I’ve been following, with great interest, comments from India on the Delhi High Court’s decision on Section 377. As you may know, the Court decided to decriminalize homosexuality and dropped it from the list of things Section 377 could cover. Read the judgment here. I speak now as an Indian, as a person with the benefit of living in two nations, as a professional student of culture whose area of specialization is India, and as a very proud ally and friend.
There is a lot of comment, of course, from people stating that homosexuality is against “our culture”, that this is “perversion” from Western culture, etc, etc. As Barkha Dutt wrote in today’s Hindustan Times, religious leaders are, for once, completely united in their disapprobation of the High Court’s decision. They suggest, very strongly, that “our” very moral fiber is threatened by this threat to “our culture”.
There are a number of issues here that need to be interrogated. The first, and most important, is the issue of constitutionality. As Shohini Ghosh writes, the HC judgment was a milestone in upholding the constitutional rights of Indian citizens:
“Arguing that Section 377 is violative of Articles 21 (right to life and personal liberty), Article 14 (equality before law and equal protection from law) and Article 15 (prohibiting discrimination on several grounds including sex), the judgement holds that if there is one “constitutional tenet” that can be considered an “underlying theme” of the Indian Constitution, it is “inclusiveness”.”
The fact is that we, as Indian citizens, have these rights. They are our fundamental rights, constitutionally guaranteed. These are our freedoms. We cannot have them taken away. We are a free nation – which means more than sovereignty. It means that we, as citizens, are free. Two (or more) consenting adults must be free to do what they please in their bedroom. How can the law legislate how you have sex? As Vir Sanghvi eloquently says, the regulation of private lives and relationships is not the business of the law.
The second issue is that of religion, and the place of religion in a secular society. Those who wish to illegalize homosexuality and deny gay rights in the name of religion forget that religions do not – and should not – legislate in a secular society. Article 15 of the Indian Constitution states that “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them.” Article 25 guarantees freedom of conscience and the freedom to practice and profess religion as we desire.
This means that the State cannot prohibit people from practicing their religions as they see fit, or not practicing them at all, as the case may be. Religious institutions, by the same coin, have the freedom to denounce homosexuality within their religion, to those who practice it, and are free to refuse to marry gay people. The State, being a sovereign, secular entity, is not. Two consenting adults, under our Constitution, have the right to have sex as they please, and have the right to marriage under law. Those who choose not to follow religious edicts cannot be legislated by those edicts, or laws influenced by those edicts, in a secular nation. It is unconstitutional and illegal. Sanghvi puts it out there: “I have some sympathy for the religious leaders who oppose homosexuality (well, okay, not a lot of sympathy actually!) but their writ extends only to those of their followers who choose to listen to them. No pandit, no padre, and no maulvi has the right to tell me how to live my life if I don’t want him to.”
The third issue is that of “culture”. People who speak of “our culture” are presenting an argument that is simplistic and unthinking. As a nation of over a billion people, hundreds of languages and dialects, scores of religions and sects, diverse regions and affiliations, it is ridiculous to talk about “our culture”. Is a culture really created by virtue of somehow being restrained within artificially created national borders? (Set up by the British, I might add). Indian culture is not a monolithic, homogeneous phenomenon. It is vibrant, dynamic, and diverse, and for every group of people who relate to each other as part of the same group, there is a shared culture or subculture. I certainly don’t share the cultural element of bigotry with any bigot I know. I refuse to be part of their culture, and I will have a whole lot of intelligent Indians standing with me.
Even if we accept this senseless and decidedly unintellectual argument, that means that gay culture, not being part of “our culture”, is its own culture. And gay people are certainly in the minority in India, or we wouldn’t be having this debate. In that case, Article 29 of our Constitution (which all Indians do share in common) protects the interests of minorities, and states that “any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same”. Which brings us back to the constitutionality argument.
To the people who complain about this being something brought in from Western culture, I really don’t have anything to say beyond: pull your heads out of the sand – these issues are being debated in “Western” countries as well, with the same bellicose and jingoistic arguments.
The final issue I want to deal with has not been discussed very much in public comment, but goes right to the heart of the matter. So to speak. What is really at stake here? It is the right to love whom you please. If you put all our constitutional freedoms together, two consenting adults have the right, under law, to love each other as they please. However, time and time again this right is taken away from people in India. Inter-caste or inter-religious couples are killed, brutalized, ostracized, for the sin of daring to love each other. People from the same caste or class groups, who otherwise would have been perfectly acceptable spouses, are not allowed to marry each other if they commit the solecism of loving each other first. “Our culture”, which produces wildly unbelievable romantic movies as a matter of course, which prides itself on traditions of love between our epic heroes and heroines, has no room for love in reality. “Our culture” demands obedience from its children, and love, not being the result of “our culture’s” decisions, is above all disobedient, and thereby disrespectful. There is no love for love in this version of Indian culture, not even for straight couples.
