Shashi Tharoor, a two-time MP from Thiruvanathapuram, former Union Minister of State for External Affairs, former UN undersecretary-general and renowned author speaks to Firstpost about Section 377, its implications and the battle ahead.
Tharoor has consistently championed the cause to repeal Section 377 and to amend the law such that consensual sex between consenting adults, irrespective of their gender or sexuality is legal. He is hopeful about the curative petition heard by the Supreme Court on Tuesday, since this will be the last legal remedy for this 15-year-old battle to repeal the draconian law in the Indian Penal Code. The curative petition, Tharoor says is about the Supreme Court addressing the “competence” of an earlier order/judgment. In the past, Tharoor notes that the judiciary has taken over the responsibilities of the legislature, for example, take property rights, freedom of speech and even CNG. “The court has often gone beyond what the legislatures are prepared to do,” he adds. If the curative petition goes in favour of the “spirit” of the Delhi High Court ruling, then one of the most challenging efforts would be to implement it. “It is easier to stand up for the status quo that exists in the books than to actually create a new reality,” he says.
Aware that a positive response to a curative petition is a rarity, Tharoor, who has vehemently supported LGBTQI rights has his next steps prepared. The member of Parliament is hoping to “raise consciousness” through his public petition on change.org, which he points out has gathered over “40,000-plus” signatures. “It will be sent to the PMO,” he adds.
What Tharoor is sincerely hoping for is more debate, “How you bring about change is by getting people to think and talk. Even if my bill is defeated in the Parliament, I would at least like it to be defeated after a debate. People (need to) understand the issues at stake rather than being opposed in the very introduction stage,” he says. Tharoor had previously introduced a member’s bill in the Parliament to amend the law to decriminalise consensual sexual conduct between adults. However, it was brutally shot down in Parliament.
“I was basically given half-a-minute to do so (introduce the bill), it was not a substantive debate,” he says. This Firstpost article notes how some MPs had said, “Tharoor ko zyaada zaroorat hai is bill ki (Tharoor needs this bill more)”. In response, Tharoor lets out a guffaw and says, “First of all, you don’t have to be an animal to promote animal rights. In my case, I had the opposite problem with the BJP, they have accused me of being too fond of the ladies. Someone even suggested that I, be made, the Minister for Love Affairs. It is slightly amusing and welcome that they have now taken the opposite track. I don’t know how they expect me to be both one thing and the other thing.”
After a loud opposition ‘voice vote’, a recorded vote was called for — which did not yield positive results for the member’s bill. “It was overwhelming, the number of people voting for it suggested that they had really taken the trouble to come... There is (was) clearly a very deliberate attempt to prevent this bill from being introduced,” says Tharoor, who is determined to take the battle to Parliament. “My attempt to reintroduce the bill will happen after the parliament announces the dates and I intend to do that."
The issue for Tharoor is simple — it is not about sex at all, it is about constitutional freedom.
He believes the opposition stems from a place of bigotry, intolerance and prejuidice — “on the basis of caste, religion, language, appearance, ethnicities, skin colour, accent, you never know what some people can be petty about, in this case it happens to be about people’s gender orientations,” he says. The speech made by Nishikant Dubey, according to Tharoor was an “embarrassment” — speaking about retaining the integrity of the Indian family — “this is in no way connected to what two individuals do in a private time,” he says.
“I very carefully crafted the bill to ensure that nothing in it left a loophole that could be used to justify either forced relations or crimes against minors. It would be repealed only for adults and consenting adults,” adds Tharoor lucidly.
If the curative petition doesn’t yield a positive result, is the Parliament ready bring relief to millions in the country? “That remains to be seen,” he says; the BJP is not unanimous in its opposition to Section 377. “It is very much my view that there would be people in this government who would be prepared to support the bill. I discovered that a number of them were sympathetic,” but added that when opposition numbers grow, individual political courage “fades away.”
As for the future of LGBTQI rights, Tharoor says, “In a democracy, people should be free to be who they are. We should not be judging them, harassing them and giving the police an excuse to arrest them. 578 people have been arrested since the Supreme Court judgement in 2013, and, to my mind it is 578 people too many.”