Past few days have recalled to our mind the opening lines of Charles Dickens’ A Tale of Two Cities more than once. “It was the best of times. It was the worst of times.” The good news first.
The Supreme Court read down Section 377 of the Indian Penal Code decriminalising homosexual relations between consenting adults. This was a long awaited moment not only for the discriminated-against LGBTQ community but also for those who believe that fundamental rights have the protection of our Constitution and human rights are universal and inalienable. The comments made by the judges give us hope that all is not lost. As one judge put it bluntly, “Social morality can’t trump constitutional morality.” Nor can it impinge on the fundamental rights of the individual citizen. What has been set aside is a part of an archaic, draconian law passed almost a century-and-a-half ago. This is certainly some cause for celebration, but a cautious one.
The conservative intolerant segments grumbling against the decision aren’t confined to tradition-bound orthodox religious leaders. There are many self-styled historians who have raised a shrill chorus that such ‘unnatural’, sinful and corrupt practices don’t belong to Indian tradition. They have no choice but to grudgingly accept what the highest court has pronounced but they are hardly likely to give up the battle. We must understand that this is not just a question of sexual orientation. Social morality can’t remain un-reconciled with laws of the land. And these laws must change with changing times. What is natural or otherwise is a matter to be decided by scientists observing natural phenomena, not marauding lynch mobs rampaging on the streets.
The citizens’ fundamental rights are not limited to sexual preferences. These include the rights to Freedom of Expression and Privacy. Equally archaic and draconian laws regarding sedition and arrest without warrant continue to remain in force and are regularly abused. Protection to senior government officials against prosecution in cases of corruption makes a mockery of the concept of equality before law. Repreives granted through bails, paroles, furloughs, remissions and pardons are for the privileged few. When it comes to bringing home the accused to face the legal music, the extradition treaties seem to be fluttering in the wind like tattered flags.
What is even more distressing is the way in which electoral compulsions seem to dominate legislation; constitutional amendments are made designed to undo what the judiciary decides in its wisdom. Take for instance anything related to reservations. Today, it is not just the wrath of the SC/ST and OBC that deters our law makers. It’s the myriad aggressive minorities (including some who have never suffered economic deprivation or humiliating social discrimination) on the war path that petrifies them. Look closer and the conflict of vested interest and constitutional obligation becomes glaring.
To make matters worse there is the growing tendency to browbeat the judiciary. Only the vigilantes are the free and fearless. The courts are warned by the bullies. Long-pending decisions are postponed for their likely impact on forthcoming elections. It’s amazing how fast disparate political elements and bitter political rivals unite to derail the rule of law. State legislatures pass unanimous resolutions recommending what they think is the popular will turning a completely blind eye to the concept of separation of powers.
Heinous crimes against children and women continue to be committed with shocking regularity. Atrocities against whom we are advised to no longer refer to as Dalits haven’t ceased either. Most unfortunately, linguistic and regional chauvinism have once again started raising their ugly heads. Not many are willing to listen to the voice of reason. Discourse has been pushed to the margins. It’s the ‘narrative’ that everyone wants to change or shift.
Besieged by grave economic problems, we continue to busy ourselves with trivia. Did RaGa really go on pilgrimage to Kailash-Mansarovar? Will the Indian cricket team avenge its honour? How much will the next Bollywood blockbuster rake in during the first three days? The petrol and diesel prices continue to spiral and the rupee appears to be in free fall. We are reassured that the fundamentals are sound and we needn’t worry. NRC woes, it seems, concern only those whose names are missing. Simmering discontent is no less explosive. It is becoming increasingly difficult to spot the glimmer of ‘best of the times’ amidst the gathering dark clouds of the ‘worst of the times’. Alas, this tale is not of any two distant cities.
Pushpesh Pant
Former professor, Jawaharlal Nehru University
pushpeshpant@gmail.com