Arun Jaitley has for some time been going against his party’s grain and arguing that Section 377 should be scrapped.
The arguments to remove Section 377 from the Indian Penal Code and establish equality before the law for all sexes have been completed. On Friday, the arguments in favour of keeping the 1861-era colonial law will be heard. The Supreme Court bench has allotted five minutes for every petitioner who supports the clause, which comes to a total of 1.5 hours.
It seems all over bar the shouting. The Centre has already indicated through its additional solicitor-general Tushar Mehta that it will not contest a possible Supreme Court decision to decriminalise gay consensual sex.
So how did the government get here? Only five years ago, in 2013, BJP leader, and now home minister Rajnath Singh, said that the party would not allow homosexuality to be decriminalised. So what happened last week that persuaded the BJP to recognise changing social mores in India and soften its own hardline position?
The answer is Arun Jaitley. The minister-without-portfolio has for some time been going against his party’s grain and arguing that Section 377 should be scrapped, and that it doesn’t behove a government to look inside a citizen’s bedroom.
In the last few days, even in his semi-medical isolation, Jaitley is believed to have pushed for a debate across the senior BJP leadership.
According to a source, “The discussion went all the way to the PMO, to the Prime Minister himself.”
It was pointed out that none other than senior RSS leader Dattatreya Hosabale had said at the India Today Conclave in March 2016 that gay consensual sex should not be criminalised.
The Prime Minister may have realised that the international community was watching. Several countries that Modi has travelled to over the last four years – and several leaders that he will meet in the upcoming BRICS and G-20 summits – believe that gay consensual sex is normal.
India was becoming an outlier. It could not uphold principles that belonged to the dark ages. Even Britain, which had introduced this law in 1861 (in pursuit of its own 1533 Buggery Act), had long moved on.
Moreover, people’s voices had to be considered. If the BJP wanted to go into the elections as a party which responds to the needs of the people, there was no better way of demonstrating this.
Best of all, there was the opportunity to be one up on the Congress. Rahul Gandhi and his ilk may shout against Section 377 as much as they like today, but why didn’t the UPA opt for an amendment to do away with the archaic law after the review petition was shot down?
True, Hosabale had also said that scrapping Section 377 should not lead to gay marriage, and the institution of heterosexual marriage must remain sacrosanct. The RSS still held on to its belief that same-sex love was a foreign import and would harm traditional Indian values.
So over the last few days, as the senior BJP leadership discussed the matter, sources said, it was clear the “BJP had evolved”.
ASG Tushar Mehta’s instructions to follow a middle path are interesting. He told the Supreme Court that he would speak on the limited mandate of the matter at hand. This shows that while the government is in favour of going along with the Supreme Court on decriminalising gay consensual sex, it does not believe that the matter should be pursued any further, certainly not towards marriage or inheritance issues.
Mehta’s comments certainly reflect the party’s thinking and, indeed, that of the Prime Minister.
But the genie may already be out of the bottle. If the Supreme Court bench not only reads up the petition, but also takes a judgement call on Articles 14, 15, 19 and 21 guaranteed to every citizen – which are, the right to equality before the law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, the freedom of speech and expression, and the right to life and liberty – then Section 377 will not only be deleted from the Constitution, but all other rights will also be given to the LGBTQ community.
If the Supreme Court takes this radical step, the BJP will accept it. To its core, the right-wing voter, it will argue that it has no option; after all, how can it go against the highest court of the land?
That is why the PM and his party’s position on taking the middle path on Section 377 this week is a smart one. Not speaking up forcefully might seem like an abdication of responsibility. It is, instead, a guaranteed win-win political move.
Modi can pat himself on the back for this one.