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Today was the day many of us have been waiting for since 2013. That was the year the Supreme Court re-criminalised homosexuality. That case was set to be re-opened today with much anticipation. Petitioner for the respondents advocate Mr. Rohatgi and advocate Dattar represented the side of those appealing for reading down of IPC Section 377.

In 2013 the SC had argued that Section 377 was not ultra vires as it did not discriminate per se against any identity rather it was against the act. Section 377 merely made carnal sex a criminal act as it was against the order of nature.

It is this ‘against the order of nature’ argument that the counsel wished to overturn today, by stating that homosexuality is older than religion and  in fact refers to Mahabharat’s Shikhandi and the apparent display of homosexuality in the Khajuraho caves. This was done to counter the claims of 2013. In 2013 the SC observed that

In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature. (Suresh Kumar Koushal and another. v. NAZ Foundation, 2013, p.93).

Following this observation the court dwelled on Jagmohan Singh v. State of U.P. (1973) 1 SCC 20, 1973 which was regarding abolishing capital punishment. The Allahabad High Court verdict on allowing death sentence was debated by a constitutional bench. The bench agreed with the Law Commission of India that “Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment” (Suresh Kumar Koushal and another. v. NAZ Foundation, 2013, p.94).

Indeed Rohatgi has countered these claims of colonial difference by drawing examples from Vedic texts and ancient art. This is done so as to project homosexuality as non-Western/ non-Other, consequently a non-threat to Indian culture and society.

However this reasoning is problematic as it is indefensible against constitutional morality. In fact when Rohatgi argues that constitutional morality should overtake public aversion or disgust (public morality) towards sexual minorities he ends up doing exactly the opposite.

How?

What is constitutional morality or the anvil upon which IPC 377 is sought to be tested? It is those principles that are enshrined in the constitution – equality, liberty, justice, fraternity, dignity, privacy and the like. These principles are key features of constitutional morality and separate it from public morality.

Now what is public morality? It is morality that is a shared common code of morals/ norms set by hegemonic forces in society. One of these many codes is shunning of homosexuality. This is a shared code based on traditions, rooted in fear psyche of a weakening race or escalation of diseases and unhygienic conditions if homosexuality is allowed to flourish, and of course is based on religion (most religions forbid homosexuality).

Judgments, verdicts, legal arguments not only speak to the public but they also imagine it. They imagine it for themselves and for us. A speech happens in a context of a certain public that is conceptualized by the law (in this case) in whose language and culture, the law cushions its arguments. Now for the petitioners to speak in the context of Vedic texts like Mahabharat and Hindu arts of the Khajuraho caves is conceptualising a very concrete Hinduised notion of the public. And for them to argue that ancient India has a past replete with homosexuality is to say that India is a Hindu land or the public is Hindu. Which is as problematic, as it is majoritarian. We must remember that the petitioners of the Suresh Kumar Koushal and another. v. NAZ Foundation case had religious representation from the Apostolic Churches Alliance, All India Muslim Personal Law Board, Utkal Christian Council and Sanatan Dharam Pritinidhi Sabha, all of whom opposed the Delhi High Court verdict of decriminalizing homosexuality.

Now after positioning the public as the majority Hindu community the Counsel argues for constitutional morality by placating the sentiments of the majority community by citing Vedic texts. So in an instant it upon the validation of traditional roots of texts, scriptures, caves and cultural practices to make an argument for a progressive attitude.

This strategy has been repeatedly applied in varied judgments like the M.F. Husain case on Bharat Mata, Mahabharat was cited in the Perumal Murugan case of Madhurobagan, godliness was highlighted in a very recent judgment on Grihalaxmi magazine. There is a repeated assertion of India’s Golden Age, Vedic past in order to bring about changes in our future. It might be a convenient way out but it re-instates the age old hierarchies of Hindu community domination, caste domination (by referring to the Vedas), religious-patriarchy, by doing so. And these elements/implications are not constitutionally supported. Thereby the approach towards the problem may be even radical but adverse in the long run.

What the law and its counsels really need to do is hammer their arguments on the anvil of constitutional morality before attempting to argue on behalf of the same. We need to know what our arguments imply. The battle might be won by citing these examples but technically we would have lost the war of ensuring constitutional morality itself.

Debjanee Ganguly, PHD scholar, CPS/SSS, JNU

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