Under State control

A piece I wrote for The Hindu's Mumbai edition... it was published the day after the Supreme Court held an open court hearing on whether to consider the curative petitions against its own verdict that had upheld Section 377 of the Indian Penal Code.

http://www.thehindu.com/news/cities/mumbai/news/nitin-karani-when-the-state-makes-choices-on-our-behalf/article8187623.ece

There were three sets of people with a very keen eye on the proceedings in Supreme Court in the matter of the curative: thousands of LGBT people and their allies; some legal eagles and the press; and a miniscule minority of opponents, mostly ‘religious’. This last group feels that not only must it oppose homosexuality within its own private sphere but also impose its world view on everyone else through the might of the State, even to the extent of punishing consenting adults with up to 10 years of time in jail. Compare this with maximum punishment of a ritual bath for a homosexual act (that too only for the priestly class) prescribed by the Manu Smriti.

We can debate the authenticity of the Manu Smriti and its importance, but it contrasts with the extreme position that the opponents, including the State, have taken by wanting to retain Section 377 in the Indian Penal Code (IPC). By now it has been argued often enough that Sec 377 is a law based on Victorian morality, which was itself rooted in the Bible, and that much of the IPC is a relic of the British Raj days.

The larger point here is illustrated in the fable of the Arab traveller and the camel, who first begged to insert its nose into the tent and then other parts of his body, with the Arab finally thrown out of his own tent. The State entered into our bedrooms with the IPC and now it refuses to get out. It has been decades since the State’s right to interfere in our choice of partners — sexual and marital — is being contested but it refuses to yield. The Arab traveller remains at the mercy of the camel when it should be the other way round. We, the people, have allowed the State to take control of our lives increasingly, to the extent that we have forgotten the liberties that were ours naturally. In every sphere of our life, the State limits and regulates both our economic, social and personal choices.

This did not happen overnight. It happened gradually, like in the fable, but it now seems pretty irreversible. In fact, we, the people, give the State more power every day over ourselves, even to make choices on our behalf each time we demand that the State perform a function other than the minimum required for us to exercise our choices freely, without fear to our life and property.

Most of us, wherever we may place ourselves on the political spectrum, only pay lip service to liberty, equality and freedom of expression; we do not know what we ask for when we demand that the State enact new statutes and more stringent laws (when it does not even execute existing laws fairly and efficiently, allowing scope for misuse), instead of reducing them to the minimum and simplifying the rest. This can be seen in every area of our life, from ‘net neutrality’ and use of social media to fiscal and monetary policies, and the selling and buying of our own assets. Governments, meanwhile, are only interested in increasing their power over the people. So there will be some noises about liberalisation and minimum government, but every government’s actions are quite the opposite in the guise of maximum governance and ‘social justice.’

What social justice is served by keeping Section 377 in the IPC? What does the State achieve by either punishing or the threat of punishing adults for a ‘crime’ without victims? Did social order and public morality breakdown when the Delhi High Court re-legalised ‘gay sex’ (given it was never a crime pre-IPC)? Did homosexuality spread across the nation like a newly-discovered virus and threaten nationhood in addition to heterosexual ‘manhood’?

The answers to all of these questions are staring at us but, no, the courts and the government will take their time to exercise their wisdom and decide what is good or bad for we, the people. Until then, far from enjoying the liberties and benefits available to heterosexual couples, we lesbian, gay and bisexual and even transgender people must pretend we do not break the law. Or else resign ourselves to the possibility that some individual or a cop may take it upon themselves to use Section 377 for harassment or extortion, if not for legal prosecution.

Of course, LGBT people will continue to watch the SC very closely, to see if it does take this last opportunity to correct its error of judgement.

333 under 377

About a month ago, India's crime records bureau released stats for 2014 (very efficient, considering the year had ended only some six months ago). The stats made news this time because, among other things, the numbers for Section 377 of the Indian Penal Code were tabulated and released for the first time  -- we don't know what was behind this - was the bureau driven by a desire simply to deter crime or to highlight how India still discriminates against gay people.

Maybe it was just part of the new efficiency under a tough taskmaster who is scaring the bureaucracy into doing some work for a change. (Stats on environment-related crime were also released for the first time, so I am ruling out any motivation to support equal rights for gay men). In fact, the Deccan Herald noted a new keenness to prosecute LGBT individuals, but gave no basis for that claim - maybe that was just the handiwork of an enthusiastic reporter or sub.

The media reports of these numbers agitated the people who are against Section 377, especially LGBT activists. Not! That non-reaction was understandable at the time, as most people, relying on anecdotal evidence, may have assumed that almost all of these cases were filed against men abusing children rather than adults in a consensual relationship.

Now a Hindustan Times reporter has apparently done some digging around and broken down the numbers some more for us. It seems one-third of the total 1,148 cases of Section 377, that is 383 cases were not of child abuse. My gratitude to the reporter and HT for this detail, although some of the statements and conclusions in the same report are maddening.

The same report implies that trial courts acquitted the accused in 50 of these 383 cases while the rest of the cases are still pending in courts across the country. If activists in the metros and Tier-2 cities are unaware of these 383 cases, this could mean that gay men in relatively remote places away from the attention and capabilities of activists, the media and organisations like Lawyers' Collective are being prosecuted.

This story will be repeated this year and year after year, and these men will remain just statistics in a government bureau's report and, at best, mentions in news reports and blog posts like this one. A lot of people still live with the fond hope that the Supreme Court will reverse the judgement of its own two-bench court in favour of that by the lower-rung Delhi High Court, so that we will be free of Section 377 and start the long march towards equality for LGBT people backed by the law. But even if that miracle does happen, it looks like the SC will continue to take its own sweet time to hear the curative petition against the injustice of its two-member bench in a process as transparent as vantablack -- even lawyers don't seem to know how it prioritises its work and when it will deign to consider the petition.

@queerindia #IPC377 will be a while I think. Or it could be next month! There's no way of knowing until SC decides it wants to hear.

— Court Witness (@CourtWitness1) July 22, 2015

That's very convenient for the legislators we elect as they can always hide behind the legal system and refuse to evolve from politicians into lawmakers who also remove obsolete laws. They will come to our community events, even invite us to their events, indulge in some rhetoric to raise our hopes, pose for pictures with some vain LGBT people, and fail to deliver. The voices of exceptions like Tathagata Satpathy will be drowned out in the din of the empty vessels in Parliament.