A hole in the sky
Source: By Antara Dev Sen: The Asian Age
In an intolerant, polarised society our courts have been pandering to majority sentiment and slowly killing the spirit of the Constitution. The rights of minorities need to be robustly protected. Just heard that the Government of India has filed a review petition on Section 377 in the Supreme Court. Last week the court had ignored the demands of human rights and democratic freedoms and set aside the brilliant Delhi high court order of 2009. Section 377, the apex court had declared, was constitutionally valid.
By this bewildering act, the apex court had swiftly re-criminalised homosexuality as well as much of non-procreative sex among consenting adults. And had justified this deeply disappointing performance with bizarre arguments. It made you wonder whether you — with your head full of fancy ideas about your country and your rights — were constitutionally valid. Wait, dear reader, don’t panic. This column is not about gays, lesbians, transgenders or the right to “unnatural sex”. It’s about promises, principles, guarantees, beliefs. It’s about the splendid sheltering sky, the nurturing earth, the liberating breath that we were all gifted at birth. It’s about allowing these to be taken away, slowly, almost imperceptibly. This is about the Indian Constitution. Or what we make of it.
For starters, if a law robs only a few people from their constitutional rights, while not affecting the vast majority, does it make it constitutionally valid? Say, there was a law that prevented lactose intolerant, blue-eyed Tamil boys from going to school. Would we shrug it off with, “Oh it doesn’t matter — there must be very few Tamil boys who have blue eyes and are also allergic to milk!” Looks like the Supreme Court has used such reasoning. The order says (in the inimitable grammar and spelling of the courts): “…a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.” In short, too bad, minorities, you are too irrelevant in our majoritarian scheme of things.
This from the Supreme Court, the biggest temple of justice, the protector of human rights, the guardian of the Constitution. The court that has repeatedly stood up for every individual’s right to life, equality and liberty. The Articles 14 (equality before the law), 15 (prohibiting discrimination) and 21 (protection of life and liberty) are supposed to guard an Indian citizen from intolerance and prejudice, and defend his or her freedoms. The apex court failed to see that when the state entered bedrooms and legally prevented willing adults from making love the way they wanted, it was curtailing their freedom, being discriminatory and denying equality to citizens who cannot make love the way the state ordered.
Was the court letting down the Constitution? Did the minuscule minorities really not matter? (Incidentally this “minuscule fraction” comprises almost three million Indians.) Or was this just a special case, made particularly unpleasant by the very public delving into nonorthodox sex and bedroom habits of sexual minorities in a moralising and conservative society? Was it the chhi chhi factor? Was it the felt need to make the powerless minority conform to the moral imperatives of the muscle-flexing majority? Was it all of the above? Whatever the reason, the court certainly has let down the Constitution. The Fundamental Rights are guaranteed to every citizen, not to the majority or to the powerful alone. In fact, these are supposed to protect the minorities and the marginalised from the whims and fancies of the muscle-flexing majority.
The courts, especially the Supreme Court, is supposed to protect the fundamental rights of the less powerful. But this judgment was not delivered in a vacuum. Over the decades, our constitutional guarantees have lost their strength. The majority community has always determined how the minorities will live, and the courts have helped to chip away at our fundamental rights. The state and its agents, like the police and administration, have colluded with the dominant groups to protect not the victims but the perpetrators of violence and oppression that keep the unjust power equations intact and routinely prevent the disempowered from accessing equal rights. Heavily dependent on this prejudiced system of administration and investigation, and often influenced by political and other considerations, the courts very often fail to protect the less powerful. And fail the Constitution.
Take the atrocities against dalits. This week there was a public hearing in Delhi of the the Bathani Tola, Laxmanpur Bathe and Nagari Bazaar massacres in Bihar in the 1990s. Not one person has been punished for the inhuman violence and brutality, mostly against women and children, in these massacres of dalits and Muslims by the Ranveer Sena, a private militia of upper caste Bhumihars.
Sadistic murderers found guilty by lower courts have been acquitted by the Patna high court in a shameless show of caste prejudice and political bias. In 1996, in a show of strength by the upper caste sena, 21 people were killed in Bathani Tola, 58 were butchered in Laxmanpur Bathe in 1997 and 10 murdered in Nagari Bazaar in 1998.
All poverty-stricken dalits, lower castes and Muslims. And every one of the accused has been acquitted. “Who killed them, then?” ask the survivors demanding justice in Delhi. And you are not surprised when middle-aged village women lament that they would have to take up arms if that was the only way to get justice and protect themselves and their children. Or take the Allahabad high court verdict on the Babri Masjid in 2010.
Asked to settle the title of the site where the mosque had stood for almost 500 years, the court dismissed the petition as too old, and declared that the Babri Masjid was not a masjid, since it had been built by demolishing a temple. It cast logic and history aside and cited “faith” to declare that Lord Ram was born right there. They offered a third of the land to the Muslims, and two thirds to Ram and his Hindu devotees. The demolition of the mosque was ignored. Thankfully, our SC stayed this deeply disturbing HC order.
In an intolerant, polarised society our courts have been pandering to majority sentiment and slowly killing the spirit of the Constitution. That needs to stop. And the rights of minorities — whether vast populations like dalits and muslims or “minuscule fractions”like sexual minorities – need to be robustly protected.
