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A file photo of a gay parade in New Delhi. The battle for the acceptance of gay rights in India is a long one; it is time for India to leave the prejudice in the 19th century where it belongs, and join the 21st. Photo: Mint (Mint)
A file photo of a gay parade in New Delhi. The battle for the acceptance of gay rights in India is a long one; it is time for India to leave the prejudice in the 19th century where it belongs, and join the 21st. Photo: Mint
(Mint)

Long battle for gay rights

Accepting differences is the norm of a civilized society; imposing a narrow set of values on others is not

In 1996, conservative lawmakers in the US succeeded in legislating the Defense of Marriage Act (DoMA), which declared that a marriage could only be between a man and a woman, in an attempt to continue stigmatizing same-sex relationships and denying spousal rights to people in such relationships. Several states broke from that consensus, and in 2003, the US Supreme Court held anti-sodomy laws unconstitutional. Last week, the same court ruled that DoMA itself was unconstitutional.

India, meanwhile, remains imprisoned in a jail of its own making. In 2009, the Delhi High Court ruled in the Naz Foundation case that Section 377 of the Indian Penal Code of 1860, which criminalized consensual sexual acts among adults, violated Articles 14 (equal protection under law), 15 (non-discrimination), and 21 (personal liberty) of the Constitution. That eloquent judgement, like other judgements from India’s higher courts over the years, pulls the country from the Victorian age in which the Penal Code was written, to the present day.

There was nothing homegrown about Indian laws regarding homosexuality in India. Imperial mores were imported and 19th century ideas of what was moral prevailed, so that what the powerful considered immoral, was made illegal for all. And yet, soon after the Naz verdict came out, busybodies claiming to represent various religions complained, and some went on to appeal the court verdict, even though they had not suffered any injury.

To be sure, being a public interest litigant does not mean you have to be an affected party. But all these litigants want is to curb the rights of others, even when they have not suffered any harm. The litigants can enjoy their rights, including holding conservative views, even when others live their lives differently, exercising their rights. Courts exist to make sure that the rights of those who are different from the majority or the dominant class, are protected, so that the dominant view alone does not prevail. Accepting differences is the norm of a civilized society; imposing a narrow set of values on others is not.

The Indian government had chosen not to appeal the Naz judgement because a careful reading convinced a group of ministers and law officers that Justice A.P. Shah and Justice S. Muralidhar had laid out their ruling cogently, leaving no space for argument. That did not prevent assorted swamis, astrologers, and bishops to argue against the verdict, suggesting that Indian civilization would be in danger, if homosexuality was allowed to flourish. How weak must that civilization be, if its fundamentals get shaken when two consenting adults, who love each other, express their feelings for one another?

The Indian Supreme Court has heard the arguments but not yet ruled. It should uphold the Naz judgement. After all, the government has accepted the ruling and chosen not to appeal. The litigants are not acting in public interest in the traditional sense of representing the interests of the poor, vulnerable, and disenfranchised groups. They seek to impose their conservative values on the rest of the society. They have the right to believe those values. But Naz offers the court an opportunity to assert people’s rights and to recognize that courts exist to ensure that people who eat, drink, pray, worship, and love differently can do so, and that their rights are protected.

Now there is an American precedent. Last week, the US Supreme Court ruled on another case involving gay rights—Hollingsworth vs Perry, which dealt with Proposition 8 in California, which had outlawed same-sex marriages by a popular vote. Earlier, the state supreme court had already authorized same-sex marriages. Gay rights groups challenged the Proposition, and several courts ruled against it. The state administration refused to appeal the judgement. At this, the Proposition’s sponsors appealed to the US Supreme Court. It has now rejected the petitioners’ standing to appeal the district court’s order. In simple prose, the Supreme Court told the petitioners that they had no business bringing the case, since they had no cause, nor suffered any injury. Arguably, the same principle can apply in the Naz case.

This is not the first time that an American precedent would be cited in an Indian case. Vikram Raghavan, a lawyer, who writes on the blog Law and Other Things told me: “During its early years, our Supreme Court relied heavily on US precedents. Those citations are declining. But American decisions cast an unmistakable influence over Indian constitutional law." Indeed, Indian judges have in the past drawn on Roe vs Wade to rule on privacy; Lawrence vs Texas was cited in Naz; and the Indira Sawhney case (about reservations) has many American citations. “Naz is an artfully and elegantly woven decision," Raghavan writes. “It requires no further embellishment. It should remain undisturbed."

The battle for the acceptance of gay rights in India is a long one; it is time for India to leave the prejudice in the 19th century where it belongs, and join the 21st.

Salil Tripathi is a writer based in London. Your comments are welcome at salil@livemint.com. To read Salil Tripathi’s previous columns, go to www.livemint.com/saliltripathi-

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