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Who let the bullies out? Sec 377 ruling gives politicians a new target

BJP leader Yashwant Sinha has come up with what he thinks is the perfect riposte to the American treatment of Devyani Khobragade.
They strip-searched and handcuffed our diplomat. We’ll go after their gays.

The BJP veteran, who once called Manmohan Singh a “shikhandi”, suggested that armed with the Supreme Court Section 377 verdict, India could now arrest same-sex partners of American diplomats. Media had reported that India had issued visas to several diplomats’ “companions”.

“’Companions’ means they are of the same sex. Now after the Supreme Court ruling, it is completely illegal in our country. Just as paying less wages was illegal in the US. So why doesn’t the government of India go ahead and arrest all of them?” asks Sinha.

Let us leave aside the logical holes in his argument. Sinha casually equates a minimum wage law with an anachronistic “unnatural sex” law. He also glosses over the fact that Section 377 criminalizes sexual acts not gay persons. The Telegraph writes “Sinha did not explain how he expects the police to get such evidence against the American diplomats and their ‘companions’.”

Yashwant Sinha. AFP.

Yashwant Sinha. AFP.

The point is now Sinha and his ilk sense a new soft target. With one rhetorical flourish he has demonstrated the real danger of having a Section 377 on the books. It’s always been about its bark rather than its bite.

In their ruling, one of the reasons the Supreme Court justices set aside the Delhi High court verdict was the paucity of actual Section 377 cases. They wrote the “High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 and this cannot be made sound basis for declaring that section ultra vires.”

In a scathing takedown of that reasoning, Madhav Khosla writes that the Court basically suggested “that rights depend on the numerical strength of the persons or group claiming the right.” He draws a parallel. “Under the reasoning embraced, a law declaring that the government is allowed to choose 200 people a year whose phone it can tap for any reason whatsoever is valid, because 200 is ‘a miniscule fraction of the country’s population’.”

What the judges ignored was the fact that these 200 odd prosecutions do not begin to capture the immense power of Section 377 as a tool for sexual blackmail and extortion. Those who wield that power can take the court’s ruling as a green signal though the Supreme Court might have intended no such effect. About a month ago, even before the Supreme Court verdict was issued, police in Karnataka rounded up 13 men in what has been the largest arrest under Section 377.

In an article in the book Law Like Love, Alok Gupta recounts case after case of gay men and transgenders being sexually blackmailed. These cases did not make it into that case history of 200 but certainly ruined many lives nonetheless.

False arrests are staged by either the policemen involved in blackmail or by those impersonating as policemen. If the men have no money on them they are escorted to the nearest ATM and their savings are emptied. Gay men have lost between twenty thousand rupees to a couple of lakhs in this fashion. Most of these gay men are terrified of filing any police complaints for fear that s.377 might in some way become applicable to them.

Now politicians are getting into the act. Yashwant Sinha decides gay American diplomats are fair game. After Amartya Sen condemns the ruling, Dr. Subramanian Swamy tweets “Sen’s pain is understandable. His friends who are homos, lesbians and free sex booters are fearful: Will they be arrested on a complaint?” In a tweet that appears to have been deleted, Dr. Swamy also suggests “Next govt should catch gays and confine them in Ramdevji’s ashram till cured.”

Gay issues have never been part of the cultural wars in India they way they have been in the United States. Over there, Patrick Buchanan famously got a prime time slot in the Republican National Convention in 1992 to rail against what he said the Democrats represented - “radical feminism”, “abortion on demand” and the “homosexual rights movement”. “It is not the kind of change we can tolerate in a nation that we still call God’s country,” thundered Buchanan as he girded the Republican Party’s loins for a “cultural war” for the soul of America. Since then gays and lesbians have been blamed for everything from Hurricane Katrina to the end of traditional marriage as an institution. Rightwing social conservatives have used “gay panic” as a way to drive their supporters to the polls.

India has been spared that kind of ugly divisive rhetoric at least on this issue. We were more of a homo-ignorant country than a virulently homophobic one. Now that is changing. Section 377 once languished as a sort of musty leftover from another century. Now in the eyes of some it has been dusted and polished and resuscitated by the highest court of the country. Everyone from the beat cop to the grandstanding politician is far more aware of it than they had been five years ago.

The real power of Section 377 is, and has always been, as the bully’s truncheon. And emboldened by the SC verdict, the bullies are coming out of the closet.