More than four years after the Delhi High Court invalidated S. 377 of the Indian Penal Code [PDF] the Supreme Court of India has turned back the clock. In a decision delivered recently, it upheld the constitutionality of the provision, thereby making "carnal intercourse against the order of nature" once again punishable by imprisonment for life, or for a term of ten years. India now rejoins Afghanistan, Iran, Nigeria, Sudan, Saudi Arabia and Uganda among others in officially sanctioning discrimination against LGBT (Lesbian, Gay, Bisexual, and Transgender) people.
The court, in upholding the provision, claimed that "a minuscule fraction of the country's population" are gays and lesbians, and that no more than 200 persons have been prosecuted under the law. These claims are particularly troubling; they do not bode well for Indian democracy. It suggests that constitutional rights of minorities depend on their numbers; small minorities may not enjoy all protections afforded to "bigger" minorities. This should ring alarm bells for religious, linguistic and other minorities, many of whom similarly constitute "a minuscule fraction of [India's] population".
Also, in emphasizing the absence of criminal prosecutions, the court overlooked the culture of fear, harassment and intimidation that the law necessarily breeds. Several NGOs (Non Governmental Organizations) have extensively documented how S. 377 has been systematically used to blackmail and torture LGBT people. These actions may not show up on official records, but they are part of the everyday reality of those who endure the wrath of S. 377.
The court also seems to have restored an understanding of morality that is grounded in the brute will of the majority. In 2009, the Delhi High Court had taken a different approach. It spoke of constitutional, not public, morality: the idea that fundamental rights take their content from the ethos of a Constitution, not the prejudiced views of the majority at any given point in time. But in restoring the idea of majoritarian morality the court, once again, imperils the rights of other minorities in India as well.
The award winning author Vikram Seth has suggested that the decision is "intellectually shallow and ethically hollow." It is also, one may add, culturally narrow. A provision similar to S. 377 was first introduced in India in 1828 by colonial Britain, and later included in the Indian Penal Code in 1860. In rejecting developments in foreign jurisdictions regarding LGBT rights, the court forgot that S. 377 was itself a foreign imposition, one designed to evangelize Indian society into Christian habits.
This is important because Hinduism's associations with homosexuality are complex, and its criminal status is rather doubtful. One of the founding texts of Hinduism, the Kama Sutra which is said to be have been compiled around 2 A.D., has an entire chapter dedicated to same-sex conduct. Similarly, Indian gods and goddesses routinely reject the hetero-normative construct. Soon after the court's verdict, Sri Sri Ravi Shankar, a spiritual leader and the founder of the Art of Living Foundation, took to twitter to explain this. "Homosexuality has never been considered a crime in Hindu culture", Sri Sri wrote, "In fact, Lord Ayyappa (a popular god in southern India) was born of Hari-Hara (Vishnu and Shiva)," that is, two male gods.
This approach is far from unique. Historically, large parts of Asia were indifferent to, if not approving of homosexuality. Cambodia, Vietnam, Laos never had legal prohibitions against homosexuality; Japan legalized it in 1880, Thailand in 1956 and China in 1997. Similarly, the Nepalese Supreme Court in 2008 declared that LGBT persons have equal rights under the Constitution including a right to marry. Clearly, Asian societies have been far more tolerant, if not accepting, of homosexuality than is commonly presumed.
The Indian Supreme Court's judgment, for all its flaws, has spurred two developments that are worth noting. One, it has compelled political parties to shed their usual reticence on the matter. The leadership of the Congress Party has unequivocally rejected the judgment; cabinet ministers are exploring appropriate legal responses. Similarly, some regional and smaller parties have urged the government to introduce amendments to the provision. Even the more socially conservative Bharatiya Janata Party, the principal opposition, was initially hesitant to take a stand. Reports indicate that there is dissent within the party, with some objecting to the court's verdict. All this is reason for cautious hope, but it remains to be seen if political parties will eventually act on the matter.
The verdict also highlights a remarkable vacuum in India with respect to civic activism on LGBT rights. With few exceptions, there is no meaningful effort to engage with, and educate the wider population on these matters. "Gay pride" is still an alien idea in India, and a sufficiently Indian-ized version is yet to be realized.
India's Supreme Court got it wrong this time. Like many other courts around the world, perhaps it will correct itself in future. Even then, the battle for hearts and minds will continue. There is no alternative to meaningful activism, ideally in a language and form that is accessible to a broad swath of rather diverse people.
Professor Shubhankar Dam is an Assistant Professor of Law at Singapore Management University School of Law, and works mostly in the field of law and governance in India.
Suggested Citation: Shubhankar Dam, India's Archaic Turn on Equality, JURIST - Forum, Dec. 28, 2013, http://jurist.org/forum/2013/12/shubhankar-dam-india-equality.php
This article was prepared for publication by Dan DeRight, an editor for JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org