In Britain, “buggery” between consenting adults became legal in 1967. Let me hasten to assure that I use the crude term “buggery” not to mock the LGBT community. This is the physical act, defined by its antiseptic moniker “voluntary carnal intercourse against the order of nature”, which was excised from Section 377 of the Indian Penal Code (IPC), 1860, by a five-member Constitution Bench of the Supreme Court last week (Navtej Singh Johar case). Fali Nariman had argued in the Suresh Kumar Kaushal case. 2009 that the term used in the IPC was so vague that it could be interpreted to include all sexual acts which were for pleasure alone and not aimed at procreation – including fellatio, use of a condom by a hetrosexual couple and use of an artificial device by two women. All of them, per Mr Nariman, could be prosecuted. Luckily now that transgress into privacy has ended.
The court tagged the right to choose one’s gender and sexual preferences to the expansive fundamental rights vested in our Constitution, which encourage every individual to express themselves, form like-minded communities and live enriched, free lives, albeit with reasonable restrictions.
Incremental inclusion of LGBT over a decade
Events have been moving in this direction for nearly a decade. In 2009, the Election Commission of India, under CEC Navin Chawla, encouraged voters to voluntarily register their gender as “other” rather than male or female, if it described them better. This revolutionary move was balm for the transgender community, traditionally called “hijra”, which were outlawed in the colonial period and exists today as society’s underbelly. It is easy to exclude a community legally but much tougher to excise it from social memory. Rare is the Indian parent who would risk not getting newborn children or newly-married couples blessed by hijras.
On July 2, 2009, the Delhi High Court made history by allowing the petition of Naz Foundation. It held that Section 377 of the IPC was unconstitutional. The 2011 census followed and recorded 0.5 million transgender people on a self-declaration basis.
The next milestone was the April 2013 judgment by a two-judge bench of the Supreme Court (National Legal Services Authority case) which recognised “transgenders” as a minority identity. It was the first step towards fuller state inclusion for benefits and protection. Unfortunately, the bill for enabling such rights has been under consideration since 2014 in Parliament.
Meanwhile, strongly influenced by the international narrative to actively protect individual privacy against the State or private predators, a nine-judge bench of the Supreme Court on August 24, 2017 (Puttaswamy case) ruled that individual privacy was a part of the constitutionally guaranteed fundamental rights. Using privacy as an entry point, the court also ruled that the law must not be normative on what consenting adults could do in private.
Why is the judiciary being implicitly used to make law?
Given this progressive trend, the decriminalization of Section 377 was a logical conclusion. But the lay person could well ask why adopt a tortuous, disjointed judicial process for what have been comprehensively dealt by a proactive legislation recognising first, that gender diversity is a reality and second, sexuality is a mutual choice not limited by laws or morality.
The answer is yes, these issues should be debated comprehensively and legislated on by Parliament. The judiciary has no original legislative power. It makes or unmakes law only as a default option on a petition for judicial review of whether or not a law is aligned with the basic framework of our Constitution (Keshwanand Bharati case 1973).
Electoral compulsions erode a consensus, within Parliament, on social reform with electoral gains are meagre
To be fair to Parliament, it reflects what citizens feel, think and expect. The tyranny of democracy is that it binds us to where we exist today, not where we might want to be a half century hence. History has also not helped. Rule by the Mughals, followed by the British Raj, had stymied organic social development. Alternative sexuality was hardly an issue in Ancient India. As evidence, one needs go no further than Section 282 of the Indian Penal Code, which defines “obscenity” as anything “lascivious”, appealing to “prurient interest” or which may “corrupt” or “deprave” persons and prescribes punishments for such acts or objects.
The exception to this section is revealing. Ancient monuments, their sculptures and art are exempted from prosecution under obscenity laws as are any sculptures or art meant for religious purposes. Our ancient culture and religion predates the puritanical social norms of the eighth century AD in Arabia and eighteenth century AD in Europe, which were internationalised through conquest.
Western civilisation turned the corner on including LGBT a half century ago
We are stuck in a past which is not our own. A past abandoned, even in Europe, from where we partially assimilated our prudish present. A survey by daliaresearch.com shows that six per cent Europeans identify themselves as being Lesbian-Gay-Bisexual-Transgender (LGBT). Those between 25 to 35 years are four times as likely to claim an alternative gender as compared to those above 60 years. Gender and sexual diversity is the future. But State support is crucial. In the UK, same-sex marriage is legal. But 20 per cent of LGBT have battled hate speech or worse from social conservatives.
Generating data on LGBT can improve their access to public services & make their electoral weight visible
If the European share of LGBT to total population is applied to India, we would have 70 million LGBT people. They may very well exist and if united would be a bigger vote bank than all our minorities other than the Muslims. But fear and oppression keep them in the closet. Changing the pattern of acceptable social behaviour is a long, hard struggle. Lofty judicial pronouncements change behaviour only when embedded, by law, into the lives of real people who study, marry, have or adopt children, work productively and raise families securely. This is a long haul given the current parliamentary passivity on this subject.
IIT Delhi geeks are at the frontier of change
It is endearing that 20 geeks from the Indian Institute of Technology, Delhi, an institution of eminence, are at the frontier of change. They challenged the regressive Supreme Court’s two-judge decision of December 11, 2013 (Suresh Kumar Koushal case), which had overturned the Delhi high court decision ruling that Section 377 was unconstitutional on the narrow ground that unproven harm to a small minority was not significant enough to warrant judicial intervention to curtail the legislative privilege of Parliament.
Three emerging institutional trends
The decision in the Navtej Singh Johar case last week illustrates three important trends. First, institutional collapse is not imminent in the higher judiciary. This is good news since they will have to lead social change in the face of parliamentary passivity.
Second, the Court, by coming out strongly against majoritarianism, has stirred up the political pot. This will continue to boil during the upcoming elections.
Third, failure of governance continue. Much can be done by executive action and in judicial review sanctified by the courts. Why cannot the government simply change the provision for survivor pensions for a “spouse” to “partner” as a one-time choice to be made by the pensioner? Similar changes in the definition of “family” for health insurance or social benefits can embed sexual and gender diversity deeply. Aadhaar was driven by executive zeal, and so can social reform.
Adapted from the authors Opinion Piece in The Asian Age, September 10, 2018 http://www.asianage.com/opinion/columnists/100918/377-need-a-real-change-in-state-society-norms.html
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