The decision of the Delhi High Court on Section 377 of the IPC (377) has generated huge amounts of euphoria throughout the country, and rightly so, given that sexual relations between consenting adults have been decriminalized. However, it is the contours of this very euphoria that suggests to us that all is not well with the Indian LGBT movement, and that it needs to be probed and critiqued if we are to be able to genuinely contribute to larger and more sustainable freedoms within the
Associated with the LGBT movement, if somewhat peripherally, I have always experienced some amount of discomfort with the movement. This discomfort only grew after my viewing of the film Between the Lines,
What I suggest in this essay is that the route of the PIL to achieving ‘gay liberation’ in India and the responses to the decision of the High Court reveal the priorities of a upper-class, and upper-caste English speaking group within the country. The path of this group, not surprisingly seems to twine with that of the rightist Nationalist forces that have in recent years increasingly laid siege to the project of the
The PIL route
As anyone reading the decision of the High Court will realise, the Public Interest Litigation (PIL) while initially filed by the Naz Foundation, subsequently saw a number of gay rights activists interpleading themselves as respondents, giving the case the significance that it has achieved today. The case has achieved significance not merely because it has decriminalized same sex activity in the country, but because a significant number of LGBT groups joined issue with the Naz Foundation; groups whose social position, was able to leverage the kind of attention that the decision eventually got. To this extent therefore, these groups consciously took up the case as the single legal route through which to tackle the issue of gay liberation.
The instrument of PIL is however, as many of us will know, not without a critical and problematic history in
As with any swing however, the Supreme Court and the rest of the Indian judiciary soon swung toward the other extreme, as the Courts with the prestige and power they had now re-generated, took over the business of the legislature and the executive. Classic examples are the cases of T. N. Godavarman, a case where the Supreme Court has set itself up; to determine the definition of forests, and become the overseeing authority for their protection. Very often this has meant the loss of rights of the marginalized groups. Other famous cases where the Supreme Court has over-stepped its limits have been the cases of introduction of lead-free petrol in
More crucially however, the implications of the PIL route has meant an emptying of democratic politics from space of civil society and placing it at the hands of the Judiciary as overseers of justice. Rather than take the long and bitter path via social contestation for the rights that were in question, activists have very often chosen to skip this crucial negotiation and get a quick fix via a decision of the Court. As necessary as some of these decisions may have been, indeed, like the case of 377, what it has done is to contribute to the emptying of politics from the civil space, and make the word politics itself a dirty word.
This shift has hugely benefited the Indian middle class constituents of ‘civil society’ (largely composed of English speaking higher rung feudal elements, upper castes, and dominant castes) who have had a traditional dislike for the base-level workings and negotiations of democracy. Indeed a scan of the decisions of the PIL-related judgments will show a marked preference for the sensibilities of this class, as well as the privileging of their point of view over others within the democracy. The rise of the PIL and the acclaim it has won, should also be seen in tandem with the wide-spread disdain among these same middle-classes for the politicians of the country. While the antecedents of many of these elected representatives are not praise-worthy, nor their actions while in office, it should be borne in mind that these politicians are elected by the ‘great unwashed’ of
It is not as if any of the above analysis is news to the prominent members of the LGBT movement in
This is not to suggest that the LGBT movement in
It would be incorrect to attribute the huge media interest in the case, which is what has primarily created the judgment as ‘landmark’, solely to the existence and filing of the case. On the contrary, the ‘landmark’-ness of the decision is also the result of the Pride marches that first commenced in
A Queer Nationalism?
This abandoning of the commitment to the larger health of the Indian democracy has not been the only problematic position into which the LGBT leadership seems to have slipped into. There also seems to be an unproblematic acceptance of the vernacular nationalisms that have marked the recent years of the
The shift across the country for vernacular names for the cities,
These positivist acts of assertion have often been pointed out as assertions of the Hindutva forces. However, I would like to suggest that these assertions while actively pushed and supported by the Hindutva lobby, also find favour through daily acts of quiet submission to these blatantly discriminatory laws by the larger populace. This populace either consciously or unconsciously sees the nationalist logic in these changes as unproblematic and goes along with it. This movement thus is more appropriately seen not merely as Hindutva, but right-wing Hindu/ Indian nationalism that most of us in fact consciously or unconsciously support. We should bear in mind also, that Hindutva is merely the more radical version of the ‘Indian culture’ that was actively manufactured by the secular Nehruvian state; a culture that located
It was quite frankly, the celebratory status messages on Facebook that drew my attention to the worrying nationalist under-tones to the reception of the Delhi High Court case. Two themes came out loud and clear from these messages. The first that it was about time that we rejected a colonial imposition on us, namely Section 377 of the IPC introduced through the offices of Lord Macaulay; and secondly with the High Court verdict, India had now finally entered the 21st century. Both themes on the face of it are clearly nationalist in nature.
The idea of a rejection of a colonial imposition is not an idea that is limited solely to the assumedly politically less-correct denizens of Facebook. Speaking to NDTV, Arvind Narain, inexplicably felt “proud to be an Indian”. Quite distressingly Human Rights Watch too, pitched on the same field. Its report on Section 377 was titled, This Alien Legacy: The Origins of “Sodomy” Laws in British Colonialism. The title of the report seems to suggest, as indeed do many discussions on Facebook, that Section 377 should go primarily because it “is a colonial construction of morality and in no way…an articulation of an Indian one.…the Penal Code was framed in 1860 by a Victorian Colonialist called Macaulay and there was nothing remotely Indian about his concern to nail the buggers”. There is also a suggestion that were it not for the colonial-vintage Indian Penal Code, we would not have had a 377. This is a tall claim in face of the religious and moral prohibitions that exist in most religions present in the subcontinent, and around which sub-continentals had to skillfully maneuver around.
