-society nexus which sees sexual minorities as a threat.
Jennifer, who developed PTSD due to her horrifying experience at a conversion therapy centre, believes that the Madras High Court judgment is a good step, but it is merely a start.
It is this marginalisation, entrenched institutional homophobia, and transphobia that needs to be addressed. If left unattacked, this would keep on producing innovative and reimagined forms of subjecting sexual minorities to physical, mental, and psychological punishment – a punishment, without a charge or conviction.
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)
Published: 09 Jun 2021,10:37 AM IST