Who is Celebrating the Judgment on Article 377 !
Our India is a religious country whose overwhelming majority believes in religion and upholds traditions of the east. All religions emphasize on construction of a family through marital relation between men and women, on which depend not only the existence of human race and lasting peace and tranquillity in the society but it also establishes the respected and central position of woman in the society.
The Constitution of the country has rightly described homosexuality as a punishable offence. It is because homosexuality not only prevents evolution and progress of human race but also destroys family system and social relations. Moreover, it is a great danger to public health. Medical research has also found it as a basic reason for the spread of AIDS…
( Signatories : Maulana Syed Jalaluddin Umari – (Ameer (National President), Jamaat-e-Islami Hind, Maulana Mufti Mukarram Ahmed – Shahi Imam, Fatehpuri Masjid, Jagat Guru Swami Omkar Anand- Sanatan Dharm, Gyani Ranjit Singh-Chief Priest, Bangla Saheb, Fr. Dominic Emmanuel, Lokesh Muni- Jain Dharm, http://jamaateislamihind.org/eng/joint-statement-of-religious-leaders-on-supreme-court-order-on-article-377
The recent judgment by the Supreme Court which has recriminalized homosexuality might have baffled a broad section of peace and justice loving people but it has definitely emboldened many a self-proclaimed leaders of religion and purveyors of morality who today feel vindicated. For them it is a moment of celebration It was only last month that few of their representatives had held a press conference proclaiming their support to the decision of the Supreme Court on Section 377 of the Indian Penal Code as it was ‘[n]ot only in line with the eastern traditions of this country, moral values and religious teachings but it also removes apprehensions about invasion of western culture and disintegration of family system and fabric of social life – the inevitable fallouts of the Delhi High Court order of 2009 wherein it decriminalized homosexuality.”
The bonhomie exhibited by the ‘holy of different faiths’ then was for everyone to see. Rare have been such occasions when they exhibited similar eagerness to come together over any real material concern of their own followers or when hatred oozing out of their own understanding of faith filled out on streets dividing people into camps of ‘us’ versus ‘them’.
Definitely they were not concerned over the curious fact that there was nothing ‘western’ about same sex relations and like most ancient societies; here also it was accepted as one dimension of a wide erotic spectrum. As Ruth Vanita in one of her write-ups gives instances from pre-colonial Indian literature and art which depict incidents of sex-change (now termed transgender/ transsexual) and erotic love between two men or two women (now termed gay, lesbian or bisexual). According to her:
One version of the 14th-century Krittivasa Ramayana tells the story of two women, Chandra and Mala, who make love in the rainy season, inspired by Kamadeva; one becomes pregnant with divine blessing and has a heroic son. Major poets, such as Mir Taqi Mir and Najmuddin Shah Mubarak Abru wrote about male-male romances and sexual relationships, while others wrote about female-female amours that were explicitly sexual.
In fact, anti-sodomy laws were a western import which became a part of jurisprudence here, as part of Victorian morality which was much in vogue then. The British introduced Section 377 during those times as they feared “their army and daughters would be tainted by Oriental vices” and it has been around fifty years that they themselves removed this obnoxious provision from their statue books. Today gay sex by consenting adults is not a crime in all of Europe and the US.
It is a different matter that today; India has joined some sort of bizarre competition with countries which are ready to embrace state sponsored homophobia, thanks to the Supreme Court verdict which, instead of affirming the fundamental constitutional principle of non-discrimination between citizens has decided to re-criminalise homosexuality. In fact it need be mentioned here that India today is an important member of the emerging club of ‘homophobic’ countries represented by Russia, Nigeria and Uganda. While much is known about Russia’s new anti-gay law banning “homosexual propaganda’, which has rightly raised concerns over the safety of gay athletes in Russia who would be there to participate in Winter Olympics at Sochi, developments in Nigeria and Uganda have largely gone unreported. It was on January 13 that Nigerian President Good luck Jonathan signed a decree criminalising same sex relationships which is much harsher than India’s Section 377; the Ugandan legislation seems to the most draconian one, where under the bill punishing “aggravated homosexuality” which was ratified by the Parliament in December itself, one can face a life sentence. Two years back Ugandan gay rights activist Pasikali Kashusbe was brutally murdered by one of those fanatic groups which opposed homosexuality.
