03/02/2016 12:17 PM IST | Updated 06/09/2018 2:09 PM IST

The BJP And Its Section 377 Problem

All too often, India's ruling party has chosen silence when it could speak for millions

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SUPREME COURT, NEW DELHI, INDIA - 2016/02/02: Members of the LGBT community Show Victory Sign outside Indias Supreme Court, Indias top court agreed February 2 to review a law outlawing gay sex, sparking hope among campaigners that the legislation dating back to the 19th century will eventually be overturned in the worlds biggest democracy in new Delhi. (Photo by Wasim Sarvar/Pacific Press/LightRocket via Getty Images)

EDITOR'S NOTE: On 6 September 2018, the Supreme Court decriminalised Section 377 in a historic unanimous verdict. Even as reactions poured in from across the political spectrum, the BJP did not break its silence. At the time of republishing this piece, the party's official handle was tweeting about the Swachh Bharat Andolan. The article has been republished to offer our readers a perspective on the party's position on the matter.

Now that the Supreme Court has made up its mind about reopening the issue of Section 377, will the government have to do the same? In the wake of the court decision to have a five-judge Bench examine Section 377 afresh, television anchor Rajdeep Sardesai tweeted "No BJP leader was available to speak on SC on Section 377 today; many other party netas too reluctant to take a stand. Says it all, no?"

It does. The BJP seems to have entered a Don't Ask Don't Tell closet in the wake of the court decision. But as the issue heads to a five-judge bench it too will need to come out of the closet. A curative petition going before a five-judge bench, the first time such a petition has gone before a constitution bench, shows that the court takes the issue very seriously. That's going to make the government's silence sound very loud indeed.

Also Read: Why The SC Must Reconsider Its Decision On 377

Also Read: Supreme Court Can't Pretend Homosexuals Don't Exist Anymore

The problem with the BJP is that Section 377 falls dead bang in the middle of the conflict between the party's aspiration and reality. The Narendra Modi-led government aspires to present an image of India as a modern liberal democracy to the rest of the world, a beacon of hope in the region, a bastion against illiberal forces.

That is why the party has reacted strongly and indignantly to what it sees as a defamation campaign by the award-wapsi intellectuals that posits that intolerance is on the rise in Acchey Din India. Section 377 flies in the face of the very idea of such a modern liberal democracy. And if a government chooses to actively fight to keep it in place, as opposed to passively let it remain on the books, it risks a severe blow to its international image.

When the UN voted on whether it should treat employees with same-sex spouses on par with employees with opposite-sex spouses, India found itself on the same side of the issue as Saudi Arabia, Pakistan, Iran, Syria, Russia and China. That must have stung. India could have chosen to abstain but it did not.

"The problem with the BJP is that Section 377 falls dead bang in the middle of the conflict between the party's aspiration and the party's reality."

But the ground reality is the BJP's foot-soldiers, including much of its Internet troll-brigade thinks homosexuality has no place in its vision of sanskari Bharat. Dr. Subramanian Swamy, for example, goes after homosexuality with as much vigour as he goes after Sonia Gandhi and has said "homos" are genetically handicapped.

In short the party has an LGBT problem. It's damned if it does and damned if it does not. Rajnath Singh is on the record as saying his party "unambiguously" endorses Section 377 because "homosexuality is a criminal act and cannot be supported". Arun Jaitley has said: "When millions of people the world over are having alternative sexual preferences, it is too late in the day to propound the view that they should be jailed."

One is the Home Minister, one is the Finance Minister. Which one should we take more seriously? This seems like a dharam-sankat at the heart of power. Until this court decision either could hide behind the "personal opinion" figleaf. But now the personal will rapidly become the political and the party will be under more pressure to take a stand one way or the other. When a furore erupted over the Supreme Court recriminalizing Section 377, Modi had chosen to say absolutely nothing about it. That silence too will become harder to keep up.

If the BJP had spine it could seize the bull by the horns and see this as an opportunity. Ram Madhav of the RSS already made waves by saying while he did not want to glorify homosexuality, it was debatable whether it should be considered criminal.

Commentator Rupa Subramanya has tweeted "Of all people, Hindus shouldn't oppose scrapping Section 377." She says it's an issue that which would actually be "in line with our civilizational values" that Hindu nationalists in power could take ownership of if they had the vision to do that. An editorial in Mint points out "The religious texts of Hinduism, contrary to the claims of some reactionary elements, are not just open to homosexuality but even treat gender as a fluid concept."

The Muslim and Christian groups supporting Section 377 in court are perfectly in synch with their religious beliefs. Hindu groups do not have to follow suit. This could be an opportunity for the government to hammer home the point that Section 377 is in fact a leftover from the Victorian legacy of the British Raj.

One is the Home Minister, one is the Finance Minister. Which one should we take more seriously? This seems like a dharam-sankat at the heart of power.

The BJP is not unique in twisting in the wind when it comes to Section 377. When Shashi Tharoor tried to introduce a private member's bill in parliament, most of his colleagues across the aisles either ran away from it or shouted it down. It went down 71-24 with MPs shouting "NO NO". When the Supreme Court recriminalized gay sex Rahul Gandhi said who one has sex with is a matter of personal freedom. But the Congress-led UPA has had its own U-turns. In 2008 the Home Ministry had endorsed Additional Solicitor General P P Malhotra when he said "homosexuality is a social vice" and decriminalizing it could cause "a breach of peace."

The Ministry of Health supported decriminalization and ultimately Veerappa Moily, the Law Minister agreed that Section 377 could be outdated. It was a long and winding road but eventually the party arrived somewhere closer to consensus and the top leadership spoke up.

The BJP is now the party in power and it needs to traverse this long and winding road itself. Some members clearly hope that the court will do its job and make it unnecessary for the party to stick its neck out on the issue. When Tharoor introduced his bill, or tried to do so, the BJP's Nishikant Dubey said he was opposing the bill not because of "any religion, Vedas or Puranas but because of the Supreme Court judgement." That shows the BJP was happy to hide behind the court. Now the court has decided to step up to the issue, the BJP will have to decide what to do.

It could take the easy way out and say the matter is sub judice and it will abide by the decision of the highest court. That would be a lost opportunity for the BJP to project itself as a modern party with a difference but perhaps it would not be a bad thing for those trying to fight Section 377 to keep politics out of it.

Sometimes discretion is the better part of valour.

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