Criminalising homosexuality removes the capacity for gay communities to organise and to mobilise around HIV prevention. Credit: Wikimedia Commons
Two years after the Supreme Court’s decision in Koushal that upheld the constitutional validity of section 377 of the Indian Penal Code, the battle for the rights of LGBT persons has shifted from the judiciary to the legislature. Congress MP Shashi Tharoor’s private members bill seeking to amend section 377 is the first time that Parliament has witnessed a discussion on the criminalisation of homosexuality in India. Tharoor’s bill sought to read down section 377 to restrict its application to non-consensual acts between adults in private and sexual acts with persons under 18 years of age.
Instead of using this opportunity to conduct a reasoned debate on the problems with a law that institutionalises prejudice and legitimises discrimination and violence against millions of Indians, a majority of MPs present voted down the introduction of the Bill, preventing it from even being tabled in the Lok Sabha. Tharoor laid the blame for what happened on the intolerance of a section of the BJP. While it is unclear how many of the MPs who voted against the bill were from the BJP (the Bill was voted down 71:24 with one abstention), the person who moved the notice to oppose the introduction of the bill was BJP MP Nishikant Dubey, who appeared to have the support of a substantial number of MPs from his party.
Divisions in BJP
Dubey said he opposed the introduction of the bill not for religious reasons but because of the Supreme Court’s judgment. To cite the Supreme Court as a reason to oppose the introduction of Tharoor’s Bill is disingenuous and misleading. Dubey seems to have missed the last sentence of the Supreme Court judgment that he cites, where the court clearly says that the legislature was free to enact a law either deleting section 377 or amending it. There is nothing to stop Parliament from amending or scrapping section 377 if it feels that it is necessary to do so.
So far, we have not seen a consistent position by the BJP on whether it supports the repeal or reading down of section 377. Immediately after the Koushal judgment, Rajnath Singh, who president of the party at the time, expressed his support for the judgment and for retaining the law against homosexuality. The episode over Tharoor’s bill came soon after Finance Minister Arun Jaitley publicly stated that the Supreme Court’s decision in Koushal needs to be reconsidered, and that it was out of step with evolving jurisprudence across the world. The BJP, however, has not taken a public position on this issue and Prime Minister Narendra Modi has shied away from expressing his views on the subject. In contrast, the top leadership of the Congress party has come out openly in favour of decriminalising homosexuality, and many of its erstwhile cabinet ministers have publicly supported the repeal of 377. Yet, it is unclear what the rank and file of the Congress party feels about this issue, and it is possible that some Congress members may have even voted along with sections of the BJP against Tharoor’s bill.
While Tharoor attributed the opposition to the bill to the intolerance of a section of the BJP MPs, one must not forget that at least 24 of the 96 members present in the Lok Sabha during the vote supported the introduction of the bill. Moreover, viewpoints on the criminalisation of homosexuality are often in flux. Not everyone has a clear position on this issue, and there is no clear division on the political spectrum. As LGBT persons become more visible in society, and as people are more likely to have met or interacted with LGBT persons in the family or workplace, their views on the subject do change. Ten years ago, it was unthinkable that an MP would table a bill on decriminalising homosexuality in Parliament. Today, not only has a prominent member of the Congress attempted to introduce a bill reading down 377, he was able to get a sizeable number of MPs to vote to allow it to be introduced. Seen from that perspective, the battle around Tharoor’s bill is just one step in a much longer fight against the offensive section.
Tharoor has promised to table the bill on 377 once again in the next session of Parliament. It was only a few months ago that the Rajya Sabha passed another private members bill introduced by DMK MP Thiruchi Selva – the Rights of Transgender Persons Bill, the first time this has happened in over four decades. It was heartening to see the debate on the bill and the widespread support that MPs expressed in support of this bill across party lines. Hopefully, it is this enlightened spirit of the MPs that we will see when Tharoor tables his bill again in the next session of parliament.
For this to happen, there must be a more concerted effort to rally members of the Lok Sabha in support of the bill. It is not enough for influential figures such as Arun Jaitley and Rahul Gandhi to publicly express their opinions in support of the repeal of 377. They must follow this up by positively influencing the opinions of members of their parties, especially the sections of their parties whose minds are not made up on this issue. After all, as one political commentator said after 377 was struck down by the Delhi High Court in 2009, the continuing criminalisation of homosexuality is not about a minority or about valorising a lifestyle, but about the values that India stands for as a nation.