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The Hindu Notes for 07th September 2018

For all that we may become

Today, when civil liberties face unfathomable pressure, it cannot be just heteronormativity that we fight

For all the lines of the 2009 Delhi High Court verdict (colloquially called the Naz judgment), the one that stayed with me the longest was perhaps an aside to the main point about reading down Section 377. The High Court had said: “While recognising the unique worth of each person, the Constitution does not presuppose that the holder of rights is an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times.”

Reaffirmed, yet changed

As a gay man, what I heard them say that muggy day in July was that I was not just my sexual orientation. That my worth and my rights were not meant to be my responsibility alone. That I could expect, demand, get respect. That I could dream not just of a life free of violence but one of personhood, of joy. That our lives as queer people could hold rights and dignity without needing either extraordinary courage or immense privilege. That I would not have to hold my breath so often, whether in fear or regret. That the cost of freedom would not be loneliness.

On Thursday, standing in the Supreme Court as the Constitution Bench read down Section 377 once and for all, I felt reaffirmed yet also changed. I heard the judges once again speak of sexuality as dignity, as mutual respect, as equality. I heard the invocations of Articles 14, 15, 19 and 21. Yet, I am not the same person I was when I became part of a petition in the Naz case in 2005. The law, thankfully, doesn’t have nearly the same importance in queer lives. Perhaps most importantly, these are not the same times. This time, what has remained with me are the words of the individual judgment of Justice D.Y. Chandrachud. In what feels like both diagnosis and warning, he says: “We must, as a society, ask searching questions to the forms and symbols of injustice. Unless we do that, we risk becoming the cause and not just the inheritors of an unjust society.”

This is a different “we” from Naz. This is not a “we” of some of us who are LGBTQ and the others who either accept or reject us. This is not just about our rights as they pertain to our sexualities and gender identities. This is a “we” of all of us as a society, a public, a democracy, and a people needing to face the inequalities that persist in our names today. I realise today that when I heard Naz all those years ago, I wanted others to embrace their constitutional morality to extend to queer people the dignity we had been denied. It had felt vital at the time. It was. Today, when dissent, freedoms and civil liberties face unfathomable pressure far beyond just that experienced by LGBTQ communities — a pressure that draws precisely from what the court called majoritarian sentiment and arbitrary state power — it cannot be just heteronormativity that we must fight. What is at stake is all that is endangering the constitutional edifices of equality, liberty, dignity and fraternity that the judges invoked.

Freedom’s echoes

Listed immediately after us in the Chief Justice’s court was the next hearing in Romila Thapar, the petition challenging the continuing house arrest of activists under the Unlawful Activities (Prevention) Act, a law that defines the many ways in which we are willing to sacrifice our civil liberties. When the judges called for a transformative constitutionality, when they spoke of the need for all of us to do the work to make our Constitution a living organism, when they reminded us, in the words of Justice Chandrachud, that “the process through which a society matures and imbibes constitutional morality is gradual, perhaps interminably so,” what remained in my mind was that the freedom I had just had affirmed could have meaning only if it found echo in the freedoms of others. We are not just islands, Naz had said, but bodies, cultures, communities, places, times. The opposite of loneliness is not freedom but fraternity. Dignity cannot be just what we possess but must be what we give to and share with others. On Thursday, what stayed with me was not just the respect we are owed, but the respect we owe as queer people to insist that the transformative power of constitutional values affirmed for us in page after page of the judgments be one that spreads far beyond us. If our freedoms are not inter-linked, they are not freedoms at all.

The Chief Justice of India, Dipak Misra, began his judgment by saying, “I am what I am.” There is no doubt that queer people in India have never had a chance to fully be ourselves, to believe and know what our own possibilities are. I have nothing but happiness that, 24 years after the first AIDS Bhedbhav Virodhi Andolan petition against Section 377 in 1994, queer people will have won the right to breathe and to dream. Yet we have never been alone in not having the right to be who we are. If there is one measure of the injustice and inequalities that define us today as a society, it is how many of us live at some distance from the dignities our Constitution imagined: the dignity of a home and a wage, of a life without fear and violence, of a right to choose love, of a right to express ourselves, of a right to believe in the possibility of justice at all.

How to be truly free

A transformational constitutionality must go beyond just being who we are. It must instead ask: who can we be? Who must we be to ourselves and each other? How can we use constitutional morality as a transformative power to speak not just of equality on the basis of sexual orientation and gender identity but on all that divides us? After Thursday, our work must merely begin so that we may not be the cause of injustice from having once been its inheritors. It is only then that we will truly be free.

