Paper by Arvind Narrain on the emerging right to sexual orientation and gender identity.

Introduction

During the last decade of the 20th century in India, the hitherto private realm of sexuality emerged as a focal point and basis for various forms of political assertion. India is increasingly witness to people asserting their right to be different as sexual beings in terms of their sexual orientation, gender identity and sexual practices. The more established definitions of activist politics are now being forced to engage with new political concerns articulated by people who claim gay, lesbian, hijra, transgender, kothi and numerous other identities, which have been brought under the rubric ‘queer’[i] Common to each of these identities is their questioning of the heteronormative ideal that the only way in which two human beings can relate romantically, sexually and emotionally is in a heterosexual context.

I use the word queer in the sense that David Halperin uses it to mean “whatever is at odds with the normal, the legitimate, the dominant. “Queer” then demarcates not a positivity, but a positionality vis-a vis the normative……Queer in any case, does not designate a class of already objectified pathologies or perversions; rather, it describes a horizon of possibility whose precise extent and heterogeneous scope cannot in principle be delimited in advance. It is from this eccentric positionality occupied by the queer subject that it may become possible to envision a variety of possibilities for reordering the relations among sexual behaviors, erotic identities, constructions of gender, forms of knowledge, regimes of enunciation, logics of representation, modes of self constitution and practices of community….”’[ii]

In India the word “queer” is not commonly used. However, the realities of the non-normative experience—i.e. gender identities, sexual practices, sexual identities, culturally sanctioned forms of erotic behaviour—all of which contest the embedded nature of heterosexism in law, culture and society, have traditionally existed and continue to exist in the contemporary context

The coercive heteronormative context which is at the heart of all societal institutions impedes those who come within the rubric of ‘queer’, from enjoying the rights to which they are constitutionally entitled and, furthermore, creates a situation conducive to persistent violation. Rights articulation remains stillborn, primarily because of the peculiar nature of oppression exercised on queer subjects.

However, over the past two decades an emerging activism by various groups has begun to broaden the context in which rights are articulated. The process started with a hijra conference in Bhopal in 1986, the founding of Bombay Dost, a gay magazine, in Bombay in 1990, and the establishment of Sakhi, a lesbian collective, in Delhi in 1991.[iii] These protracted but significant beginnings have engendered a number of queer groups in various parts of the country, from the major metropolitan centers to smaller towns such as Akola, Gulbarga and Trichy. The categorization of men who have sex with men (MSM) as a vulnerable group for HIV/AIDS by the National AIDS Control Authority(NACO), has resulted in funding for MSM intervention projects and spurred the development of sexual minority networks, through the very simple mechanism of opening out spaces for all those whose desires do not conform to the heterosexual norm. This resulted in the formation of groups in cities where MSM interventions started out and networks were formed between groups in various cities. However the initiation of direct political action, to question the ubiquity of violence against the ‘queer’, is really a result of sustained activism by human rights groups, lesbian and ‘queer’ groups which have played a leading role in questioning of violence as well as the existence of unjust laws.

Sec 377 as violent social exclusion
In particular, the concerns of queer people have centered around Section 377 of the Indian Penal Code, which is the provision that criminalizes all non-procreative sex and is the de facto justification for the persecution and harassment of all those whose sexual expressions might qualify as ‘queer’.

Section 377, drafted in 1860 by Lord Macaulay as a part of the colonial project of regulating and controlling the Indian subject reads:

Unnatural sexual offences: – Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment which may extend to ten years, and shall also be liable to fine.

