September 6 was a historic day for India’s Lesbian Gay Bisexual and Transgender movement. A five-judge Constitution bench of the Supreme Court bench unanimously struck down parts of Section 377, a law enacted by the British in 1861 that criminalised homosexuality. Justice Indu Malhotra beautifully summed up the sentiment. “History owes an apology to members of the LGBT community and their family members for the ostracisation and persecution they faced because of society’s ignorance that homosexuality is a natural trait,” she said in her opinion. “Its penal suppression infringes a host of fundamental rights.”
It was a big day, one that filled me with pride that Indians finally have the right to choose whom they love without fear. It is, however, shameful that it has taken 71 years since Independence for India to decriminalise homosexuality.
I do fear, though, that the battle for LGBT people has just begun.
Another long fight for rights
Look, for instance, at the struggle by people with disabilities to secure their rights in India.
I was born in an era when persons with disabilities were not legally protected in India. During my early childhood, my mother, convinced that she wanted me to lead a normal life, fought a lonely battle against family members who kept recommending spiritual gurus and doctors who might perhaps “correct me”.
The world over, the disabled population is estimated at 7%-8%. India’s census measures it at 2.21%.
In 1995, the Indian Parliament passed the Rights of Persons with Disabilities Act. I was now legally recognised as a person with a disability and medical examiners issued me a certificate saying I was “above 80%” disabled. I continued being ostracised in school, and when the time came for me to appear for my board exams, my mother had to visit the CBSE headquarters several times to ensure I was permitted to have someone to write the exam for me as my handwriting was not legible. Since then, India has seen another disability law, the Rights of Persons with Disabilities Act, 2016. However, the battle against entrenched and widespread attitudes in society towards people with disabilities continues.
Take the attitudes in government, for instance. Government officials often invite me to audit their buildings, proudly pointing to a steep ramp at the entrance of the structure as evidence that the buildings are completely accessible. But these officials do not realise that accessibility means much more than a ramp. Last year, when the Union government introduced the Goods and Services Tax, aids for people with disabilities such as wheelchairs, hearing aids and braille keyboards, all of which used to be tax free, were brought under the 18% tax bracket. Nationwide protests by the disabled community forced the government to reduce this to 5%. This tax – which can be seen as the equivalent of taxing people for walking, seeing or hearing – is now being challenged in the Supreme Court. In June, after I filed a Public Interest Litigation in the Delhi High Court, it issued an interim judgment preventing the state government from buying standard floor buses that people with disabilities cannot access. The fact that the Delhi government had even floated a tender for these buses was a violation of the Disabilities Act, 2016.
Similarly, India’s insurance regulator protects insurance companies from insuring people with congenital and genetic disabilities. And, until as recently as last month, guidelines of the Medical Council of India prevented students with specific disabilities from studying medicine, legitimising a practice several medical colleges had followed for years. The Union Health Ministry amended these guidelines in August after a group of doctors with disabilities, led by Dr Satendra Singh, who had contracted polio as a child, asked the government to intervene, and also moved court. Students with disabilities can now aspire to become doctors. But this victory came too late for an entire generation that missed out on their dreams.
The 2016 Act increased education quotas for students with disabilities from 3% to 5%. However, a survey released last year by the National Centre for Promotion of Employment for Disabled People indicated that only 16% of the seats available for people with disabilities have been filled in the top 32 universities and institutions across India.
Earlier this year, I conducted sensitisation workshops with senior police officers from across Delhi. Many confessed that they have never seen someone with a disability, and a few were actually intrigued that the deaf actually communicated through their own language, the Indian Sign Language. Little surprise considering that India does not recognise Indian Sign Language as an official language even though next-door neighbor Nepal has initiated legislation to do so.
Learning from the disability movement
Across the world, the disability movement has been envious of the LGBT movement for the engagement it has managed to create, the star power it has attracted and the young voices that it is capturing.
However, at least in India, the battle has just begun. Hours after the landmark verdict, news channels were already reporting that the government will oppose any attempts to legalise gay marriage. Marriage aside, there are many battles that yet remain. For instance, will insurance companies extend same-sex partners the same benefits that they do to heterosexual couples? Will gay couples be allowed to parent children? Will the private sector create a safe space for those who come out of the closet? Will the police continue to be stuck in its colonial mindset, leading gay-safe spaces to remain hidden? Will the pink economy be embraced with so-called gay maps, the kind seen in the Western world? Will children come out to their families? And most importantly, will parents realise that there is no crime in their child being gay?
The first battle has been won. And so will the rest. But for that, the LGBT movement will have to take a page out of the disability movement’s book – one of persistence. Not every battle will create the same media buzz, star power will not support the movement every time. But cause by cause, case by case, change will happen.
Justice Leila Seth, mother of celebrated author Vikram Seth, had once said, “What makes life meaningful is love. The right that makes us human is the right to love.” And I do believe, no one can stop the power of love.
Nipun Malhotra, a disability rights activist is CEO, Nipman Foundation and Founder, Wheels For Life. His Twitter handle is @nipunmalhotra.
