Fahad Zuberi

| @zuberi_fahad | September 12,2018

What goes without saying is the fact that the Supreme Court judgement declaring Section 377 of the Indian Penal Code (IPC) as unconstitutional to the extent it criminalised consensual sex between adults in private, has resulted in more homophobes and bigots outing themselves than members of the LGBTQ+ community. While it was very common to have one’s social media newsfeed filled with poorly worded and largely uninformed opinions trying to dig up old arguments that still rely on so-called “unnaturality” (among other things) in order to attack the very nature of being of an individual, what struck me as most unacceptable was an e-mail circulated by the ex-Public Relations Officer (PRO) of Aligarh Muslim University (AMU), Rahat Abrar, on the e-mail group called “Voice of Aligs”. The email stated: “We should build up a mass movement against homosexuality. I was a witness of paid sex became a gay case at AMU and I was projected as a villain in a film ‘Aligarh’”.

 

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Screenshot of email sent by Rahat Abrar to an AMU email group | Photo credit: Fahad Zuberi

Aligarh Muslim University and opposition to SC judgment

Badly written English coming from a senior PRO aside, it was ghastly to see that the bigots at AMU, my alma mater, had more intolerance and bigotry to pour on the memory of a man, who committed suicide following such harassment and persecution in 2010 — Professor Ramachandra Siras

Badly written English coming from a senior PRO aside, it was ghastly to see that the bigots at AMU, my alma mater, had more intolerance and bigotry to pour on the memory of a man, who committed suicide following such harassment and persecution in 2010 — Professor Ramachandra Siras. The “mass movement” Mr Abrar is talking about is yet to be seen, but I am rather convinced of the fact that he has not read the latest Supreme Court Judgement on IPC 377 that repeatedly cites various cases that establish the “Right to Privacy” as a fundamental right (which was violated in the most shameful of ways in the case of Professor Siras).

Irfan goes on to ask more significant and deeper questions of us, and especially, the AMU fraternity, which I believe, owes an apology for this grave crime against Professor Siras and humanity

Neither has he read the poignant piece by young journalist Eram Agha, wherein Prof Siras’s partner Irfan explicitly states that Professor Siras and he were in a consensual relationship. In the piece, Irfan goes on to ask more significant and deeper questions of us, and especially, the AMU fraternity, which I believe, owes an apology for this grave crime against Professor Siras and humanity. If Mr Abrar has indeed read any of the aforementioned pieces, then the argument of ignorance is, sadly for him, not on his side. Playing victim of cinematic manipulation is the last resort he must seek. A heartfelt apology and confession is more fitting at this point. The naivety of his statement does not escape me here.

Despite being a central University that is supposed to be guided by constitutional morality and not on the theology of a particular faith, the University’s moral compass remains heavily skewed, often guided by the “values” of Islam, and not by those enshrined in the constitution of the country

For those who have been at the University, these sentiments would not come as a surprise. Despite being a central University that is supposed to be guided by constitutional morality and not on the theology of a particular faith, the University’s moral compass remains heavily skewed, often guided by the “values” of Islam, and not by those enshrined in the constitution of the country. That it is also wholly funded by the government is even more ironical, given that not only publicly funded central universities but also private educational institutions should be guided by the lofty ideals of constitutional morality.

But to say the bigotry against the LGBTQ+ people comes exclusively from places like AMU would be to ignore the larger narrative of how religious sentiments have formed the prime tool of oppression of most marginalised communities.

Religious organisations supporting Section 377

One of the most fierce and vociferous opposition to LGBTQ+ rights has come from religious lobbies — be it the evangelical Christians in the USA running gay conversion therapy camps, or Baba Ramdev claiming that he can “cure” homosexuality through yoga, or the All India Muslim Personal Law Board

One of the most fierce and vociferous opposition to LGBTQ+ rights has come from religious lobbies — be it the evangelical Christians in the USA running gay conversion therapy camps, or Baba Ramdev claiming that he can “cure” homosexuality through yoga, or the All India Muslim Personal Law Board, the secretary of which, Zafaryab Jilani,  in a rather explicit and fearless manner, cites the Sharia’s violent views on homosexuality as an argument for the ban on “unnatural acts”.