Explanation. – Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.[iv]

The study of the use of Sec 377 reveals that it has hardly been used to prosecute cases of consensual adult male sexual relationships. Rather the main use of Sec 377 has been to prosecute cases of child sexual abuse.[v] However it needs to be noted that use cannot be seen purely in terms of reported decisions. There are possibly many trial court decisions in which Sec 377 has been used. Even leaving that aside, documentation in India, through reports such as the PUCL Report on Human Rights Violations Against sexuality minorities demonstrates that Sec 377 becomes the basis for routine and continuous violence against sexual minorities at the level of the street and the police station by the police. The report in fact goes on to note that the police engage in practices of illegal detention, sexual abuse and harassment, extortion and outing of queer people to their families, which are all forms of violence practiced against sexuality minorities.[vi]

While these are indeed important effects of Sec 377, one needs to understand the constitutive role that Sec 377 plays in making possible the above mentioned forms of violence. What one needs to do when analyzing the role Sec 377 plays is to go beyond the idea of ‘enforcement of law’ and look more closely at what is the socially constitutive role that law plays. The questions one needs to address are whether the law not only legitimizes violence against sexual minorities but goes a step beyond by constituting a form of social reality in which all sexual behaviors which are antithetical to the heterosexual norm are viewed by ordinary people as unnatural ?

The impact of Sec 377 is really far beyond the so called ‘enforcement’ principle. Foucault used the analogy of the panopticon to put forward the idea that the law is not external to you, but rather internal to you . You behave in a certain way because you have internalized the prohibition of the law. The real danger of Sec 377 lies in the fact that it permeates different social settings including the medical establishment, media, family, and the state. Thus it becomes a part of ordinary conversations and ultimately a part of the very social fabric in workplaces, families, hospitals and the popular press. To take three examples:

Ø This emerges strongly in an interview with the Chairman of the National Human Rights Comission, (NHRC)(Justice J Verma). On being asked why the NHRC refused to admit the case of a person who was treated for his homosexuality with the objective of ‘converting’ him to heterosexuality, the documented response of the Chairman was as follows: ‘To talk of homosexual rights is okay in other countries but there was little you could do when the law in India, Sec 377 was against it. [He] advised that one should strive to get rid of the law but nothing could be done till it was repealed.’[vii] This opinion seems to be buttressed by other reported opinions within the NHRC. As one source within the NHRC put it, “homosexuality is an offence under IPC, isn’t it? So, do you want us to take cognizance of something that is an offence?” [viii]
Ø Similarly in an interview with a Police Officer conducted by the PUCL Team it was noted that ‘as regards the nature of homosexuality, Mr Hegde was quite clear that it was an animal like behaviour.’[ix]

Ø In another interview with a doctor who practices aversion therapy to convert homosexuals to heterosexuals noted to legitimize his medical practice, ‘“Sodomy is illegal in India.” (Dr. S)[x]

The very existence of Sec 377 goes beyond the question of the enforcement of the law and crystallizes the deep societal repugnance towards homosexuality by considering it perverted, animal like behavior. If we have people in law enforcement, medical practice and the judiciary treating homosexuals as people without rights, the legitimacy of their behavior really comes from the law. Thus Sec 377 functions as a condemnation of India’s queer people be it gays, lesbians, kothis and hijras. It is not anymore a narrow technical legal issue of the gender neutral prohibition of sodomy( it applies equally to heterosexuals and homosexuals) but instead embodies and enacts a wider societal condemnation of sexual minorities. Sec 377 is thus not just a law, but a worldview which remains entrenched in legal structures, medical discourses, family discourses and media discourses and perhaps most strongly in the ‘common sense’ understanding of people. It is in this light that the challenge to Sec 377 must be framed.

Two case studies—the Lucknow case and the constitutional challenge to Section 377—illustrate both the difficulties and opportunities embedded in activism around Sec 377.

The Lucknow Case: Health interventions as promoting deviance

One of the key problems facing HIV/AIDS advocates in the MSM ( men having sex with men) sector is that both field work and outreach among the MSM community gets hampered by constant police harassment and surveillance. This is perhaps best exemplified by the events in Lucknow in 2001.

On July 7, 2001, the police, acting on a complaint by a person that he had been sodomized by someone in a park, raided the park that was frequented by hijras, kothis and others who come within the rubric of ‘queer’ and arrested ten people. Among those arrested was an activist from Bharosa (an NGO working with the MSM community). Thereafter the police raided the offices of Naz Foundation International and Bharosa, two NGOs working on safer sex issues, seized safer sex material and registered a complaint under Section 377 (unnatural sexual offences), Section 120B (conspiracy to commit an offence), Section 109 (abetment) and Section 292 (sale, etc. of obscene material).

