A modern India can't have Section 377 in its laws

“We will state (at an all-party meeting if it is called) that we support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported.”

Anyone reading this would wonder if these thoughts were being expressed in 19th century India or in a fast growing, all embracing nation of the 21st century, striving to move shoulder to shoulder with the developed world. But these are the views of Rajnath Singh, president of the BJP, our principal opposition party at the centre. In an interview, Rajnath Singh made his thoughts and his party’s official line on Section 377 very clear, lest there be any doubt on which side of the debate they stand.

The BJP’s initial silence about, and now support to Section 377 shouldn’t surprise anyone. Didn’t the BJP’s ideological mother ship, the RSS vehemently oppose Ambedkar’s progressive Hindu Code Bill brought by Nehru? In 1949 alone, the RSS organised as many as 79 meetings in Delhi where effigies of Nehru and Ambedkar were burnt.

To jog our memories, here is what the Hindu Code Bill contained, which was so strongly opposed by the RSS and the Hindu Mahasabha. The Hindu Marriage Bill outlawed polygamy and contained provisions dealing with inter-caste marriages and divorce procedures. The Hindu Adoption and Maintenance Bill had as its main thrust the adoption of girls, which had been little practised till then. The Hindu Succession Bill placed daughters on the same footing as widows and sons where inheritance of family property was concerned. The BJP and the Sangh Parivar had regressive views back then, and continue to hold on to such views even today.

Contrast this with the Congress’ stand on the Supreme Court’s verdict upholding Section 377. In 2009, the Congress and the UPA had respected the Delhi High Court’s decision to amend Section 377. Now, party president Sonia Gandhi re-emphasised the need to ensure every citizen of the nation is treated as equal. She issued a statement saying she was disappointed with the apex court order. “I hope Parliament will address this issue and uphold the constitutional guarantee of life and liberty to all citizens of India, including those directly affected by this judgement,” she said.

The government’s stand has been articulated by the attorney general recently, maybe not as vociferously as expected, but believing the decision was progressive and befitting of any modern, democratic society that recognises the citizenry’s fundamental right to personal liberty and equality.

The Supreme Court verdict just undid what would be remembered in history as a progressive step, bringing back a discriminatory law created over 150 years ago by our colonial masters. The Centre is likely to go for a review petition or curative petition over the verdict. Sonia Gandhi, Finance Minister P Chidambaram, and Law and Justice Minister Kapil Sibal have all come out against the apex court order.

Why is this debate important? And why now?  Every time I have spoken on Twitter in support of scrapping Section 377, I have been vehemently questioned by BJP supporters (leaving aside that some of their comments on my Twitter updates about the LGBT community have been downright derogatory). I was in a debate with Sudhanshu Mittal, a BJP spokesperson, where on being asked about the Supreme Court’s decision, he repeatedly compared consensual sex to sex with animals. This is the understanding of the issue from a major Indian political party, which claims to be progressive, modern and forward looking. While the rest of the political class has come out vociferously in support of the gay community, the opposition continues to hold to its regressive and outdated mentality. Meanwhile, the voluble prime ministerial candidate of that party, who has a ready opinion on everything under the sun, continues to maintain a stoic silence on this issue. But sometimes, silence speaks louder than words. And this is one such case.

The BJP’s position in this debate has now become relevant more than ever. The Supreme Court referred the matter to the parliament for legislative intervention while upholding the Sec 377 as constitutional. Despite the recent history of the apex court’s encroachment on the executive and legislative domains, it chose to shirk from taking a bold step in this case. By reversing the Delhi high court judgement, the Supreme Court has gone against the fundamental rights of a citizen enshrined in the Indian constitution. Many analysts on these pages have already explained the flaws with the judgement. If the amendments need to be made by the parliament, there has to be a broader consensus across parties. With the BJP clearly opposed to it, it is unlikely Section 377 will be repealed any soon. That is a tragedy for every single citizen of this nation who has the freedom to live the way she wants and who wants everyone else to have the same freedom.

Cynics have raised suspicions about the timing and the support that the public view on repealing Section 377 has got from the Union government. There is no good or bad time, politically, to make changes to an archaic law which is not in tune with the times we live in. It is about moving the nation out of the regressive mindset being perpetuated by certain fringe religious groups. If we keep giving in to these fringe groups, it will lead to our decline as a society and a nation. We have already seen many other countries go down that road. India cannot be one of those countries.

India has always stood out as an inclusive, secular, progressive, liberal and modern country in the comity of nations. It can be no different when it comes to the matter of gay rights and decriminalisation of homosexuality.


Priyanka Chaturvedi is a blogger, columnist and is on the panel of spokespersons of the All India Congress Committee. She blogs at The Book Lovers and Priyanka Chaturvedi. Views are personal.