It was a sad day indeed when the additional solicitor general (ASG) Mr Malhotra, recently came out strongly against homosexuality, while arguing on behalf of the Ministry of Home affairs, in the Supreme Court hearing challenging the Delhi High Court order of 2009 decriminalising consensual sex among gay adults. He junked homosexuality as immoral saying that it is against the order of nature and spreads HIV. He was of the view that, "Laws can't run separately from society and the morals of the time."
When the Supreme Court asked who decided what was immoral, the ASG said that society did so and argued that the Indian laws could not but reflect the views of its society, and as a vast section of Indian society still considers it to be immoral, the provision of Section 377 needs to be retained in full to reflect the society's views.
Although the Home Ministry was quick to clarify that the ASG read out a wrong affidavit before the apex court (for three long hours), it is a sad commentary on the narrow mental attitude of the law enforcers and representatives of the Union Government. Perhaps they do not believe that constitutional morality must dominate over public morality and that no one should be deprived of one’s fundamental rights merely on the basis of societal disapproval on moral grounds.
Going by what we see, hear and read every day, a vast section of Indian society still believes in siring sons and aborting female foetuses; it cares two hoots about protecting the rights and dignities of women; it still commits atrocities against certain castes; it loves to spread communal/religious violence. So should our laws reflect and uphold the popular societal sentiments of beating/raping women, killing unborn girls, spurning the dalits….The list is endless. Several good laws in India (and perhaps elsewhere too) have been passed in total negation of what reflected the popular sentiments of society at that time. If the likes of Mr Malhotra had had their ways then there would have been no laws banning Sati pratha (burning of the widowed wife on funeral pyre of her husband), repression of widows, violence against women, female foeticide, etc.
We as a society are becoming more intolerant by the day. Our whole being has become so fragile that we feel threatened by an innocuous dig at our religious scriptures or a caricature of some deity or an innocuous joke about our lack of hygiene. Our energies seem to be wasted on clinging to reprehensive social norms, all in the name of protecting our culture. We call homosexuality immoral; we shun transgenders; we shudder even to pronounce the word ‘lesbian’; even though all of them have existed in our society since times immemorial. But our moral ineptitude forbids us to accept it. We have one of the highest rates of procreation in the world, but the mention of sex is still taboo. Overall we are very good at brushing everything under the carpet and show a dazzling exterior. But the internal rot is making our society sick and intolerant. We need to cleanse our souls (and not soles) of intolerance, hatred and jealousy which is slowly tearing away our social fabric.
We (at least those from the educated section of society) proudly proclaim our belief in the equality of sexes and profess that we treat our sons and daughters in the same manner. But, we still yearn for a male heir to the family; we do not hesitate to perform the abominable ritual of ‘kanyadan’ (giving away of the daughter in charity) of our dear daughter, who we lovingly call ‘paraya dhan’ or someone else’s (the husband’s) property, all in the name of tradition and culture. When it comes to abiding by the laws which give women equal rights and opportunities most of us prefer to look the other way. We worship female deities with aplomb but I wonder if any section of our society sanctions any fast which is observed for a wife or a daughter. (There are many observed by women for their sons and husbands). We cannot term these and other such rituals as mere tokenistic. They are symbolic of a mindset which is still not mature enough to have the courage to change the things which should be changed.
I am tempted to quote here the words of Honourable Justice A P Shah of the Delhi High Court that, "Moral indignation, howsoever, strong, is not a valid basis for overriding an individual's fundamental rights and privacy. In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majority view.”
Of course passing good laws alone is not a panacea to cure the ills prevalent in society. Legal reforms will have to be complimented with societal acceptance, but they cannot always wait for universal acceptance, else the very existence of humanity may be under threat.
(The author is the Managing Editor of Citizen News Service (CNS). She is a J2J Fellow of National Press Foundation (NPF) USA. She has worked earlier with State Planning Institute, UP and taught physics at India's prestigious Loreto Convent. She also co-authored a book (translated in three languages) "Voices from the field on childhood pneumonia" and a report on Hepatitis C and HIV treatment access issues in 2011. Email: shobha@citizen-news.org, website: http://www.citizen-news.org)
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