The Delhi High Court had de-criminalised same-sex love in 2009. The Supreme Court of India has overturned the judgment and asked Parliament to legislate on the issue if it wants to change the Constitution.
Aside from the justifiable anger and dismay that this retrograde decision has caused among the LGBTQ (Lesbian, Gay, Bi-Sexual, Transgender and Queer) community, the judgment has also raised questions that have serious implications for Human Rights and for Rights of Minorities. It has brought into sharp focus the manner in which a secular democracy should deal with issues such as these.
Among those who petitioned the Supreme Court against the Delhi High Court judgment included an astrologer Suresh Kumar Koushal, the Krantikari Manuwadi Morcha, the Trust Gods Ministry, BP Singhal (described by the RSS mouthpiece Organiser in an obituary note as former Director General of Uttar Pradesh Police, former Rajya Sabha MP, former Chairman of Central Film Censor Board and younger brother of veteran VHP leader Shri Ashok Singhal). Others petitioners included The Apostolic Churches Alliance and Utkal Christian Foundation, All India Muslim Personal Board and SK Tijarawala, a representative of Baba Ramdev. The baba claims that homosexuality is a disease and promises to ‘cure it through yoga’. The VHP has approached the President of the Indian Union with a signature campaign asking him to ban homosexuality because it is a ‘foreign import’!
It will not be easy to compile a more representative collection of retrograde conservatives. This was the bunch that came together to collectively speak for all the Hindus, Christians and Muslims.
Our courts have on several occasions refused to entertain cases that they have considered frivolous. They have on occasion also admonished the petitioners of such complaints to not waste the courts’ time. One wonders why such action was not initiated in this case.
The government has now decided to move the Supreme Court for a review. But it must be underscored that had the government not prevaricated on the issue in the first place, the need to ask for a review would perhaps not have risen. The inept handling of the issue by the government perfectly aligned with its attitude on most such vexatious issues.
The Additional Solicitor General PP Malhotra argued that gay sex was “highly immoral, against social order, against nature and that it spread HIV.” He argued that Indian laws reflected the view of society and that they could not be guided by laws of foreign countries.
PP Malhotra obviously needs to refresh his understanding of the making of the Constitution of India. Every student of civics knows that our Constitution drew upon the constitutions of many nations notably that of UK. In any case most of our laws, especially those that are a part of the IPC and the CrPC are relics from our colonial past and Section 377 is certainly one of those, enforced, as it was, full 153 years ago.
The government later took the position that Malhotra’s views were his own and did not reflect the thinking of the government; one does not know if he was asked to return the hefty fees that the government paid him while he was articulating his half-baked ideas before the Supreme Court.
The Additional Solicitor-General Mohan Jain, representing the Ministry of Health, averred that the Centre had decided not to challenge the 2009 High Court judgment de-criminalising homosexuality. The government received an earful from the Supreme Court about its constantly changing position and the Attorney General GE Vahanvati was to later state that the Centre was not opposed to the Delhi High Court’s verdict in any manner. The judgment places us not among the company of nations building tolerant, inclusive and open societies. It is, in fact, a big leap backward into our colonial past.
The questions we need to ask ourselves, therefore, are many and far reaching.
Will we ever be able to achieve the greatness that we never tire of talking about if we continue to be hobbled by these antiquated laws and attitudes that carry upon their shoulders the dead weight of majoritarianism?
Will we continue to allow astrologers, soothsayers, godmen feudal satraps and self-appointed spokespersons of large heterogeneous and disparate populations to speak on behalf of all of us?
Will we continue to surrender all secular and democratic spaces to these false majorities constructed to serve all kinds of communal, sectarian and anti-democratic interests in the name of religion, tradition, morality, family honour and hurt sentiments?
Shouldn’t the State and the courts refuse to pander to these constructed majorities and easily hurt sentiments and outright reject the assertions of those who claim to represent and speak for entire communities?
Will we continue to refuse to engage (in the words of the student body of the National Law School University of India), as the Supreme Court has done, “with Ambedkar’s notion of ‘constitutional morality’ that restrains the majority from imposing its notions of morality on the minority? The judgement clearly violates the principle of inclusiveness which was articulated by Pt Jawaharlal Nehru as ‘the heart of Indian Constitution’.”
Will the Indian State and the government of the day never stand up to defend democracy and secularism, the two pillars of the Constitution that are the only guarantee that we develop into a modern, inclusive and open society? The issue of gay rights is a test of our democratic tolerance. A minority cannot be denied their chosen way of living and loving, just because constructed majorities do not approve and their self-appointed spokespersons disapprove.
There is enough concrete evidence in temple carvings and texts to prove that same sex love had not only existed in ancient times, it was also neither hidden nor its existence denied. In fact the criminalisation of same sex love is an import into India through the agency of the British and if anything it is this that needs to be expunged from our law books if we want to protect the inclusive traditions of sexuality that existed in ancient times.
The author blogs at Kafila.org and conducts heritage walks in Delhi