More than the social impact of the Supreme Court’s judgment on gay rights, what will be of concern to the ruling party at the Centre is its political fallout. Hence, the eloquent silence of the Bharatiya Janata Party (BJP) on the subject.
For the BJP and its ideological mentor, the Rashtriya Swayamsevak Sangh (RSS), any expansion of the concept of civil liberties is fraught with danger to their restrictive worldviews since a widening of human rights carries the prospect of greater individualism.
If the rights of the homosexuals to live without legal constraints are conceded, it can only encourage the people to free themselves of other restrictions as well such as on choosing live-in partners (of whatever sex) and eating, dressing and speaking as they please.
It is noteworthy that the verdict on gays has come close on the heels of the judgment which described the right to dissent as a “safety valve” which the government can only shut off at its peril lest there is an explosion.
Moreover, the court had also upheld not long ago the right to privacy which the government described as an “elitist” concept.
For the Hindu Right, as also for other religious fundamentalists, this dalliance with civil rights — the freedom to criticise the government, the exaltation of privacy and now the decriminalisation of homosexuality — entails a push towards liberalism and modernism which are anathema to any group which wants the society to be bound by shackles of orthodoxy and obscurantism.
It is ironic that although the Hindutva brotherhood speaks of decolonising the Indian mind, the two colonial laws which have long been its favourites are the section on homosexuality in the Indian Penal Code and on sedition.
Now that one of them is gone, there is little doubt that these closet followers of Britain’s 19th century politician Lord Macaulay — even as they decry the secular groups as “Macaulay’s children” — will hold on resolutely to the law on sedition as their only safeguard against the “anti-nationals” who, they believe, stalk the land.
It is also possible that the saffronites will keep a hawk’s eye on any social problems that may arise because of the assertion of gay rights. As the BJP MP Subramanian Swamy has said, with eager anticipation, if a five-judge bench can overturn an earlier judgment in favour of criminalising homosexuality, a larger bench can undo the present verdict if gay bars begin to flourish and there is a rise in the cases of HIV (human immunodeficiency virus) infections.
Interestingly, what these judgments underline is how the judiciary is more attuned to the changing world than the elected representatives of the hoi polloi who often argue in favour of giving greater primacy to the legislature than the judiciary since they claim to represent the people while the judges are unelected denizens of an ivory tower.
However, one possible reason why MPs and MLAs, especially of the BJP, seem to be out of sync with the present-day world is the presence in their midst of a large number of criminal elements who can hardly be regarded as the most progressive sections of society.
For instance, of the 543 elected members of the Lok Sabha, of whom 186 have a criminal record, 63 belong to the BJP, followed by eight of the Shiv Sena, four of the Trinamool Congress and three each of the Congress and the AIADMK.
What the Supreme Court judgment appears to have done is to persuade parties like the Congress, which usually hedges its bets lest it should fall on the wrong side of public opinion, to come out in the verdict’s favour, presumably because it senses that this judgment, more than any other, has become a touchstone in the matter of breaking out from the stranglehold of the past.
To distance a party from it, as the BJP is doing, will amount to virtually alienating the entire youth community. Even if a majority among them do not have homosexual instincts — according to official figures, there are 2.5 million gay people in India, but this may be an underestimate since, till now, it was unsafe for them to reveal their sexual orientation — the youths nevertheless see the ruling as an assertion of living life on one’s own terms and not be held hostage by the dictates of a society steeped in conservatism and of political parties which believe that their agenda can only advanced if the country is made forcibly to conform to khap panchayat-style social and cultural norms.
To these youths, being or not being gay is of little consequence. What matters to them is to be able to make up their own minds and not be told by elders to abide by certain rules which are regarded as outdated by the younger generation.
If parties like the BJP and “cultural” organisations like the RSS realise the value and motivation of such mindsets, they will desist from their present attempts to impose a straitjacket of their pseudo-religious identity on the nation.
(Amulya Ganguli is a political analyst. The views expressed are personal. He can be reached at [email protected] )