In a landmark judgment and legal victory for gay rights in India, it is legal, as of today, to be gay. You can read the entire judgment, should you wish, here.
129. The notion of equality in the Indian Constitution flows from the ‘Objective Resolution’ moved by Pandit Jawaharlal Nehru on December 13, 1946. Nehru, in his speech, moving this Resolution wished that the House should consider the Resolution not in a spirit of narrow legal wording, but rather look at the spirit behind that Resolution. He said, ”Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion…….. (The Resolution) seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near
future.”
130. If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of
‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as “deviants’ or ‘different’ are not on that score excluded or ostracised.
131. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non- discrimination. This was the ’spirit behind the Resolution’ of which Nehru spoke so passionately. In our view, Indian
Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the
LGBTs are. It cannot be forgotten that discrimination is anti-thesis of equality and that it is the recognition of equality
which will foster the dignity of every individual.
132. We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors….
Of course, this will not end discrimination against LGBT people or suddenly make life easier for them; we have a habit of passing laws and then doing nothing about implementing them, be it traffic, caste or dowry. But still, decriminalizing homosexuality and getting rid of an old colonial-era law is a big step in the right direction – towards ending harassment by cops, allowing more gay people to seek medical help for HIV/AIDS, and most importantly, towards a more genuine sense of the “inclusiveness” the judgment refers to, in families and the public sphere alike.
Not surprisingly, there is opposition from conservative groups. Hysteria about “Indian culture in danger” is no doubt about to reach shrill levels. The newsmedia is predictably playing to all kinds of stereotypes, but it is nevertheless heartening to see the vox pops from around the country that support the ruling.
Congratulations to the Naz Foundation and all the civil rights activists who have worked tirelessly for years to make this happen!
And, it is finally raining in Pune – sweet, sweet rain. Here’s hoping it will stick around for a good three more months!
EDIT: Mel points out below that this Delhi High Court judgment is currently applicable only within this particular court’s jurisdiction. The wider applicability of the judgment has generated much debate in today’s newspapers. This opinion piece suggests that a previous Supreme Court ruling will give legal teeth to the all-India applicability of the judgment.
Also, for a useful discussion of the ruling, see here, especially the comments.
Tragedy predictably descended into farce this past week. Film and advertisement personalities became political spokesmen, vying with TV anchors to recommend carpet-bombing Pakistan to avenge the terrorist attack. Politicians stumbled over one another to offer condolences and compensation to families of slain officers, in full view of a gawping nation. Grief and sympathy, in an age of 24-hour news, it appears, simply cannot be experienced or conveyed any longer outside the script of patriotism.
Some critical voices of sanity and caution in the Indian press, amidst the jingoistic, militaristic cacophony:
Mukul Kesavan on the English language channel coverage:
I can’t remember the last time that social class so clearly defined the coverage of a public event, or one in which people spoke so unselfconsciously from their class positions….The novelist, Aravind Adiga, said in an interview with the BBC: “One of the differences between India and other countries is that a lot of our civic space is contained within the five-star hotels. They have a different function here for us, they are places where marriages happen, where people of all economic backgrounds go for a coffee. For the Taj Mahal to be attacked is somewhat like the town hall being attacked in some other place… .” I’d wager that 99 per cent of VT’s commuters haven’t seen the inside of the Sea Lounge. Whatever else they are, five-star establishments in India are not democratic civic spaces. Few Mumbaikars think the Taj Mahal Hotel is their city’s hôtel de ville.
