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
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.
