Is being gay a ‘social evil’? Gujarat film puts Supreme Court in tricky terrain

by Sandip Roy  Sep 22, 2015 11:34 IST

The sufferings of a homosexual prince from Gujarat is clearly not everyone’s cup of tea and sympathy.
When Manvendra Singh Gohil, the prince of Rajpipla decided to come out as a gay man, he did so in a Gujarati language daily, the Divya Bhaskar. The story caused a sensation and moved Oprah Winfrey enough to fly him to the US to appear on her show. Now a Gujarati film based on his life story has been denied a tax exemption service in his home state because the movie depicts “social evil”.

Representational image. Reuters

Meghdhanyshya by KR Devmani had been cleared by the Censor Board. But the Gujarat State Tax Commissioner balked at giving it an entertainment tax exemption. The tax exemption can be denied to films depicting blind faith, sati, dowry and other such “social evils” that go against “national unity”. Those who came up with those guidelines had not thought to include homosexuality in the list and thus Meghdhanyshya had to be classified as a “social evil” by the Tax Commissioner.
The Tax Commissioner has every right not to like the topic. If the tax exemption were granted on an entirely subjective standard about artistic merit and social value, no one could have really protested this decision because social value, like beauty, is in the eye of the beholder. The problem is this tax exemption is something that’s been routine for Gujarati colour films since 1997. That’s where the double standard kicks in.
“It is ironical that films showing extra-marital relationships and containing scenes of rape and violence are given the exemption but a movie depicting sufferings of a homosexual person does not pass the state’s muster,” says filmmaker Devmani to the Indian Express.
The Gujarat High Court had ruled that Devmani was being denied his fundamental right of freedom of expression with the Tax Commissioner acting as a sort of super censor. The state then appealed to the Supreme Court which ruled in its favour saying “there are people in whose views this may be akin to social evil.”
However there are also people, many people,in Khap panchayat land for example, who think that girls wearing jeans and using cell phones are a social evil. Others might consider non-vegetarianism a social evil, especially during Jain festivals. We have a culture minister who says “Girls wanting a night out may be all right elsewhere but it is not part of Indian culture.” Replace the phrase “Girls wanting a night out” with your social evil of choice – old age homes, Valentine’s Day, homosexuality - and it's easy to see that "social evil" is a big tent that can shelter all kinds of prejudice. The court could have chosen to bust it instead of accommodating it.
In other contexts, the same Supreme Court has not been shy at all about rapping lawmakers and lower courts on their knuckles regarding other social evils. A live-in relationship is not a crime, the Supreme Court observed recently and even asked parliament to protect the rights of women in such relationships and the children born out of it. But the court which is happy to act as the voice of social justice in so many cases chose to sidestep its responsibility in this one because of unnamed “people in whose views this may be akin to social evil.”
That just passed the buck and in effect, revealed the court’s own discomfort with the topic. As Madhavi Menon writes in Scroll, “Neither supporting nor denouncing homosexuality at a personal level should be of any consequence in protecting every citizen of India.”
It also exposes the court’s own tangled thinking in this matter. The Gujarat counsel argued that the film will be a “threat to the national unity” because it promotes an activity that is criminalised under Section 377. If we want to split hairs the film is about homosexuality which is not illegal as opposed to “sex against the order of nature” which is criminalised. But the same court in upholding Section 377 dismissed homosexuals as only a “minuscule fraction”. Now this minuscule minority of little importance suddenly has the superpower to threaten national unity via a Gujarati film! Does the India-changing power of the “Gujarat model” extend to the gay Gujarati as well?
This case is not about banning the film. It’s about a tax exemption. This is different from the recent Kannada lesbian film 141 I Love You that was forced to release without posters or publicity amid threats by fringe groups. This film has its censor certificate and can still release but for a small independent film that tax exemption is vital. However if there is a silver lining, perhaps the publicity around this denial could actually give the film a boost. As a friend in Gujarat noted this might be just the time for a Wishberry campaign to find it a distributor and get it out there as the film the government said "no decent family" could watch.
But even if that happens it does not change the humiliating fact that as neighbouring Nepal adopts a constitution guaranteeing LGBT persons protection from discrimination, India’s highest court just gave state-sponsored discrimination its stamp of approval.