Yet again, the law has talked straight while politicians flounder about on a pitch they queered themselves. While decriminalising homosexuality, the Delhi High Court has gone strictly by the book that matters, ruling that Section 377 of the Indian Penal Code (IPC) violated Constitutional guarantees to equality, liberty and freedom from discrimination. It is indeed a historic win for the Lesbian, Gay, Bisexual and Transgender (LGBT) community but because the ruling principally addresses discrimination, it has wide implications for everyone who stands apart from the majority.
In a diverse nation, almost everyone can, at least temporarily, find themselves in a minority in the matrix of factors which define identity— like religion, language, race, caste, colour, gender and location. Expect to see this ruling cited in court even by straight people denied opportunity or access because of who, what or where they are. It has widened the front of the battle against discrimination in general, and discrimination based on sex in particular.
Despite good intentions, the government failed the gay community. It got into a funk and made polite noises about consensus the moment religious lobbies started ranting about an impending gay rampage and the end of civilisation as we know it. One wonders where these millennial disaster prophets slink off to when our Muthaliks actually attack the foundations of Indian culture.
Social reform is often secured despite public opinion. If we had honoured conservative views, we would still be oppressing untouchables with impunity, marrying off children under ten and burning widows alive in some parts of the country. These practices were ended with political resolve in the teeth of majoritarian dissent.
The political consensus that the government sought was a pipe dream — within hours of the ruling, Murli Manohar Joshi was declaring that the people were above the law. Disappointingly tame — he had invoked God Himself at Ayodhya. Perhaps the shadow of Justice Liberhan is cramping his style. The government had also wanted to involve religious figures — though the issue of Section 377 was a purely Constitutional matter — to be resolved by purely secular means. Anyway, organised religion is generally exclusivist and inimical to consensus. India has hosted the most ambitious attempt ever at religious consensus — the cross-disciplinary discussions held by Akbar at Fatehpur Sikri. Look what happened to its fruit, the syncretic, humane, imperial faith of Din-i-Ilahi — a handful of courtiers signed on, and only Akbar and Birbal remained lifelong adherents.
India has an unusual history of reform originating in courts rather than legislatures. It’s a slow, uncertain process, as cases have to navigate their way up the legal system. Even the current ruling could be challenged in the Supreme Court. The routinely outraged B.P. Singhal of the BJP apparently offered to appeal even before it was delivered. A divided government will be drawn into the fray if there is an appeal from any of the earnest simpletons who believe that all would be well if we could only roll back India’s timeline to the Golden Age of the Guptas. Oh, oh, that’s roughly when Vatsyayana lived. And his Kamasutra cheerfully lists the pleasures of non-procreative sex, all of which were criminalised in 1860 by the dour Victorians with Section 377. It’ll be captivating to see how this double bind grabs the nationalistic guardians of Indian culture.
Pratik Kanjilal is publisher of The Little Magazine.