In­dia’s Rio­tous Tri­umph of Equa­li­ty

Der Standard - - WORLD TRENDS -

In a re­cent land­mark ru­ling, the In­dian Su­pre­me Court didn’t sim­ply strike down Sec­tion 377, the odious Bri­tish-in­tro­du­ced law cri­mi­na­li­zing ho­mo­se­xu­al acts — it did so in a judgment of re­mar­ka­ble scope and elo­quence.

The judgment opens with a quo­te from Goe­the: “I am what I am, so ta­ke me as I am.” It re­li­es on know­ledge from psy­cho­lo­gy and sci­ence to sup­port its re­a­so­n­ing, even gi­ving a nod to rain­bow sym­bo­lism (“dif­fe­rent hu­es and co­lours to­ge­ther ma­ke the pain­ting of hu­ma­ni­ty be­au­ti­ful”). Most of all, it is a heart­felt dis­cour­se from the jus­ti­ces to their na­ti­on on the im­port­an­ce of hu­man rights and di­ver­si­ty, an in­vi­ta­ti­on to mo­ve “from bi­go­try to to­leran­ce,” to ser­ve “as the he­rald of a new In­dia.”

Ori­gi­nal­ly im­po­sed in the 19th cen­tu­ry, Sec­tion 377 was pro­vi­si­on- al­ly in­va­li­da­ted in 2009, promp­t­ing ma­ny In­dians to cau­tious­ly be­gin co­m­ing out. But in a cru­el 2013 re­ver­sal, two jus­ti­ces gran­ted the pe­ti­ti­on of self-sty­led mo­ra­lists and re­li­gious groups and re­ins­ta­ted the law. They ru­led that the In­dian L.G.B.T. po­pu­la­ti­on was a “mi­nu­s­cu­le frac­tion” too small to war­rant pro­tec­tion.

The new judgment blunt­ly la­bels this ar­gu­ment “fal­la­cious” and “con­sti­tu­tio­nal­ly im­per­mis­si­ble.” The jus­ti­ces turn to ma­the­ma­ti­cal me­ta­phor to ma­ke their po­int: The idea of po­pu­la­ti­on si­ze, they wri­te, “in this con­text, is mea­ningless; li­ke ze­ro on the left si­de of any num­ber.” Mo­re strikingly, they quo­te a com­pen­di­um of in­ter­na­tio­nal de­ci­si­ons sup­porting gay rights, in stark op­po­si­ti­on to the 2013 jus­ti­ces, who de­cla­red they would not be sway­ed by such for­eign en­dor­se­ments. In rea­ding the ru­ling, it’s hard to avo­id con­clu­ding that the jud­ges may ha­ve be­en de­li­be­ra­te­ly at­temp­t­ing to pick up the torch from Wes­tern de­mo­cra­cies and ma­ke In­dia the ne­west be­a­con of ho­pe for L.G.B.T. po­pu­la­ti­ons lan­gu­is­hing in re­pres­si­on around the glo­be.

Loo­king at this rich collec­tion of pre­ce­dents, one gets the im­pres­si­on that the jus­ti­ces ha­ve tried to ga­ze bey­ond In­dia. Per­haps they’re awa­re of how much mo­re per­sua­si­ve the ex­amp­le set by a no­na­li­gned coun­try li­ke In­dia might be for coun­tries in Af­ri­ca and Asia, com­pa­red with ad­vice han­ded down by the West, which is of­ten se­en as pa­tro­ni­zing.

And what does con­tem­pora­ry so­cie­ty in In­dia say? Well, the last time I met my un­cle in De­lhi (who is in his 80s and from the mo­re or­tho­dox si­de of my fa­mi­ly), he told his grand­child­ren to lea­ve the room to ask me an “im­portant ques­ti­on.” To my sur­pri­se, it wasn’t the usu­al “When will you get mar­ried?” — he said he al­re­a­dy knew I was gay, had a “fri­end.” Ins­tead, he as­ked, “But how ex­act­ly do gays do it?”

All my at­tempts to es­cape this con­ver­sa­ti­on pro­ved fu­ti­le, and I en­ded up ha­ving to gi­ve him a pri­mer on the sub­ject (I still blush at the le­vel of de­tail he extrac­ted with his per­sis­tence). Just when I thought his cu­rio­si­ty was fi­nal­ly sa­ted, he as­ked, “But how do les­bi­ans do it?”

Cer­tain­ly, on the fi­ve trips to In­dia I’ve ma­de with my part­ner, we’ve ne­ver ex­pe­ri­en­ced dis­cri­mi­na­ti­on. From the ho­tel staff who smi­lingly ma­de our bed to a cou­sin who burst in­to our room at 7 a.m. with morning tea, ever­yo­ne has be­en un­fa­zed by the idea of two men sleeping to­ge­ther. Mo­re­o­ver, the­re has be­en an im­men­se amount of me­dia ex­po­sure as a re­sult of the twists and turns of Sec­tion 377, and even Bol­ly­wood has star­ted pre­sen­ting gay cha­rac­ters who are full-fled­ged hu­mans, not ca­ri­ca­tu­res.

But of cour­se, the­re is still a lot of ho­mo­pho­bia in In­dia, which will re­qui­re much time and ef­fort to over­co­me. In­dian so­cie­ty is ve­ry stra­ti­fied, and the brunt of dis­cri­mi­na­to­ry laws is felt most­ly by low-in­co­me groups and other vul­nerable seg­ments of so­cie­ty. The new ru­ling re­pea­ted­ly re­fers to their need for pro­tec­tion.

It al­so stu­dious­ly avo­ids the sub­ject of gay mar­ria­ge — and with so much of In­dian cul­tu­re and so­cie­ty re­vol­ving around mar­ria­ge, equal rights on this is­sue will be cru­ci­al. As the Uni­ted Sta­tes has de­mons­tra­ted, mar­ria­ge equa­li­ty can si­gni­fi­cant­ly has­ten the pro­cess of broa­der so­cie­tal ac­cep­tan­ce. Le­gal uni­ons ha­ve a way of neu­tra­li­zing ob­jec­tions.

But one won­ders whe­ther the court, in its ex­tra­or­di­na­ry ru­ling, has al­re­a­dy be­gun lay­ing the ground­work for a gay-mar­ria­ge de­ci­si­on. Could the jus­ti­ces re­al­ly ha­ve in­cor­po­ra­ted state­ments li­ke “Dis­cri­mi­na­ti­on of any kind strikes at the ve­ry co­re of any de­mo­cra­tic so­cie­ty” wi­thout see­ing them as steps toward mar­ria­ge equa­li­ty?

I cal­led my un­cle to gau­ge his opi­ni­on of the ru­ling, but he hadn’t heard about it yet. I told him I was co­m­ing to De­lhi in De­cem­ber, and this time, he would be able to meet my “fri­end.” I wan­ted to add that we we­re thin­king of fi­nal­ly get­ting mar­ried and ask how he would feel using the term “hus­band” ins­tead. But the con­nec­tion was bad, and he had so­me­thing mo­re pres­sing to con­vey. “You two should stay with me,” he said.

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