377 has been read down. The victory though impermanent is one more nail in the “Growing intolerance” canard being peddled by the left. A fascist government run by “Muslim-lynching, cow-loving, homo-bashing bigots” as the narrative goes, basically decided to fight back its core Islamo-homophobic voters and do what a previous progressive government (full of “Muslim-homo-loving, bastions of tolerance and free speech”) had not done – decide to not oppose decriminalisation. Indeed if one were to go by the media narrative that the BJP is the distillate of all regressive forces in India today, the very act of not opposing decriminalisation would count as the single most progressive and courageous stand taken on a social issue in modern history since Lyndon Johnson ended segregation.
Snark aside it is time we examined the extreme fallacies that have plagued this case. The Supreme Court in 70 years has never stood up when it counts, justifying and normalising the very worst abuses of power including insulating itself from accountability and legalising the emergency. The SC has gone with the mood of the day, which was in favour of legalising homosexuality – be it the lack of opposition from the government, to the associations of mental health professionals most of whom have come out in favour of decriminalisation to near complete public apathy. In spite of this, it required a 493-page infantile ramble – that says more about the judges’ literary preferences that it does any legal reasoning – to justify what could have been said in two paragraphs. Issues of judicial pendency arising from every judgement turning in a 493-page senile rant aside, there are some egregious excesses in this judgement. The first of this is the rather curious understanding that the criminalisation of gay sex was based on “majoritarianism”.
Normally the difference between conservatives and progressives has been, that progressive try to legislate social change and conservatives want legal changes to keep step with social change. One fallacy that is used against conservatives in this argument is that America would have never gotten rid of slavery had it not been for a “progressive” Abraham Lincoln. Like most lefty arguments this is one more socialist half-truth and a dangerous one at that.
The fact remains it was an industrial north, that had no need for slave labour, and indeed where the use of slaves would have led to a loss of quality control (quality control being dependent on human capital investment and incentivisation) that forced it down the throat of the south. What did it lead to? emancipation? No – far from it the gains were illusory at best, lasting the better part of 3 to 4 years, after which an economically devastated south, that took close to 150 years to recover (given the failure of reconstruction) doubled down on repression and segregation. Definitely better than slavery, but still living hell, with none of the attached stigmas of slavery. In short as much as the supreme court would like to portray itself as a progressive champion, in this episode it in fact is the biggest social conservative, having come last to the party – save the occasional rabid mullah, sadhu or padre, and passed a judgement secure in the faith that it would have social and press backing and governmental and public indifference.
If anything this judgement also reflects how far divorced the supreme court is from the reality of an India that has always been accepting of gender fluidity and sexuality in practice. This brings the rather problematic issue we have of course by their fundamental nature of accepting the written over practice and verbal, being significantly at variance with a large customary-verbal culture. Essentially then from a supreme court perspective: Gender binary has been written about, therefore it must be true. Indian tolerance of gender fluidity and sexuality is not written but in practice, therefore it cannot be true.
Let us, for example, take this rather charming example on DailyO that posits a persecution narrative of the gay community in India. the methodology used to prove the persecution narrative is no different from the methodology used by Christian fundamentalists to prove that homosexuals tend to be child abusers. Obviously the author is clueless to the irony, and what’s more, expects Nazi-like disciple from the gay community in supporting any course of action – dissent according to him being “gaslighting”. Yet from a judicial point of view it would be acceptable (despite the danger that the same methodology would be used to condemn gay men as child molesters) to take these studies into account, as the reverse – the acceptance of homosexuality is impossible to prove statistically.
What needs to be acknowledged is however that what has been achieved today, has not been because of the LGBT campaign, the supreme court, but rather the fundamentally liberal nature of the Indian People expressed through the organs of the Indian state, restraining the government from opposing and stiffening the supreme courts notoriously weak spine. What we should, however, accept that the momentous reading down of section 377 is by no means permanent. Should social mores change, the judgement too is prone to being revisited through legislation that overrides the judgement, much like the Shah Bano case. The only guarantee a community has is to write these protections against discrimination based on sexual orientation and recognising gender fluidity in the constitution. Given that this is India, those will eventually happen, but like all things in India, it takes time and patience, not the grandstanding of make-believe heroes.
