I am neither a legal scholar, nor a historian. There are people far more involved, immersed and informed than I am about the technicalities of the historic judgment that the Supreme Court of India passed on December 11, 2013, revoking the progressive Delhi High Court verdict that held Section 377 of the Indian Penal Court in violation of the rights to freedom, dignity and life enshrined in the Indian Constitution.
While the Supreme Court’s rejection of the Delhi High Court decision marks a dark day in the history of the Indian judiciary, there is no doubt that this is not the end of a fight to protect those on the fringes, those discriminated against systemically, those who are harassed and robbed of their right to live and love. The apex court’s decision might seem like a major setback, but the support and love, the rage and solidarity that it has drawn from expected and unexpected corners is overwhelming.
Apart from the usual suspects—political activists, lawyers, human rights advocates and the LGBTQ community in India—actors, politicians, political leaders, media, writers, creative artists, and indeed, the common person on the internet with a Twitter handle have called this judgment a travesty of justice and a violation of some of the most fundamental constitutional rights. There are tears. There is anger. And in the midst of it all, there is love. And it is this love that is going to make sure that the battle against discrimination continues. We are definitely not going gentle into the good night.
The battle does not stop for those who are already fighting, sometimes in the political arena and through activism, but just as often quietly, desperately, trying to live and survive even as their lives are invalidated by a legal apparatus that upholds the laws of a master we drove away in 1947. They are people who have lived precariously, experienced the sheer terror of being a de facto criminal, not for a choice that they make, but for who they are.
For them, even if the verdict had been all that we had hoped for, social acceptance and a life of dignity were still going to be a struggle. But legal support would have been a first step towards helping build a ground for radical transformation and change. It would have helped not only the people who inhabit small metropolitan pockets of Pink Power, but the millions of people in the closet, trapped in desperate heterosexual marriages, abandoned by their friends and families, fired from their jobs and bullied by the policing apparatus, because they are criminal without the right to defend themselves. And hence we will continue to fight, teach, educate and shout with our bodies and voices to review a judge’s decision to uphold a draconian colonial legacy.
I have to write, then, of the people who are either celebrating this judgment under the misguided idea of upholding traditional structures and family values, or those who feel that these are not their battles. And the only way forward is to help them understand why this judgment is important and, further, why we need to contest it and overthrow it. Frequently, they will be the same people who don’t understand why we talk about rape within marriage or women’s rights to their own bodies. They might have joined the populist wave of demanding death penalties for the perpetrators of the horrifying Delhi bus gang-rape not because they thought there was anything wrong with it—but only because they wouldn’t want something like that to happen to people like them. In other words, there is going to be a huge majority that is going to remain silent or apathetic towards this judgment, because it is not about them, and it is about ‘those’ people I write today: Because it is necessary to talk about what this judgment means to us as a country, to us as citizens, and to us as human beings.
When the reality that we live in becomes too unbearable, it is time to resort to fantasies. In one of my favourite fantasy texts, Terry Pratchett’s Carpe Jugulum, Granny Weatherwax—she should be appointed the human moral compass of our times—says, “There’s no grays, only white that’s got grubby. I’m surprised you don’t know that. And sin, young man, is when you treat people like things. Including yourself. That’s what sin is.” And there is no better way of understanding the outrage that the Supreme Court judgment has produced. Illustration: Sameer Pawar
Technically, this judgment might be in the clear: The Supreme Court’s mandate was to see whether Section 377, the unnatural sexual acts code which criminalises all form of sexual behaviour except for consenting intercourse between adult biological man and biological woman, contradicts articles 14, 15 and 21 of the Indian Constitution. The bench has concluded, in complicated and inaccessible legalese, that it does not find Section 377 to be in contradiction to the rights ensured for Indian citizens and hence has passed the buck to the Parliament to legislate new laws in order to regulate human sexuality and its expression in the country.
While the technicalities will need further nuance, we need to recognise that this is not a judgment about reading the Constitution. It is a judgment that—without empathy, without sensitivity, without compassion—has determined that there are about 100 million people in this country who are no longer humans.
In denying the rights to live and love freely to LGBTQ populations in India, the Supreme Court judgment has treated these people like things— statistics, numbers, objects, problems to be resolved and regulated. And the visceral anger is not merely about the unexpected nature of the judgment but this blind spot that doesn’t understand that the people who were fighting for their rights are not ‘things’ but people.
The denial of rights to be who they are for the Indian LGBTQ people, hence, also needs to be seen in the much larger context of the human right. A human right is not merely something that provides us with entitlements. It is a right that defines what it means to be human. It is a right that refuses the exercise of any discrimination based on difference. It is a right that protects the underprivileged, the broken, the downtrodden or the suppressed people from ourselves. In other words, the human right is a covenant to make sure that we shall not divide our society into Us and Them. It is a safeguard against anybody—Us or Them—abusing the power when they are in power.
The Supreme Court should have paid attention to the fact that, by passing this judgment, they are actually reinforcing the idea of an Us and a Them. And in doing so, they are becoming a part of the problem, rather than a solution to it. While the case in question did pertain particularly to the LGBTQ community in the country, as the Delhi High Court’s sterling judgment had already indicated, this is not just about people with other sexual orientations. This is about what Babasaheb Ambedkar had called the “constitutional morality”, which overrides our personal preferences and biases, and sustains the spirit of the Constitution.
The Supreme Court’s judgment seems oblivious to both the spirituality embodied in the beautiful idea of constitutional morality, and plays into the hands of popular politics. Its task, in fact, is to actually protect the Constitution in the face of popular opposition or backlash. And this means that if we let this judgment stay as it is, if we do not oppose it, if we do not challenge it, because it is about those other people, it will become a precedent and a yardstick for all future actions that shall continue to defy and violate the fundamental concepts of what it means to be human in our country.
The first step towards fighting this battle is to stop asking whether one is straight or not. It is immaterial in this fight. This question of sexual orientation might be central to this battle, but what we do in the privacy of our bedrooms is not the only thing at stake here.
It is a symptom of every axis of power abuse, exploitation and discrimination which results in lives lived in misery and sometimes untimely death. This is not a time to choose whether you are straight or not. The only choice that you have to make is whether you are human or not.
(This story appears in the 10 January, 2014 issue of Forbes India. To visit our Archives, click here.)