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Asking the Right Question

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Here’s a truly inspiring and moving speech to listen to, even if you don’t know much or don’t care about the issue that caused it – a move in the state of North Carolina to pass a referendum to ban recognition of any kind of relationship other than that of a heterosexual couple.

Fairly obviously, the move has been driven by homophobic fundamentalist Christian zealots and they have taken things to extremes here. The language is so sweeping and total that it has even been protested by some opponents of gay marriage who point out that it will cause problems even for heterosexuals, and that it is too obviously anti-gay, which at least some mainstream anti-gay marriage activists keep saying they are not.

The dismal truth though is that despite these protests, despite a strong campaign against the amendment and despite the law being condemned by almost anyone with brains and influence in North Carolina, it passed. Despite a few pockets like Raleigh, and a somewhat more moderate attitude than the Deep South states, the conservative and evangelical votes passed the amendment.

This is a shame, but it wouldn’t in itself be worth posting if it was just about gay marriage, a subject which, I admit, I find it hard to get really worked up about. Its not that I don’t think it matters, but I do think there are a number of issues that matter for the LGBT community rather more. But that’s not the point of this video.

What this video is about is the importance of asking the right question. In it the Rev. Dr. William J. Barber, who is please note, a clergyman, and also the head of the North Carolina National Association for the Advancement of Colored People, points out powerfully that the question is not whether people should approve of gay marriage, but whether they should approve of hatred and discrimination being written into the constitution of a state that has known too much of it in the past. Whether they should approve of rights being taken away from people, for the first time since the era of slavery.

Listening to this speech reminded me of a parallel moment in the recent Supreme Court hearings in India, or two moments, since the same point was made by Fali Nariman and Shyam Divan. They said that the history of the Supreme Court was of interpreting the Constitution to steadily expand rights and protections, and they pointed to all the many cases and areas from womens rights, Dalit issues, childrens rights and now education.

And against this was mainly just one case – ADM Jabalpur vs Shivkant Shukla, which is notoriously known as the Habeas Corpus case. This 1976 case was heard at the height of the Emergency when the government was trying to get the power to keep people under indefinite detention with no chance of appeal under habeas corpus (produce the body), one of the most fundamental rights in the British system of jurisprudence we have inherited.

The case was heard by the five senior most judges in the SC and there’s no doubt that four of them were affected by the fears and atmosphere of that time since they voted 4-1  to allow indefinite detentions, and limit the power of habeas corpus. The case is the shame of the Supreme Court and at least two of the judges who voted in the majority, Bhagwati and Chandrachud, fairly clearly felt the guilt and spent the rest of their careers trying to make up for it.

The one judge who didn’t vote in the majority, HR Khanna, immediately lost his chance to become chief justice (all the other four did), which he saw quite clearly when he wrote his verdict. But his is the reputation that soared, both then and after – he was given the honour of having his portrait unveiled in Court Room #2 in the SC, and there the Court itself has admitted that his decision was the right one (and it was upheld by the Janata government in the 41st amendment, which put personal liberty beyond the purview of Emergency laws).

But as Mr.Nariman noted during the 377 hearings, the SC itself has never technically overruled the verdict, since it has never put together the bench of five or more judges needed to do that. The case remains as a blot on the SC record, because it involved taking rights away from people, not giving them – and if the Delhi High Court verdict is struck down and 377 upheld, once again rights will be taken away from people, from us.

And if it happens, it will again be because the court has asked the wrong question. Time and again we’ve seen that when we ask people if they approve of homosexuality or if they think homosexuality is natural, they get confused, unsure, quite often say no. But if you ask them if homosexuals should be treated as criminals, which is what the law does, most people would say no.

In this video Rev.Barber says that the question the people of North Carolina should ask themselves is not whether they approve of gay marriage, but if they approve of writing discrimination and hatred into the state constitution. And similarly the question the SC should ask itself is not whether it is ruling on whether homosexuality is normal or natural, but whether homosexuals should be treated as criminals. Sadly, North Carolina answered the wrong question, in the wrong way, but we should hope that the SC in India won’t.

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