India’s ruling Bharatiya Janata Party (BJP) is more concerned at the political fallout of the Supreme Court ruling to scrap Section 377 of the Indian Penal Code and decriminalise gay sex than its social impact. Hence, the eloquent silence.
For the BJP and its ideological mentor, the Rashtriya Swayamsevak Sangh (RSS), any expansion of the concept of civil liberties is fraught with danger to their restrictive world views since a widening of human rights carries the prospect of greater individualism. If the rights of the same-sex couples to live without legal constraints are conceded, it will encourage the people to free themselves of other restrictions as well such as choosing live-in partners, besides eating, dressing and speaking as they please.
The verdict has come close on the heels of the judgement that described the right to dissent as a “safety valve”, which the government can only shut off at its peril lest there is an explosion. Moreover, the court had also upheld not long ago the right to privacy, which the government described as an “elitist” concept.
For the Hindu Right, as also for other religious fundamentalists, this dalliance with civil rights — the freedom to criticise the government, the exaltation of privacy and now the decriminalisation of homosexuality — entails a push towards liberalism and modernism that is anathema to any group that wants society to be bound by shackles of orthodoxy and obscurantism.
It is ironic that although the Hindutva (Hindu nationalist) brotherhood speaks of decolonising the Indian mind, the two colonial laws — on homosexuality and sedition — are its favourites. Since one is scrapped, there is little doubt that closet followers of Britain’s 19th century politician Lord Macaulay — even as they decry secular groups in India as “Macaulay’s children” — will hold on resolutely to the law on sedition as their only safeguard against the “anti-nationals” who, they believe, stalk the land.
The saffronites will also keep a hawk-eye on any social problems that may arise from the assertion of gay rights. As the BJP member of parliament, Subramanian Swamy, has said, if a five-judge bench can overturn a judgement criminalising homosexuality, a larger bench can undo the new verdict if gay bars begin to flourish and cases of HIV (human immunodeficiency virus) infections increase.
Interestingly, these judgements underline that the judiciary is more attuned to the changing world than the elected representatives who often argue for giving greater primacy to the legislature than the judiciary since they represent the people.
However, one possible reason why lawmakers, especially those from the BJP, seem to be out of sync is the presence in their midst of a large number of criminal elements who can hardly be regarded as the most progressive sections of society. For instance, of the 543 elected members of the Lok Sabha, 186 have a criminal record; 63 of those belong to the BJP, followed by eight of the Shiv Sena, four of the Trinamool Congress and three each of the Congress and the All India Anna Dravida Munnetra Kazhagam.
Parties like the Congress, which usually hedges its bets, have backed the gay sex verdict, presumably because it feels that this has become a touchstone for breaking from the stranglehold of the past. Distancing from it, as the BJP is doing, will amount to alienating the youth community. Even if a majority among them are not gays, the youth see the ruling as an assertion of living life on one’s terms and not held hostage by a conservative society and political parties that advance their agenda through khap panchayat-style social and cultural norms.
To the youth, being or not being gay is of little consequence. What matters is that they will able to make up their minds and without being told by elders to abide by outdated social norms.
If parties such as the BJP and organisations such as the RSS realise the value and motivation of such mindsets, they will desist from imposing a straitjacket of their pseudo-religious identity on the nation.
Amulya Ganguli is a political analyst in India.