Rather than talking about Khajuraho and Shikhandi, the argument should be about a Constitution that promised rights to all, says Mihir S Sharma
In many ways, the ecstatic response to the Delhi high court's decriminalisation of homosexuality in 2009 was a landmark moment for Indian public culture. For the first time, we understood how increasingly acceptable the idea was to many Indians of homosexuals, transgendered and inter-gendered people living freely amongst us.
From that point of view - and that point of view alone - the near-universal dismay following the Supreme Court's reversal of the high court's order only strengthens the sense that, for the mainstreaming of LGBT (lesbian, gay, bisexual and transgender) dignity in metropolitan Indian culture, a turning point has already passed.
Still, the views of the plaintiffs in the case -- a motley group of Hindu, Muslim and Christian organisations -- reveal the degree to which religious extremists are willing to fight a rearguard action against LGBT rights. The yoga guru Ramdev, for example, probably one of our most visible religious leaders, managed to cover himself in glory in a post-judgment press conference where he insisted first that he could "cure" homosexuality - like AIDS and cancer, which are also susceptible to his brand of yoga, apparently - and then said piously that he hoped none of the assembled reporters "would turn into homosexuals". He topped it all off by saying that LGBT people had never contributed to "science and economics". Fascinating, given that Francis Bacon practically invented the scientific method. And Leonardo da Vinci invented everything else. And then there's Keynes -- but perhaps Ramdev is a follower of the Austrian school of economics, and doesn't think Keynesianism amounts to much.
One way in which this religious obscurantism, always such a fun feature of our public culture, is being fought today is through the repeated assertion that homosexuality always existed in India, and contempt and persecution of it were imported in the colonial period. This is true to an extent, but not completely. More to the point, it's a dangerous argument to make. Yes, the proto-Victorian morality underlying Macaulay's penal code was a product of its time and place. (Macaulay, in fact, kept the sections on "unnatural acts" as vague as possible, saying he was "unwilling to insert ... anything that could give rise to public discussion on this revolting subject".) It's worth noting that the IPC was more liberal than the laws in England at the time Macaulay was drafting his code; in England, the sentence for sodomy was still death. Nor is it very logical for us to both condemn the criminalisation of homosexuality as alien to Indian culture and attack the Supreme Court for tossing out the high court's reliance on foreign, gay-friendly judgments to come to its own.
But the reason it's dangerous to use our supposedly tolerant past to attack the "Indian culture is threatened" bigots is that it simply doesn't work. First, we may have been more tolerant in many ways, but, as the mythologist Devdutt Pattanaik said on Twitter, "it is dangerous to seek scriptural approval of homosexuality. Many of our scriptures are anti-woman, anti-Dalit, and anti-homosexual". In a culture as rich and weighed down by history as ours, you can search myth and shastra for pretty much any precedent you like. "Wisdom literature (shruti)," said Dr Pattanaik, "celebrates love and inclusion. Rule-based traditions (smriti) prefer power and exclusion." Nor is Indian culture, or Hinduism, unique in this diversity. Even Christian churches' historical bias against homosexuality was not absolute or uniform; in the desert of Sinai, there are early medieval icons of two male saints being married, with Jesus acting as best man. Religious sanction is never a useful argument to deploy in these battles for the heart and mind of a great culture, because religions tend to say a lot of different and contradictory things over the course of their long lives.
That's one reason it's dangerous to make the "glorious tolerant past" argument. Here's another: those who have reinvented Hinduism in the past 150 years aren't really interested in our past except inasmuch as it serves their own muscular agenda. Frankly, the ancestors of today's Brahmins may or may not have been beef eaters, but historians saying they were - whatever the strength of their arguments - aren't exactly going to be given a civilised hearing. We can bang on about our tolerant cultural heritage all we like, without making the slightest difference to those who have invented their preferred history anyway.
In truth, there's only one argument worth making about LGBT rights and India: that the morals and judgments of the past are irrelevant. If the head of the Roman Catholic Church takes a stance tolerant of gay people, as Pope Francis did last week, it's because he's been forced to do so by the near-complete victory of humanism and the Enlightenment in the West - not because he saw that icon of Jesus as best man at a gay wedding. Rather than talking about Khajuraho and Shikhandi, say this: our founders wrote a Constitution that promised rights to all. We should live up to it. Each generation should widen the borders of freedom and dignity as much as it can. As my friend Gautam Bhan said recently: "In the long course of human history, dignity only moves forward."