Sexual equality affirmed

The lives of over 100 million Indians may have been freed by the Supreme Court

With the words, “Take me as I am”, five Indians led the way to a new India, one where the rule of law assures its citizens liberty. A Constitution Bench of the Supreme Court in a concurring judgment ruled that sex between two consenting adults of the same gender is no longer a criminal offence. In one stroke, this restores the equality before the law of all sexual orientations and identities, which cover a wide range. To term this judgment as ‘historic’ would be an understatement. Of course, it is historic in the literal sense that it struck down a law imposed on India in the middle of the 19th century by a colonial power, leaving it in place for over a century and a half. However, it is momentous also in terms of the sheer number of people affected by it. The Kinsey Report on sexuality, though based on a narrow cultural base, had estimated that about 10% of a population is not exclusively heterosexual. Accordingly, the lives of over 100 million Indians may have been freed by the Supreme Court. While India’s highest court has in the past ruled on many important issues ranging from civil liberties to property rights, it would be difficult to match this one verdict for its immediate impact on the lives of Indians. As the law that has been struck down is a British colonial vestige, the ruling is bound to have a ripple effect on its future in other erstwhile colonies, many of which are far richer than India but have a less vibrant civil society.

A certain uniqueness

There is a degree of uniqueness about this victory for India’s Lesbian, Gay, Bisexual and Transgender, Queer (LGBTQ) community. First, it has been the outcome of a battle fought by its members. In the U.K., for instance, the decriminalisation of homosexuality came about by an Act of Parliament after the Labour Party had constituted a committee to look into the issue. So the freedom gained by the LGBTQ community in India is not something gifted to them. On the contrary, India’s political parties had distanced themselves from their cause, no doubt fearing majoritarian backlash, revealing that they have no convictions of their own. The top leadership of the Communist Party of India (Marxist) alone has been the exception. Nor has there been much support from India’s liberal intelligentsia, the right and left wings of which have not been able to slough off a deep conservatism when it comes to matters of sex. The weakness led them to adopt the incredible pose that the only axes of inequality in India are income and caste. This section, otherwise quite active in the political discourse in the country, lost the opportunity of being on the right side of history as it was being made in India.

A second feature is that the movement to get Section 377 of the Indian Penal Code struck down has not been so male dominated here, with a far greater presence of women than was historically the case in the West. Far from this being just a matter of political correctness, it has made the struggle for sexual equality in India more effective and joyous than it may have been.

Finally, the verdict has brushed aside religious opposition to the expansion of human rights. Not even in Catholic Ireland had the religious establishment attempted to stall gay rights as it has done in India. In 2013, a coalition of religious groups — Hindu, Muslim and Christian — came together to reinstate Section 377. And they succeeded. Since then Christian groups have persisted in their aim, but this time the Supreme Court did not entertain claims made in the name of religion. Secularism has thus been given a fresh lease of life in India. Henceforth, political parties that appease religious interests for electoral gain do so at a cost to their credibility.

Hope, gratitude

As a gay Indian I have only two things to say at this moment. The first is to express the hope that having won their own freedom, the country’s LGBTQ community will now work to further the freedom of all, many far less privileged than some of them. The second would be to express gratitude. The debt owed to the five judges of the Supreme Court for the sheer intellectual power of their pronouncements is so large that any expression of gratitude would be wanting.

But an attempt may be made in other quarters. Now, the first one would be to thank the leaders of the Indian LGBTQ movement. While they, along with the lawyers who represented the community in the courts, are numerous, I believe everyone would agree that two deserve particular mention. They are Ashok Row Kavi who started a gay support group in Mumbai over 25 years ago, flagging off a movement in India, and Anjali Gopalan of the Naz Foundation in Delhi who took the matter to the courts over a decade ago, paving the way for the present ruling. The dates remind us of how long a journey this has been.

Secondly, the media in India has been quite unusual in the support it has demonstrated. This is quite unlike the experience in the West where gay rights activists received far less expressive support in the mainstream media when their struggles were on. It is a different matter that the media there has become more solicitous of the gay community after they won the battle. While something similar may be at play in this country too, with the Indian languages media having shown less enthusiasm for their cause, this detail need not detain us at present. At the rendezvous of victory there is room for all.

Is Punjab’s proposed blasphemy law retrograde?

