Too little, too late

While the excitement among the Indian diaspora in the US and LGBTQ* sympathizers in India is not entirely misplaced, it would be farfetched to assume any immediate implications of the US Supreme Court judgment for the rest of the world.

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Source: www.queerblog.it[/caption]

Turkey witnessed violent police crackdown of queer pride within a few hours of the Supreme Court judgment. Back home, profile pictures of our new age selfie and social media savvy politicians are yet to change colors. Mr. Modi and his PR team which is usually quick with their PDA with Mr. Obama, is yet to publically acknowledge US Supreme Court’s judgment. One would hope, given the global giant that the US is and the new wave of diplomacy between India and US, that India and other countries would fall in line sooner or later. However, history weakens this hope further. In 19th Century, British introduced anti homosexuality laws in all Commonwealth countries. Later, between 1967 and 1982 through Sexual Offences Act, 1967 UK, Scotland and Ireland decriminalized homosexuality in their own land. Today 41 of 53 Commonwealth countries continue to have varying degrees of severe laws prohibiting same-sex relations despite the pressure from Commonwealth and repeated threats from UK to cut or re-allocate aid away from countries which persecute the gay community and do not legalize same-sex relationships.

In India we are miles away from arguing in favor of same-sex marriages. We will first have to ensure that Section 377 is repealed and then build a separate case for same sex marriages, may be another one for adoption rights and so on. It’s a long battle. Unless criminal status of homosexual persons is removed, it would be difficult to argue for their equal legal status. While globally, Supreme Courts have played a pivotal role in decriminalizing homosexuality, in India the Supreme Court has infamously pushed the ball back to lawmakers, asking them to take a call. With the current government and its notorious allies such as RSS and VHP and mollycoddled gang of Sadhwis and Babas, it is unlikely that the government will act towards repealing Section 377 anytime soon.

In the US, there was a general consensus on same-sex relations and their legal status. Conservatives and some fractions of libertarians, who expressed displeasure after the recent judgement, were not fundamentally opposed to same-sex relations. Conservatives opposed same-sex marriages arguing that marriage by virtue is essentially between a man and a woman and everything else is a civil relationship, whereas some libertarians objected to government’s interference in the business of approving marriages. Their fear is also around ascribing special rights to certain groups, which can set a wrong precedent. In India, we are far from attaining any level of consensus on same-sex relations themselves, let alone debating the nomenclature of the relationship.

For a staunch believer in individual liberty, the heartening fact about US judgement was that the entire argument was built around constitutional right of all citizens to equal legal status. Looking at the citations of the Supreme Court Judgement one can say that it largely upholds individual liberty and aims to ascribe equal legal status to all citizens. Justice Anthony Kennedy observes, “They ask for equal dignity in the eyes of the law. The Constitution grants them that right”. In India, in case of LGBTQ rights and otherwise, we have a habit of confusing between special legal status and equal legal status or rights of a special interest group as against individual rights.

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Source: www.thehindu.com[/caption]

We can see this in case of caste-based reservations. In case of LGBTQ rights itself, Supreme Court of India in NALSA judgment did not stop at legally recognizing the third gender but went on to extend socially and educationally backward status to transgender persons along with reservations in public education and employment. Arguably, LGBTQ activism in India has been demanding special status, building the entire case around marginalization as opposed to individual rights. In light of this, it would take a herculean effort to shift the current discourse from special status to equal status — navigating these tangles is enough to dissuade even the most loyal advocates of individual liberty.

Lastly, whenever we reach to the point of legalizing same-sex marriages, the debate on which marriage Act to amend might emerge. With Uniform Civil Code yet being a distant dream in India, it would not be surprising to see us fighting over existing marriage laws before legalizing same sex marriages.

At the moment let us just congratulate US for this historical decision and ensure our Facebook profiles wear the rainbow Burkhas, for we ourselves have a long way to go.

*LGBTQ= Lesbian, Gay, Bisexual, Transgender and Queer