As the late Anglo-American writer and polemicist Christopher Hitchens termed them, the “parties of god” have always had a self-proclaimed and self-legitimising agency over how individuals are supposed to conduct their lives — especially their private lives. Implicit here is that the god who created galaxies upon galaxies takes a special interest in what happens in your bedroom (which is not to say that I advocate for this Spinozistic idea of god in general, however much understandable it might be at the Darwin-less time of its conception).

Apart from the adrenaline-driven, PR-centric loud debates broadcasted on (television) media, various religious organisations have opposed the decriminalisation of Section 377 of the IPC in courts. That is not too surprising for the following two (among many other obvious) reasons.

The law as per Section 377, first drafted by Thomas Macaulay around 1838 and brought into effect in 1860 soon after the Sepoy Mutiny (India’s First War of Independence) of 1857, was modelled after the Buggery Act of 1533 which was enacted under the reign of King Henry VIII

Firstly, all three Abrahamic faiths — Islam, Judaism, and Christianity — prescribe the death penalty for homosexuality, with Islam going a step further and detailing out how the execution must take place. For the uninitiated, the Sharia law mandates throwing the convict from the tallest building in town. Second, the law as per Section 377, first drafted by Thomas Macaulay around 1838 and brought into effect in 1860 soon after the Sepoy Mutiny (India’s First War of Independence) of 1857, was modelled after the Buggery Act of 1533 which was enacted under the reign of King Henry VIII. This Act defined “buggery” as an unnatural sexual act against the will of God and man. The law — as it could be found in any IPC reference book before the learned judges of the Supreme Court declared it to be unconstitutional — had been, on the face of it, freed from the word “God”; however, its roots can be traced back to the Abrahamic theology.

Henry VIII’s 16th century values and God’s revelations to the Abrahamic prophets in the 6th century AD used to decide the life and liberty of an Indian citizen until September 6, 2018

The two reasons hence, collapse into one, the only exception being that most religious bigots are unaware of the latter. Christopher Hitchens, in a column for the magazine Vanity Fair, responded to Prince Charles’s Oxford speech about the problems such as the climate change originating from the “deep, inner crisis of the soul” by writing a searing column titled “Charles, Prince of Piffle” that opened dramatically:  “This is what you get when you found a political system on the family values of Henry VIII”. To find irony and also possibly an analogy here should not be a difficult task. Henry VIII’s 16th century values and God’s revelations to the Abrahamic prophets in the 6th century AD used to decide the life and liberty of an Indian citizen until September 6, 2018.  

Legal opposition to decriminalising homosexuality

All major religious organisations have argued in the court against decriminalisation of section 377. The All India Muslim Personal Law Board, while being an active legal party earlier, decided to not contest the matter in the Supreme Court of India this year. One of the Board’s members, Yusuf Hatim Muchhala, went on to say, “We (have) left the matter to the Supreme Court. We will not participate in the (Section) 377 proceedings“. Although that came across as a slightly tolerant view, if not a cooperative one (progress of a kind, one can say), the relief was short-lived. The Board, two days later, on July 13, 2018 said that they would oppose the decriminalisation and that they expressed regret that the Central Government had left the matter to the Court. “We support Section 377. Homosexuality is injurious for human health, it should remain a crime,” said Zafaryab Jilani, the Board’s secretary. AIMPLB put out a tweet on July 15 on the issue, saying it should remain a crime.

While Hindu, Muslim and Christian religious groups were all active during the earlier hearings for the decriminalisation of Section 377, as of the last hearing on July 17, before the bench reserved its order, the three organisations that were actively opposing decriminalisation in the court were all Christian groups

While Hindu, Muslim and Christian religious groups were all active during the earlier hearings for the decriminalisation of Section 377, as of the last hearing on July 17, before the bench reserved its order, the three organisations that were actively opposing decriminalisation in the court were all Christian groups. On July 12, Advocate Manoj George represented the Apostolic Alliance of Churches and the Utkal Christian Council in the Supreme Court. Advocate K Radhakrishnan had also turned up to represent Trust God Ministries. The judges, who had earlier scheduled forty five minutes for both their arguments, heard the respondents for two hours.