And Adiga got the Booker prize for his depiction of the “Other India”? I simply cannot *wait* to read it! Other novelists have also mined Mumbai nostalgia for various newspapers, but Amitav Ghosh, mercifully, spoke some sense and refrained from telling us about how much he loved the Taj:
This has been another terrible year. Even before the invasion of Mumbai several hundred people had been killed and injured in terror attacks. Yet, let us recall that the attacks on Jaipur, Ahmedabad, New Delhi and Guwahati did not succeed in setting off chains of retaliatory violence of the sort that would almost certainly have resulted ten or fifteen years ago….The question now is: will the November invasion of Mumbai change this? When commentators repeat the metaphor of ‘9/11’ they are in effect pushing the Indian government to mount a comparable response. If they succeed in doing this the consequences are sure to be equally disastrous. The very power of the 9/11 metaphor blinds us to the possibility that there might be other, more productive analogies for the November invasion of Mumbai. One such is the Madrid train bombings of March 11, 2004, which led to a comparable number of casualties and created a similar sense of shock and grief. If 9/11 is a metaphor for one kind of reaction to terror, then 11-M (as it is known in Spanish) should serve as shorthand for a different kind of response: one that emphasises vigilance, patience, and careful police work in coordination with neighbouring countries.
Siddharth Varadarajan in the Hindu:
Rather than threatening a ‘limited war,’ surgical strikes or a suspension of the peace process, the logic of this metastatis is the most compelling argument India can marshal in its quest for the international community to insist that the Pakistani military make a final break with jihadi groups. The war that was launched in Mumbai will only end when the Pakistani military is compelled by the world and its own people to end its war on its own society. India can help this process by finding ways to help tilt the balance of power further in the direction of the civilian government. At the very least, it should do nothing that will tilt things the other way.
Sukumar Muralidharan on the scary, militaristic mood in the electronic media:
The question the Indian media face is not a trivial one. Is it going to be an exclusive forum for the more extreme voices? Or can it find a sensible way forward, even in a conjuncture as trying as Mumbai 26/11, to promote a genuine social dialogue that is attentive to the true risks and benefits of any particular strategic course? From the huge variety of voices seeking to be heard in India, the media seemingly distils out only those that serve its prior conceptions. Though difficult in trying times such as now, can the media hear voices from across the border? Would it have any use for instance, for the following observations from the December 2 editorial in Dawn, one of the most restrained and sober voices in the Pakistan media: “…what cannot be condoned is the behaviour of the Indian media, that taking its cue from the politicians — and from a culture of nationalism that is especially apparent where Islamabad is concerned — came down hard on Pakistan, often conjuring up fantastical descriptions of the way the siege of Mumbai was laid. Not only does this put pressure on the Indian government to keep up its accusations and resist moves for a cooperative stance, it also damages people-to-people ties, for after all, the media is meant to speak for the common man”.
Farce in the political establishment matches that on TV. Heads have rolled: Union home minister Shivraj Patil, prone to changing his suits in-between TV appearances after major bomb blasts, finally slunk off. So did Maharashtra’s chief minister Vilasrao Deshmukh, who took his actor-son and the famous purveyor of gangster chic films, Ram Gopal Varma with him on his first, official tour of the Taj after security forces had taken back the hotel. Deshmukh (at least one banner in a political rally aptly called him Deshmurkh – the nation’s fool) has been one of Maharashtra’s most ineffectual CMs ever, failing at law and order well before the capital city of the state was held ransom like this, but somehow, this particular crass act was too much for the Congress higher ups in New Delhi. His deputy, R.R. Patil, went a step further and brushed aside the attacks – “Such incidents are bound to happen in big cities once in a while,” he said. This from a man who banned dancing girls in Mumbai’s bars because he thought them too dangerous for the city’s moral fibre!
Our Oracle of 10 Janpath The Congress party, meanwhile, took nearly two days to find their successors because the state’s caste arithmetic for the upcoming polls has proved to be too sticky – prioritizing the investigation and security effort be damned. Narayan Rane, the leader spurned for the chief minister’s position, threatened to bring down the government, but magnanimously refrained in these pressing times of internal security. Will it any wonder, then, if tragedy were to once again replace farce? A very real, and immediate danger for Maharashtra is that with these guys being our “secular” options and beloved incumbents, the upcoming state elections next year will leave the field wide open for more overt chauvinists of various stripes to step in as viable alternatives – Raj Thackeray with his fresh Marathi nativism (beating up on poor north Indian migrant workers) and the Shiv Sena (excellent track record of Hindu majoritarianism). If that does happen, then God help us all.
