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Title: India: Section 377 and the Indian Elections Credit: Politics and religion commentator Craig Young Comment Tuesday 29th April 2014 - 8:12am1398715920 Article: 14965 Rights
 
While Indian LGBT organisations are trying to get its national legislature and conservative Supreme Court to remove colonial era anti-gay Section 377 from the Indian Penal Code, the current Indian national elections may not bring benefits, but instead a major setback. After Naz Foundation v Government of NCT of Delhi was released in 2009, the Delhi High Court moved to strike down Section 377. For four years, that situation prevailed, but in December 2013, the Indian Supreme Court reversed that decision and reinstated Section 377. However, while the decision was welcomed by elderly interfaith religious social conservatives and the right-wing Hindu nationalist federal opposition Bharatiya Janata Party, it was opposed by Bollywood celebrities, the Indian Justice Minister, the (HIV prevention) Naz Foundation and several leftist opposition parties. Unfortunately, it seems possible that due to widespread Indian concern at governing Congress Party corruption, the Bharatiya Janata Party (BJP) may win the current Indian national election. What would this mean? To answer this question, we need to take a step back and briefly summarise India's national political situation. Founded in 1885, the Indian National Congress Party has governed India for most of its post-independence history since it won its freedom from the British Empire in 1948. Jawaharlal Nehru became India's first president and introduced secularism, socialist economic policies and a non-aligned foreign policy- although it also developed enmity with neighbouring China and Muslim-dominated Pakistan. Nehru's daughter Indira Gandhi was a controversial, populist and authoritarian figure, whose tenure included an infamous State of Emergency decree in 1975, which divided her party. As a response to regional rivalries with China, India also developed stronger strategic relationships with the Soviet Union. The long Congress Party reign ended in 1977, but the resultant Janata Party coalition only lasted two years in office. In 1979, Indira Gandhi returned to power, but was assassinated in 1984 after ordering a raid on the Amiritsar premises of Sikh militants. As a response to the assassination by Sikh extremists, Hindu nationalists launched anti-Sikh pogroms in several Indian states. Her son Rajiv became Indian Prime Minister in her stead. Like his mother, his tenure in office was controversial, encompassing the Union Carbide chemical factory tragedy in Bhopal, Indian intervention in the Maldive Islands and Sri Lanka and the Bofors combat helicopter arms industry scandal. Congress was defeated in 1988 as a result. Tragically, in a repeat of the death of his mother, Rajiv Gandhi also fell to a (Tamil militant) assassination in 1991. As for the Bharitiya Janata Party, it is India's Hindu nationalist and centre-right party. Formed in 1977 as the Janata Party, it has been able to rely on conservative Hindu nationalist agitation over contested sacred sites in Ahodyha and favours social conservatism, an assertive foreign policy, a protectionist trade policy, and the abrogation of the special constitutional status available to Jammu and Kashmir, northwestern Indian Muslim-majority states which are contested by guerilla movements thought to be covertly supported by Pakistan's military intelligence agencies and al Qaeda, as well as neighbouring Afghanistan's Taliban. Its current prime ministerial candidate, Narendra Modi, is Chief Minister of the Indian state of Gujarat and a controversial figure. In 2002, he unleashed a repressive response to riots in his home state after a violent attack on a Hindu pilgrimage group, although one thousand Gujarati Muslims died in ensuing sectarian violence. Although sectarian violence has died down in India since 2002, he has remained silent about similar, smaller-scale sectarian incidents since then. He presided over intensive economic development and privatisation in Gujarat during his second term and has campaigned vigorously on an assertive foreign policy/ anti-terrorist stance against the federal Indian Congress government. However, critics of his administration have noted little movement for poverty relief, nutritional improvement or greater public health during his decade in office. To his credit, Modi has backed off support for right-wing Hindu nationalist paramilitary groups, although he used to belong to one himself, the Rashtriya Swayamsevak Sangh. Concerns are held about what might happen in the event of escalated Indo-Pakistan border hostilities or increased domestic Indian episodes of sectarian violence if Modi and the BJP were to be triumphant at the ongoing Indian elections. As for LGBT rights, the Indian Telegraph (13.12.2013) reported that: BJP president Rajnath Singh today said his party “unambiguously” endorsed the re-criminalisation of gay sex — the first conclusive statement from the party that makes the legislative option difficult for the UPA. “We will state (at an all-party meeting if it is called) that we support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported,” Rajnath Singh toldThe Telegraphtonight. The BJP has been fighting shy of articulating its position since the Supreme Court ruled on Wednesday that Section 377 did not suffer from any constitutional