Lounge Opinion: Back in the closet

The Supreme Court of India, the highest judicial authority in the country, made a cop out of historic proportions by relegating the responsibility of repealing Section 377 of the Indian Penal Code (IPC) to Parliament. Although the step may be procedurally sound, it smacks of contradictions, to say nothing of cowardice, especially as it cancels out a progressive legal precedent set by the Delhi high court in 2009.

Four years ago, in an epic judgment, the high court had decriminalized consensual sexual acts between adults in private, including same-sex relations. The verdict drew on the fundamental rights enshrined in the Constitution to read down Section 377, which had been added to the IPC, drafted by Lord Macaulay in 1861. The Section, which criminalized “carnal intercourse against the order of nature”, was a British import and, in its condemnation of homosexuality, violated a centuries-old tradition of respect for same-sex relations that had existed in India, well before the British arrived with their mission to “civilize” us.

Macaulay’s language is gender neutral, so the law can be twisted to apply to virtually anyone, including heterosexual people, engaging with mutual consent in sexual acts that are deemed “unnatural”. Sexual intercourse whose aim is not procreation but pleasure could be penalized as being against the natural order. The fact of having such an absurd law to rule the land where treatises like Kama Sutra had been written and venerated would have been deeply ironic, even hilarious, had the consequences not been so full of pain, tragedy, and shame.

In reality, Section 377 of the IPC has affected the lives of homosexual people, especially gay men, in India in a manner that has drawn the attention of the international community. It has been remarked on by the United Nations and earned India the dubious distinction of being one of the 70 odd countries where homosexuality is seen as a crime.

For decades, homosexual people in India had to suffer harassment and persecution from society and the custodians of law, before years of undaunted activism gained them a basic legal recognition any modern democracy in the world ought to have guaranteed in the first place. While the 2009 judgment was a decisive moment in the history of the LGBT movement, it did not take away the difficulties of living in a society that is far from ready to unconditionally accept homosexuality. Yet, with the modicum of legal protection, homosexuals could at least hope to widen the net of empathy, engage their friends, families, colleagues and neighbours in the challenges they face, the moments of happiness and sorrow that inform their lives like anyone else’s.

But the Supreme Court verdict puts paid to the idea of inclusive democracy in this country. Indian democracy is not only a byword for majoritarianism but is also weak: it takes a conglomerate of religious leaders, right-wing politicians and homophobes to stall the implementation of a law that would have ensured equal rights and dignity to every citizen of the country and made us a nation worthy of the esteem given to all democracies that aspire to protect human rights.

The judgment comes across as especially shocking given the recent series of judicial reforms involving the bodily integrity of women that India has seen. From the recommendations of the Justice J.S. Verma Committee on the framing of rape laws after the gang-rape and death of a young woman on 16 December to the critique of the Vishakha guidelines dealing with sexual harassment in the workplace, debates continue to unfold in the public discourse with rigour and enthusiasm. But, while the thrust of legal and political reform has been towards make the country more secure for women, as it should be, there is relative hesitancy about bringing homosexual people under the equal protection of law. Most gay men, who routinely face sexual harassment and violence on a daily basis, cannot seek redress because the law does not recognize their existence, even though they are expected to participate in the political process, pay taxes, and abide by the rules that guide civil society.

Since the early days of activism for the decriminalization of homosexuality, both judicial and executive arms of the state have behaved equivocally, riddled with contradictions, eager to pass the buck. The Supreme Court, which has no qualms arbitrating on live-in relationships or the coal scam or on the ban of the use of beacon on cars, refuses to boldly step when it is time to stand up for basic human rights, nothing less. It chooses, instead, to leave the task of changing the law on homosexuality to Parliament, a move that would be perceived, whether the honourable court likes it or not, as giving primacy to the executive wing of the government because the stakes involved in this case are not just ethical but also political, when it should not be the case.

In 2009, both the home and health ministry were in support of decriminalizing homosexuality, but the then law minister, M. Veerappa Moily, was in no hurry to push through the law in Parliament. Yet, this is the same country where “vote-bank” politics is perceived as a legitimate way of seeking electoral win. Every state, region and community, divided along caste and religious lines, has an axe to grind and usually has the power to hold political leaders at ransom on the basis of their demands. Every political leader goes about making grand proclamations of cleaning up the polity, sweeping out corruption with a broom, and representing the interest of even the commonest of the common people.

It is heartbreaking that this fire-and-brimstone rhetoric dissolves into uneasy silence or gains a fanatical edge when it comes to representing a sizeable population of the country—people who, like any other subject of the Indian state, hope for a life of safety and happiness.