Today could have happened five years ago. In the winter of 2013, months ahead of the Lok Sabha elections, the Supreme Court had reversed the landmark 2009 Delhi High Court order that decriminalised same sex between consenting adults in terms similar to Thursday’s verdict.
The highest court had lobbed the ball — or passed the buck depending on which side was speaking — to the political class asking it to legislate a suitable provision for the lesbian, gay, bisexual and transgender (LGBT) community’s demand for decriminalisation of consensual same-sex between adults.
But the political class stepped back.Then Congress president and UPA chairperson Sonia Gandhi stepped out to express hope that “Parliament will address the issue”, but her party and government dithered. Then BJP president Rajnath Singh stood in solidarity with the Supreme Court judgment saying “how can anyone justify unnatural acts?”
Cut to today. The Congress tweeted a series of statements from party leaders welcoming the SC judgment decriminalising same-sex relations between consenting adults, there was a silence from the BJP on this issue.
That silence was deafening but deceptive too given how its Government under Narendra Modi didn’t stand in the way of the historic ruling today. “The Union of India, seeing the writing on the wall, has filed an affidavit in which it has not opposed the Petitioners but left the matter to be considered by the wisdom of this Court,” Justice Rohinton F Nariman noted in his judgment today.
If committed activism was one of key agents of change, what is also significant is the way in which, during 2013 and 2018, the political class moved forward too. Incrementally, sometimes through stealth but knowing that this was an irreversible force and it could not stand like an immovable object.
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Kapil Sibal, who was the Law Minister in 2013, today told The Indian Express today that a law could not be enacted as there was no consensus in Parliament then.
Even the ruling Congress then expressed commitments and left it at that. While the Supreme Court suggested that Parliament could change the law governing gay sex, the UPA government showed no signs of alacrity to bring a legislation. This despite the fact that its then president Sonia Gandhi’s signal was clear. That she hoped Parliament would “uphold the constitutional guarantee of life and liberty to all citizens of India, including those directly affected by the judgment.”
Rahul Gandhi, then the Congress vice president, too, had said that he agreed with the Delhi High Court judgment arguing “I personally believe that these are matters of personal freedom.” But the maximum the UPA government did was to file a petition nine days later seeking review of the ruling that confirmed the legality of Section 377. The Congress, which did not take the initiative to pilot a legislation as suggested by the Supreme Court in 2013, however, did file a review petition.
After the 2014 Lok Sabha elections, the political class first demonstrated its flexibility when the Rajya Sabha passed a private member’s bill establishing rights of Transgender community in 2015 forcing the Government to introduce a legislation for the Transgender community.
The government indicated a key departure from its conservative stance on the issue in the Mental Healthcare Act 2017. “The present definition of mental illness in the 2017 Parliamentary statute makes it clear that homosexuality is not considered to be a mental illness. This is a major advance in our law which has been recognized by the Parliament itself,” said Justice Nariman in his verdict today.
But a vital signal of accommodation from the traditionalist section came when the RSS stepped out in support of decriminalization of same-sex among consenting adults.
Today, an RSS spokesperson said: “Like Supreme Court, we also do not consider this to be a crime. Same-sex marriages are not compatible with norms of nature so we do not support such relations. Bharatiya society also does not have the tradition to recognise such relations.”
“Homosexuality is not a crime but socially immoral act in our society. No need to punish but to be treated as a psychological case,” RSS joint general secretary Dattatreya Hosabale tweeted in March 2016 adding, “approach to homosexuality should be ‘no criminalization, no glorification either’”.
This shift in stand in the ruling BJP’s parent body provided vital elbow room for the ruling party to get out of the way and let the apex court step in. The affidavit from the Home Ministry offered a safe passage of sorts.
Leaving it for the court to decide on the Constitutional validity of Section 377, the Government spelt out BJP’s outlook on the issue by expressing clear reservations against opening floodgates of “any other right in favour of or in respect of LGBTQ” in the country for the moment.
“In the event this Hon’ble Court is pleased to declare Section 377 viz. ‘consensual acts of adults in private,’ to be unconstitutional, no other issue/issues and/or rights are referred for consideration and adjudication and therefore, may not be gone into,” said the government’s short affidavit.
This was a carefully drafted affidavit balancing the sensibilities of party’s core supporters as well as progressive demands from the society at large.
The CPM and CPI were the only parties with a clear-cut position supporting de-criminalisation then and now.
Five years later, much water may have flown down the bridge but political parties are still reluctant to come out and applaud the Constitution Bench ruling today. While some Congress leaders did so, there was no immediate reaction from the BJP today on the verdict and union ministers, who left no stone unturned to applaud the apex court striking down instant triple talaq around the same time last year, were silent.
The Congress applauded the verdict but the fact remains that there was no unanimity on the issue in the UPA 1 Government too. Its position, in fact, evolved after the 2009 High Court verdict and crystallized by 2013 when the apex court verdict came.
In the first UPA government, the Home and the Health Ministers were not on the same page. While then Home Minister Shivraj Patil and Law Minister H R Bhardwaj were said to be wary of the political message supporting the demand for decriminalising Section 377 would send, the then Health Minister Anbumani Ramadoss was on the other side.
In fact, both UPA I and II chose not to inform the court of its final stand, maintaining a lack of clarity and finality.
Delhi High Court Chief Justice A P Shah, in his July 2009 judgment, had mentioned the contradictory affidavits filed by the Home and Health Ministries. While Home wanted retention of IPC Section 377, Health said continuance of the section has hampered the HIV/AIDS prevention efforts.
P P Malhotra, then Additional Solicitor General who appeared on behalf of the Home Ministry before the Supreme Court during the appeal, reiterated the Ministry’s stand.
Sibal today hailed the verdict. “The court has shunned prejudice and embraced liberty so to that extent I think the liberal fabric of this country has been strengthened. There is also a conservative mindset which will take time to get acclimatized to the new reality. How that plays itself out is something that we have to careful about,” he said.
Asked why the UPA II did not bring a law as suggested by the Supreme Court, he said “in order to bring a law, you have to develop consensus. Laws are not thrust down people’s throats. And to build consensus is not easy especially in an issue (like) this …which has huge ramifications on the society. So while some were very much in favour of doing away with 377, not everybody was on board,” he said.
Asked whether there was lack of consensus in the Government and the party, he said “not everybody was on board generally.” When pressed further, he said “you have to develop consensus within Parliament.”
“In any case there was an appeal pending in the Supreme Court. So we thought that it is best that an appeal would be taken up and the court takes a decision based on the provisions of the Constitution. I am very happy that the court has now taken a position,” he said.