The arrest was followed by a media blitz with prurient headlines such as “Gay Club Supplied Boys to Politicians,” “Gay Culture Started In UP In 1998 Itself,” “Lucknow Police Raid Gay Clubs, Ten Arrested,” and “Call Boy Racket Sends Shock Waves in Lucknow.” [xi], [xii], [xiii], [xiv] Both the climate of homophobia generated by the arrests and the subsequent media coverage were sanctioned by state action. The Senior Superintendent of Police(SSP) of Lucknow , B.B. Buxi, claimed, “The two organizations, Naz and Bharosa, were running gay clubs in contrast to the Indian culture and ethics under the garb of educating the masses about AIDS and HIV.”[xv] As if to complement the rank prejudices exhibited by the police, the Magistrate who heard the case also noted that these men were to be denied bail, with the judge approvingly quoting the Public Prosecutor (who opposed the bail application) on the grounds that “they…are polluting the entire society by encouraging the young persons and abetting them for committing the offence of sodomy.”[xvi] Finally, it took an appeal to the High Court for the accused to be released on bail after being in jail for almost one and a half months. [xvii]

These arrests made one thing unmistakably clear: work around HIV/AIDS has become irrevocably linked to issues of deviant sexuality. The fact that the organizations were working on safer sex issues could not be divorced from the criminalizing force of Section 377. The targeting and the intimidation of organizations working on MSM issues was a direct outcome of the existence of Sec 377 on the staute book. The criminal and deviant aura surrounding this case was amply illustrated through the sheer difficulty of getting the accused released on bail. .[xviii]

Neither the state nor the media chose to view or portray the events in Lucknow through a lens that would have revealed the seriousness of the HIV/AIDS epidemic. In fact, this case was framed around homosexuality, with its attendant shame and disgrace and with serious repercussions for those held. As one of the activists noted:

10 people are kept in jail and all over the city malicious reports are being written about them. These 10 people are emotionally and physically tortured. Their reputation has gone down forever. What is one of the most important things for anyone? Food, money, empowerment etc., isn’t it? Now, it would be next to impossible for these 10 people to go to any place in Lucknow where they can get a job… These people are compulsorily out as rapist MSM (conspirers of sodomy) not in the family but in the society and in the city too. That is not very good experience. Their sister[s] would not be getting married easily. Brothers would be looked down upon. Fathers and mothers would be commented on negatively.[xix]

It is painfully clear post-Lucknow that as long as Section 377 exists, there is no possibility of anyone approaching HIV from a health perspective alone The formation of alliances and coalitions under a human rights framework—in which queer groups work along with feminist groups, civil liberties groups and groups working on HIV/AIDS to understand and address the ways health intersects with the state’s need to regulate sexuality—has now, after the experiences and lesson of Lucknow, become a critical necessity.[xx] The emergence of this alliance would of course depend upon the willingness of groups to take on board concerns which are not their ‘core’ concerns. Thus it would mean that sexuality based groups will have to take on board broader human rights concerns and vice versa.

Constitutional Challenges to Section 377: Homosexuality as framed by Hindutva

While the Lucknow case is emblematic of how work on health issues with the MSM community has become caught up in a wider debate around homosexuality, the State response to the constitutional challenge to Sec 377 illustrates how clearly Hindutva is implicated in concerns around homosexuality. The concern with homosexuality itself is a part of the wider nation building project of the Hindu Right as the response of the Atal Behari Vajpayee led Government to the petition challenging Sec 377 clearly illustrates.

