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Vulnerability of gay and transgender Indians goes way beyond Section 377

Prompting international outrage, the Supreme Court of India has overturned a “reading-down” of the notorious Section 377 of the India Penal Code. This, in effect, reinstated a law that is widely understood…

Looking the other way: India’s LGBT community campaigned for privacy. sound_of_sight

Prompting international outrage, the Supreme Court of India has overturned a “reading-down” of the notorious Section 377 of the India Penal Code.

This, in effect, reinstated a law that is widely understood to criminalise homosexuality. Many see this as a betrayal of basic human rights, particularly freedom of sexual expression and protection from harassment and abuse on grounds of sexual difference.

For lots of activists, the decision has significant symbolic implications in terms of India’s image in the international arena. India had previously looked relatively progressive on the world stage in terms of minority sexual rights. This was part of a package of other attributes, such as growing socio-economic liberalism and urbanising modernity in the sub-continent, often associated with sexual progress despite their problematic impacts in terms of poverty and the wealth gap. Now, a more regressive image suddenly seems to have taken centre stage.

Section 377 was not often used against LGBT people. sound_of_sight

The Supreme Court decision is especially important not only because it stirs up a new set of concerns for same-sex desiring and practising people in India, but because it appears to upset an equivalence between legislative progress on sexual rights and the image of India as a modern, secular and progressive nation. This speaks to another set of anxieties too – the possibility that next year’s elections could result in a right-wing victory, bringing a fresh wave of religious conservatism and a divided vision for what a future India might look like.

But in marked contrast to the symbolic and emotional importance the decision has acquired, many activists and scholars (including representatives of working-class LGBT communities in India) feel that the judgement and Section 377 itself is being given far more importance than it deserves, and is being misrepresented as “criminalising” homosexuality.

The law’s an ass

Activists and scholars like Nithin Manayath and Kaveri R Indira have pointed out that the relationship between the law and its purported effects is not backed up by much evidence. While the campaign against the law made Section 377 into a symbol for the criminalisation of homosexuality and sought to provide legal sanction to gay/lesbian sex in private, the law seems to have been very rarely used to target consensual sex in private.

The text of the law makes no separate reference to LGBT people, only to sex against “the order of nature” – and this clause has largely not been used to target private sex among LGBT people. Rather, the law has been evoked in some cases of police violence and abuse against working-class transgender and other LGBT people in public spaces – and even then, only rarely. Indeed, three out of the five cases of violence cited in the positive 2009 verdict of the Delhi High Court, which removed consensual sex in private from the purview of IPC 377, did not involve IPC 377 directly. Where they did, 377 was not the only, or even the chief, law under which people were charged. Moreover, as the 2013 Supreme Court judgement notes, 377 has been more commonly used to target non-consensual anal or oral sex. This means that the police themselves may be technically liable under the law in cases where they rape or sexually abuse LGBT people, or indeed use sexual violence against women and men more generally.

Raina Roy, a Kolkata-based transgender activist, and Indira, who is based in Hyderabad, have pointed out that the police rarely need to use legal excuses to harass, abuse or rape socio-economically marginalised transgender and gay people. And when they do, they often evoke other laws concerning public order, decency, sex work or obscenity. So, the link between IPC 377 and gay/lesbian criminalisation or liberation is more symbolic than material. The victory was a symbolic victory, and this is a symbolic defeat.

This is not to say that the symbolic victory achieved via the original reading-down of IPC 377 in 2009 was not significant. The case against IPC 377, which was originally brought by the Naz Foundation at the Delhi High court, originated from the idea of a sexual subject who was vulnerable both before the law and in terms of health (HIV-AIDS).

In particular, “men who have sex with men” and transgender people were advocated as people in need of protection from violence and sexual risk (vulnerable via male-to-male penetration, or via assault), rather than as threats to masculinity or wider cultural values. That original framing may have been superseded, but in some ways it has persisted; it perhaps helps to see the current Supreme Court judgement in this context.

The original reading-down of IPC 377 was thus based on a very specific set of concerns. Advocating for the right to privacy looked like a viable strategy, based as much on promoting safer sexual lives as on claiming rights and recognition. But in the longer run, the privacy argument actually hampered the efficacy of the campaign and the positive 2009 judgement for countering violence against socio-economically marginal LGBT sections (who more typically have lacked private spaces for sexual practice) - the very people whose stories were evoked to bolster the campaign against IPC 377.

Dangerous new ground

Against this background, the new Supreme Court judgement reintroduces vulnerability in a new way. The extensive visibility acquired by the judgement means that IPC 377 might be acquiring more dangerous connotations than it ever did before; over the years, many more people – including the police – have come to know that it might be used as a a stick with which to beat LGBT people.

But the blame for that exaggerated importance may perhaps rest more with the media reaction, extensive liberal outrage, and attendant misrepresentations of the law, than with the judgement itself. The current outrage provoked by the new Supreme Court judgement is a direct result of the symbolic importance invested in the original 2009 decision.

This is not to divest the present judgement of significance, in terms of its implications for sexual and gender minority rights. Ironically, however, the judgement may also mark a realisation that vulnerability in the lives of transgender or sexually marginalised people goes way beyond Section 377 – and that we need to bring these wider concerns to the centre-ground of contemporary and future Indian politics.

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10 Comments sorted by

  1. Jordan Osserman

    logged in via Facebook

    Hi Anniruddha and Paul,

    I appreciate your perspective on this. I've been trying hard to think through these issues the last few days, given the complex points (legal, sociological, etc...) that have been raised on all sides.

