By Sandip Roy

Who’s afraid of the big bad gays, the so-called ‘minuscule fraction’? The government has decided that when it comes to the LGBT (lesbian, gay, bisexual, transgender) population, discretion might be the better part of valour.

When the hearings on the constitutionality of Section 377 of the Indian Penal Code (IPC) started in the Supreme Court, the government asked for a delay. They wanted more time to file a response to a law that dates back to 1861.

The court refused. Then Attorney General K K Venugopal chose not to lead the government response saying, “I had appeared for the curative. I’m told the government’s stand is different, therefore I’m not appearing in that case at all.”

Now the government appears to have no stand at all. In an affidavit filed on behalf of the government, an undersecretary in the ministry of home affairs says the Union of India would leave the question of the constitutional validity of Section 377 to the extent it applies to “consensual acts of adults in private” to the “wisdom of this Hon’-ble Court”.

After the Supreme Court ruled against instant triple talaq, the government painted itself as the knight in shining armour for Muslim women. BJP MP Meenakshi Lekhi said it was the “political will” of the NDA government that had led to the judgment. The government is betraying no such itch to be seen as the deliverer of acche din to India’s LGBT population. But who knows? If the Supreme Court does strike down Section 377, perhaps they will push to take credit for yet another thing that happened under Prime Minister Narendra Modi ‘after 70 years of Congress inaction’.

The problem for GoI is the issue has gone well beyond the ‘minuscule’ LGBT minority. It has become a litmus test of India’s own image of itself, of the kind of liberal democracy it wants to be perceived as. Chest-thumping champions of the government are prone to say ‘Go to Pakistan!’ to anyone who disagrees with them on anything. But they can’t use that time-tested line when it comes to Section 377, since defending that law puts them in company they do not wish to keep: Saudi Arabia, Pakistan, Iran.

Not the One to Judge

But being too proactive about striking it down might not go down well with their conservative base, and many in their own ranks like BJP Rajya Sabha MP Subramanian Swamy, who wears his homophobia on his Twitter sleeve.

Caught in that Catch-22, GoI has decided the safest course is to hide behind the robes of Supreme Court judges and leave Section 377 to them.

From an activist point of view, a government that gets out of the way of progress is preferable to a government that tries to scuttle it. But it means all the talk about principle is just hogwash. GoI can’t take a principled stand for or against it. Its only damage control has been to request the court to not rule on anything beyond the question of constitutionality of Section 377 itself.

It is terrified that once this closet is cracked open, all kinds of other issues will come tumbling out: marriage, employment discrimination, adoption, etc. It’s almost funny that in its desperation to draw some kind of Lakshman rekha around the issue, the government is basically telling the court: please talk about sex, and nothing but sex. In 1994, then-superintendent of Tihar Jail, Kiran Bedi, refused to allow condoms to be distributed to prisoners.

Her logic was that that was tantamount to condoning homosexual sex, which was a criminal offence under the law. She told activists to change the law and then distribute the condoms. That led to the first challenge to Section 377 in court.

But in most cases, Section 377 is not the issue. Homophobia, or transphobia, is. If Section 377 is struck down and someone walks into his workplace and announces he is gay, he may still get fired. Getting the government out of the bedroom of consenting adults is only the first step. Whether GoI likes it or not, battles about issues like employment non-discrimination are looming. Homosexual lives are about more than sex. Just like heterosexual lives.

Moral, or Science?

In a more ideal world, Section 377 should have been junked by Parliament itself. We should not have needed to rely on the generosity of courts to affirm the basic dignity of LGBT Indians. But our politicians on all sides have been singularly missing in action. When Congress MP Shashi Tharoor tried more than once to introduce a private member’s Bill on Section 377, he faced empty Congress benches and jeering BJP members. “Several MPs who had promised to vote in favour absent,” tweeted Tharoor at that time.

He faced catcalls and snide remarks about why he needed the Bill. Individual BJP politicians like Arun Jaitley have been LGBT-supportive. BJP spokesperson Shaina N C has even spoken as a chief guest at an LGBT film festival.

But when a Subramanian Swamy calls homosexuality a “danger to national security”, they maintain a discreet silence. The battle over Section 377 has shown all of us the difference between a broad chest and a broad mind.