Why no representation of sexual minorities in the 'Minorities Commission'?

Express Buzz
14 July 2009

Homophobia just cannot have constitutional sanction

by A Surya Prakash

The Delhi High Court’s path-breaking judgment reading down Section 377 of the Indian Penal Code insofar as it criminalises consensual sex among same sex adults in private has raised the hackles of religious leaders and conservative heterosexuals across the country. Those troubled by this judgment say it will wreck family life and that it is yet another example of our blind imitation of the decadent West. Since the majority of people are heterosexual, they find homosexuality repulsive. They are horrified at the thought of a man having sex with a man or a woman with a woman and would, in all probability, view same-sex relationships as an illness. The majority therefore sees nothing wrong in the IPC provision that views sodomy as a criminal act. Baba Ramdev actually echoes the majoritarian view when he says homosexuality is a ‘disease’ that needs to be cured.

The problem with this view is that it is repugnant to the grammar of modern, liberal constitutions. Beginning with the second half of the 20th century, courts have enlarged freedoms available to all citizens in democracies by viewing every policy, law and government statement through the prism of political correctness. More specifically, they have extended the concept of equality to what one may call non-heterosexuals.

Apex courts in a number of democracies find abhorrent the idea that societies have the right to discriminate against citizens with a sexual orientation different from the heterosexual majority. This has resulted in a silent revolution to eject outdated concepts and inject new meaning to constitutional texts. More often than not, the laws that criminalise homosexual behaviour have been central to this debate. Among the courts that have struck down such laws are the European Court of Human Rights, the US Supreme Court, the Constitutional Court of South Africa and the Human Rights Committee of Australia. Broadly, their opinion is that ‘if, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy’.

The Delhi High Court judgment is in line with this thinking. It enables us to belatedly catch up with liberal democracies around the world, which have done so much before us. Among these nations are a majority of the states in Europe, Scandinavia and Australia. England decriminalised sodomy in 1967 and Scotland in 1980. Northern Ireland followed suit in 1982. Closer to home, even the Supreme Court of Nepal and High Courts of Hong Kong and Fiji have declared such laws to be unconstitutional.

Chief Justice A P Shah and Justice S Muralidhar of the Delhi High Court cited these cases in their judgment. While it has brought about a rather strange communion among religious leaders (Hindu-Muslim-Sikh-Christian), one must remember that views tangential to core constitutional values cannot and should not gain ground.

Several Hindu religious leaders are critical of the court’s decision on the ground that it would destroy our ‘culture’ and family life. The fact that they advance the majoritarian view need not surprise anybody. But what do the religious minorities say? Why are Muslim and Christian leaders, who are constantly fighting for minority rights, reaady to join Hindu leaders in order to crush the rights of another minority?

In this judgment, the two judges have made a significant point. They say that, ‘A modern democracy while based on the principle of majority rule implicitly recognises the need to protect the fundamental rights of those who may dissent or deviate from the majoritarian viewpoint’. Is this not the tenet that protects the rights of religious minorities in India? Should we not apply this principle to protect the fundamental rights of those who ‘deviate’ from the majoritarian heterosexual viewpoint? India is a Hindu-majority nation and the Abrahamic religions have been imported into India. The Muslim and Christian ways of life, modes of worship, ‘culture’, etc, is distinct from Hindu ways. Shall we then say that it is ‘natural’ to be a Hindu in India and ‘unnatural’ not to be one?

The Delhi High Court has now turned the spotlight on another minority — the sexual minority. While we celebrate diversity, the Congress Party has added a new buzzword — ‘inclusive’ growth. However, possibly because of continuous mollycoddling, leaders of religious minorities in India think the word ‘diversity’ has just two synonyms — Muslims and Christians – and that ‘inclusiveness’ just means including members of these communities in everything the government does. The judgement on Section 377 of the IPC is bringing them some home truths. ‘Minority’ is not just religious minority. There are linguistic, political and sexual minorities in India and they have the same rights under our Constitution as religious minorities.

Obviously, providing space for other ‘minorities’ does not come easily to religious minorities. The response of the leaders of these communities is akin to the behaviour of passengers in an unreserved railway compartment. Once they get in, they shut the doors to others, and yet offer lip sympathy to the notion of equality of all railway passengers.

It is, therefore, the job of the judiciary to prise open the door of this compartment and let other minorities in. This is exactly what the Delhi High Court has done.

We must make peace with the fact that there are an estimated 2.5 million homosexual men and an unknown but possibly smaller number of lesbians and transvestites in our midst. Hijras even contest elections and enter legislative chambers. They constitute a minuscule minority of non-heterosexuals. To mock and ridicule them is one thing, but to subject them to constitutional inferiority is quite another. In this time and age, homophobia just cannot have constitutional sanction.

suryamedia@gmail.com