The Telegraph
Thursday , December 19 , 2013
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- What the different parties’ positions on 377 reveal

The electoral impact of the controversy over the reinstatement of Section 377 of the Indian Penal Code might be small, but the political significance of the positions that parties have taken on the decriminalization of homosexuality is considerable.

The right of Indian homosexuals to have sex without being jailed for it is so far removed from the ordinary conversations of Indian politics — corruption, economic modernization, communalism, pandering to ‘vote-banks’, etc — that Rajnath Singh can be forgiven for seeing the controversy as a bout of extra-terrestrial angst that resonates mainly with a handful of queers and their deracinated desi fellow-travellers. The division bench’s references to homosexuals as a miniscule minority (so small that Justice Singhvi declared he had never met a gay person) must have given the Bharatiya Janata Party’s president heart: at last, a minority so small that it could be coshed without consequences, bashed without blowback.

So, after a day or two of temporizing silence, Rajnath Singh voiced his party’s considered, categorical view on the matter: “We will state (at an all-party meeting if it is called) that we support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported.”

This is usefully clarifying because before Rajnath Singh’s statement the sangh parivar’s twittering and op-ed writing vanguard had staked out a rather different position. There was, they argued, a humane, yet socially conservative, position available on 377. The social conservative committed to individual freedom favoured the decriminalization of sodomy (because consenting adults ought to be free to do what they wanted in the privacy of their bedrooms) but opposed the legitimization of homosexuality.

For the social conservative, the Delhi high court’s decision of 2009 arrived at the right result via the wrong route: by invoking the Constitution and arguing that the implementation of Section 377 infringed upon the rights of sexual minorities, the court had overreached. Instead of finding a narrow form of words that decriminalized sodomy, the court had, by speaking the language of equality and rights, emboldened queer activists who would inevitably press for equality in all things, including marriage.

This would, eventually, lead to the legitimization of homosexuality, which was unacceptable because legitimacy was not something that a judicial decision could supply; legitimacy could only be conferred by the ‘moral majority’.

It was never clear from this argument how our social conservative would ‘read down’ Section 377 when it came to consensual sex between homosexual adults without invoking, as the Delhi High Court did, constitutional principles such as equality or non-discrimination. And it isn’t clear now how this ‘humane’ freedom-loving conservatism is to be expressed now that the BJP has denounced homosexuality as unnatural and come out in support of the Supreme Court’s verdict restoring Section 377. A bill in Parliament is unlikely to pass given the BJP’s commitment to recriminalizing ‘unnatural’ sexual behaviour. So where does this leave the compassionate social conservative and, rather more importantly, where does this leave the consenting, adult homosexual?

In the closet, is the simple answer. The Hindu social conservative’s support for the sexual preferences of consenting adults turns out to be a desi version of the US army’s now-obsolete position on serving homosexuals: ‘don’t ask, don’t tell’. This shouldn’t surprise us; given that the sangh’s fellow-travelling journalists agree with the BJP president’s characterization of homosexuality as ‘unnatural’, it follows that freaks ought to have furtive sex lives. How else can a moral majority stigmatize deviant minorities even as it deigns to tolerate them?

Juxtaposing the BJP’s reaction to the Supreme Court judgment with that of other political parties is instructive. Its closest ally in this matter is the Samajwadi Party. Beyond securing OBC reservations and feeding off Muslim insecurity, the Samajwadi Party’s distinguishing characteristic is misogyny. To this menu it has now added homophobia. Ironically, Rajnath Singh’s ideological soulmates in this mean-spirited closeting of homosexuals are orthodox Muslim and Christian spokesmen — and they are all men — as vehement in their denunciation of sexual minorities as they are eloquent in their defence of religious ones. Prejudice, like politics, makes for strange bedfellows.

The Congress came out against the judgment. Its president, Sonia Gandhi, said that she was “disappointed that the Supreme Court has reversed the previous Delhi high court ruling on the issue of gay rights. The high court had wisely removed an archaic, repressive and unjust law that infringed on the basic human rights enshrined in our Constitution.” She urged Parliament to “uphold the constitutional guarantee of life and liberty to all citizens of India, including those directly affected by this judgement”. P. Chidambaram, Kapil Sibal and Rahul Gandhi joined in to amplify this theme of disappointment and suggested legislative and judicial remedies.

This Congress chorus is significant, but not because it demonstrates consistency or steadfastness in this matter. It doesn’t; the present Congress is a corrupt, self-serving cabal that will say nearly anything for political profit. It’s important because even in its debased state, the Congress is a promiscuously pluralist party whose instinct is to be all things to all men. The rights-based pluralism entrenched in the Constitution isn’t an obstacle to be manoeuvred around as it is for the instinctively majoritarian BJP; the Constitution is, for the Congress, a rhetorical resource. Is the Congress’s stand on 377 self-serving? It is; the point is that its ideological pluralism allows it to be opportunistic in this way. Inversely, the BJP’s instinctive need to discipline minorities, to hold them hostage to a majoritarian consensus, keeps it from any ‘give’ on an issue like this.

But more important than the Congress’s progressive posturing is the Aam Aadmi Party’s position on the judgment. It deserves to be quoted entire: “The Aam Aadmi party is disappointed with the judgment of the Supreme Court upholding the Section 377 of the IPC and reversing the landmark judgment of the Delhi High Court on the subject. The Supreme Court judgment thus criminalizes the personal behaviour of consenting adults. All those who are born with or choose a different sexual orientation would thus be placed at the mercy of the police. This not only violates the human rights of such individuals, but goes against the liberal values of our Constitution, and the spirit of our times.”

For a fledgling political party to take a position like this given that it will, in all likelihood, face another election in Delhi in six months, is principled in a way that the Congress’s grandstanding in the Last Chance Saloon isn’t. If the Supreme Court and the BJP are to be believed, homosexuals are a near-invisible minority and their heterosexual supporters are a metropolitan sliver of no numerical importance. If this is so, the AAP, which has a world to win and everything to lose in the next election, has stood up for a liberal principle that can only bring it electoral grief. It tells you something about how far the AAP has evolved from its India Against Corruption origins when you consider that Baba Ramdev, currently peddling cures for homosexuality, used to be a charter member of that organization.

In a way that they didn’t perhaps intend, Messrs Singhvi and Mukhopadhaya have, through their judgment, served a political purpose. India’s politics is so saturated with invocations of religious community, so numbed by charges and counter-charges of communalism, that the terms mean nothing anymore. Even when they are accurately used, they make no difference because this vocabulary has been debased by use.

So the responses of political parties to the plight of a sexual minority might help us understand politics in a different way, unladen with the baggage of communal conflict or religious identity. It might help us see that majoritarianism and pluralism are political practices based not principally on religious identity, but on a prior commitment to exclude or include as equal citizens, groups and individuals markedly different from our selves.