In 2001 the Naz Foundation (India) Trust, an NGO working with HIV/ AIDS related issues, approached the Delhi High Court to read down Section 377 so as to remove all consensual sexual activities between adults if done in private from the ambit of the provision.[xxi] By reading down what was meant was that the petition instead of asking for a repeal of Sec 377, preferred to ask that the statue be read such that, consensual homosexual acts in private be removed from its criminalizing ambit. The reasoning articulated was that “Sec 377 is a major impediment to carrying out HIV/AIDS related work with the MSM community, as it drives high risk behaviour in terms of unprotected oral and anal sex underground and beyond the reach of safe sex interventions and it violates the fundamental right to privacy and equality to sexual minorities guaranteed to every citizen of India under its constitution.”][xxii] In effect, this petition asked for all consensual sexual intercourse between adults to be removed from the criminalizing force of Section 377, provided these sexual acts were done in private. Thus the provision itself would remain on the statute book but would be used to prosecute only cases of child sexual abuse as well as, disturbingly, cases of public sex. This is problematic, because most of the people who are harassed by Sec 377 happen to be those who do not own any private space and hence are forced to engage in unsafe sexual encounters in parks etc.

The reason the group opted for this strategy is linked to the use of Section 377 by child rights groups to prosecute child sexual abuse, as there is no comprehensive alternative statute in this area. Rape law is limited by gender and applicable to women only and further is limited to cases of penile vaginal intercourse only. This leaves a huge gap in terms of protecting children both male and female from sexual abuse. The argument in the Naz petition is really a pragmatic compromise in the absence of a law on child sexual abuse.

There is however the valid critique that this compromise makes a mistake in asking for the decriminalization of same-sex sex acts in private because this means that Section 377 would still apply in public spaces. This is, on its face, discriminatory: public same sex activity should be subject to only the existing panoply of nuisance laws found in both the Indian Penal Code as well as state Police Acts, which in any case apply to both heterosexual and homosexual conduct. A further justified criticism is that if the objective is to decriminalize oral sex and anal sex so that such behaviour is not driven underground, thereby intensifying the risk of unsafe sex, the objective stands defeated by excluding public sex from the ambit of the reliefs claimed.

What is interesting about the Naz petition is the very conceptualization of the challenge in terms of an impediment to health related work in the context of HIV/AID’s. The understanding was that work to prevent HIV/AIDS cannot be done satisfactorily within a political system that criminalizes same sex activity. Thus significantly, the petition instead of asserting identities (such as gay and lesbian) was rather based on the articulation of a health concern.

However the Vajpayee Government’s response to the Naz petition shifted the terms of this discourse. The Government’s affidavit questioned the locus standi of the petitioner, asserting that “‘Sec 377 applied to cases of assault, where bodily harm is intended or caused and deletion of the said section can well open flood gates of delinquent behaviour and be misconstrued as providing unbridled license to the same.’” The affidavit denied that Section 377 violated the right to life, the right to equality, or the right to freedom of speech and expression. In fact, the Affidavit disingenuously made the case that Section 377 was applied to cases of child sexual abuse and rape of women and that it therefore actually fulfilled the constitutional mandate to protect women and children. It went on to observe that “while the Government cannot police morality, in a civil society criminal law has to express and reflect public morality and concerns about harm to the society at large.”[xxiii]

The Government’s response essentially buried any hope that Section 377 could be read down with Governmental cooperation. In fact, the Government’s response indicates a virulent homophobia and an unwillingness to provide any space for emerging queer articulations. The Government response indicates that it sees Section 377 as articulating and reflecting public morality, protecting women and children, and keeping closed the floodgates of delinquent behavior. In the face of these challenges, the protection and defense of Section 377 has emerged as a key state concern, and the state has significantly enhanced its public role as the guardian of societal morality.

Perhaps one should read this response by the state as being a part and parcel of the Hindu right’s ideology, which is based on demonizing and stigmatizing difference, be it religious or sexual in nature. The Hindu Right already has a proven track record of hostility towards religious minorities such as Muslims and Christains. However the Hindu Right first publicly exhibited its deep and unremitting hostility to homosexuals/lesbians who it has defined as “aliens” and threats to Indian culture and values—through the violent protests around the release of the movie Fire. [xxiv] The very expression of same sex desire between women was deemed to be against Indian culture and generated organized and violent protests by the Hindu Right.