While the ‘holy men’ are entitled to their views on what does or does not constitute a sin, they seem to have faint realisation of the fact that in a democracy punishments are only prescribed for crimes, not for sins. Thus while a theocracy or a country where particular religion seems to play a larger role in the state functioning, can condemn someone to death supposedly for committing the ‘sin’ of declaring herself/himself an atheist, a secular democracy moves in an utterly different domain. It was a pity to see that their limited world view (weltanshauung) prohibited them from even comprehending the fact that how the high court judgement which decriminalised homosexuality had tried to reinvigorate the principles of constitutional morality to expand freedoms, choices available under constitution and tried to counter pose it with the ideas of public morality which is a carrier of the dominant viewpoint in the society.
This coming together of the ‘holy men’ of their communities against a step which had the possibility of expanding human freedoms reminded one of a similar episode which unfolded before us 80 years back when India was still under the yoke of the colonial government. While the context is definitely different and the issues at hand are different but the manner in which ‘religious teachings,’ tradition and culture’ and ‘opinion of the overwhelming majority of the people’ is invoked seems quite similar.
It was a period when there was talk of enacting Sarada act – which prohibited marriages of girls under fourteen – and this idea itself had agitated a large section of religious minded groups and individuals. A section of the nationalists had also felt agitated and had claimed that ‘outsiders/Britishers’ have no right to interfere in the internal affairs of the people. Not very many people would remember today that the initial impetus to enact the act had come from the revulsion felt by the articulate sections of our society over the death of Phulmoni, a child bride who had died after her marriage to a man much elder than her age was consummated. While the conservative section of the nationalist opposed the act in their own way, the ‘pious’ and the ‘holy of both faiths’ namely Hindu and Muslim had then come together to declare that they would not allow this ‘outrage on their deepest convictions and their most cherished rights….’. They had even declared that they would not allow the colonial government to infringe upon their ‘glorious tradition and culture’.
Here is an episode of those times described by Jawaharlal Nehru himself which had appeared in ‘Modern Review’ (December 1935) which discussed how representatives of the clergy had behaved then.
‘Some years ago I happened to be in Banaras… We saw Brahmins. Marching shoulder to shoulder with bearded Moulavies… and one of the standards they carried in triumph bore the flaming device ‘Hindu-Muslim ekta ki Jai (Victory to Hindu-Muslim unity)! Very gratifying, we thought. But still, what was all this about?.. This was a joint protest by the orthodox of both religions against the Sarada act’
“Offensive slogans were hurled at us and there was some jostling about. Just then, the procession arrived at the Town Hall and, for some reason or other, started stone throwing. A bright young person thereupon pulled some crackers and this had an extraordinary effect on the serried ranks of the orthodox. Evidently thinking that the police or the military had opened fire, they dispersed and managed (this) with extraordinary rapidity. A few crackers were enough to put the procession to flight..’
(Social and Religious Reform, Amiya P Sen, OUP, Page 118)
Nehru further describes how the British government in India surrendered on this issue and how a little shouting was ‘enough to kill and bury the Sarda act’ and how ‘child marriages continued as before, and government and magistrates looked the other way while the Sarda act was torn to shreds and cast to the dogs’.
There is no doubt that times are different. The Britishers are long gone and we have ushered into a republic more than sixty years back.
But a similar moment awaits us.
It has been more than sixty years that we decided that henceforth there won’t be any discrimination on the basis of gender, caste, race, religion, nationality and similar other categories which have been made a basis of discrimination against minorities of various types. But of late we are realising that there seems to be a great hiatus between our noble intentions and the situation on the ground. If yesterday or the day before or the day earlier than that, dalits, women, religious minorities etc. were at the receiving end, today seems to be the turn of the sexual minorities of various kinds.
Whether we will be able to transcend what Fahad Hashmi calls the ‘ironies of democracies’ where ‘minorities of all shades are always in the crosshairs of majoritarianism.’ that is the crucial question before us today.