The scrapping down of Section 377 by the Apex Court blew away the larger debate that how we are inviting the State intervention in even as personal subjects as sexuality and gender
Shankara Bharadwaj Khandavalli
The recent SC verdict on Section 377 of IPC is celebrated as finally delivering justice to LGBT (Lesbian, Gay, Bisexual, Transgender), “victory of liberal values”, “defeat for fringe”, what not. The matter brewed for a while, involved activism, outrage, hearings in courts before the verdict came. It is time we see what is beyond the noise and activism, specific to this matter and then what this matter has to tell about the systemic problem.
Getting to Basics
The “correctness” of the matter from Dharmic viewpoint, is that persecution is not allowed on any basis. In fact the section 377 is inherited from British, and traditional Hindu society neither accords privilege nor persecutes the “third nature”. This is the way a mature civilisation deals with basics of nature, without sensationalising or frowning. Thus, both criminalising and activism for decriminalising gay sex are vidharmi, for dharma always advocates the golden mean.
Sexuality or orientation is not only a matter of personal choice (it definitely is), but a private aspect of gender. Personal choices have to be in-faced and not out-faced. Masculine and feminine principles have several facets, at psychic, psychological, physiological and spiritual level. Sexuality is just one of them and a non-public one. Third nature as we find in tradition, doesn’t also merely refer to sexual aspect of gender. The oversimplification of gender into sexuality, and bringing a non-public matter into public discourse in the name of legitimacy is not merely a perversion or breach of sanctity of public-private spheres, but more importantly it eclipses the deeper and subtler aspects of gender from public discourse.
Only Constitutional morality and not social morality can be allowed to permeate rule of law… Sexual orientation is one of the many natural phenomenon. Any discrimination on basis of sexual orientation amounts to violation of fundamental rights. After judgement in Puttuswamy case, privacy has been raised to fundamental right.— CJI Dipak Misra, in his judgement on scrapping section 377 of the Indian penal code
A LGBT individual with freedom to “orientation” and gay identity are two different things, and the latter makes it a social group and the matter doesn’t remain personal or private anymore. Viewing gender as a group is a dissonance, and collective dissonance leads only to disorder.
The other problem with LGBT activism is, what it means to core institutions like marriage. The west which legitimized gay marriages doesn’t have this problem because marriage itself isn’t seen as a lifelong commitment, but Indian society does to a good extent. Thus again, a matter of individual freedom when takes the shape of rights activism, violates the permanent principles that make society a society.
Systemic Problem
However, as usual, the noise around it hides real questions and what should concern thinking individuals – 1.Why did it take several decades after independence for this (striking down sec 377) to happen? 2. Why did the matter require activism and petitioning, why did the concerned legislative and executive not take up the matter for decades?
‘Homosexuality is Against Human Nature’, feels Muslim Clerics in Kerala
Prominent Sunni leader and president of the Kerala Muslim Jamaath Kanthapuram AP Aboobacker Musliyar has said that the organisation will discuss in detail the Supreme Court verdict on legalising same-sex relations between consenting adults.Replying to questions at a news conference here on Friday, the Musliyar, who showed his displeasure to respond to the issue, said that they will need to study the verdict in detail before responding. “If required we will meet the Prime Minister as well as approach the Supreme Court itself,” he said.The Sunni Yuvajana Sangham, a feeder outfit of the Samastha Kerala Jam’eyyath ul-Ulama, a religious organisation of the Sunni Muslim scholars and clerics, said that homosexuaility was a grave sin in Islam while the Ithihadul Subbanil Mujahideen said that homosexality is against human nature.
This matter demonstrates the problem with post-colonial state’s design more than the validity of grievance or validity of the section. It sends a message that activism & grievance alone succeeds in the country, if there is enough noise and disruption that a group can do.
State being reactive and not proactive in justice, whether it is the matter of LGBT or rape laws or divorce laws or temple autonomy or equal opportunity, is problematic at several levels. For example, matters of injustice that have not seen a certain magnitude of outrage are not going to be addressed, which means state is not focused on justice but only on addressing gross injustices. Secondly, matters of injustice where the aggrieved lack the voice or power to be heard by the nation, would not get attention from the State.
The groups that do not have demographics or influence in power circles or power of wealth, are the ones whose situation determines how just the State is.
(The writer is a contributor on topics of history, dharma and culture)
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