The Dilemma after the Decision: Strays thoughts after Gay Liberation

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 Indian Republic.

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, India’s Third Gender at the Tricontinental Human Rights Film Festival in Bangalore a couple of years ago. There was something in the film that was deeply disconcerting, one that I was until recently not quite able to place my finger on. The best I could get was that a certain upper-class agenda was being articulated, while adopting subaltern image of the transgendered (hijra) Indian as symbol of the movement, in what I called the Shikhandi maneuver[1]. It was in this context therefore, that the proverbial penny dropped on reviewing the reception of the Delhi High Court’s decision on 2 July 2009.

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 Indian Republic endangering in particular the security of minority groups within it.

The PIL route

As anyone reading the decision of the High Court[2] 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 India. The PIL first found favour in the Indian judiciary in a particular context. The crusading zeal shown by the Justices Krishna Iyer, Bhagwati and others in the Supreme Court, a trend subsequently followed by High Courts across the country, emerged from the judiciary after the lifting of the Emergency, a particularly dark period in the history of the nascent Republic. There was a need for the judiciary, which had failed the Republic at that crucial time, to lift itself up in the eyes of the Indian citizenry and reaffirm once more that it was up to the task of administering law for the country. A bulk of the progress of constitutional law as regards fundamental rights of citizens occurred in the course of the 80’s as a result of the liberal swing of the Indian Supreme Court (and subsequently the State High Courts) and the PIL was established as the favoured route for frustrated activists fighting insensitive governments and their executive machineries.

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 Delhi, regardless of the impact on the livelihood of the labouring classes, who had to undergo definite hardships as the switch was made to lead-free fuel. It was not as if the fuel was the only choice before a concerned authority, since there were other fuel-options that could be considered, and had been suggested. And yet the Supreme Court went ahead. More famously the result of the PIL filed by the Narmada Bachao Abhiyan was a clear indication of the swing of the Supreme Court to the Right and its lack of concern, if not contempt for the rights of marginalized social groups. This contempt has only been displayed repeatedly in more recent times (the works of Usha Ramanathan in the EPW[3] provide a succinct focus on these charges). The impunity with which the rights of the subaltern have been trampled by the Supreme Court has however happened only with the active collaboration of the ‘civil society’ that has continued to place petitions before the Higher judiciary.

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 India, and very often returned to office. A criticism and dismissal of these politicians therefore, is also a dismissal of the vast majority of the Indian population and their modes of democratic reasoning. In sum, the PIL route has been the route for India’s privileged middle classes, a way out of democratic negotiation within society as they push their way into the 20^th and now 21^st century, desperately seeking to cease being a ‘third-world’ ‘developing’ country.

It is not as if any of the above analysis is news to the prominent members of the LGBT movement in India who have supported the case in the Delhi High Court, and have constructed it into a symbol of Queer Liberation in India. What is shocking however is the statement of Arvind Narain, a prominent gay-rights activist, in an interview with NDTV[4] that that “[T]he Parliament is not the best place to protect ‘unpopular’ minorities”. It would not be preposterous to assert that this statement was possible only because of the systematic dismissal of the elected representatives of India and their politics, which as already argued, do appear to have some relevance to the vast majority of the Indian population who continue to repose their faith in this system. Granted that the task of lobbying with members of Parliament may seem an uphill task, the tough question that nevertheless needs to be asked is whether this LGBT leadership, did in fact attempt such a Parliamentary discussion of the whole issue of persecuted sexual minorities. A refusal to engage with the Parliament in a systematic manner, as appears to have been the case of the LGBT leadership, similarly works as a dismissal of the elected representatives of this huge country. The Courts should ideally, within the system of the ‘separation of powers’ be seen as the appeal of last resort. Given that the PIL route is potentially dangerous in that it empties the civil space of politics, and is geared toward a middle class conception of order, it is surprising that this leadership, that has consistently made claims for solidarity amongst minority groups, should have so unproblematically taken the route of PIL. This choice therefore, reveals something of the makeup of the LGBT leadership that has constructed the 377 case as a watershed moment in Indian history.

This is not to suggest that the LGBT movement in India has not been involved in social mobilization. On the contrary the past few decades have definitely seen the creation and consolidation of a queer community in India, that unites homosexual men and lesbian women, ‘upper-class’ English speaking gays, and ‘lower-class’ vernacular queers, and this is a commendable achievement. However the question needs to be asked is, if rather than pursue the PIL route, other methods, more suited to retaining politics within the civil space could not have been adopted. As I go on to inquire, would a leadership concerned with the subaltern not have focused on issues other than 377 that has been posited as the most crucial problem for sexual minorities in India?

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 Calcutta and subsequently progressed to other cities in India. Marches that have grown in strength from year to year. Clearly there is also an inclination at the national level, as evidenced by the statements of both Chidambaram and Moily, to reconsider the issue of decriminalising same-sex engagements. This interest it should be noted, is not necessarily born from the proceedings of the case. Similarly, in the aftermath of the decision, and until the writing of this essay, the BJP has been suspiciously silent, indicating if anything a discomfort with openly contesting the issue. In the circumstances therefore, where all possible legislative options were not extensively and exhaustively tried, the adoption of the PIL route displays not only a lack of confidence in the legislative channels, but also a failure to contribute to the development of the democratic processes of Indian civil society. The decision of the Delhi High Court therefore, may be a victory for the immediate goal of India’s LGBT leadership, but it definitely sets back the much needed process to enforce judicial accountability, as well as halt the breakdown of the separation of powers

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 Indian Republic. For example, the Pride March in Bangalore this year was titled the Bengaluru Pride.

