The law must be wise

No penalty points if you have never heard of a certain Henry Glapthorn. After all, he lived some three and a half centuries ago, and as a dramatist he was no Shakespeare.

But one line in his play Revenge for Honour has deservedly become immortal: “The law is such a Ass.” This view (more accurately, that the law can on occasion be foolish) has been repeated down the years, so one would have thought that contemporary judges, particularly those who are supreme, would be able to rise above a bad law, and correct the rotten to better preserve the larger good. But India’s Supreme Court has chosen regress against progress in its obiter dicta on Article 377 of the Indian Penal Code, which makes homosexuality a crime. This law was imposed by the British in 1861, and remains long after the British have gone.

Hypocrisy is not an English disease; merely a symptom of prevailing attitudes. How they rise and ebb is another story, but these cycles in morality exist. During the 19th century’s Victorian era, the British became particularly insufferable about what was called social vice. One wonders if this was a consequence of a parallel development: the widespread passage of the English elite through private boarding schools for boys, where homosexuality was rampant without necessarily being consensual. But such was the power of this Victorian morality that it controlled British law on homosexuality till the last decade.

The 19th century was also the period when the British empire grew to become great. The new masters extended such social laws to their colonies, and India, the jewel in their crown, could hardly escape the attention of do-gooders. The East India Company, which created the Raj, knew enough about India to limit its interventions into Indian life. Some of its Governors-General did try and subvert the social law for Hindus and Muslims; and the company paid a heavy price, not least being the rebellion of 1857. But once the company lost its moorings in 1857, and India came under the direct rule of the British Crown, London’s moralists set about imposing their version of good and evil on civilisations that were far more subtle. British India adopted this code within three years of Crown rule.

Some recent commentary suggests that this reflected the stern admonishments of religious law in the Abrahamic faiths, Judaism, Christianity and Islam. Hinduism, in contrast, has accepted same-sex love within its belief system. But the Mughals took an equally benign view of homosexuality. How could they not? The founder of the Mughal empire, Babar, has some exquisite descriptions of his love for a young man in his journals. The Mughal attitude, like that of Indians generally, was practical.

Great injustice

The best understanding that I have come across was offered, perhaps inevitably, by the father of psychoanalysis, Sigmund Freud, in a letter written in 1935: homosexuality is not an advantage, but it is not a vice or an illness either, and there is nothing to be ashamed of. It is a great injustice and cruelty, said Freud, to persecute homosexuality as a crime.
The Supreme Court of India has, sadly, lent authority to injustice and thereby weakened its credibility. The Delhi High Court created a historic opportunity to correct an old wrong. Instead of setting a benchmark for the next 150 years, the Supreme Court has restored the dubious logic of the past 150 years. An alibi has been offered, that change is the responsibility of the legislature, but this is only an excuse. The Delhi High Court (which will contribute its share to the next generation of Supreme Court judges) did not think that a decision was beyond its purview.

Freedom is a non-negotiable fundamental right in India. Liberty is meaningless if it is extended only to those who agree with you. The law becomes a guardian of human rights only when it creates space for the other. Some arguments offered in the Supreme Court judgement are specious. It does not matter if there is only one homosexual in India out of a hundred. That one person has rights too, as long as they are not invasive or oppressive. Homosexuality does not curtail a heterosexual’s rights, so why should it be illegal? Nor is it relevant that actual prosecution under IPC has been sparse. Why should even one individual face accusation? There is nothing “western” or “eastern” about such rights. Lord Ayappan of Sabarimala, born of Shiva and Vishnu, did not emerge from the shores of the Atlantic.

Is it too late for course correction? The court consists of human beings, not gods; to err is human. Perhaps a quotation from that great theorist of liberty, Robespierre, might help show the way: “Any law which violates the inalienable rights of man is essentially unjust, and tyrannical; it is not a law at all.”​

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