The Affidavit is in ideological continuity with the protests around Fire, construing Section 377 not from a perspective based on health but rather from perspective whose primary concern is the purity of the Hindu nation. As the Affidavit notes, “objectively speaking there is no such tolerance to practice of homosexuality/lesbianism in the Indian society.” This raises a number of troubling questions, particularly, when lesbianism/homosexuality are not the concerns of the petition why the state chooses to deliberately introduce the notion of lesbian and homosexual identities as alien to Indian culture as a way of rebutting the very need to read down Sec 377. One wonders what the ostensible lack of tolerance presages for the queer population in India. Could this intolerance go so far as to allow for state tolerated pogroms against queer people? Or will it restrict itself to “merely” vigorously opposing the repeal of Section 377? Only time will tell.

The larger point that emerges here is the fundamental complexity of the problem. It is no longer (if it ever was) a simple issue of removing a provision that affects the work around HIV/AIDS because the state has now construed Section 377 to have beneficial purposes: to articulate and reflect public morality, to protect women and children and to hold delinquent behavior at bay. All this, of course, comes under the broad rubric of protecting Indian culture and societal morality. Section 377 is now a linchpin in the nation-building project of the Hindu Right, positioning homosexuality/lesbianism” as another category needing to be stigmatised in order to construct the pure Hindu nation.

The final decision of the Delhi High Court which instead of going into the merits of the case, dismissed the petition on the technical ground that the petitioner was not affected by Sec 377 and hence had no locus standi to question the constitutionality of the legislation. This points to the enormous difficulties in mounting a successful challenge to Sec 377.

What is clear is that regardless of the fact that a more progressive dispensation is in power, it is not necessarily going to be any easier to make any progress on the removal of Sec 377. This is because in challenging Sec 377 , one is not merely asking that a legal provision be overturned. Instead one is asking that an entire worldview which remains embedded as much in law as in society be overturned. Asking for a change in the very paradigm within which homosexuality is viewed moving form the point of view of homosexuality as an unnatural offence to homosexuals as people with rights is not going to be easy. However it is only a shift such as this which will enable judges to take on board the nuances of Sec 377 such as the fact that the problem with Sec 377 lies not so much in its ‘enforcement’ but in its ability to constitute a worldview in which homosexuality and homosexuals are despised.

The challenge of both scholarship and activism is to bring about this shift in perspective and move Sec 377 from being a narrow legal demand to a political struggle that represents the concerns of the queer community, of HIV/AIDS activists and of those committed to not only safeguarding but also deepening and widening the pluralistic ethos of the Indian constitution.

[1]

[1]

[i] The queer could be said to encompass at the least the following sexual identities and practices, as well as, gender non-conforming identities and behaviours. There is no obvious solidarity between the struggles of various groups identified below (there are serious differences particularly around issues of class and gender which need to be acknowledged) but the queer political project, which is at an incipient stage, really attempts to build one community out of a diverse range of communities and practises.

The hijras: As a community, they represent an existing Indian tradition which clearly contests heteronormativity. Hijras include men who go in for hormonal treatment, those who undergo sex-change operations and those who are born hermaphrodite. The hijra community has its own cultures and ways of living, including its own festivals and gods and goddesses. Hijras divide themselves into gharanas or houses and the strength of the hijra community lies in its close-knit relationships.

The kothis: The kothi is a feminized male identity, which is adopted by some people in the Indian subcontinent and is marked by gender non-conformity. A kothi, though biologically male, adopts feminine modes of dressing, speech and behaviour and would look for a male partner who performs masculine modes of behaviour, speech and dress.

The ‘modern’ communities that have emerged which contest the heteronormative framework are the lesbian, gay and bisexual communities.

