Arun Jaitley's statement a shot in the arm for LGBTs
Speaking on November 28 at the Times Literary Fest on the judgments that have shaped post-Independence India, Union finance minister Arun Jaitley spoke about the Supreme Court judgment of December 2013 that re-instituted Section 377 of the Indian Penal Code. Section 377 criminalises sexual acts against the order of nature, which translates to gay sex.
"Supreme Court's 2013 verdict banning gay sex is not in accordance with evolving legal jurisprudence and the court needs to reconsider it," he said. (The Delhi High Court, in its landmark 2009 order, had deemed Section 377 invalid, but that judgement was overturned by the Supreme Court.)
Jaitley is one of the few politicians in the BJP who have chosen to take a public stand in support of gay rights. Jaitley's indelicate wording of the matter, which couches the issue as one of sex and not human rights, is an outcome of Section 377 itself. The section does not criminalise homosexuality per se, but homosexual acts. While that distinction might send lawyers into a tizzy, it matters little to the thousands who face persecution because of their sexuality. In the absence of legal recognition, gays continue to be discriminated against at home, in their workplaces and in the eyes of the law.
This is not the first time that Jaitley has taken this position. In the aftermath of the Supreme Court decision, he had appeared on an NDTV panel and made similar comments. This is in stark contrast to his party's stand, as exemplified by Union home minister Rajnath Singh who welcomed the Supreme Court judgment at the time by calling gayness "unnatural".
The Supreme Court, in its judgment, asked the government to take care of the matter. By seeking a legislative route to change the law, the court put popular will, as represented by Parliament, above the exigencies of human rights. This is regrettable - in other countries, the courts have taken a principled and preliminary stand on the issue. The latest case is of the US, whose Supreme Court legalised nationwide gay marriage this June.
How far Jaitley's voice carries weight within the government is anybody's guess. Since coming to power last year, the Modi government has walked the tightrope, often unsuccessfully, between a development agenda and a hark-to-the-roots conservatism. As the prime minister travels the world to seek investments into the country, members of his ideological family have raised the bogey of identity politics on issues as immaterial as beef-eating.
Jaitley, the suave lawyer that he is, belongs to the first camp. But the BJP remains in the shadow of the RSS, and acceptance and legal recognition of homosexuality is anathema to the Sangh Parivar. All ideologies that believe in the myth of the "ideal man", epitomised in India by Lord Ram, balk at granting rights to those who deviate from the norm. And few people do that more glaringly than those who love the same sex.
There was a time when it could have been hoped that Modi's absolute majority would let him unleash his development agenda and that this, in turn, will keep the RSS in check. Those hopes have been belied over the course of the past 18 months. Not only has the RSS increased its stronghold over the party, the prime minister himself seems unwilling to cut the umbilical cord, whether out of necessity or ideology is another matter.
Hopes, then, for any dramatic move by the government on Section 377 are unfounded. It is worth wondering why Jaitley made the remarks at this juncture. It is possible that voices of moderation in the party have received a boost after the Bihar debacle. If the BJP had won Bihar, the far-right fringe would have felt more emboldened to step up its attacks, silencing those right of centre.
All said, Jaitley's comments are welcome. In the past, the Congress top brass, including Sonia and Rahul Gandhi as well as Kapil Sibal and P Chidamabaram, has voiced its criticism of Section 377. When a BJP member as senior as Jaitley does so, it points to a rare bipartisan support on the knotty issue. Sure, the situation on the ground will take time to change, and the beleaguered LGBT community may have to rely, after all, on a more egalitarian bench of the Supreme Court to grant it rights. But Jaitley's statement is nevertheless a shot in the arm for those who have tirelessly campaigned for an essential human right.