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Section 377: Will the SC stand up for modernity, moderation and India's diversity?

Will the Supreme Court embrace a rationalist viewpoint and amend its own ruling, or will it take the populist view and keep the 156-year-old law intact?

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The Supreme Court is today set to hear a curative petition by LGBT rights activists challenging its December 11, 2013 judgment upholding the validity of Section 377 of the Indian Penal Code, which criminalises 'sexual intercourse against the order of nature'.

It is interesting that what the section really bans is not same sex intercourse, but sex 'against the order of nature'. This means that any sexual activity that is not peno-vaginal is considered illegal and therefore liable to be punished by law. This is a bizarre law that needless to say, very few heterosexual couples would ever dream of following in the bedroom. It is also a colonial import - the British framed it in 1860 and it has remained in the Indian statutes ever since.

The effective decriminalisation of same sex activity in 2009 by the Delhi High Court seemed to be a major step forward, but then came the apex court judgment in 2013. Since then, many people have been tried under the provisions of Section 377. The interest the issue generated before the decriminalisation of same-sex activity now seems to have ironically come back to haunt LGBT individuals and rights campaigners.

Moreover, while the law may be ignored by heterosexual couples, homosexuals face undesirable attention from society because of who they are - and hence the law is far more dangerous for them.

Over the last 20 years or so, the LGBT rights movement has gained significant momentum all over the world, and important gains have been achieved, except in extremely conservative or backward countries. In India, the movement gained much visibility after the turn of the century. But it is not surprising that the entities which appealed against the High Court order of 2009 mostly belonged to a religious/ conservative milieu. It is also not surprising that India's 'party of change', the BJP, continues to skirt the issue. The world over, religious conservatives have tried to scuttle legal progress on gay rights. Why should it be any different in India?

There are some interesting perspectives though. The first is that India's majority religion is doctrinally ambiguous, even contradictory about the morality of same sex activity. In fact, ancient scripture and literature rarely define gender in binary fashion, opting instead to describe a range of gender and sexual identities. That Hindu religious leaders (for the most part) should stick to the most conservative narrative available speaks volumes about those leaders, not about the religion they profess.

Second, religious leaders who back Section 377 have often found tacit support from organisations such the Rashtriya Swayamsevak Sangh (RSS), and open backing from other Hindu right-wing outfits. Incredibly, these are the very groups who often rail against the 'colonial mindset' prevalent among India's English-educated urban middle class. It is these very groups which seek to revive India's ancient traditions and learning in the name of cultural and moral development. So why the double standard when it comes to decriminalisation of homosexual acts? Why back a British colonial law?

These groups have also fallen into the trap of labeling liberal belief of any kind 'western culture'. This is not even funny any more - efforts are being made to reinterpret everything in India's historical traditions to promote the conservative narrative. From Khajuraho to Shikhandi in the Mahabharata, it seems we were mistaken about the diversity and openness of our culture.

The average Indian, victim of a colonial legacy, alarmed by the rapid influx of western thought especially post-1991 liberalisation and still struggling to make ends meet, is easy fodder for the ravings of religious fundamentalists. Fundamentalists have the majority on their side, and they know that as long as the majority remains mired in superstition, poverty and discrimination, the religious narrative against same-sex rights will always work.

It seems that conversations around the issue gain no traction with hard-minded dogmatists. One can throw every bit of evidence in to no avail. You could talk scientific evidence, human rights or colonialism. You could even point out that criminalisation of same-sex intercourse hinders efforts at HIV/AIDS prevention and control - through driving HIV-positive and high-risk gay persons into the closet, which is a body blow to efforts to stop the spread of the incurable disorder - to no avail.

Nor are the fears of child sexual abuse well founded. There is little credible evidence to suggest that LGBT individuals are more prone to indulging in sexual abuse of minors. What does this tell us about those intent on keeping Section 377 intact? Bigotry wearing the cloak of morality?

Moderation has always been a hallmark of the Indian philosophical tradition. The moderate view in this case would be to accept decriminalisation of same sex acts while holding on to one's personal beliefs in the privacy of home. Morality directed at oneself can become a source of self-discipline. Morality directed at others is tyranny. In this scenario, it is an element of theocratic bullying - and perhaps even without substantial theology to back up claims.

So will the Supreme Court embrace a rationalist viewpoint and amend its own ruling, or will it take the populist view and keep the 156-year-old law intact? If it does the latter, it could be a lifetime before we see the dawn of freedom for our LGBT brethren.

Martin Luther King Jr said over half a century ago that he dreams of a time when people will be judged not by the colour of their skin but by the content of their character. It's time for India in 2016 to stop judging people by their sexuality, by who they are, and instead evaluate human beings by who they become, that is, by the content of their character.

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