Maulana Khalid Rashid Firangi Mahli, a member of the All India Muslim Personal Law Board, feels that there is no “need” to decriminalise an “unnatural act”. Father Dominic Emmanuel, Director of the Delhi Archdiocese of the Roman Catholic Church, is not against decriminalising homosexuality, but reminds us that his church is opposed to granting legal rights to gay couples. In the debate on possible follow-up legislation, the secular fabric of the Indian polity is once again being challenged by the codified practices of organised religion.

The facts are that India adopted secularism in keeping with the Nehruvian vision of an inclusive as well as impartial state, one which would neither favour nor discriminate against any social group on the basis of religion. George Jacob Holyoake, the British writer who coined the term, explained it “maintains that there is light and guidance in secular truth.”

The drafters of the Constitution desired those secular truths to be the guiding light of the liberal democracy that India was to become. This was easier said than done: the framing of a common civil code constantly conflicted with diverse religious personal laws. Of note as 377 is discussed is that there are several historical precedents for concerted endeavours to empower marginalised social groups having been opposed by religious groups — usually because of redundant institutionalised practices or deep-entrenched prejudices. The earliest instance of this was the vehement opposition to the passage of the Hindu Code Bill — introduced in the Constituent Assembly in 1948 — which proposed, among other things, the granting of the rights to seek divorce to a Hindu woman as well as the abolition of the rules of caste and sub-caste in solemnising a marriage. The opposition to the bill came not only from those self-appointed custodians of morality that considered interference with the dharmashastras sacrilegious, but from some well-educated members of the assembly itself — including its president, Rajendra Prasad, who viewed the bill as an imposition on the Hindu community. Faced with this, Nehru showed courage and imagination; he resurrected the bill 1952 divided into separate parts dealing with marriage, divorce and guardianship in 1952. When passed, they empowered Hindu women, allowing them to free themselves from the age-old shackles of domination.

When humanitarian causes have been sacrificed at the altar of dogma by the state it has only reinforced public perception about the sectarian nature of the government in power. The Rajiv Gandhi government’s setting aside of a Supreme Court judgment which had upheld the right of Shah Bano — a divorced 62-year-old woman with five children — to receive alimony from her husband was perceived as showing how fundamentalist organisations could influence the government stance on legal issues. It only led to widespread accusations of “appeasement”, empowering the opposition including the BJP. And rights activists criticised the provisions of the Muslim Women (Protection of Rights on Divorce) Act 1986 for restricting husbands’ responsibility for maintenance payments. They pointed out that considering the radical religious point of view in this case excluded Muslim women from the benefits of civil law.

The use of archaic religious laws has often been a potent instrument of perpetuating set-ups that subjugate sexual minorities. The National Commission for Women had to step in recently to help in bringing to book the 69-year-old rapist who had violated his 28-year-old daughter-in-law in June 2006. A local Muslim panchayat then instructed the woman to accept her father-in-law as her husband and declared her marriage null and void — a finding upheld by the Darul Uloom at Deoband.

The state once again faces the mammoth task of reconciling its liberal-democratic commitment to minority aspirations with its responsibility to patiently hear out religious perspectives on the issue. But historical precedents clearly suggest that giving in to the latter has only raised further political problems, thwarted progressive social change, and further repressed marginalised social groups. Moily and company will hopefully bear this is in mind while “examining” the high court judgement and charting out a future plan of action.

sagnik.dutta@expressindia.com