AGENDA | Sunday, July 5, 2009 | Email | Print | 
A new minority to appease!
Kanchan Gupta
Nothing could be more absurd than to scream “Gay Ho!”, as was heard after last Thursday’s judgement that homosexuality is not a crime. Nor was it a particularly pleasant sight to watch men locking lips or sticking their tongues into each other’s mouth. The maudlin statements — “We are free at last! For years we have been waiting for this day!” — made by weeping activists of what is known as the ‘lesbian, gay, bisexual and transgender community’, telecast during prime time news by 24x7 channels and front-paged by English language newspapers which appear to be in paroxysms of orgasmic delight now that “carnal intercourse against the order of nature” is no longer a punishable offence, were not touching either. Nor did I find the tamasha funny, as many people did.
Frankly, the whole affair has left me feeling angry and bitter, but not because sodomy has been legalised. What consenting adults do behind closed doors is entirely their business, so long as they don’t expect others to admiringly emulate their dark deeds or endorse their queer behaviour. Tolerance also means to learn to live with criticism and non-acceptance; it is not a one-way traffic. If you are different, so be it. But that does not mean everybody is going to hug and kiss you, or treat you kindly. Nor does it necessarily mean everybody who is repulsed by the very idea of men jumping into bed with men, or women making out with women, or public display of coarse homosexual affection, is a homophobe. Just as every critic of Islam is not by definition an Islamophobe.
Neither is there any reason to be persuaded by the completely misplaced argument that like all minorities the ‘sexual minority’ too has special rights and these should be safeguarded, upheld and enshrined in the Constitution. Section 377 of the Indian Penal Code, drafted 149 years ago in a certain social and political context, may not be relevant today. Indeed, most if not all, sections of the IPC are outdated. But the existence of Section 377 on the statute book has not really prevented deviation from ‘carnal intercourse in accordance with the order of nature’. Striking it off the statute book, therefore, will not make much of a difference.
If it is social acceptance that the ‘sexual minority’ is seeking, then the Delhi High Court reading down Section 377 is not going to fetch it for the LGBT community. Social acceptance is not linked to what the law says or does not say. And if the issue is harassment and punishment by law-enforcing agencies, then a hard fact needs to be reiterated. Despite homosexuals violating the law, never mind how flawed it might have been, the state is not known to have prosecuted consenting adult sexual deviants.
Those who track the nature of cases pending in our courts have pointed out that there are no records of adult individuals being prosecuted under Section 377 for consensual “carnal intercourse against the order of nature” in the past many decades. The men who are standing trial are accused of raping young boys or indulging in paedophilia. If we have to accept that as ‘harassment’ of gays, and paedophiles and rapists are to be allowed to walk free because we must be ‘tolerant’ of members of the ‘sexual minority’ community, then this wondrous land of ours is headed the way of Sodom and Gomorrah.
Which brings me to the Delhi High Court’s judgement. The judiciary is perfectly at liberty to read down an existing law. It is equally at liberty to scrap a law entirely (thankfully Section 377, contrary to popular notion, foisted in large measure by gay activists, has not been struck down). The Delhi High Court in its wisdom has decided that Section 377 flies in the face of liberty and equality. Hence, it has ruled, “Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution.” Article 21 guarantees protection of life and personal liberty. Article 14 guarantees equality before law. And, Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth.
“It cannot be forgotten,” the judgement says, “that discrimination is the antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.” Only a fool would suggest that discrimination is not the antithesis of equality, or that recognition of equality does not foster the dignity of every individual.
But will the Left-liberal, secular commentariat that dominates English language media and has gone into a tizzy welcoming the Delhi High Court’s judgement while daring the United Progressive Alliance Government to take a contrarian position, now cite last Thursday’s ruling to push for equal rights for another minority in India and free it from the clutches of a wholly illegitimate organisation? I refer to India’s Muslim women who are held in thraldom by the All-India Muslim Personal Law Board and who are denied both rights and dignity in the name of shari’ah.
Consider this. What if the courts were to say, “it cannot be forgotten that discrimination is the antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual”, hence Muslim women shall have equal rights as Hindu (or Christian) women in matters of divorce, maintenance, inheritance and adoption. How would the commentariat react? What would the secularists, who are outraged by French President Nicolas Sarkozy’s assertion that the burqa is a symbol of subservience that suppresses women’s identities and turns them into “prisoners behind a screen”, have then said? And how would the Congress, which has “no comment” to offer on the judgement, have reacted?
This brings me to the reason why the judgement and the reactions to it have left me feeling angry and bitter. We are obsessed with protecting the rights of a minuscule ‘sexual minority’, which really hasn’t faced either discrimination or suppression, but we couldn’t care a toss about one-twentieth or more of India’s population which is denied the protection of Articles 21, 14 and 15 of the Constitution. Indeed, for whom discrimination is an inherent part of their lives, legitimised by Rajiv Gandhi’s stunning decision to undo the Supreme Court’s historic judgement in the Shah Bano case through a shameful Act of Parliament.
Reading down Section 377 may strengthen India’s pretentious claims to being a ‘liberal democracy’, but so long as the Muslim Women (Protection on Divorce) Act, 1986 remains on the statute book, liberal democracies around the world will shame and shun us for being what we are truly are: A nation where discrimination is sanctified by law and Articles 21, 14 and 15 of the Constitution exist only on paper for millions of its citizens who suffer in silence as a jubilant LGBT community screams, “Gay Ho!”
-- -- Blog on this issue at: kanchangupta.blogspot.com, Contact Writer at: kanchangupta@rocketmail.com
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