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The spectre of Naz

Can words change society? It is a question that is increasingly being asked of our higher judiciary.

Written by Vinay Sitapati |
April 22, 2010 1:46:50 am

Can words change society? It is a question that is increasingly being asked of our higher judiciary. Their opinions can veer between upbraiding beards to bemoaning cricket’s social ills; even serious jurisprudence,on the environment or more recently on legalising gay sex,begs the question: Does it matter? Do their Lordships overestimate their powers of persuasion?

It is precisely such a question that has bedevilled the July 2009 judgment of the Delhi High Court in Naz Foundation v. Union of India. The judges “read down” section 377 of the Indian Penal Code,in effect decriminalising homosexuality. The decision is now backed,in the Supreme Court appeal,by an early opponent,the Central government. But so what? Will nosey neighbours or blackmailing beat constables really care what the court thinks? Even if the Supreme Court were to uphold the high court judgment,how much of a game changer will the decision be?

Shrinivas Ramchandra Siras provides one answer. Siras taught Marathi at Aligarh Muslim University. Last month,he was filmed in the privacy of his home in a compromising position with a male rickshaw puller. When the video was made public,AMU suspended Siras for “immoral sexual activity”. The usual suspects manning India’s liberal outposts howled at the travesty: how a man’s house was broken into,and why he was being made to pay for consensual private pleasures.

But something else happened,something that hasn’t happened before. On April 1,the Allahabad High Court ordered AMU to reinstate Siras,holding that his right to privacy had been violated. And now comes news that the Uttar Pradesh police have arrested two of those who broke into Siras’s house and filmed him. A third,named in an FIR filed by Siras,is on the run. Many university officials have also been charged with criminal offences. This is not how the story was supposed to pan out. Those who broke into Siras’s house and AMU (and there are allegations that they are one and the same) assumed that Siras’s transgressions were so repellent,that their own would be forgiven. They now realise that the game has changed.

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And what is interesting is that the game changers are the courts and the local police,the very institutions that have had,to put it mildly,an awkward relationship with homosexuality. Affidavit after affidavit filed in the Delhi High Court by the petitioners in the Naz Foundation case,documented tales of police brutality,coercion and blackmail. To see this very same institution moving another way shows that something is stirring. To be sure,it was Siras’s tragic death,not his original complaint,that was the catalyst. Had the police swung into action soon after Siras filed an FIR,perhaps he would still be alive. Nonetheless,it is inconceivable to imagine the court’s verdict and police action taking place in a context in which gay sex was illegal. In the pre-Naz Foundation era,Siras would have been the criminal,the other wrongs mere side shows. The current official narrative — of a victimised Siras,a callous administration and criminal house-breakers — owes much to the Delhi High Court’s view that Siras’s sexual choice was legitimate.

It is too early to tell whether the sea has parted,and homosexuals can live with dignity in India. Progressive court pronouncements and their official enforcement usually have a time lag between them.

Take America’s experience with Brown v. Board of Education. In 1954,the US Supreme Court held that separate schools for Blacks and Whites were unconstitutional. But official acquiescence is another thing. Southern states were furious. In 1957,the governor of Arkansas openly defied the court order forcing US President Dwight Eisenhower to send in federal troops to guard Black kids attending White-only schools. It took years of legal threats and federal action for all of American officialdom to fall in line. Even after President Lyndon Johnson’s sweeping civil rights legislations of 1964,desegregation took many years longer.

By that standard,official action in the Siras case,by a state police not known for progressive posturing,has been quick. Perhaps this is because homophobia in India does not run as deep as racism in the United States did; Brown v. Board of Education threatened an entire way of life,which the Naz Foundation case does not. But the point still remains: it takes a while to touch and feel the abstract rights granted in a court of law. Official action against Siras’s persecutors shows that the impact of the Delhi High Court judgment decriminalising homosexuality is being felt.

In his speech marking 55 years of Brown v. Board of Education,to an audience of Black and White college students in 2009,US President Barack Obama acknowledged his debt “as President and as an African-American” to the case. But he also noted that it took “a number of years [after the court case and a nationwide movement to fully realise the dream of civil rights for all of God’s children.” Siras was an unwitting symbol; he is now part of a nationwide movement to realise Naz Foundation’s dream. Shortly before he died,Siras told a reporter from this newspaper that “I want to work for the gay community”. Despite his tragic end,Shrinivas Ramchandra Siras’s work continues.

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