Resistance to heterosexism takes place through a proliferation of identities and practices such as jogtas, shivshaktis( both of which are traditional and culturally sanctioned forms of gender nono conformity , particularly by men who take on the gender identity of women) etc which are too many to be enumerated. Outside the framework of communities there are stories of individual people who assert their right to a different life. The most publicised example is the marriage of Urmila Shrivastava and Leela Namdeo in 1988, two women from a rural background who were serving in the Madhya Pradesh constabulary. This of course is not the first such instance of resistance as there have been at least ten documented cases of women who not just live together but want societal recognition for their relationship and hence attempt to marryeach other. What is also interesting to note is that these women have invariably been from a small-town background and have had little exposure to Western culture or the queer rights discourse. Thus, even without the strength of a community to back them, these women have individually contested the heteronormative social order

[ii] David Halperin, Saint = Foucault, Oxford University Press, Oxford, 1995. p. 62.

[iii] See Bina Fernandez, Ed., Humjinsi, India Centre for Human Rights and Law, 2002, pp. 182-183.

[iv]For a powerful analysis of the constitutive role that law plays in producing a regime in which sodomy laws function as symbolic statements and as threats of criminal punishment, which ultimately encourage queer people to police themselves. See Ryan Goodman, Beyond the Enforcement Principle,

California Law Review Vol 89:643 2003.

[v] Alok Gupta, The History and Trends in the Application of the Anti –Sodomy Law in the Indian Courts, The Lawyers Collective, Vol 16, No.7, p.9.

[vi] http://www.pucl.org/Topics/Gender/2003/sexual-minorities.htm

[vii] Arvind Narrain , Queer: Dispised sexuality, law and social change, Books for Change, Bangalore , 2003. p. 120.

[viii] The Pioneer, Aug 10,2001.

[ix]http://www.pucl.org/Topics/Gender/2003/sexual-minorities.htm

[x] Vinay Chandran et. al, Its not my job to tell you that its okay to be gay , ( on file with the author)

[xi] http://sifyspecials.sify.com.

[xii] The Times of India, July 10, 2001.

[xiii] The Hindustan Times, July 8, 2001.

[xiv] The Times of India, July 9, 2001.

[xv] Ibid.

[xvi] Criminal Misc. Case No. 2054/2001.

[xvii] T.K. Rajalakshmi, “Targeting NGOs”, Frontline, September 1-14, 2001, http://www.flonnet.com/fl1818/18181130.htm.

[xviii] A elementary analysis of the relevant provisions on bail reveals that even in cases such as those under Sec 377 there have to be reasonable grounds for the withholding of bail. In the above case the bail was denied because of the completely unfounded belief for which no material was adduced by the prosecution, that, ‘they…are polluting the entire society by encouraging the young persons and abetting them for committing the offence of sodomy.’

[xix] http://groups.yahoo.com/group/khush-list/.

[xx] The criticality of the need for the alliance cannot be underestimated. Groups working on HIV/AIDS related MSM interventions have persisted with their work without building alliances with either feminist or civil liberties groups. The collective ability to respond to Lucknow in Lucknow would have been far stronger if there was an alliance between queer, feminist, HIV/AID’s and civil liberties groups in place.

[xxi] “Indian Gay Suit Seeks to Decriminalize Gay Sex”, http://www.sodomylaws.org/world/india/innews04.htm.

[xxii] http://www.lawyerscollective.org/lc-hiv-aids/index.htm

[xxiii] Naz Foundation vs Govt of Delhi and others, 2001.

[xxiv] The Hindu Right’s hostility to homosexuality first emerged to public view in the context of the protests around the screening of the film ‘Fire’. The film Fire is about the relationship between two women, Sita and Radha, married to brothers. Set within the patriarchal framework of a middle-class Hindu family in Delhi, the film portrays both women as oppressed in their respective marriages. They turn to each other for tenderness and respect, moving into a sensuous and sexual relationship. They finally break out of the very patriarchal structures that threw them together, to form independent lives. Screenings of the film were disrupted and theatres vandalized. This was justified through references to protecting Indian culture from foreign influences. As Sushma Swaraj of the BJP put it, ‘There can be no argument that lesbianism is unnatural and is regarded as such the world over.’ See Lesbian Emergence: Citizens Report, 1999, Delhi, Gomathy and Bina, Fire, sparks and smouldering ashes, http://www.isiswomen.org/wia/wia199/sex00005.html