Home Law Today, an 'intolerant' India emancipated the tolerant

Today, an ‘intolerant’ India emancipated the tolerant

377 has been read down. The victory though impermanent is one more nail in the “Growing intolerance” canard being peddled by the left. A fascist government run by “Muslim-lynching, cow-loving, homo-bashing bigots” as the narrative goes, basically decided to fight back its core Islamo-homophobic voters and do what a previous progressive government (full of “Muslim-homo-loving, bastions of tolerance and free speech”) had not done – decide to not oppose decriminalisation. Indeed if one were to go by the media narrative that the BJP is the distillate of all regressive forces in India today, the very act of not opposing decriminalisation would count as the single most progressive and courageous stand taken on a social issue in modern history since Lyndon Johnson ended segregation.

Snark aside it is time we examined the extreme fallacies that have plagued this case. The Supreme Court in 70 years has never stood up when it counts, justifying and normalising the very worst abuses of power including insulating itself from accountability and legalising the emergency. The SC has gone with the mood of the day, which was in favour of legalising homosexuality – be it the lack of opposition from the government, to the associations of mental health professionals most of whom have come out in favour of decriminalisation to near complete public apathy. In spite of this, it required a 493-page infantile ramble – that says more about the judges’ literary preferences that it does any legal reasoning – to justify what could have been said in two paragraphs. Issues of judicial pendency arising from every judgement turning in a 493-page senile rant aside, there are some egregious excesses in this judgement. The first of this is the rather curious understanding that the criminalisation of gay sex was based on “majoritarianism”.

Normally the difference between conservatives and progressives has been, that progressive try to legislate social change and conservatives want legal changes to keep step with social change. One fallacy that is used against conservatives in this argument is that America would have never gotten rid of slavery had it not been for a “progressive” Abraham Lincoln. Like most lefty arguments this is one more socialist half-truth and a dangerous one at that.

- Advertisement -

The fact remains it was an industrial north, that had no need for slave labour, and indeed where the use of slaves would have led to a loss of quality control (quality control being dependent on human capital investment and incentivisation) that forced it down the throat of the south. What did it lead to? emancipation? No – far from it the gains were illusory at best, lasting the better part of 3 to 4 years, after which an economically devastated south, that took close to 150 years to recover (given the failure of reconstruction) doubled down on repression and segregation. Definitely better than slavery, but still living hell, with none of the attached stigmas of slavery. In short as much as the supreme court would like to portray itself as a progressive champion, in this episode it in fact is the biggest social conservative, having come last to the party – save the occasional rabid mullah, sadhu or padre, and passed a judgement secure in the faith that it would have social and press backing and governmental and public indifference.

If anything this judgement also reflects how far divorced the supreme court is from the reality of an India that has always been accepting of gender fluidity and sexuality in practice. This brings the rather problematic issue we have of course by their fundamental nature of accepting the written over practice and verbal, being significantly at variance with a large customary-verbal culture. Essentially then from a supreme court perspective: Gender binary has been written about, therefore it must be true. Indian tolerance of gender fluidity and sexuality is not written but in practice, therefore it cannot be true.

Let us, for example, take this rather charming example on DailyO that posits a persecution narrative of the gay community in India. the methodology used to prove the persecution narrative is no different from the methodology used by Christian fundamentalists to prove that homosexuals tend to be child abusers. Obviously the author is clueless to the irony, and what’s more, expects Nazi-like disciple from the gay community in supporting any course of action – dissent according to him being “gaslighting”. Yet from a judicial point of view it would be acceptable (despite the danger that the same methodology would be used to condemn gay men as child molesters) to take these studies into account, as the reverse – the acceptance of homosexuality is impossible to prove statistically.

What needs to be acknowledged is however that what has been achieved today, has not been because of the LGBT campaign, the supreme court, but rather the fundamentally liberal nature of the Indian People expressed through the organs of the Indian state, restraining the government from opposing and stiffening the supreme courts notoriously weak spine.  What we should, however, accept that the momentous reading down of section 377 is by no means permanent. Should social mores change, the judgement too is prone to being revisited through legislation that overrides the judgement, much like the Shah Bano case. The only guarantee a community has is to write these protections against discrimination based on sexual orientation and recognising gender fluidity in the constitution. Given that this is India, those will eventually happen, but like all things in India, it takes time and patience, not the grandstanding of make-believe heroes.

Share This Post With Your Friends & Fans:
We need your support to survive in the media industry. Please consider paying us for the content we produce:

To know more about these payments, please click here.


Election 2019 Final Tally

Check the final seat tally and other post election coverage

Advertisement

Smriti Irani’s aide in Amethi shot dead, his son says some Congress workers were not happy with BJP’s ‘Vijay Yatra’

Smriti Irani had defeated Rahul Gandhi on his home turf of Amethi in Uttar Pradesh by a margin of 55,120 votes

I am an Indian Muslim, stop feeling sorry for me

Journalists should get off their high horses and step out of their studios to see how nothing really has changed for an average Muslim

Left has failed, but the ‘Right’ does not understand Modi as well

With the left looking irrelevant, the right needs to get its act together.

Meerut: Communal tension after a video showing Muslim men beating up shopkeepers goes viral

A viral video where Muslim men are beating up a shopkeeper has triggered communal tensions in Meerut

Rajdeep Sardesai thinks Narendra Modi should thank Masood Azhar, among others, for BJP’s victory

As a long term Congress loyalist media person, Rajdeep Sardesai is yet to come to terms that Modi won a second term with thumping majority

Dear Gautam Gambhir, just like in cricket, in politics, timing is everything

Gautam Gambhir, BJP's winning candidate from East Delhi took to Twitter to condemn the incident of a Gurugram man beaten up and allegedly forced to chant 'Jai Shree Ram'.
NYT peddles Modi 2.0 as victory of India's most divisive leader

Dear New York Times, India has chosen Modi 2.0, deal with it

When India gives a thumping, unprecedented, overwhelming victory to a man who has made every single Indian feel proud of their nation and heritage, the NYT's heartburn is expected. 

Journalist wants to ‘crowdfund’ a parallel parliament so that Atishi Marlena can become an MP

The 'neutral media' meltdown seems to have reached its peak after AAP's Atishi Marlena came in third in East Delhi Lok Sabha seat

Rahul Gandhi upset that senior Congress leaders didn’t shout ‘Chowkidar Chor Hai’ enough, lashes out on them for party’s defeat

Amusingly, though Rahul Gandhi had indeed offered to resign, the CWC, that is chaired by himself, had unanimously rejected the resignation and asked him to reconstruct the party
Subscribe to Day's Top Stories
- Advertisment -

Latest articles

Connect with us

165,308FansLike
143,925FollowersFollow
65,778SubscribersSubscribe
Share This Post With Your Friends & Fans: