Very few governments know how to do the right thing. An even smaller number know how to do it the right way. This is particularly difficult when they’re required to stand up for principle in the face of prevailing public prejudice. The Modi government’s position on Section 377
is an illustration that almost perfectly proves my point. Though LGBTQ activists have welcomed the stand, the truth is it reveals the government’s pusillanimity and confused thinking.
For a start, the Modi government has not taken a position on the constitutional validity of Section 377.
The Home Ministry affidavit says, “The Union of India would leave the said question to the wisdom of this Hon’ble Court.” But what about the Government’s own wisdom? Is there none on this subject? Or is it scared to express it?
is an issue that has rankled, both constitutionally and in terms of public opinion, for almost a decade. It’s become a litmus test of India’s commitment to human rights. Indeed, it could even be the basis for judging whether we’re a modern civilised society. Yet, on this issue the Government has nothing to say. It’s passed the buck.
If this is not dereliction of responsibility and shameful pusillanimity, I don’t know what else it could be. We elect governments to take a forthright and enlightened stand. We expect them to show the way forward. Not cavil in fear they will be criticised and resort to the easy option of “no opinion”.
Do ministers such as Narendra Modi, Rajnath Singh, Arun Jaitley, Nitin Gadkari, Sushma Swaraj and Nirmala Sitharaman have nothing to say about Section 377?
Or do they lack the courage to say it? So, now, if the Supreme Court
does declare the Section unconstitutional, this government can claim no credit beyond the limited fact it didn’t stand in the way.
Unfortunately, the government’s debilitated response is compounded by lack of clarity. Whilst it asserts it will leave the future of Section 377
to the wisdom of the Supreme Court, if the Constitution Bench were to “construe any other right in favour of or in respect of LGBTQ” this government does have a lot to say. It stands in firm opposition to granting marital, live-in, inheritance or adoption rights. On these issues it’s willing to stand up and speak without realising it’s actually tying itself in knots.
If Section 377
can be scrapped or read down because it violates a variety of rights guaranteed by the Constitution, don’t those same articles also assert that LGBTQ have an equal right to marriage, security of live-in relationships, inheritance or adoption? Can you pare those rights to declare the Section unconstitutional but not to uphold everything else? To call such thinking bizarre is a kindness. The truth is it reeks of confusion.
From what I can tell, the Government’s argument is that Indian society and mores might accept the scrapping or reading down of 377 but would not tolerate the right of LGBTQ to marry, inherit and adopt. But on what is this distinction based? The historic prejudice LGBTQ have faced centres around the alleged revulsion for the sexual act but once that’s been overcome the prejudice against what’s left is minor and easy to handle. Yet, the government has made this molehill into a mountain.
If human dignity, privacy and liberty confer on the LGBTQ the right to follow their sexual inclination, how can the same principles not confer on them the comfort of marriage, the joy of adoption and the security of inheritance? But did anyone in the Government ask themselves this question before they came up with their janus-headed stand? If they did, they certainly didn’t carefully think through the answer.
The conclusion is stark and simple: The Government just about kept prejudice at bay in deciding to bow to the wisdom of the Court on the constitutionality of Section 377
but thereafter succumbed to it.
Yet, there was a hint in the BJP’s 2014 manifesto that things could have been otherwise. It claims it wishes to “remove any remaining gender disparities in property rights, marital rights and co-habitation rights”. Now the BJP must also explain why that does not cover the right of the LGBTQ to marry, inherit and adopt.