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Indian Supreme Court

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Law and the Culture War

There was bound to be a backlash to the ‘Me Too’ movement, and the struggle over the nomination of Judge Brett Kavanaugh to the US Supreme Court is clearly part of that culture war. ‘Me Too’ is going to lose this battle unless there is some new and horrendous revelation of Kavanaugh’s past behaviour in the next few days, and lots of people in the US and elsewhere see this as evidence that the war itself is being lost. That is not necessarily so even in the United States. It is certainly not so in the wider world, where the supreme court of the world’s biggest democracy, India, has just followed up its landmark decision in early September to decriminalise homosexuality with another judgement decriminalising adultery. Many people deplore adultery, but as Pierre Elliott Trudeau famously said half a century ago, “There’s no place for the state in the bedrooms of the nation….What’s done in private between adults doesn’t concern the Criminal Code.” But adultery was still a criminal offence in India until last week – and a very peculiar offence, because only men could be convicted of it. The law dated from the time when Britain ruled India, and reflected the Victorian belief that a married woman was her husband’s property. For another man to have sex with a man’s wife was therefore a violation of the husband’s property rights, and the violator should be punished by the law – whereas the woman was presumed to be unable to make her own decisions, and was therefore not legally culpable. The (male) adulterer was liable to a prison sentence of up to five years. The law was rarely enforced, but it was frequently invoked by husbands in divorce proceedings to smear the reputations of their soon-to-be-ex-wives. The case was brought before the courts by Joseph Shine, an Italy-based Indian businessman who was distressed by the suicide of a close friend who had fallen victim to the anti-adultery law. Shine just wanted the law to be enforced equally against men and women, but the Supreme Court went a good deal farther than that. The Indian court’s judgement went straight to the heart of the matter. “It is time to say that the husband is not the master,” said Chief Justice Dipak Misra. “Legal subordination of one sex over another is wrong in itself.” Adultery, he ruled, will no longer be a criminal offence. On Friday the same court declared that Indian temples have no right to exclude women “of menstruating age” on the specious grounds that they are unclean. “Religion cannot be the cover to deny women the right to worship. To treat women as children of a lesser God is to blink at constitutional morality,” said Chief Justice Misra. Now, it’s true that Misra was in a rush to get these cases settled before he reached 65, the legally mandated retirement age for judges. (He turned 65 on Tuesday.) It’s also true that there are those on the Supreme Court who do not agree with his liberalisation of India’s laws on sexual matters and gender equality. But there seems to be popular support among the educated public for his reforms, and the cases continue. Next up is the existing exception in India’s law on sexual assault for cases in which the perpetrator and the victim are married. The lawyer leading the case to make marital rape illegal put it clearly: a woman’s “sexual autonomy is not forfeited at the marital door.” There are places where these legal principles are still not accepted: many Muslim countries reject them (including Indonesia, where they are drafting laws to prohibit all sex outside the institution of marriage), and many countries in Africa. But nevertheless the example is spreading. In Kenya, the supreme court has agreed to hear arguments for legalising gay sex later this month on the grounds that the existing law banning homosexual acts in Kenya is identical to the one struck down by the Indian Supreme Court. Adultery has already been decriminalised in more than 60 countries, and abortion is now legal in most. There really is a culture war, raging simultaneously across all the continents. It is rarely fought with as much tribal ferocity as it is in the United States, but important issues are at stake everywhere. If Judge Kavanaugh joins the US Supreme Court, for example, abortion could once again become illegal in the United States. But in cultural matters progress often takes the form of two steps forward, one step back. It may feel more like one step forward, two steps back in the United States at the moment, but that is just a snapshot of a moment in time. Trudeau once told me that his reason for entering politics was “to civilise the law”, and in most parts of the world that project is still making progress. It is very unlikely that the United States will turn out to be a permanent defector from that enterprise either. _______________________________________ To shorten to 700 words, omit paragraphs 5, 6 and 10. (“The (male)…that”; and “Next…door”)

Gay Rights and the Global Culture

Is there really such a thing as a global culture? Consider gay rights.

