In December 2013, when the Supreme Court reinstated Section 377 of the Indian Penal Code, which was read down by the Delhi High Court in July 2009, it argued about that scrapping Section 377 or not, was not for the courts to decide
In my recent book Criminal Love? Queer Theory, Culture and Politics in India, I point out how the government and the judiciary have been passing the buck to each other as far as decriminalisation of homosexuality in India is concerned. In December 2013, when the Supreme Court reinstated Section 377 of the Indian Penal Code, which was read down by the Delhi High Court in July 2009, it argued about that scrapping Section 377 or not, was not for the courts to decide, but for the government.
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When the BJP came to power in May 2014, Arun Jaitley said exactly the opposite. He said it was high time the Supreme Court legislated on Section 377 and abolished it. Today, the Supreme Court has done just that. While hearing the curative petition for repealing Section 377, the Chief Justice of India, who was part of the five-judge bench that heard the case, said the Supreme Court intended to stop prosecuting people for consensual 'unnatural' sex. Hats off to the Supreme Court for saying that! Obviously, two previous judgments, the one that gave rights to transgender people in April 2014, and the recent one that held that the right to privacy was a fundamental right, served as the backdrop to today's ruling.
But, what about the government and its contradictions? While Jaitley sounded as if he was in favour of getting rid of Section 377, his colleague Subramaniam Swamy made it clear that he wanted it retained. He trivialised the issue by saying that the legalisation of homosexuality would lead to a proliferation of gay bars!
Likewise, when the Congress was in power at the Centre, the health and home ministries took opposite positions in relation to Section 377. The health ministry wanted homosexuality to be decriminalised so that the spread of AIDS would be contained. But, the home ministry continued to maintain that homosexuality was against Indian culture, in spite of so much evidence to the contrary, provided, for example in the seminal work Same Sex Love in India: Readings from Literature and History, edited by Ruth Vanita and Saleem Kidwai. Pre-colonial India never criminalized homosexuality. It was openly depicted in the temple sculpture of Khajuraho and in the Kama Sutra.
Coming to the present time, the way the Narendra Modi government put the onus of scrapping Section 377 on the Supreme Court, made it seem as if it was hiding behind the Supreme Court.
Many of us felt that if the government was serious about scrapping antiquated laws, as it claimed, why was it sitting on the fence vis-a-vis Section 377? If it could take a stand on triple talaq, we asked, why not on Section 377?
But of course we knew the answers to these questions. How could the BJP oppose the RSS's anti-gay view, which held that homosexuality was against the interests of Hindutva? How could it challenge the president of the Hindu Mahasabha who myopically said that Hinduism was opposed to homosexuality?
Had the general elections not been around the corner, the BJP government would have probably taken a more proactive view in favour of retaining Section 377. But with the elections less than a year away, the ruling party realizes that it must steer clear of controversy. So in a way we are lucky that the case was heard now, only a few months before the next general elections.
The LGBTQ community in India is happy that the government left the decision to scrap Section 377 to the court. But it would have been happier if the government took a more progressive stand on the issue. This would have distanced us from countries like Iran, Iraq, Syria, Afghanistan and Pakistan where homosexuality is still punished with death. Instead, it would have put us on a par with the U.K., the U.S.A., France, Germany, Canada and Spain, where, not only is homosexuality legal, but gay marriage is also recognized.
Today the LGBTQ community in India has had the last laugh. We are in a position to show our thumbs to jokers like Baba Ramdev and Ajay Gautam. When Justice A. P. Shah read down Section 377 in July 2009, famously pointing out that public morality was different from constitutional morality, wasn't it Baba Ramdev who inanely said that next we would want that men be allowed to have sex with animals? Hopefully, Baba Ramdev and others of his ilk have got the answer to this question today. No, we do not want to have sex with animals, sir, because, even if we did, animals cannot give us their consent. Today's verdict by the Supreme Court is all about consensual sex between adults.
(R. Raj Rao is the author of the cult novel The Boyfriend, regarded as India's first gay novel. The iconic film BomGay directed by the late Riyad Wadia, was based on his poems).
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