History tells us that such laws rarely avert violence; in fact, they likely attract violence

The Punjab Cabinet has decided to introduce in the Indian Penal Code (IPC) a new Section (295AA) which states, “Whoever causes injury, damage or sacrilege to Sri Guru Granth Sahib, Srimad Bhagwad Gita, Holy Quran and Holy Bible with the intention to hurt the religious feelings of the people, shall be punishable with imprisonment for life.” One wonders why this extraordinary penalty is necessary when, throughout India, Section 295A of the IPC already provides for imprisonment up to three years for “deliberate and malicious acts intended to outrage religious feelings”. Now, damage to holy books can attract a mandatory life sentence in Punjab, while other insults can attract up to three years. To put it bluntly, insulting a god or Prophet would land you in jail, but burning or defacing a holy book would land you in prison for life.

History of criminal blasphemy

The Punjab government has probably forgotten the misuse of similar blasphemy provisions in Pakistan, where similar amendments to Section 295 of the Pakistan Penal Code have ended in several tragedies. To criminalise blasphemy and sacrilege is to step on a slippery slope of justifying mob violence and private vengeance against the accused.

The history of criminal blasphemy creeping into Indian law needs to be retold. Mahashay Rajpal, the publisher of a book, Rangila Rasul (The Colourful Prophet), was sought to be prosecuted under Section 153A, as the book allegedly caused disharmony between communities. Rajpal was granted leave to appeal to the Lahore High Court because Section 153A then did not cover criticism of religious figures. As the book did not specifically cause enmity or hatred between religious communities, it did not violate Section 153A was the logic that weighed with the court. Thereupon, the Indian Muslim community demanded a law against insult to religious feelings. The British government enacted Section 295(A) in 1927. As a member of the Viceroy’s Council, Muhammad Ali Jinnah warned, “I thoroughly endorse the principle that while this measure should aim at those undesirable persons who indulge in wanton vilification or attack upon the religion of any particular class or upon the founders and prophets of a religion, we must also secure this very important and fundamental principle that those who are engaged in historical works, those who are engaged in bona fide and honest criticism of a religion, shall be protected.”

Rajpal was later acquitted by the Lahore High Court. On April 6, 1929, he was stabbed to death by a 19-year-old carpenter, Ilam Din. The assassin was sentenced to death by the sessions court. His appeal to the Lahore High Court was conducted by M.A. Jinnah, who was persuaded to do so by the poet Iqbal. The appeal failed, and Ilam Din was hanged on October 31, 1929. Another poet who was supposedly sympathetic to Ilam Din was Deen Mohammed Taseer. Ironically, in 2011, his son Salman Taseer was assassinated by his articleguard, Mumtaz Qadri, for speaking in support of a Christian woman accused of blasphemy.

A lesson from Pakistan

Blasphemy laws in the subcontinent derive justification from the argument that people will be outraged by attacks on their religion and resort to street violence if the offender is not legally punished. However, history tells us that such laws and prosecutions rarely avert violence. On the other hand, they are more likely to attract violence and provide the perpetrator a justification for inflicting violence against those who are unfortunate enough to be accused of blasphemy. Indian Punjabi politicians would do well to reconsider their decision to follow their counterparts in Pakistani Punjab.

Catering to religious sentiment is more likely to help the Akali Dal in the long run

The Amarinder Singh-led Congress government in Punjab has introduced the Indian Penal Code (Punjab Amendment) Bill, 2018, and the Code of Criminal Procedure (Punjab Amendment) Bill, 2018, applicable to Punjab.

Defining sacrilege

The IPC already has a Section 295A, which says that “deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs” will be punishable with imprisonment extending up to three years. The Bills seek to insert a new Section 295AA that stipulates that whoever causes “injury, damage or sacrilege to Sri Guru Granth Sahib, Srimad Bhagwat Gita, Holy Quran and Holy Bible with the intention to hurt the religious feelings of the people” would be liable to be awarded life imprisonment, if convicted. The proposed Penal Code Bill seeks to replace the Indian Penal Code (Punjab Amendment) Bill, 2016, passed by the Shiromani Akali Dal (SAD)-Bharatiya Janata Party (BJP) government, which specifically referred only to acts of sacrilege against the Sri Guru Granth Sahib.

On legal grounds, the drafting of the Bill has received criticism for the imprecise manner in which sacrilege has been defined; it should have been clearly mentioned as physical desecration/sacrilege. Otherwise, even for writing a book or an article, or making a speech, or sketching a cartoon, or drawing a painting, a person can be erroneously accused of blasphemy notwithstanding the rights guaranteed by Articles 19 and 25 of the Constitution. In a larger context, the move should be interpreted as a party’s frantic attempt to move towards right-wing politics. Also, Punjab is setting a precedent for other State governments.