Last Thursday the Indian Supreme Court decriminalised homosexuality. Last April a court in Trinidad and Tobago found colonial-era laws banning gay sex to be unconstitutional. And late last year, Australia became the umpteenth state to legalise same-sex marriage. There is a slow-motion avalanche going on.

Yes, 35 of the 63 Commonwealth countries, mostly in Africa or the West Indies, still make homosexual acts a criminal offence. Yes, some countries, including Nigeria and Uganda, have even tightened their anti-gay laws. And in the ultra-conservative Malaysian state of Terengganu last week, two women were lashed six times with a cane and fined $800 for ‘trying to have sex’ (whatever that means) in a car.

Change was never achieved easily, and it still isn’t. Section 377, the 19th-century law that made a same-sex relationship in India an “unnatural offence” punishable by a 10-year jail term, was struck down by the Delhi High Court in 2009. The Indian gay community, as big as anywhere else but more oppressed than most, celebrated, and many people came out of the closet, especially in the big cities.

Some of them paid a high price when the Indian Supreme Court then reinstated Section 377 in 2013, saying that only parliament could change the law. This year the very same court reviewed that decision and reversed it. Why did it do that? After all, the Indian Constitution hadn’t changed in the meantime.

Nobody on the Indian Supreme Court will admit this in public, but the real reason for the about-face was that the consensus global definition of human rights has expanded far enough to make its previous ruling untenable. No grown-up country that is fully engaged with the rest of the world wants to be embarrassed by laws that make it look medieval.

Conservative religious and political leaders in developing countries often condemn the repeal of anti-gay laws as an unwelcome import from the West, somehow contrary to the local culture, but they should (and often do) know better. It was Western countries that imposed anti-gay laws on their empires in the first place, in the 19th century, and it’s local activists, not foreign gays, that are struggling to get rid of them.

This is not to say that the situation of gays outside the West was good before the rise of the European empires. On the contrary, very few cultures, Western or otherwise, have ever accorded gays the same rights and respect as the rest of the population. The activists are breaking new ground in the West as much as they are in the developing world.

What we are really seeing here is the halting but probably unstoppable emergence of a global standard on human rights. It has been underway for at least 250 years and it may have another century to go, but gay rights belongs to the same category of social innovation as the end of slavery, the rise of feminism, and the abolition of the death penalty.

None of these changes are happening because they correspond to some natural law. They are being consciously created by people who want there to be more justice and more equity in the world. The activists are a small minority, but they are making progress because their ideas resonate with a much larger group in every society who share their ideals if not their energy.

This may sound overly optimistic at a time when there is a racist president in the White House, a cynical manipulator in the Kremlin, and a saner version of Chairman Mao running China. All of them trade in gutter nationalism, and none of them gives a damn about justice or equity. Not only that, but they are all quite popular at home.

Never mind. Progress is usually two steps forward, one step back, and we may be in for a slow decade in terms of progress on human rights, or even some back-sliding. But do you really think that people as shallow as Donald Trump and Vladimir Putin can turn the clock all the way back? (Xi Jinping may be a longer-term problem, but not for gays. There are no anti-gay laws in China.)

This is long-wave change. The rise of democracy was part of it. Decolonisation was part of it. The struggle against racism is part of it. The goal is equality of rights, and this decade is turning out to be the decade when the gays get it.

Or rather, it’s the decade when they get in legal terms, although they will have to wait a while longer before sexual orientation becomes a completely neutral attribute like hair colour. Basically, they have to wait until the older generation dies off. Most of the urban young get it already.

Meanwhile, you might like to note that with the change in India, five-sixths of the world’s people now live in countries where homosexuality is not a crime.
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To shorten to 725 words, omit paragraphs 11 and 12. (“This…China”)