There are a number of problems with this articulation. First of all it suggests a certain authentic ‘Indian-ness’; a sensibility and self-hood which is untouched by the colonizers. It is this form of reasoning that has allowed for the acceptance of the change of city names in India, despite the fact that colonialism has marked all inhabitants of the country, some more evidently (anglicized and westernized Christians being one group) than others (the assumedly naturally-Indian Hindu). Thus what such statements and positions (and movements) eventually result in, is the consolidation of a certain legitimate national subject, wholly authentic, and bearing none of the stains of colonial impact.
This is not a new phenomenon however. Indian nationalism, supported by the same ‘civil society’ has thrived on the distinction between the public and the private. The public was (is) amenable to colonial touch, indeed it is a touch that is even celebrated, since other colonial impacts which are problematic in their own right, like the Indian railways, the Indian police system, the Indian judiciary are all cherished. To the nationalist mind, it was the private, the realm of sexuality which has (is) to be untouched, and indeed purged of colonial touch. Thus, “one last British relic was overturned in
The celebration of the public features of colonial rule operate to support the image of a ‘civilized’ India, which has been another strain in the various arguments often proffered in support of doing away with 377. It is therefore not surprising therefore that a second strain in Facebook status messages, strongly marked pride (pun intended) in India coming of age or entering the 21st century. What is remarkable however, is that most of these messages, seem to be similar in tone to the ‘India Shining’ slogan of the former BJP-led national government.
The India Shining image was geared to cater to exactly the kind of crowd that would normally take recourse to the PIL, the kind that turns its nose up at the dirty nature of Indian politics. Indeed, the whole trope of India Shining, was in the recently concluded General Elections to the Lok Sabha, most vociferously rearticulated by the BJP’s support group Friends of the BJP. The group stressed the role of the BJP as a clean party, able to represent ‘people like us’ namely those of the middle class, who in their imagery (and imagination) were radically different from the rural, vernacular citizens of India. Indeed many of the core group members of the Friends were in fact ‘foreign-return’ Indians. It should be logical that is primarily those Indians who have gone abroad, hope to go abroad, or those who rely on the world’s (read as ‘the white west’) image of India, who should be so significantly invested in a progressive, civilized image of India. Once more this category falls by and large into a very definite group within Indian society. The upper-class, largely dominant/upper caste and English speaking (or aspiring) groups within the country, the very groups that constitute ‘civil society’.
In this context, it should not be surprising that there was, at the time of the writing of this essay, no official response from the BJP, and this absence is significant. The BJP often branded as Hindutva party, should be seen as the rightist nationalist party, since it also holds persons who while not rabidly pro-Hindutva, are definitely rabidly rightist nationalists. Particularly concerned with the image that
Liberating the Subaltern?
A good amount of the rhetoric around the gay movement in
What the decision, if allowed to go through, will allow however, is for the LGBT movement to take a critical turn. Recognizing the right to intercourse between two consenting partners of the same sex, will allow the movement to progress toward demanding the right to marriage for same-sex couples. This path has already been demonstrated by their white brothers (and sisters) in the west. This path has effectively suffocated the larger question of marriage supporting patriarchal notions of family and property ownership. Civil union rights, automatically carry with it the rights to property in the estate of the partner. This aspect was rather artlessly highlighted by Wendell Rodricks, a reputed fashion designer who has on numerous occasions has bravely stood up to be counted as gay. He perhaps inadvertently revealed the significance of civil union when writing in the Indian Express, “If one of us passed away, all that we earned together would go to family and not the partner of 25 years. Cruel. Unjust. Depressing”. The significance is clearly larger for propertied queers which imperils the liberative potential of the gay movement should it unreflexively move forward.
It is possible that a pro-subaltern leadership of the LGBT movement seeking solidarity with other embattled minorities in the country would have prioritized struggling against police practices that harass under the provisions for nuisance within the same Penal Code, that under the guise of preventing solicitation for sex prevent sex workers from engaging in their livelihood. It would have been aware of the difficulties of religious and social minorities that chaff under the restrictions imposed by the rightist regimes within the country.
An analysis of the decision to exercise the PIL route, some of the strategies in the course of mobilizing against 377, and the subsequent responses, reveals to us the following features. The focus on 377 as the locus of the movement betrays the priorities of the largely urban, English-speaking middle class leaders of the movement. The danger that this presents is that it seems to continue the problematic patterns of Indian nationalism, that even as it mobilizes the subaltern, rides of the backs of these subalterns, and even as it proclaims inclusivity, is capable of making its peace with the severely exclusionary politics of Indian nationalism.
In conclusion, I feel obliged in to indicate that the purpose of this essay is not to damn the very obviously positive move that the decision of the Delhi High Court represents, nor to suggest that there is a deliberate ignoring of the issues that this essay seeks to raise. To the contrary, the essay believes that it is crucial that we be aware of these implications if we are to not becoming unwitting participants in the consolidation of the rightist nationalism that marks the contemporary period of the
(Published in the web addition of Tehelka, available at http://www.tehelka.com/story_main42.asp?filename=Ws220809The_Dilemma.asp)
 Shikhandi was a warrior in the battle of Mahabharatha, who despite possessing the genitilia of a male, was considered to be a woman. In order to vanquish the invincible Bhisma and bring the battle to an end,
 I have discussed the casteist implications of the Friends in a short column available at http://dervishnotes.blogspot.com/2009/05/taking-caste-seriously-iii-caste.html