It was in December 2013 that the Supreme Court in a controversial judgment set aside the earlier Delhi High Court verdict on Section 377 of IPC that criminalises sexual intercourse ‘against the order of nature’. While the order resulted in homosexuality being criminalised again, the court clearly said Parliament must debate the matter and clear the confusion. Since then, Congress MP from Thiruvananthapuram and noted author Shashi Tharoor, one of the few lawmakers in the country who has expressed interest in the issue, twice tried to move a private member’s bill in Lok Sabha with the aim of initiating at least a debate. Both times, it was shot down with an overwhelming number of lawmakers voting against the introduction of the bill.
In an interview with indianexpress.com last year, Tharoor took a shot at the ruling BJP and said, “The irony is the party of Hindutva is betraying all the ancient Hindu traditions of tolerance for sexual deviancy of various sorts and various forms of sexual self-expression in favour of the Victorian morality that was imposed upon India, and which was not part of our moral codes and practices. The irony of all this is compounded by the fact that they won’t even let the bill be discussed in Parliament.”
But Tharoor has not given up. In a Facebook post recently, the Congress MP posted a picture of himself in conversation with Kerala chief minister Pinarayi Vijayan in which the two leaders talked about how Kerala should send a signal to the rest of the country by decriminalising Section 377 in the state. Tharoor had also sent a letter to Vijayan in August, 2016 urging the chief minister to consider introducing a similar legislation in the state Assembly to amend the existing Act.
Now, the state may be governed by the LDF, the principal rival to Tharoor’s party, but he may find hope in the idea of how Kerala has shone as a model state in the country especially when it comes to ensuring rights for marginalised communities and drawing a safety net for those who have fallen out of the ambit of the government’s welfare measures.
There are many cases in point.
One, in 2015, it became the first state to unveil a transgender policy with an aim to eliminate all kinds of stigma towards the sexual minority group and bringing them the social and economic opportunities that have so far eluded them. Besides, it allows members of the community to identify themselves as male, female or as transgender – a basic point of contention that the group has raised.
Two, a number of sex reassignment surgeries have been reported recently in the state after the government in 2016 offered such surgeries at free or nominal rates at government hospitals. This was considered to be a huge boost for the transgender community that has had to spend heavily and travel far for such surgeries.
Three, successive governments in the state have invested heavily in the social sector, mainly in the departments of health and education with far-reaching results. The number of schools grew, drop-out rates plummeted and districts with large tribal population such as Wayanad and Idukki started showing results. Moreover, the infant mortality rate in the state, comparable with developed countries in the West, came down.
Four, even with sporadic incidents of moral policing being reported every year and couples being harassed, the state has spawned movements like the ‘Kiss of Love’ in which people came out on the streets to fight back against orthodox, autocratic groups. People of the LGBT community donned rainbow colours to prove their point.
Five, that the state is one of the few in the country with a positive sex ratio, low population growth, best end-of-life care and best female life expectancy stresses that it is in tune with social realities and eager to reverse the traditional indices of development in other states that are mainly focused on fast industralisation and job creation.
So, in light of these advancements made by the state, can Tharoor’s idea see light of day? A legal expert said there is a possibility although it involves great political challenges.
Tripti Tandon, an advocate with the Lawyers Collective, said the state government can move a bill in the Assembly seeking to amend the IPC section. Since law and order falls under the concurrent list, the state government can take appropriate and determined steps to prevent the harassment of the members of the community.
“The proper course of action would be, if we are really serious, to move a bill. But I think it will take a lot because it has high stakes. It is not something that can be done lightly,” said Tandon. “For it to have any weight and any seriousness and any possibility of getting enacted, it will have to be moved by the government.”
She said the Supreme Court has left the door open for debate to take place in Parliament and implicitly in the state legislatures. But she cautioned that it will be a bold step and necessary measures will have to be taken. “You have to be convinced about what you are doing because it will have further legal complications. It will be questioned. It may not be passed. Locally, there will be resistance, political as well as legal. They will have to be fairly bold and everyone will have to be on board for something like that,” Tandon added.
In Kerala, movements for gender equality may have taken place, but conservative sections have always dictated public policy. The presence of high dowry rates, suicide rate among women and low female workforce rate in the state are also indicative of that. Tharoor may choose to walk the lonely path but political leaders fear losing their conservative vote if they back such motions. The ball, of course, is in the court of the ruling Left government and whether it is willing to take that risk for the greater good.