The shift across the country for vernacular names for the cities, Bombay to Mumbai, Calcutta to Kolkatta, Madras to Chennai, Bangalore to Bengaluru, should not be seen merely as a recovery of a native subaltern identity from the suppression of an alien colonialism. On the contrary, these shifts have been the result of the growing right-wing Indian nationalism that has displayed a capacity to accommodate sub-nationalisms so long as they fit within a larger rubric of Hindu nationalism. Additionally, these legislative alterations of city-names refuse an existing pluralism in the names of cities. As such, as per law it is henceforth only Mumbai and not Bombay, only Kolkatta and not Calcutta and solely Bengaluru and not Bangalore. These acts of legislation have changed not just the name of cities, but in fact delegitimized and erased ways of various minority groups in the country of claiming the city and belonging to it, and are problematic therefore beyond their assertion of the power (and violence) of law .

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 India largely within a brahmanical framework. To meekly go along with this fascistic nationalism therefore, as did the organizers of the Bangalore Pride, is indicative of either an inability to see the problems with this form of fascism, or an unwillingness to stand up and challenge this fascism even as one stands up to assert the rights of the LGBT community. Clearly I am progressing to suggest that the dangers of an unreflexive LGBT leadership could, and as I will go on to argue already has, support a fascist Indian nationalism that can accommodate Queer people. A question that needs to be explored, but one for which there will be no space here, is to inquire if the ideological location of this LGBT leadership within the paradigm of Nehurvian secularism, and their social location in what Partha Chatterjee has called the ‘nationalist class’ is not in fact responsible for the blind eye that has been so strikingly displayed in this case.

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 21^st 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 India. Cricket and marmalade can stay”. That LGBT activism too seems to unwittingly continue this strain is disturbing, and frankly quite scary.

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 21^st 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[5]. 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 India projects abroad, this group would be loathe to block the challenge to 377 and risk India’s comparison to “regressive blackholes like Syria and Iran” rather than “socio-democratically progressive states like Sweden and Norway”.

Liberating the Subaltern?

A good amount of the rhetoric around the gay movement in India has been about a solidarity in the liberation of the subaltern. To more sensitive audiences, the strongest argument has always been the fact that 377 is used by policemen to intimidate and harass subaltern men, or sex-workers soliciting MSM clients. To be sure, this was one of the significant arguments with which the Naz Foundation approached the Delhi High Court. The question we need to ask in the context of the decision is whether the reading down of the Section will result in an end to this harassment and liberation for this group. This conclusion seems shaky. The impact of the decision will be to allow queer people to have sex freely in private spaces. It will prevent them from being caught and harassed if caught ‘in the act’ while within private spaces. However, they will still not be allowed to solicit for sex. Indeed, if effeminate men have been picked on by police to be harassed, this will continue, since soliciting for sex continues to be a crime. It seems logical that if the liberation of the subaltern was a primary task, a challenge to the criminalization of soliciting for sex would have been the primary target. Such a target would have in fact mobilized a larger community and have had larger implications for gender liberation. For those persons living in suffocating social environments, hurried sex in public spaces will still be norm, and sex in public spaces is still not condoned. Same-sex couples showing affection in public, will still be treated to verbal and physical assault that hetero-sexual couples are often shown. The reading down of 377 will not therefore result in an immediate or automatic liberation for the supposed beneficiaries of the decision.

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”[6]. 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.

Conclusion

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 Indian Republic.

(Published in the web addition of Tehelka, available at http://www.tehelka.com/story_main42.asp?filename=Ws220809The_Dilemma.asp)

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[1] 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, Krishna suggested that Arjuna stand behind Shikhandi and attack Bhisma. Given that Bhisma did not attack women, he would not fire in the direction of Shikhandi and Arjuna would remain unscathed. A more nuanced rendering of the myth is presented at http://devdutt.com/on-krishnas-chariot-stands-shikhandi The essay also displays some of the contradictions on Indian nationalism and the LGBT movement that I seek to draw attention to in this essay.

[2] http://lobis.nic.in/dhc/APS/judgement/02-07-2009/APS02072009CW74552001.pdf

[3] ‘Demolition Drive’ EPW VOL 40 No. 27 July 02 - July 08, 2005; http://epw.in/epw/uploads/articles/815.pdf

‘Illegality and the Urban Poor’ EPW VOL 41 No. 29 July 22 - July 28, 2006 http://epw.in/epw/uploads/articles/796.pdf

[4] http://www.ndtv.com/news/videos/video_player.php?id=1132014

[5] 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

[6] http://www.indianexpress.com/news/i-never-thought-of-myself-as-a-criminal.-the-court-mercifully-agrees/484476/