In the Battle for LGBTQIA+ Rights, India’s Jurists Have Scored Over Its Lawmakers

September 7, 2018
Celebrations after the Supreme Court verdict. Credit: PTI
Celebrations after the Supreme Court verdict. Credit: PTI

By Mulay / The Wire.

While we have the Supreme Court to thank for the celebrations that will paint our safe urban spaces rainbow, let us be clear that this is not a result of a ‘people-power’ movement. A legislative repeal of Section 377 in parliament (or through the promulgation of an ordinance) would have been directly associated with the extensive public advocacy campaign we have seen in India. Thursday’s event, meanwhile, was yet another instance of our legislators delegating the task to the judiciary to rule on an unpopular subject, allowing themselves the comfort of deflecting any criticism from the opponents of the LGBTQIA+ rights movement and basking in the praise of its proponents.

Any layperson who has read the Indian constitution understands that the document goes a long way in outlawing discrimination. The grounds on which discrimination is prohibited was covered thoroughly by the makers of the constitution. And, while discrimination-based on sexual orientation doesn’t find a mention, I believe it is fair to excuse the constituent assembly for this omission. After all, the LGBTQIA+ rights movement has gained prominence only in the past 50 years. However, the constituent assembly members were far-sighted enough to recognise the evolution of the rights and values governing society, which was why they structured the constitution in such a way that it would be open to progressive change. Thus, the lack of initiative shown by lawmakers in the past few decades in interpreting and expanding the anti-discriminatory clause in our constitution cannot be pardoned.

True, there have been attempts in the recent past to amend Section 377 of the Indian Penal Code. The Congress party’s Shashi Tharoor did attempt, on multiple occasions to introduce a Private Member’s Bill addressing the issue. However, on every such occasion, even the mere introduction of the Bill was voted down. Spearheading the opposition was BJP MP Nishikant Dubey. But, let us also not forget that the Congress party had enjoyed ten years of uninterrupted power at the Centre. And, it was only two years later, after they had relinquished power, that Tharoor proposed the Bills. Therefore, he needs to explain why he neglected the issue during the tenure of the UPA governments.

One would think that a party elected on the premise of ‘re-establishing’ Indian values (read: Brahmanical Hindu values) would be keen on repealing Section 377, a vestige of the “Abrahamic” values imposed upon this country by British colonialism. However, the BJP had clearly indicated its stance on equal rights for the LGBTQIA+ community when it gave Arjun Meghwal – the party’s MP who had introduced a Bill in 2012 asking for re-criminalisation of gay sex after the Delhi high court had struck it down – a ministerial position, on multiple occasions. Therefore, it is a bit too late to put up a face-saving ‘the BJP-welcomes-any-judgement’ discourse, if at all the party was aiming at creating one.

As for a party with absolute majority in the Lok Sabha, this has been yet another moment of disgrace. Judicial overreach has to be rightfully criticised. However, it is the meek fight put up by our elected lawmakers that has allowed, on numerous occasions in the recent past, the judiciary to encroach upon their right to legislate. On this occasion, the lawmakers more or less volunteered to cede their power of decision-making to the courts.

Blame for the failure to take legislative responsibility must be squarely divided among political parties across the spectrum. Their ignorance, in spite of countless civil society organisations working tirelessly to advocate the rights of the LGBTQIA+ community, is shocking. While ten years down the line, these activists might laugh off the instances when they were accused of being ‘foreign agents’ trying to ‘destabilise Indian society’, defending paedophiles and promoting ‘unnatural acts’, the price paid by a section of citizens cannot be expressed in words. They faced persecution from the immensely-powerful state machinery, they were ostracised by the society at large and often disowned by their own families, in their fight for equal rights.

And yet, while the goal has been achieved, the struggle of human rights defenders hasn’t materialised to its rightful extent. Remember, the judiciary interprets the values it believes are enshrined in the constitution and adjudicates accordingly. It has to remain impervious to prevailing public opinion and that is the only reason it has the ability to come up with unpopular decisions time and again. Therefore, while it would be a big mistake to deprive the LGBT rights organisations and activists the credit of bringing the agenda in mainstream public discourse, it is their legal arguments that have led to Section 377 being struck down. Our lawmakers have been impervious to their widespread advocacy campaigns. The victory that we now enjoy is not because our values have been recognised and represented, since the legislators we elected to represent us have failed to reflect them.

Therefore, the very least we should demand from our lawmakers at this stage is for them to ask for forgiveness, as Justice Indu Malhotra rightly noted. Forgiveness for having failed to fulfil their duty of protecting minorities, of having made the LGBTQIA+ rights defenders endure hardship for years, of having denied an entire community equal rights. And since we are getting ready to choose as our members of parliament individuals who best represents us and our ideals come 2019, let us tell all politicians through this medium – consider yourselves warned.

Mulay is a graduate in human rights and has experience of working in civil and political rights (human rights) organisations in East Africa.