If the vault of freedom in the world’s largest democracy can only be unlocked by de-activating restrictive numerical encryptions like Section 66A and Section 377, then the Supreme Court has given us an important key or two. It’s unambiguous take-down of an oppressive provision in the information and technology law — which facilitated the arrests of young boys and girls for expressing a political opinion or even for clicking ‘like’ on disputable Internet content — has been celebrated as a landmark moment in the rights movement.
But because the legal system in India is so judge-centric — and thus verdicts can vary with the personal and political predilections of the man or woman presiding in the courtroom — it did not show similar sagacity while overturning a high court order that had finally de-criminalised homosexuality in India.
But what is significant about both the issues — shaping the contours of online azaadi or the even more fundamental questions of gay rights — is the shameful abdication of our political representatives, who have chosen either to display intolerance in Parliament or hide timidly behind a maze of laws, waiting for the judiciary to blink first.
After the Supreme Court took down Section 66A, calling it’s over reach “unconstitutional” and one that could have a “chilling effect on free speech,” politicians lined up suddenly to ‘welcome’ the decision. The draconian legislation was born from the womb of the Congress, which during its tenure in power aggressively defended the need for it to exist. But the BJP, while offering assurances of ‘no-misuse’ to the court, did not advocate for it to be entirely scrapped either. Falling back on legalese once the judgment was out, the BJP said it had been working on stringent guidelines to ensure that political dissent would not be muzzled in any way. But it still missed the opportunity to be on the right and historic side of the debate with its qualified defence of a legal provision widely seen as prejudicial by its own supporters. Essentially it offered ifs and buts on Section 66A instead of strenuously arguing that the existing penal code, including the civil defamation law, was sufficient to address complaints about inflammatory or inaccurate online content. To that end, it didn’t take the risk demanded of brave political leadership.
The BJP’s ex-post-facto disassociation from Section 66A was similar to the Congress’ sudden discovery of its position on homosexuality and freedom for India’s LGBT community. In December 2013, when the Supreme Court upheld the criminality of being homosexual in India, the Congress president expressed her dismay at the continuation of an “archaic, repressive and unjust law that infringed on basic human rights”. She was right. But her statement did not explain why a government led by her party did not move to legislate against the obnoxious Section 377 when it had more than one chance to do so. In its last months before it was voted out in 2014, the Manmohan Singh government did file a review petition against the verdict. But in 2008 its law officer had defended the law calling homosexuality a “social vice” and “a reflection of a perverse mind” even going so far as holding it responsible for the spread of HIV/AIDS.
By the time it challenged the 19th century anachronism that outlawed gay sex it had already wasted a decade of legislative opportunity. By its own standards of status-quouism, the Congress may have taken a political risk by recasting its position on homosexuality on the eve of general elections. However, you could argue that it was more an electoral calculation to woo young voters who have been repelled by the social conservatism of our law-makers than a moment of belated leadership. One has to wonder why there was no political impetus to bring in an ordinance, for instance, to make homosexuality legal if Sonia Gandhi really felt so strongly about the law. By contrast, the alacrity with which the UPA moved to bring in an ordinance to protect criminal-politicians was staggering.
While upholding a law that potentially makes millions criminals in their own country, the Supreme Court judges were very clear that Parliament was free to decide otherwise. But the BJP has been less than enthusiastic in its position on gay rights, speaking in multiple voices. Leaders like Arun Jaitley have freely admitted to the divergence of views within the BJP, while he personally welcomed the Delhi High Court judgment that first removed the criminal tag from being gay. But others like Rajnath Singh called gay sex “unnatural” and were unapologetic in their opposition. We do not yet know which side of the Section 377 debate Prime Minister Narendra Modi himself weighs in on. For the Opposition, the issue is all but forgotten. Not even the relatively young politicians who first spoke up against Section 377 in public after the Supreme Court verdict have followed up the fight inside Parliament.
So this week when India shamefully joined Pakistan and Saudi Arabia to support a Russia-backed United Nations resolution against equal employee benefits for same-sex partners, none of us should be surprised. The foreign ministry defended its decision by saying it was more about opposition to unilateralism than equality for all. Others argued that India could not support the resolution, given the illegality of homosexuality back home (though surely, abstaining was an option).
But why blame the court for not delivering on gay rights and forcing India’s hand on the international stage when it’s really our parliamentarians we need to direct our questions to. How much longer will they wait for the judiciary to do what they were elected for? If homosexuality is still a crime on our statutes it’s because we have permitted the conversation to be reduced to a strictly legal or religious discourse instead of pushing for it to be a major political question about fundamental freedom. Let’s stop Parliament from hiding behind the black robes of the judges and start doing what we voted them in for.
Barkha Dutt is Consulting Editor, NDTV, and founding member, Ideas Collective
The views expressed by the author are personal