In an intolerant, polarised society our courts have been pandering to majority sentiment and slowly killing the spirit of the Constitution. The rights of minorities need to be robustly protected. Just heard that the Government of India has filed a review petition on Section 377 in the Supreme Court. Last week the court had ignored the demands of human rights and democratic freedoms and set aside the brilliant Delhi high court order of 2009. Section 377, the apex court had declared, was constitutionally valid.
By this bewildering act, the apex court had swiftly re-criminalised homosexuality as well as much of non-procreative sex among consenting adults. And had justified this deeply disappointing performance with bizarre arguments. It made you wonder whether you — with your head full of fancy ideas about your country and your rights — were constitutionally valid. Wait, dear reader, don’t panic. This column is not about gays, lesbians, transgenders or the right to “unnatural sex”. It’s about promises, principles, guarantees, beliefs. It’s about the splendid sheltering sky, the nurturing earth, the liberating breath that we were all gifted at birth. It’s about allowing these to be taken away, slowly, almost imperceptibly. This is about the Indian Constitution. Or what we make of it.
For starters, if a law robs only a few people from their constitutional rights, while not affecting the vast majority, does it make it constitutionally valid? Say, there was a law that prevented lactose intolerant, blue-eyed Tamil boys from going to school. Would we shrug it off with, “Oh it doesn’t matter — there must be very few Tamil boys who have blue eyes and are also allergic to milk!” Looks like the Supreme Court has used such reasoning. The order says (in the inimitable grammar and spelling of the courts): “…a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.” In short, too bad, minorities, you are too irrelevant in our majoritarian scheme of things.
This from the Supreme Court, the biggest temple of justice, the protector of human rights, the guardian of the Constitution. The court that has repeatedly stood up for every individual’s right to life, equality and liberty. The Articles 14 (equality before the law), 15 (prohibiting discrimination) and 21 (protection of life and liberty) are supposed to guard an Indian citizen from intolerance and prejudice, and defend his or her freedoms. The apex court failed to see that when the state entered bedrooms and legally prevented willing adults from making love the way they wanted, it was curtailing their freedom, being discriminatory and denying equality to citizens who cannot make love the way the state ordered.
Was the court letting down the Constitution? Did the minuscule minorities really not matter? (Incidentally this “minuscule fraction” comprises almost three million Indians.) Or was this just a special case, made particularly unpleasant by the very public delving into nonorthodox sex and bedroom habits of sexual minorities in a moralising and conservative society? Was it the chhi chhi factor? Was it the felt need to make the powerless minority conform to the moral imperatives of the muscle-flexing majority? Was it all of the above? Whatever the reason, the court certainly has let down the Constitution. The Fundamental Rights are guaranteed to every citizen, not to the majority or to the powerful alone. In fact, these are supposed to protect the minorities and the marginalised from the whims and fancies of the muscle-flexing majority.
The courts, especially the Supreme Court, is supposed to protect the fundamental rights of the less powerful. But this judgment was not delivered in a vacuum. Over the decades, our constitutional guarantees have lost their strength. The majority community has always determined how the minorities will live, and the courts have helped to chip away at our fundamental rights. The state and its agents, like the police and administration, have colluded with the dominant groups to protect not the victims but the perpetrators of violence and oppression that keep the unjust power equations intact and routinely prevent the disempowered from accessing equal rights. Heavily dependent on this prejudiced system of administration and investigation, and often influenced by political and other considerations, the courts very often fail to protect the less powerful. And fail the Constitution.
Take the atrocities against dalits. This week there was a public hearing in Delhi of the the Bathani Tola, Laxmanpur Bathe and Nagari Bazaar massacres in Bihar in the 1990s. Not one person has been punished for the inhuman violence and brutality, mostly against women and children, in these massacres of dalits and Muslims by the Ranveer Sena, a private militia of upper caste Bhumihars.
Sadistic murderers found guilty by lower courts have been acquitted by the Patna high court in a shameless show of caste prejudice and political bias. In 1996, in a show of strength by the upper caste sena, 21 people were killed in Bathani Tola, 58 were butchered in Laxmanpur Bathe in 1997 and 10 murdered in Nagari Bazaar in 1998.
All poverty-stricken dalits, lower castes and Muslims. And every one of the accused has been acquitted. “Who killed them, then?” ask the survivors demanding justice in Delhi. And you are not surprised when middle-aged village women lament that they would have to take up arms if that was the only way to get justice and protect themselves and their children. Or take the Allahabad high court verdict on the Babri Masjid in 2010.
Asked to settle the title of the site where the mosque had stood for almost 500 years, the court dismissed the petition as too old, and declared that the Babri Masjid was not a masjid, since it had been built by demolishing a temple. It cast logic and history aside and cited “faith” to declare that Lord Ram was born right there. They offered a third of the land to the Muslims, and two thirds to Ram and his Hindu devotees. The demolition of the mosque was ignored. Thankfully, our SC stayed this deeply disturbing HC order.
In an intolerant, polarised society our courts have been pandering to majority sentiment and slowly killing the spirit of the Constitution. That needs to stop. And the rights of minorities — whether vast populations like dalits and muslims or “minuscule fractions”like sexual minorities – need to be robustly protected.
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