Whatever your personal opinion, this is a matter of law. Whether you are gay, straight, or bisexual, transgendered, transsexual or queer, your rights are protected by the Indian Constitution. We must stand up together for those rights as a matter of principle, to recognize that those freedoms guaranteed in the Constitution were hard-won by our parents and our grandparents, through jail terms, through deprivation, at the point of a cannon, through death. We must stand up for those freedoms, even if we don’t, personally, agree with their consequences. Because they protect all of us. And if we cannot, then we must at least stand up for love.
Really well written and precisely argued. You’ve probably seen most of the stuff that’s gone in India on the web, but while it’s unified religious leaders as nothing else does, there’s been a sharp divide over this in society and incidentally, the media.
The Hindi channels for the most, went berserk, making all kinds of stupid remarks that should have them hauled into court, the English ones (as expected), welcomed it publicly, whatever certain individuals within those channels might have thought about the judgement. They also overplayed the stereotypes though. As for we, the people, as I said, it just divided us.
Some people made horrible homophobhic jokes that others nervously laughed at, still others staunchly defended the right of a gay person to their sexual orientation in public, but privately admitted that they neither understood it nor would they be comfortable around a gay man (this was a male friend, upper income)… still appearances have to be kept up.
And, like you said, this isn’t unexpected in an India that largely frowns upon “love” that isn’t confined to the narrow peculiarities of what is dictated by religion.
Why look further? W and I were holding hands and walking down the stairs in Apollo hospital when an elderly couple walked by us. The man glared at us and watched us all the way down the flight. I later walked by them again, near the cafe downstairs and he loudly told the people he was with, “yahi hai woh ladki jo gorey ke saath sambandh rakhti hai”. I wanted to turn back and ask him what business he had to be commenting in a derogatory manner on my having a white husband but then I just left it. Even if W wasn’t my husband, it was my business and my choice and I didn’t have to justify anything to this bigoted old man. Unfortunately, in India, he’d probably be in the majority, even now, even today. So will the government make the required changes and the Supreme Court uphold an individual’s right to love and love freely, whatever their orientation? We’re hoping they will, soon. Will the majority of Indians accept it as freely? I’m hoping they will but if this happens in my lifetime, I’ll be surprised.
It’s interesting that there is a stark divide in the media between the Hindi and English-language press. I wonder if this divide applies to other regional languages as well? It would then imply some sort of ideological divide that follows linguistic lines, or, at least, a presumption on the part of the media that regional language speakers can safely be presumed to be more conservative.
Re your point about publicly voiced disapproval of your marriage by a perfect stranger, the negotiation of race is conducted somewhat strangely in India. The dichotomies set up by colonialism continue to persist in that white is certainly privileged over brown in most parts of the country, but also leaves you open, if you are a white person, to immense harassment. The patriarchal imperative to control women’s sexuality and preserve “purity” of one’s population, however, makes a relationship between an Indian woman and a white man unacceptable. The same does not, of course, apply to a relationship between an Indian man and a white woman (at least in India), which is considered some sort of social triumph.
The point that you are making is that society will have to catch up with the law. I quite agree. But a change in law can force needed changes on society, over time. Each person who starts to change a bigoted attitude can be considered a triumph.
In 1967 the Supreme Court of the United States decided, in Loving v. Virginia, that the Virginia law that made illegal interracial marriages was unconstitutional because it violated the 14th Amendment. That states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
It hasn’t stopped the US from enacting the Defense of Marriage Act, or states from setting up various forms of legislation, such as CA’s Proposition 8, to impede citizens’ constitutional equal rights. But change comes slowly. Many Americans are still extremely racist, and it has created fissures in American society that won’t go away anytime soon. We must acknowledge that, despite the furor we create when Indians are maltreated outside India, Indians can also be extraordinarily racist. Consider if the old man’s response would have been worse if Wyly were black.
But like I said, every single person who changes their opinion is a change for the better, and they will bring their children up to be thinking beings, and they, their children, and perhaps it will take generations for society to catch up with the law, but the law must change first, and it will come.