    I wonder if the argument re: socio-economically marginalised queer people might be best addressed with a more traditional marxist/class analysis, "supplemented" with a queer perspective. It seems to me that, while queerphobia exacerbates the vulnerability of already-marginal…

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    1. Jordan Osserman

      logged in via Facebook

      In reply to Jordan Osserman

      Just to clarify -- the reason I say that issues such as police harassment require a working class struggle is because, while the police harassment may be motivated by queerphobia, the existence of harassment itself would not be an issue if marginalized people, queer and otherwise, had access to basic material needs and fair labor conditions (ie if sex workers were unionized and received fair pay, if all hijras had adequate shelter, etc). In other words I'm saying that viewing police harassment as a "queer issue" is too superficial and reduces a potentially universal problem -- expoitation and poverty -- into a narrowly identitarian one. (Though of course it is important to point out the disparate impact which impoverished queer people face.)

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  2. Aniruddha Dutta

    logged in via Facebook

    Dear Jordan, thanks for that thoughtful response. I agree with your broad point (if I read you correctly) that the issues faced by working class/lower caste queer/trans/kothi/hijra people can be adequately addressed only in the framework of a struggle that is (also) class/caste-based rather than organized around the primary axis of queer/trans identities, and that one cannot really expect an identitarian movement like the one for LGBT rights to lead to a ‘true solution’ in itself.

    However, I think…

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    1. Aniruddha Dutta

      logged in via Facebook

      In reply to Aniruddha Dutta

      P.S. I also wanted to add that for more context on how the campaign emerged, and why it was not as inclusive as it easily could have been from the start, see (if you have not already) the 5th chapter of Naisargi Dave's book 'Queer Activism in India: A Story in the Anthropology of Ethics' (Duke University Press, 2012). Also see Ashley Tellis's article: http://www.hindustantimes.com/india-news/sc-ruling-on-sec-377-a-wonderful-opportunity-for-a-fresh-beginning/article1-1161839.aspx

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    2. Jordan Osserman

      logged in via Facebook

      In reply to Aniruddha Dutta

      Thanks for your response! Briefly, as there's so much material -- most of which I agree with -- I'll focus on the divergences:

      I am familiar with the debates on the Marxist prioritization of class, and you're right that I side with the so-called orthodoxy here. I think it sharpens our analysis to look at class separately from identity, but of course only when we define class in a non-positivist sense as a material social relation (which has all kinds of implications for culture/identity, but is…

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    3. Aniruddha Dutta

      logged in via Facebook

      In reply to Jordan Osserman

      Jordan, just so I understand you better before I can respond -

      a) what exactly are you meaning by 'identity/culture'? Or, just 'identity'? In my view, 'gender' isn't an identity, for example, nor is caste, or sexuality (I know a lot of US activist/academic discourse deploy these analytical categories in terms of various discrete 'identities', but that is really problematic and limited, and that's not where we need to stop with those concepts).

      b) As for 'class' - I feel that there's a classic…

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    4. Paul Boyce

      Lecturer in Anthropology at University of Sussex

      In reply to Aniruddha Dutta

      Interesting discussion. I agree about Fraser and Butler being potentially useful here. For me what is interesting are the issues their exchange engenders about where to direct the efforts of a movement – culture of political economy, crudely put. Something perhaps interesting about the range of disparate activities and activism that are sometimes called the Queer Movement in India is how the prevailing scene seems to reflect both of these possible trajectories. So there is the evident and obvious…

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    5. Jordan Osserman

      logged in via Facebook

      In reply to Aniruddha Dutta

      Anniruddha, you raise a number of good points I'll have to think more about. Particularly b) and c) -- which would require me to be familiar with empirical evidence I haven't actually read -- to maintain my theoretical stance. And I think d) makes a lot of sense. (Except that I think the lawyers rightfully felt they had no chance of winning had they "refram[ed] 377 as a non-LGBT specific issue," simply because equality/non-discrimination arguments are much stronger given legal precedent. Which is not to say that we can't now appreciate the law in wider terms...)

      Thanks.

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    6. Aniruddha Dutta

      logged in via Facebook

      In reply to Jordan Osserman

      Jordan, thanks for your gracious consideration of my theoretical/political detours. To end, I just wanted to emphasize that I absolutely recognize the indispensability of the historical materialist and political economic analytics provided by Marxism, just that I also strongly feel that there are more material logics at play than often considered by even heterogenist forms of Marxism, and that the universalizing subsumption of any and all material stratification in Marxist terms is not always helpful in terms of enabling other sites of analysis, critique and struggle to 'speak' (indeed, the 'subaltern' in Spivak's terms was precisely that position that was not entirely intelligible in terms of capitalist-socialist logics of historical transformation and material struggle, and hence could not 'speak' or 'be heard' in the terms of much leftist philosophy and theory). I look forward to future conversations in other venues, and thank you for your engagement and thoughtfulness again.

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  3. Paul Boyce

    Lecturer in Anthropology at University of Sussex

    Interesting discussion. I agree about Fraser and Butler being potentially useful here. For me what is interesting are the issues their exchange engenders about where to direct the efforts of a movement – culture of political economy, crudely put. Something perhaps interesting about the range of disparate activities and activism that are sometimes called the Queer Movement in India is how the prevailing scene seems to reflect both of these possible trajectories. So there is the evident and obvious…

    Read more