Today's Editorial 17 December 2013

                                                                   A queer prejudice

Source: By Anil Dharker: The Asian Age
The young man waiting in the lift lobby of my building seemed smart enough, and when he spoke, his English was fluent. “There's a big controversy raging nowadays“, he began, which at this juncture could mean only one of two subjects. “Article 377“, he said, thus consigning the mango people to second place. He had heard, though not seen, that I was on a television debate the previous evening.

“What was your stand? “ he asked. “What other stand can there be? “ I replied, making the subconscious assumption which all of us make, that people like us think like us. “Article 377 has to be scrapped, of course, “I said. There was a pause while we got into the lift. More silence as he struggled to formulate what he hoped would be seen as a rational, rather than a prejudiced response. “If that is done, HIV and AIDS will spread. “ Yes, people like us do make the subconscious assumption that other people like us think like us, but that assumption is often wrong.

Subramanian Swamy, who might be considered a person like us (though that would be a stretch), tweeted about “Homos“, a term I haven't heard for a very long time (but, then, there must be people who go around saying “Nigger“ too). He also claimed -without giving us the source of his statistics -that 84 per cent Indians were against homosexuality. Since Mr Swamy was thrown out of Harvard for bigotry (yes, he hates Muslims too) rather than statistical inaccuracy, perhaps there is a kernel of truth in his figures.

I won't be surprised if a large majority of Indians feel this way. There was, for example, in the same television programme a young man who claimed there was scientific evidence against same gender sexuality. Not unexpectedly, he was unable to name his sources for this “scientific evidence“, nor give details about the nature of these alleged findings. When it comes to prejudice, such obfuscation is par for the course.

Just look at the nature of the group that came together before the Supreme Court to ask for the retention of Article 377. It consists of Suresh Kumar Kaushal, an astrologer, the AllIndia Muslim Personal Law Board, Trust God Missionaries, Krantikari Manuwadi Morcha and others, as motley a crowd as you can imagine, united by the certainty that homosexuality is (in the words of Article 377), “carnal intercourse against the order of nature“.

Some of the arguments brought in defence of this article before the court are bizarre. One was that jawans would bugger each other if homosexuality was decriminalised. Another was that young boys would be forced into oral and anal sex. Yet another was about bestiality -having sex with animals. The fact that the judge gave serious consideration to these arguments is bad enough -after all, paedophilia and bestiality, both of which by their very nature are coercive, non-consensual sex and therefore rape, are criminal acts and carry their own penalties. But worse was the fact that the judge ignored affidavits filed by a transgender person from Chennai and a gay man from Delhi about their gangrapes by the police.

There were also a number of affidavits from parents of gay children detailing the discrimination faced by the children. All these affidavits collectively supported the case made by the LGBT community that they were vulnerable to harassment and worse if homosexuality was considered a criminal act.

Justice G.S. Singhvi has had an “illustrious career“ according to many members of the legal fraternity, but it has not been marked by judicial restraint i.e., the encroachment of the judiciary into the territory that is clearly the executive's. To give an example, which preceded the Article 377 judgment by just a day, Justice Singhvi ruled against the use of flashing red beacon lights on cars of various bureaucrats and functionaries.

This was clearly an area, which was purely within the executive's ambit, and clearly outside the judiciary's, yet the judge had no hesitation in giving a ruling (the merit of the ruling, which all of us applaud, isn't important here; it is the principle of the thing). In an even more important case, Justice Singhvi ordered the cancellation of 122 2G spectrum licences allotted in 2008. This was clearly a case of judicial overreach.

Yet, when it comes to Article 377, the same over-reaching judge, suddenly remembers judicial restraint, and asks Parliament to change the law, even if it meant overturning the judgment of the Delhi high court! This is remarkable, because this case is clearly a matter for the judiciary since it concerns the right to equality, life and liberty of a minority, which the judiciary is duty bound to protect.

Oddly enough, in an earlier instance Justice Singhvi did just that. Two years ago in a case involving sewerage workers, Justice Singhvi concurred with Delhi high court orders which upheld the dignity of these workers and their right to facilities like free medical treatment, compensation for occupational illnesses and so on.

The inescapable conclusion is that the judge, however vast his legal knowledge and however strong his desire to right the wrongs of society, is not above human prejudice, the kind displayed by Mr Swamy, the young man in the lift, the one on TV, and by Mr Swamy's “84 per centers“. After sitting on the fence for a while, the BJP has shown its illiberal stance (does it have any other?) Its president, Rajnath Singh, has labelled homosexual sex as “unnatural acts“ while one of its MPs has said that homosexuality “is a disease“. Given the reactionary nature of many MPs across the political spectrum, it's unlikely a bill scrapping Article 377 will be passed. That's precisely why people expected the Supreme Court to show the way. Instead, Justice Singhvi has failed us all.