The 2009 Delhi High Court judgment reading down Section 377 on gay sex based its judgment partly on the large numbers of Indians who are adversely affected by the law’s stipulation. The High Court also insisted that what consenting adults do in private cannot be subjected to the state’s intervention. So they ruled that “Section 377 of the IPC, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21 [Right to Protection of Life and Personal Liberty], 14 [Right to Equality before Law] and 15 [Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth] of the Constitution.”

Four years later, the Supreme Court in its wisdom indulged in what Sigmund Freud long ago described as the phenomenon of “overdetermination” – when mutually contradictory causes are cited to explain an event. In order to defend the continuation of Section 377, the Court stated both that people who have sex against the order of nature constitute a substantial and differentiable class in India, and that they are only a “minuscule fraction of the country’s population”. In going against the Delhi High Court judgment, the Supreme Court insisted that:
“While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a minuscule 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 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.”

The question at the heart of these debates is: What counts as a minority in India? How numerous do you need to be before the Courts will provide you with protection?

The gay prince

Then we had about a year-and-a-half of official silence. Until this past week when the question of who or what or how many is a minority raised its head again. This time, the case was from Gujarat, that site of other recent upheavals about who should be counted as a minority and given reservations. But unlike Hardik Patel’s agitation, which featured guns and violence, this one centred on a film.

In 2013 – coincidentally, the year of the Supreme Court’s ruling on 377 – the Gujarat Commissioner of Entertainment Tax refused to give a tax exemption certificate to Meghdhanushya, KR Devmani’s film about the life of Manvendrasingh Gohil, the “gay prince” of Rajpipla in Gujarat. This despite the fact that the state has almost routinely extended this privilege to all colour films made in Gujarati. The Commissioner first asked the filmmaker to remove words such as “gay” and “homosexual” from the film. When Devmani refused, the Commissioner turned down the second application saying that the film’s theme was unacceptable “not only in Gujarat but for the entire country and the world over.” In February 2014, the Gujarat High Court overruled the Commissioner, saying that “his role was not that of the Censor Board”. The Gujarat government then took the case to the bastion of the protection of civil rights, the Supreme Court of India.

Last week, a two-person bench consisting of Justice Anil R Dave and Justice Adarsh K Goel upheld their interim stay order on the Gujarat High Court’s verdict and relegated the actual hearing of the case until 2018. In doing so, it agreed with the Commissioner of Entertainment Tax that the Gujarat government did not need to provide an exemption certificate to films that depict “evil customs, blind faith, sati, dowry and such social evils, and [are] against national unity”. Justifying their decision in the face of the lawyer’s insistence that the case be determined, not on the basis of personal feelings, but on law alone, the judges said: “We agree there can be different views. We know your personal views. But there are people in whose views [homosexuality] may be akin to [a] social evil.”

Let them be counted 

Who are these people? And how many are they? Should this mythical tribe be allowed to form the basis on which sexual minorities in this country are discriminated against?

There are two arguments of import here:

First, the Supreme Court sometimes allows a minority to be utterly invisible, and at others it swells a minority in order to make it seem more clamorous than it is.
In the wake of the Supreme Court verdict in 2013, several people pointed out that even if the court’s assessment of the numbers of LGBT people in India was correct, then that should only have increased its determination to protect them and declare their right to personal liberty inviolable.

Second, it has allowed the personal opinions of groups and people to triumph over the rule of law that guarantees rights of freedom and equality to all citizens.
Neither supporting nor denouncing homosexuality at a personal level should be of any consequence in protecting every citizen of India. This is what the Gujarat High Court judgment pointed to when it noted that, “A controversial subject is different from a controversial film and the film being controversial and a film being objectionable are yet two different aspects.” 

What seems to be happening repeatedly in the more exalted corridors of Indian law is a personal bias that puts up a façade of pitting one alleged minority against another. In this numbers game, the boundary between majority and minority is fungible. The only thing of importance in the Supreme Court verdicts is that phobia be converted from wherever it might be to become the majority report.

Madhavi Menon is Professor of English at Ashoka University.