Rasheeda Bhagat

Nothing gay about Section 377

Updated on: Dec 16, 2013

While the apex court’s verdict on homosexuality is disappointing, the LGBT community will demand the legal freedom to live life on its terms.

There has been justified outrage at the Supreme Court setting aside the Delhi High Court judgment of 2009 and upholding the constitutional validity of the outdated and horrendous Section 377 of the IPC that criminalises gay sex.

Along with the substantial LGBT Indian community which is up in arms, a good section of young, urban India is infuriated with the Supreme Court upholding a law that dates back to the British era of 1861 and criminalises homosexuality, dubbing it “against the order of nature,” giving it punishment up to life imprisonment. The apex court has, of course, said that it was up to Parliament, and not the judiciary, to either amend or repeal Section 377.

Political fallout

The political fallout of this judgment is interesting. The Congress’s top leadership, which seemed to have been in a limbo following the gang rape of a young woman in Delhi last December, acted with alacrity. Finance Minister P. Chidambaram, Law Minister Kapil Sibal and then Congress President Sonia Gandhi and Vice-President Rahul Gandhi expressed solidarity with the Indian gay community’s rights to live their lives as they pleased.

Chidambaram said in a TV interview that the Attorney-General was exploring options to bring a curative petition so that the issue could be examined by a larger bench, and promised to explore “legislative options”. Sonia Gandhi said the verdict was disappointing and called upon Parliament to “uphold Constitutional guarantee of life and liberty to all citizens”, and Rahul Gandhi was politically correct about “personal choices”. And who decides these “laws of nature”? Our religious leaders, so many of whom stand discredited?

The alacrity with which these views were expressed goes beyond the Congress finally responding to the people’s expectations that their rulers respond as quickly and effectively to their needs, demands and pressing problems. It is also more than the grand old party learning a lesson from the drubbing it received recently in four of the five Assembly elections.

Tripping the BJP? Surely the Congress leadership wants to show young and urban India — the main constituency supportive of the LGBT community’s fundamental rights — that while it is modern and liberal in its ideology, the BJP may not be able to match it in this area.

Predictably enough, the BJP remained tight-lipped for a while. Sushma Swaraj, leader of Opposition in the Lok Sabha, said: “Let the UPA convene an all-party meet and we will submit our views before the appropriate forum.” But party president Rajnath Singh made clear the BJP’s support for Section 377 when he said, “Homosexuality is an unnatural act and can’t be supported” and lambasted “sexual conduct that goes against the laws of nature”.

Obviously the discredited and “lame-duck” Congress, as it is now dubbed, is trying to score brownie points over the BJP. Sorry for sounding cynical, but its sudden and swift support of the LGBT community at this juncture, even though welcome, doesn’t cut much ice.

On TV channels, heckling has already started against the BJP waiting for its “boss”, the RSS, to give it the signal on how to proceed. No prizes for guessing that the RSS, which frowns on homosexuality, is not going to change its views soon. Nor will the mullahs and maulvis — the All India Muslim Personal Law Board was one of the appellants in this case — or the orthodox Christian priests.

Changing India’s demands But while religious groups — Muslim, Christian and Hindu — rave and rant against the “unnatural” aspects of homosexuality, there is little doubt that in the coming days our lawmakers will have to listen to the voices of a changing India — an India where the LGBT community will refuse to remain closeted as happened totally in the past, and demand that they be given the legal freedom to lead their lives as they wish.

Even on TV debates following the Supreme Court’s disappointing verdict, quite a few of our netas as well as anchors, while supporting gay rights, appeared hesitant, even apologetic. They made it clear that they were talking only about decriminalising same-gender sex. “We are not talking about same-sex marriage, the rights of such couples to adopt children” was made amply clear. Though why we should fall short of giving this community all these rights too defies reason.

The other worrying thing is, does this judgement criminalise only gay sex? Apparently not, as it had enough references on “unnatural” sex indulged in by the non-gay community as well. This was summed up neatly in an article in the Indian Express by Menaka Guruswamy, a Supreme Court lawyer, who wrote: “But before Suresh Kumar Kaushal and his compatriots — the All India Muslim Personal Law Board, Trust God Missionaries, Krantikari Manuwadi Morcha and others (who had challenged the 2009 High Court judgement) — rejoice, they should be aware that this judgment criminalises certain prospective acts of their members as well. It criminalises all of us. It diminishes the constitutional promises of equality, dignity and fraternity for and by all Indians.” An ominous note, alright.

Pope Francis’s support It was as sad as it was bizarre to see “gurus” such as Baba Ramdev not only welcoming the apex court’s judgment but mouthing utter rubbish, such as yoga having an answer for the “problem” of homosexuality. Addressing the media, he called homosexuality a “bad addiction” and had this fantastic claim to make: “I invite the gay community to my yoga ashram and I guarantee to cure them of homosexuality.” He not only said if “our parents were homosexuals, then we would not have been born; so it’s unnatural”, he also generously offered to “pray” that the journalists he was addressing wouldn’t become homosexuals too.

Against such nonsense, let’s take note of what Pope Francis had to say. Arguably the Vatican’s most gay-friendly Pope, he sent shock waves through the Roman Catholic Church this September when he said that the Catholic church had grown “obsessed” with abortion, gay marriage and contraception, and was putting “dogma before love” and giving priority to moral doctrines over serving the poor and the marginalised.

Striking a radical note he had said in an interview: “We have to find a new balance, otherwise even the moral edifice of the church is likely to fall like a house of cards, losing the freshness and fragrance of the Gospel.” Earlier, in July, refusing to censure the Church’s gay priests he had said: “If someone is gay and he searches for the Lord and has goodwill, who am I to judge?”

Kudos to Time magazine for naming him Person of the Year and calling him “the People’s Pope”!


Published on March 12, 2018

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