India Struggles to Let Go of Colonial Enforced Bigotry

In India - as in most of the world before the Christian missionaries accompanying European conquerors inflicted their beliefs on indigenous peoples – did not bar same sex relationships.  Indeed, in some cultures, homosexual individuals – the so-called two spirits to Native Americans – were not only accepted by honored.  The samurai culture of Japan, much like classical Greece saw same sex relationships were highly respected (see here and here).  Then came the Christian missionaries with the hate, bigotry and social poison that were their stock in trade who not only sought to have same sex relationships outlawed but also frequently murdered homosexuals in large numbers.   In India, it was only when the British conquered India and forced the “Indian Penal Code” on that country’s inhabitants that Section 377 of the Indian Penal Code (IPC) made homosexual acts became illegal (similar laws were imposed on British colonies in Africa).  The law was introduced by the British in 1861 and was inspired by Britain’s 1553 Buggery Act that outlawed homosexuality in England. Section 377 was reportedly imposed to protect soldiers and colonial administrators from “corruption.”  As a piece in the Washington Post notes, India is having a difficult time letting go of the British introduced anti-homosexual bigotry and ban on homosexuality and a battle between the nation’s highest court and the Justice ministry continues to unfold.  Here are article highlights:

NEW DELHI — A debate in India over the nomination of a man who would be the first openly gay judge spilled into rare public view after Supreme Court justices published the Indian government’s arguments against his appointment on the grounds that he is gay and allegedly a security threat.

The move laid bare an ongoing dispute between the country’s highest court and the Ministry of Law and Justice, which have been increasingly at loggerheads. In a rare, detailed statement issued Wednesday, the court revealed that the government’s opposition to Saurabh Kirpal stemmed from his long-term relationship with a Swiss man and his openness about his sexual orientation, facts that the government argues make him biased and a threat to national security.

The Supreme Court judges stated that Kirpal’s sexual orientation is not only a matter of pride but his constitutional right. “[He] possesses competence, integrity and intellect. His appointment will add value … and provide inclusion and diversity.”

The government, which is controlled by the Hindu nationalist Bharatiya Janata Party, has not publicly commented on the Supreme Court’s statement, but in the past, senior leaders have made statements against homosexuality.

In India, a group of five senior judges, including the chief justice, selects the candidates for judgeships and refers them to the Justice Ministry for comments. Even if the ministry has objections, the judges can send the candidate’s name back, and the ministry must appoint them.

The ministry, however, has in some cases kept tossing names back, and judges have openly expressed frustration that the government has been holding up some recommendations to scuttle them.

Senior Supreme Court lawyer Menaka Guruswamy, who was one of the lead lawyers in the 2018 case that eventually led to the decriminalization of consensual gay sex, described the rejection of Kirpal as “wrong, unacceptable, and unconstitutional.”

“We expect better from our government,” she said. “LGBT people have always been a part of the social fabric of India.”

The conflict between the two branches of the state is taking place against the backdrop of partial progress for same-sex rights in Indian courtrooms and drawing rooms alike. Since the overturning of the colonial-era law banning gay sex, after a decade-long battle, petitions in court to allow same-sex marriage are expected to be heard by the Supreme Court soon.

Pride parades and Bollywood movies also have contributed to the conversation, and just a week ago, the leader of the Hindu organization that is the ideological parent of the BJP made statements in support of queer people, citing Hindu mythology.

“Yes, India is changing. Of course, it would be stupid for us to say that society has completely embraced homosexuality,” said Sanjoy Ghosh, another Supreme Court lawyer, “but definitely, we are in a much better place than we were even 10 years ago.”

In light of this progress, Ghosh said he finds it even more “shocking” and “alarming” that the government objects to Kirpal’s appointment.