Terms such as “order of nature”, “unnatural offences”, and “carnal intercourse” found representations in Advocate George’s initial arguments

Terms such as “order of nature”, “unnatural offences”, and “carnal intercourse” found representations in Advocate George’s initial arguments.

“My lordships may say there is nothing against the order of nature…,” he said. In response to the statement, Justice Nariman asked him, “According to you, what then is ‘order of nature’? ‘Order of nature’ has to mean something. Or else it has to be struck down if it is vague.” Adv. George had meticulously prepared a tabular column of 30-50 types of sexual orientations. He handed the same to the judges in order to explain the “order of nature”.

“Your table says being attracted to someone who is attracted to oneself, is a sexual orientation. How can that be a sexual orientation?” asked Justice Chandrachud.

CJI Dipak Misra commented, “For understanding platonic and metaphysical love, you have to read the poetry of John Donne,” […] “Read this if you really want to understand the concept of romanticism. It is like a balloon that goes up and up and does not come down.” Justice Chandrachud also pointed out that some of the sources which the Christian respondents had referred to in their submission to the judges were “obviously hate websites.”

Advocate Radhakrishnan, appearing for Trust God Ministries, decided to rely on the Hindu texts instead of Christian Theology. He cited Manusmriti

Advocate Radhakrishnan, appearing for Trust God Ministries, decided to rely on the Hindu texts instead of Christian Theology. He cited Manusmriti saying, “It is pertinent to note that in ancient India, unnatural offences were punishable” and that the family system which is “the bulwark of Indian social structure right from Rig Vedic age will be in shambles.”

Abuse of Article 25 by religious organisations

In a secular democracy like India’s, arguments of human rights and liberty cannot be premised on religious texts. The same goes for the arguments that cite the openness of ancient India regarding sexuality as the basis for LGBTQ+ rights. In such cases, religious beliefs and ancient traditions become qualifiers for human rights. That is an extremely dangerous path to take

While such arguments from advocates representing religious organisations might seem to be qualifying as arguments for a legal debate, one must stay wary of this false premise. To base an argument about human rights on its “Islamicity” or “Christian-ness” or religious legitimacy of any kind is to walk into the theocratic trap. In a secular democracy like India’s, arguments of human rights and liberty cannot be premised on religious texts. By doing so, and by engaging in this wickedly constructed debate, one agrees to the claim that personal religious sentiments can dictate legal matters and individual rights. Such a stand opens up the way for theology to become the test of legality. The same goes for the arguments that cite the openness of ancient India regarding sexuality as the basis for LGBTQ+ rights. In such cases, religious beliefs and ancient traditions become qualifiers for human rights. That is an extremely dangerous path to take.

The premise of human rights and liberty cannot be somebody else’s right to religion. The premise lies in the fundamental ideas of freedom and liberty as represented in the Preamble and in Articles 14, 15, 19 and 21 of the Constitution

It was in this (wise) spirit that the judges had told both, the Centre through additional solicitor general Tushar Mehta and other petitioners, to not rely on religious books and instead argue on the basis of fundamental rights and the Constitution. While the parties, who have opposed most such reforms like the criminalisation of the Triple Talaq, give Article 25 of the Constitution of India which gives all individuals the right to practice any religion as their primary defence (more bizarrely, the quasi-legal organisations like the All India Muslim Personal Law Board legitimise their existence and government funding through Article 25), the premise of human rights and liberty cannot be somebody else’s right to religion. The premise lies in the fundamental ideas of freedom and liberty as represented in the Preamble and in Articles 14, 15, 19 and 21 of the Constitution — the heavily cited sections of the Constitution in the Supreme Court’s Septeber 6, 2018 judgment.

While sections of the Indian Penal Code such as 295A protect the omnipotent from criticism and the religious from getting their sentiments hurt, the very right to life and liberty of an important section of the human population was subjected to abuse and violence, lest the sentiments of the parties of god get hurt.

Bigotry disguised as religious sentiments has no place in courts of law.

[Editor’s note: This article was originally published in CEPT University’s Newsletter entitled ‘Probe’ in August 2018, and has been modified and expanded upon for The Leaflet.]

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