This Article is From Mar 12, 2016

On 377, I Give Up, Hypocrisy And Bigotry Triumphs

My late father, Chandran Tharoor, used to tell me more than five decades ago that India is not just the world's largest democracy, it is also the world's largest hypocrisy. The wisdom and accuracy of his perception was again on display when my second attempt to introduce a Private Member's Bill to amend Section 377 of the Indian Penal Code was defeated in the Lok Sabha yesterday.

Here was the spectacle of a parliamentary democracy refusing to entertain debate - the ruling party using its brute majority to defeat a motion without even a discussion. How can a deliberative legislature in what claims to be the temple of democracy dismiss an issue out of hand without even hearing the arguments in its favour or against it?

And to add to the hypocrisy, nowhere in over two thousand years of recorded texts is there any evidence that the Indian ethos was intolerant of sexual difference or gender orientation.

Ours is a culture that embraces Shikhandin in the Mahabharata, the homo-erotic sculptures (mixed in with the rest) in Khajuraho, and the very concept of the Ardhanarishwara, the half-man half-woman embodiment of divinity. No historical records reveal the persecution or prosecution of sexual deviancy in India. Now we have the spectacle of the party of Hindutva, the self-appointed guardians of Bharatiya Sanskriti, betraying a Hindu history of tolerance in order to uphold (without debate) an iniquitous law from the British colonial era. It is a new low in the annals of Indian democracy and a triumph for Indian hypocrisy.

In proposing to amend Section 377, I had explained that we shouldn't have a law on the books that can be used to oppress and harass innocent people conducting their personal lives in private. What two people do to express their love and desire for each other should be strictly between them.

But equally important, I had tried to explain (though alas, I was not allowed to do so in Parliament) that my Bill was not about sex but about freedom. Section 377 violates the constitutional rights of dignity, privacy, equality and non-discrimination (Articles 14, 15 and 21) guaranteed to all Indian citizens.  It is a British relic, drafted in 1860 and based on outdated Victorian morals rather than authentically Indian values. It has no place in 21st century India.

To add to the ironies, within half an hour of the defeat of my amendment, I was rising in the same Lok Sabha to speak in favour of the Rights of Transgender Persons Bill, which has already been passed earlier in the Rajya Sabha. The passage of this progressive bill will have the indirect effect of nullifying the application of Section 377 to transgenders, while leaving it on the books to be used to harass and oppress homosexuals and straight people. How's that for both democracy and hypocrisy taken to their extreme?

Two months ago, I wrote in this very space an op-ed explaining why I wasn't giving up on pursuing Section 377. With this second defeat, many have asked me whether I intend to make a third attempt.

My answer, sadly, is no. It was Einstein who defined insanity as doing the same thing over and over again and expecting different results. If the BJP, with its crushing majority in the Lok Sabha, decides to oppose decriminalization of Section 377 for whatever political reason, there's no reason to expect a different result during the life of the current Parliament.

And many MPs from several parties who had promised support simply didn't show up: it was clearly more important for them to do other things on a Friday afternoon, including travelling to their constituencies for the weekend, than to vote for this Bill.

This is not a battle one parliamentarian can fight alone. I would rather heed Einstein, preserve my sanity and leave the issue to the Supreme Court, which has fortunately agreed to hear a curative review petition against its earlier decision upholding this unfair law.

Nonetheless, I am persisting with a petition -- to show public support to amend Section 377. So far, 65,000 people have signed it. My hope is to make the Prime Minister and his party aware that public sentiment has moved beyond the 19th century. If enough of us speak up, perhaps - just perhaps! -- we can make the Government rethink its position.

But my hopes rest much more with the judiciary, which after all is an institution that does not require a quality lacking in our government, political courage.

After all, the Delhi High Court's 2009 ruling had memorably held that Section 377 violated the fundamental right of life and liberty and the right to equality as guaranteed in the Constitution and that discrimination on the basis of sexual orientation is not permitted under Article 15 of the Constitution. Lamentably the Supreme Court in 2013 decided to reverse that ruling in December 2013 on the grounds of judicial overreach, stating that it was for parliament and not the judiciary to decide on such issues.

But parliament has proved itself unequal to the task; the bigotry and homophobia in the ruling party and the indifference and prejudice in much of the opposition, have rendered the institution a temple of hypocrisy on this issue.

The judiciary, on the other hand, have over the years largely interpreted the Constitution in a modern and progressive way to expand the rights and freedoms of Indian citizens. Their willingness to conduct a curative review may well signal a return to that tradition.

As I back off my efforts, I am proud of having tried, and happy that the ball is now firmly in the Supreme Court.

(Dr Shashi Tharoor is a two-time MP from Thiruvananthapuram, the Chairman of the Parliamentary Standing Committee on External Affairs, the former Union Minister of State for External Affairs and Human Resource Development and the former UN Under-Secretary-General. He has written 15 books, including, most recently, India Shastra: Reflections On the Nation in Our Time.)

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