By Swapan Dasgupta
Last week, liberal opinion that enjoys a virtual monopoly of the airwaves pilloried the Supreme Court for what some feel was its most disgraceful judgment since the infamous Habeas Corpus case of 1976. The decision to overturn the Delhi High Court judgment taking consensual same-sex relationships outside the purview of criminal laws has been viewed as an unacceptable assault on individual freedom and minority rights and even an expression of bigotry. Overcoming fears of a virulent conservative backlash, mainstream politicians have expressed their disappointment at the judgment and happily begun using hitherto unfamiliar shorthand terms such as LGBT.
Indeed, the most striking feature of the furore over the apex court judgment has been the relatively small number of voices denouncing homosexuality as ‘unnatural’ and deviant. This conservative passivity may even have conveyed an impression that India is changing socially and politically at a pace that wasn’t anticipated. Certainly, the generous overuse of ‘alternative’ to describe political euphoria and cultural impatience may even suggest that tradition has given way to post-modernity.
Yet, before urban India is equated with the bohemian quarters of New York and San Francisco, some judgmental restraint may be in order. The righteous indignation against conservative upholders of family values are not as clear cut as may seem from media reports. There are awkward questions that have been glossed over and many loose that have been left dangling.
A year ago, a fierce revulsion against the rape and murder of a young woman in Delhi led to Parliament amending the Penal Code and enacting a set of laws that extended the definition of rape and made punishment extremely stringent. It was the force of organised public opinion that drove the changes. Curiously, despite the Supreme Court judgment stating quite categorically that it was the responsibility of Parliament to modify section 377, there seems to be a general aversion to pressuring the law-makers to do their job and bring the criminal law system into the 21st century. Is it because India is bigoted or is there a belief that there are some issues that are best glossed over in silence?
This dichotomy of approach needs to be addressed. Conventionally, it is the job of the legislatures to write laws and for the judiciary to assess their accordance with the Constitution and to interpret them. In recent years, the judiciary has been rightly criticised for over-stepping its mark and encroaching into the domain of both the executive and the legislatures. Yet, we are in the strange situation today of the government seeking to put the onus of legitimising homosexuality on the judges.
Maybe there are larger questions involved. The battle over 377 was not between a brute majoritarianism and a minority demanding inclusion. The list of those who appealed against the Delhi High Court verdict indicates it was a contest between two minorities: religious minorities versus lifestyle minorities. Formidable organisations such as the All India Muslim Personal Law Board and some church bodies based their opposition to gay rights on theology. Liberal promoters of sexual choice on the other hand based the claim of decriminalised citizenship on modernity and scientific evidence. In short, there was a fundamental conflict between the Constitutionally-protected rights of minority communities to adhere to faiths that abhor same-sex relationships and the right of gays to live by their own morals. Yet, if absolute libertarianism was to prevail, can the khap panchayats be denied their perverse moral codes?
The answer is yes but only if it is backed by majority will, expressed through Parliament. Harsh as it may sound, it is the moral majority that determines the social consensus.
There is a curious paradox here. On the question of gay rights liberal India prefers a cosmopolitanism drawn from the contemporary West. At the same time, its endorsement of laws that are non-denominational and non-theological does not extend to support for a common civil code. Despite the Constitution’s Directive Principles, the right of every citizen to be equal before the law is deemed to be majoritarian and therefore unacceptable by the very people who stood up for inclusiveness last week.
For everything that is true of India, the opposite is turning out to be equally true.