The ‘miniscule’ problem

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…miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders…” (page 83, para 43 of the Supreme Court judgment that recriminalises sexual minorities)

I write this article two days after the first anniversary of the 16 December Delhi gangrape case. I wasn’t present in the city during this time last year but the outrage that followed shook the political foundations of the entire country. People were out on the streets demanding better safety for women and stronger laws. Politicians across ideology joined in the chorus. Within days the government was forced to bring in a strong ordinance, which later became a law. Whether things have improved for the ‘weaker’ sex is still debatable but what is more important is that almost the entire country stood up and spoke in one clear voice. A year later, the highest court of the land recriminalised yet another ‘weaker’ sex — in this case sexual minorities — in the process reinstating a British law of a long-forgotten Victorian era. Forget about safety or protective legislations, the law of the land refuses to even accept them as equal citizens. The operative word here becomes, for all practical purposes, not ‘weaker’ but ‘criminal’.

The Supreme Court judgment did not see any storming of Rajpath; there were no candle light vigils, none of the overwhelming outpouring of youth on the streets of cities and towns. The ‘community’, which the Supreme Court judgment calls ‘miniscule’, gathered at Jantar Mantar in Delhi and other venues in other metropolises along with an equally ‘miniscule’ number of heterosexual supporters. A ‘miniscule’ number of celebrities attended these protests and the media did its own bit by giving the protests and the issue some coverage, though, of course, the focus was more on the celebrities.

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However, there was one important section of the country very conspicuous in its absence from all these protests and television debates — politicians. Even those who came out and spoke, again a ‘miniscule’ number, maintained that they were speaking in their individual capacity. A few others who couldn’t attend the protests and television shows — yet another ‘miniscule’ number — tweeted, expressing their support.

In its judgment on 11 December, the Supreme Court asked Parliament to legislate on this crucial matter regarding the ‘miniscule’ sexual minorities group in the country. While many have debated the rationale of letting the legislature take the final decision on a key human rights issue, the reaction of the political class on this has largely varied between denial, ignorance and a stony silence. The ‘miniscule’ fraction of the country’s population doesn’t have the appeal of a vote-bank to lure our politicians into supporting their legitimacy.

Yes, it is true that Congress president Sonia Gandhi and her heir apparent Rahul Gandhi came out in support of sexual minorities, but where is the anxiousness and speed shown by the ruling party when it comes to actually ensuring the fundamental rights of a section of the country’s citizens? Would the government have been as slow if a religious minority was involved? Or women?

While it is true that the Congress-led UPA government did not oppose the Delhi High Court’s 2009 judgment, the question remains, how serious has the party or the government been on this issue? Why did we see so many flip-flops from various ministries during the hearing? Has Sonia Gandhi managed to convince her party members that giving sexual minorities an equal status in the Constitution is something that the Congress espouses? But if that is so, then why did we have Union Health Minister Ghulam Nabi Azad making public statements calling homosexuality a disease? (He did retract the statement later.) The key thing to watch out for in this discourse is how serious the Congress party really is in its resolve to give all minorities — irrespective of caste, religion or sexuality — equal rights under the Indian Constitution.

As senior journalist Ashok Malik points out, both the Congress and the BJP have not clearly discussed the issue or built consensus among its own members. The Congress will do whatever the Gandhis tell them to do, and the BJP will always toe the RSS line. Unfortunately, with each passing day after the 11 December judgment, the chances of law enforcing agencies misusing section 377 to target innocent citizens of alternative sexuality are increasing.

One has to look at two key petitioners of the case against the 2009 Delhi High Court judgment that decriminalised homosexuality to understand the politics surrounding this issue. The most vocal opponent has been the self-proclaimed godman and self-confessed homophobe Ramdev (I have an issue with using ‘Baba’ as a form of salutation. Sainthood seems to have become an easily available commodity, sold cheap in the market these days). And the other opposing party has been the All India Muslim Personal Law Board that has always been part of the Indian National Congress’ discourse on religious minorities. One may recall the Shah Bano case in 1985 in which the Rajiv Gandhi-led Parliament overturned a key Supreme Court judgment, supporting equal rights for women in Islam to appease orthodox Muslim groups.

On 11 December, minutes after the two-judge bench of the Supreme Court reinstated Section 377 of the Indian Penal Code, thereby recriminalising homosexuals in India, the office of Ramdev sent a text to journalists across Delhi inviting them to a press conference. Speaking to the media, Ramdev went on to boast about his role in filing a PIL in the apex court that led to the unfortunate judgment. Ramdev was not the only credit-seeker. The lawyers of the All India Muslim Law Board gave bites to television channels, detailing their role in recriminalising sexual minorities in the country. Sitting in my study watching this tamasha, I wondered how people representing religious minorities fail to understand that they are digging their own graves by targeting another set of minorities. “Unnatural”, “anti-culture” and “anti-Indian” are adjectives that can easily be used against other religious minority groups by the extreme Hindu right-wing groups. What seemed to me the most hilarious was when some Muslim groups started using Darwinian theory to oppose homosexuality without realising that the same theory can be used to discredit all Semitic religions.

One has to looks at these two groups — Hindu religious right and Muslim religious right — and their relationship with the two big political parties, and then assess the predicament both Sonia Gandhi and Narendra Modi face when it comes to the issue of sexual minorities.

In this context, Sonia Gandhi has to be commended. Unlike what her late husband did in the Shah Bano case, she has spoken out in support of sexual minorities, clearly knowing that her supporters among Muslim groups will most likely not be happy with this. However, Samajwadi Party supremo Mulayam Singh Yadav, who relies on the Muslim votes in Uttar Pradesh, has come out against homosexuality. It might be interesting to compare Yadav with JD(U)’s Shivanand Tiwari, whose party is also dependent on Muslim votes in Bihar: Tiwari was vocal about his opposition to the apex court’s judgment, though one doesn’t know if his party will publicly follow suit.

When it comes to the BJP and the Hindu right-wing, Ramdev perhaps reflects the temperament of most Hindu right-wingers. However, there is a ‘minuscule’ section in the party that believes homosexuality can be “tolerated” but shouldn’t be “promoted”. Perhaps this might help in understanding the muted reaction of the Hindu Right after the 2009 Delhi High court verdict, and then Sushma Swaraj’s vague response after the 11 December judgment.

“But if the UPA government tries to bring in a legislation there will be vehement opposition by the BJP,” says a party insider. Malik points out that even the Congress will not want to introduce such a controversial legislation in Parliament in an election year. “They will look for a judicial route,” he says. Even the petitioners on behalf of sexual minorities do not seem very hopeful about the legislative route. “We know it is a very sensitive issue but the government seems to be serious about the ordinance route,” says Shashi Bhushan, coordinator at Naz Foundation. TMC MP and sexual minority rights supporter Derek O’ Brien, in fact, was more frank in accepting that such a legislation cannot be passed by the Indian Parliament in the next 10 to 15 years.

Until Sonia Gandhi manages to push for an ordinance or the government convinces the SC to review its judgment, or if there is a miracle and the Indian Parliament gives its sexual minorities its due rights — till that time the one question that will continue to haunt the conscience of our country will be — can there be such stark double standards on the issue of human rights?

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