infirmity.The BJP has now dropped its circumspection, probably on the assessment that the gay community is not electorally significant and the party stands to suffer a dent in its traditional base if it is seen to be supporting “unnatural acts”. The Congress Party is the only party that has so far come out unequivocally against Section 377. It is now up to the UPA to decide if it will float an ordinance and let the next government deal with the issue after six months. BJP sources said Rajnath’s statement was a “carefully considered” view, influenced by political “realities” prevailing on the “ground” and not by “simulated discussions in TV studios”. Apart from some Congress Party social liberals, other opponents of Section 377 are situated within the Communist Party of India (Marxist), the larger of India's two federal communist parties, although there is also some support for decriminalisation from the liberal anti-corruption, pro-union and civil libertarian Aam Aadmi political party, which has surprised many LGBT community supporters by also acknowledging the need for marriage equality.An Indian political party that describes itself ‘for the people’ has promised to legalize homosexuality if they win the upcoming election. The AAP have revealed their manifesto in Mumbai and speak out about their support for LGBTH rights.Opposing the ban on homosexuality, the party said they ‘reaffirm the state should not encroach on the sexual rights of minorities’. But the party goes so much further.When candidate Medha Patkar was asked whether the AAP would support the legalization of same-sex marriage, she said yes.Despite being one of the loudest supporters of scrapping the colonial-era law banning gay sex, the LGBTI community criticized the AAP for not originally including it as one of their main policies.The party was established only 18 months ago but won 28 of the 70 seats in the Delhi Legislative Assembly in 2013. This allowed them to form a minority government with the Indian National Congress Party. However, on April 15, 2014, the Indian Supreme Court made a surprising but welcome decision. On that date, the court ruled that for the purposes of Indian official documentation, the hijra gender minority was henceforth to be recognised as a 'third gender.' Hijra are analogous to western transpeople, but they're not exactly the same. Some are transgender, but others are eunuchs and others are intersexed. In earlier Indian history, they were revered as religious figures and served as ceremonial singers at Hindi weddings. Thus, they were viewed as a 'traditional' gender minority in the context of Indian society, which may be why the Indian Supreme Court made what many western observers might consider a highly progressive decision. Nepal, Pakistan and Bangladesh have all made similar Supreme Court decisions in the recent past. In all of these South Asian societies, hijra have faced searing discrimination; they are denied medical treatment, experience police harassment and employment discrimination. In making its decision, the Indian Supreme Court cited traditional Hindu holy texts such as theMahabharata and the Kama Sutra. They also occupied high positions within the court of India's precolonial Mughal Empire. Whether India has enough resources to enforce the new state of affairs is a moot point. Britain's Guardian notes that this hasn't happened in Pakistan. However, Narenda Modi is known as "India's Putin." If the BJP does win India's ongoing national elections alongside its National Democratic Alliance coalition partners, then Indian LGBT organisations may have to wait until its tenure ends for the final repeal of Section 377. While some BJP figures also support the repeal of Section 377, they are reluctant to criticise its party hierarchy. Recommended: Zoya Hasan: Parties and Party Politics in India: New York: Oxford University Press: 2004. Pradeep Chhibber: Democracy Without Associations: Transformation of the Party System and Social Cleavages in India: Ann Arbor: University of Michigan Press: 1999 Ajay Mehra, D.Khanna and Gert Kueck: Political Parties and Party Politics: New Delhi: SAGE Publications: 2003 Kuldeep Mathur: Public policy and Politics In India: How Institutions Matter: New Delhi: Oxford University Press: 2013 Peter de Souza and Esawaran Sridharan: India's Political Parties: New Delhi: SAGE Publications:2006 Sebastian Swecke: New Cultural Identarian Politics in Developing Countries: The Bharatiya Janata Party: Abingdon: Routledge: 2011. John McGuire and Ian Copland: Hindu Nationalism and Governance: New Delhi: Oxford University Press: 2007. Katherine Adeney and Lawrence Saez: Coalition Politics and Hindu Nationalism: New York: Routledge: 2005 Atul Kohli and Prendra Singh: Routledge Handbook of Indian Politics: New York: Routledge: 2012 "Can Anyone Stop Narendra Modi?" Economist: 05.04.2014: http://www.economist.com/news/leaders/21600106-he-will-probably-become-indias-next-prime-minister-does-not-mean-he-should-be-can-anyone "India party of the people promises to legalise gay sex and same-sex marriage" Gay Star News: 11.04.2014: http://www.gaystarnews.com/article/india-party-people-promises-legalize-gay-sex-marriage110414 "Hijra: India's third gender claims its place in law" Guardian: 15.04.2014: http://www.guardian.co.uk/society/2014/apr/16/india-third-gender-claims-place-in-law Politics and religion commentator Craig Young - 29th April 2014    
 
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