The 2016 Bill was a desperate move by a beleaguered SAD-led coalition government to somehow pacify the Sikh community, deeply traumatised by the dastardly incidents of desecration of the Guru Granth Sahib in Punjab in late 2015, which led to police firing on the protesters, resulting in deaths. The introduction of the amended Bill by the Congress has coincided with the government’s decision to compensate the victims of the firing and also table the report of the Justice Ranjit Singh Commission, which was constituted to probe into the incidents of sacrilege and the consequent police action.

Role of religion in politics

The report predictably indicts the SAD-BJP government for its failure to handle the volatile situation, punish the erring officials, and arrest the perpetrators of the crime who are still at large. And damagingly, it implicates former Chief Minister Parkash Singh Badal for allowing excessive police action. As expected, Mr. Badal responded by reminding the Congress of Operation Blue Star and accusing it of unleashing new flames in the State when the flames “that turned the urban and country landscape of Punjab almost to ashes are still raging.” In Punjab, religion has played a more important role in determining the course of State politics, often with tragic consequences.

Chief Minister Amarinder Singh needs to be careful even if he is burdened with the failure to fulfil his lofty electoral promises and tasked to offer results to a desperate Congress high command in the 2019 elections, just like in 2017. By tabling the damning report and introducing the Bill with much fanfare, he is again thinking of using religion to wean away the Panthic vote. In narrow electoral terms, catering to religious sentiment is more likely to help the SAD in the long run, a master of Panthic/Gurdwara politics.

The anti-blasphemy law was scripted as a response to, not an expression of, religious intolerance

The anti-blasphemy law was scripted as a response to, and not an expression of, religious intolerance. In 1947, a man who was devoutly religious became the Father of a secular, democratic nation. And another man who spurned everything religious emerged as the Quaid-e-Azam of an Islamic country. That being the confused rubble on which the foundations of India and Pakistan stand, it was only natural for both countries, especially for India, to suffer the pangs of explosive inner paradoxes. What has been happening in Punjab is merely an extension of these paradoxes.

Instilling fear in miscreants

Punjab is a land where secularism is not an ideology but inter-faith bonhomie. Punjab, a Sikh-majority area, has been the cradle of Hinduism. And then there is the Sikh faith, the only religion in the world which has its sanctum sanctorum founded by a saint (Sain Mian Mir) from a faith perceived as hostile, Islam. And the holy scripture of the Sikhs contains Banis (verses) of holy men from all the dominant faiths prevalent then, including Hinduism and Islam.

Thus, it is intriguing that anti-sacrilege laws arose out of the crisis of a religion which is as tolerant and cosmopolitan as Sikhism. Punjab has never seen a communal riot even once since 1947. Those who interpret the anti-blasphemy law as intolerant are arguing from the wrong end of logic. In no country is freedom of expression taken to mean outraging the freedom and sensitivities of others. Thus, while Punjab felt the need for strong social and psychological initiatives to remove the very need for such a legislation in the long run, it also deemed it necessary in the short run to send a strong message that in order to preserve democratic freedoms, it is necessary to ensure that these are not used as an excuse to outrage the legitimate religious sensitivities of every class of people. The lenient view which the State seemed to take of a collective hurt of a community was being taken unfair advantage of by miscreants. There definitely needed to be a firmer deterrent to put some fear of the law in the minds of those miscreants.

The Akalis have always advocated that the country needs to redefine blasphemy and patriotism and make secular tolerance an integral part of patriotic conduct. But they are also aware that religious sensitivities, once provoked, can immediately lead to conflagration and get out of hand in the sensitive border State of Punjab. Most importantly, the legislation was meant to protect the tolerant against the intolerant. Therefore, apart from ensuring effective and expeditious application of the existing laws, there was a need to make the existing law more stringent to deal with cynical elements who play with religious sentiments to destabilise Punjab The Punjab initiative was not divorced from a broader vision in which the Akalis feel the need to make sacrilege and blasphemy socially and culturally unacceptable. That is why you need the law to be more stringent and effective. As humanity and societies evolve, so do the laws.

Every law can be misused

Those who argue against the law on the basis of its misuse and misapplication need to be reminded that every law is capable of being misused and misapplied. What is needed then is not doing away with laws but creating automatic, inbuilt guarantees against their misuse.