Editorial: Let There be Love!

Yes, homophobia is a crime now. Let’s have social acceptance next

On 06 September, a day after Teacher’s Day, the Supreme Court decided to play the educator, delivering a landmark verdict on Section 377 of the Indian Penal Code decriminalising consensual intercourse between two persons of the same gender. And with this, an entire section of the society, one which was battling not only societal prudishness but also ham-fisted laws, received partial release. Ideally, this law should have been repealed by the Parliament where the people’s representatives sit as law-makers, required by their oath of office to serve the interest of the people. But they dithered, cowed down by conservatives, who, despite their fewer numbers are rabid rabble-rousers who can make up with hate and noise what they lack by way of public support or endorsement. The Supreme Court said as much when it commented in its verdict that the Government had capitulated on its responsibility to even take a stand on Section 377, refusing to come on record whether it defended it or opposed it and left it to the Courts to decide on the matter. And thank God for that, because had it been left to people’s representatives, the kind who receive lynch-mob leaders with garlands and believe that even suspicion of cow-slaughter was enough to slaughter a human being, not only would homosexuality have remained a crime in our country for much longer, but homophobia would have been fanned even more in the run-up to the general elections when every element of hate is going to get teased out to keep the majority fearful. The right-wingers probably know this in their hearts, but it is important for the rest to recognize how shallow extreme conservatism runs. Section 377, parts of which criminalizing consensual same-sex intercourse have now been struck down, is a nearly 160 year old law, drafted by Lord Macaulay in 1837, when there was still Company Raj in India, and legislated it 1860 in the early years of India as a colony of the Crown. This, by the way, is the same Macaulay who tore down the traditional learning systems of India and decided that we were to be a colony feeding clerks and order-takers and gave us “modern western education” which continues to stifle mental growth, inquisitiveness and learning. It was legislated by a Crown still smarting over the Mutiny of 1857 and obviously motivated by a passion to suffocate all expressions of its subjects and obliterate every aspect of its culture which did not find sync with its Victorian prudery. Homosexuality, bisexuals and transgenders, accepted and even celebrated in India through the ages, had been criminalized in England as far back as in the mid-Sixteenth century. It just had to go. And it did. The problem is that it remained even after the colonizers left. And for so long that a majority of India had converted. One must also bear in mind here that for all their bluster about Indian pride and culture, the saffron brigade, by refusing to take a stand on Section 377 even when pressed by the Supreme Court, was admitting that it was okay, even supportive, of a carry-over from a colonial past despite the offensive cultural oppression which had informed the legislation when it had arrived in 1860. If not shallowness, then what else does this reveal? The Courts, thankfully, came to the nation’s rescue. That said, there is still the societal stigma one has to deal with. The Court verdict only de-criminalises homosexuality. It does not extend them any right. Same-sex marriages are still not possible in our country. But before we even get to that discussion, homosexuality will need to gain what can only be called social acceptance. That is still some ways off. The Court order has hopefully begun the process, but one must also bear in mind that homosexuals remained closeted in India not just because the law saw them as criminals, they remained in the shadows because of the stigma attached to their orientation. This needs to change, and it will have to begin at home, at the family level. Let us hope it happens. There is another lesson here for mindsets obsessed with the purity of the past. Section 377, despite its clearly regressive and colonial baggage, remained a law in Independent India because Article 372 (1) of the Constitution says that “all laws in force prior to the commencement of the Constitution shall continue to be in force until altered or repealed”. Section 377, then, is an Old Law carried over from pre-Independent India, protected not only by the Constitution which, in its defense, left the door open for its repeal, but more so by the regressively inclined who chest-beat nationalism but are actually foisting dangerous conservatism, intolerance and denial.