Gay pride and prejudice
By Invitation
Shashi Tharoor

Repealing the law that criminalises homosexuality is in keeping with Hindu tradition, upholding it is an endorsement of imposed colonial laws. When will the BJP adopt the pride agenda?

The Supreme Court will soon face a crucial decision on whether to repeal Section 377 of the Indian Penal Code through the curative review it will undertake of its earlier judgement of December 2013. If it decides, as it did then, to maintain this provision, it will in effect restrict the application of freedom guaranteed by the Indian Constitution to certain sections of our society.

Section 377 of the Indian Penal Code — a remnant of British colonial law — criminalises homosexuality and is a legal tool for the harassment of sexual minorities within India. For a brief, heady period between a liberal Delhi High Court judgement in 2009 and its repudiation by the Supreme Court in December 2013, Section 377 did not apply in India, and millions of our fellow citizens breathed free. The heavens did not fall; Indian society did not collapse. Still, bigots petitioned to reverse that 2009 ruling, and they succeeded in setting the clock back for gay rights in India. The Supreme Court offers a last chance, at least for now, to set it right again.

Like many Indians, I found the Supreme Court’s 2013 ruling antithetical to India’s commitment to pluralism and contradictory to our notion of democracy, which is built on embracing a multitude of identities despite the differences that divide us — sexual preferences included. I therefore introduced a bill last December to amend Section 377 to decriminalise all consensual sex between adults.

A vocal section of homophobes in the BJP voted overwhelmingly against this measure. They prevented even the introduction in Parliament of my private member’s bill twice — last December and this month — with lamentable and hypocritical gusto. Sneering comments were made about my alleged personal interest in the bill, to which I responded that one did not need to be a cow to defend animal rights.

The BJP’s vote is incongruous at various levels, but most of all because it rejects millennia of Indian practice in favour of a British colonial law. The Indian ethos has historically been liberal towards sexual difference. Neither mythology nor history reveals the persecution or prosecution of sexual deviancy in India. Quite the contrary, Indian culture historically embraces such differences. Shikhandi in the Mahabharata was born female and became male. The Ardhanarishwara — half-man, half-woman — is venerated by many Hindus. Though we don’t talk about it, temple sculptures across India depict homosexual acts.

Yet, the BJP, the party of Hindutva, chooses to be blind to this Hindu tradition and prefers to support a colonial law that the British have themselves outgrown. Theirs is a betrayal of Indian values, an abandonment of our culture and history of tolerance in favour of a Victorian moral code imposed by the British.

In its 2013 judgement, the Supreme Court said Section 377 must be decided by legislators and not by judges. Unfortunately, thanks to the prejudices of a few dozen vocal and motivated BJP members, our parliament is not up to the task. While legislative recourse for the injustice of 377 may not be available as long as the BJP is in power, there is still hope for relief through India’s judicial process. The Supreme Court has an exemplary record of expanding human rights in India through its expansive interpretations of the statutes. The curative review raises hope that they will do so again.

There is ample historical precedent for the Supreme Court promoting and protecting human rights in India. It ruled in 2005 in favour of equal property rights for Hindu women. In 2015, the Court passed a number of judgements that ensure equal protection for women under the law. An unwed woman can be a sole legal guardian of a child and can claim stridhan back from her husband if she has not yet divorced him. Acid attack survivors — almost always women — are now entitled to disability benefits after the Supreme Court’s ruling last December. Similar protections have been afforded to many of India’s minorities and marginalised peoples by the Supreme Court. Last December, it ruled that priesthood cannot be denied to anyone on the basis of caste or birth. Similar protections have been afforded on the basis of sexual identity. In 2014, the Court became a global trailblazer when it acknowledged the legitimacy of diversity of sexual identity in recognising a “third gender”.

The Court has also been conscious of international human rights standards, which Section 377 violates. Sexual acts between two adult males were made legal as early as 1967 in England and 1944 in Sweden. Germany decriminalised homosexuality across the entire country upon German reunification in the early 1990s. The United States Supreme Court struck down sodomy laws nationwide in the landmark Lawrence v. Texas decision in 2003. Justice Anthony Kennedy, who wrote the majority opinion for the U.S. Supreme Court, said, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” As long as Section 377 remains on the books, India is out of step with much of the international community and embarrasses itself before the other democracies.

While I have been unsuccessful in my legislative efforts to amend Section 377, I am committed to human rights, to keeping the government out of our bedrooms and to defending Indian pluralism. As we wait for the Supreme Court’s review of 377, we can still continue to seek justice for India’s minorities in the court of public opinion. I have circulated a petition encouraging our Prime Minister to recognise the hypocrisy of Section 377.

The Supreme Court faces a crossroad that can take us to one of two Indias: one in which the law enshrines Indian constitutional values of privacy, equality, dignity and non-discrimination for all citizens, or one that allows the law to be an iron cage to oppress a section of our people. We must demand that our Supreme Court — if not our lawmakers — affirm a pluralist India that accommodates all identities within our country, lest we undermine the freedom of identity and expression that constitutes the backbone of Indian democracy.

The time for change was many years ago. But it is never too late to do the right thing. I hope the Supreme Court is listening.