In 2018 the Supreme Court decriminalised consensual same-sex relations between two adults in
VAISHNAVI PRASAD | 28 SEPTEMBER, 2020
How does queerness enter the main stream?
In 2018 the Supreme Court decriminalised consensual same-sex relations between two adults in Navtej Singh Johar v. Union of India. The judgement was deemed pathbreaking and celebrated as a historic milestone for queer liberation in India.
All queers are equal; but some queers are more equal than the rest.
Section 377 had varying impacts on different queer communities. One, it provided legal sanction to existing social stigmatisation. In a largely homophobic society the existence of a legal provision criminalising one’s very existence was a threat that gave leeway to extortion, exploitation, and violence. Two, it allowed for the legal victimisation of individuals. The wording of Section 377 criminalised all carnal intercourse “against the order of nature” wherein “penetration is sufficient to constitute carnal intercourse”. While this is primarily in reference to gay men, Section 377 has been conflated to make lesbians, cross-dressing individuals and transgender people legally vulnerable in the past.
However, even after the decriminalisation of s.377, provisions such s.363 of the Indian Penal Code 1860 that criminalises the kidnapping of any person from lawful guardianship and has been utilised to control the sexualities of women who love women in the past continue to be misused for such ends.
And while NALSA v. Union of India did uphold the right to self-determination and dignity, the judgement’s recognition of the “third gender” was deemed extremely reductive by members of the transgender community. Kanmani Ray, a transgender activist writes,
“While anyone is free to self-identify as third gender & I shall stand by it, the very idea of self-identification is against such a notion to impose one word which is not acceptable to all. Also, it reinstates a sexist exclusionary hierarchy (violating Article 14 & 19). If every transgender person is supposed to be referred to as a third gender person, then who is the first gender? Cisgender Men? Then will cisgender women accept the status of ‘second gender’ under the Constitution?”
Further, it merely dealt with the rights of gender, and not sexual minorities. Even after the NALSA judgement and Section 377 being read down, transgender individuals constantly face violence, discrimination and hatred.
Only financial and social standing protects LGBTQIA+ individuals from the mires of conversion therapy. Societies which actively propagate archaic, religious beliefs and misinformation, such as homosexuality being a disease to be “cured”, continue to fester. In India, conversion therapy has still not been declared an offence. While the practice has been denounced by several members of the medical community as unethical and a pseudoscience, it still poses a severe threat to members of the community.
Several members of the community have died by suicide as a result of this barbaric practice. Violence against the LGBT community does not affect everyone equally as caste, gender and religion play a considerable role in how individuals experience homophobia or transphobia.
Therefore, the impact of Navtej Johar is disproportionate in nature. It benefits upper class gay men more than it does cis women and trans people.
The “Respectable Indian Queer”
Let us examine the queer identity that fits within notions of respectability and consequently have their rights prioritised over others.
It is not possible to separate your queer identity from your political one. Living in India, every aspect of your identity: be it gender, sexuality, religion or caste, will considerably affect your experience in public spaces. From scepticism by the police during pride marches to overt hostility; the State has always been wary of the political queer.
This was particularly poignant during the annual Mumbai Pride March in February 2020. The Police denied permission for the conduct of the Queer Azadi Pride March in fear that people would use it to collectivise against the CAA. However, people chose to exercise their right to peacefully protest and chanted slogans demanding queer liberation and against the Citizenship Amendment Act. In response, the Mumbai police arrested around 50 individuals for sedition as they expressed support for Sharjeel Imam, an activist who was unfairly arrested for speaking against the Citizenship Amendment Act and the National Registry of Citizens.
Queerness is inherently political, and pervades every aspect of an individual's social experience. The state systematically excludes individuals for straying from normativity, with the regressive NRC being a prime example. In Assam, this list excluded some 2,000 transgender people, rendering them effectively stateless. It is impossible to separate the two exclusions, and the ability to do so has historically only been available to those who possess caste and class privilege in society.
The Respectable Indian Queer is non-threatening: they’re expected to be apolitical towards issues that challenge the incumbent government and never use their identity in exposing the failures of the State in guaranteeing their rights.
The caste system and patriarchy fuel each other and thrive in each other’s presence. The State is exclusionary in several ways. There is minimal Dalit representation in most government bodies as well as the judiciary and a considerable gender disparity. This institutional oppression is especially harmful for queer individuals. There is no reservation for queer people, a minimal job market, and no protection from discrimination in the workplace. The intersection of caste and queerness makes one more vulnerable.
After the reading down of Section 377 India witnessed the emergence of homonationalists in public spaces. One of the most prominent of these is Ashok Row Kavi, founder of the Humsafar Trust, a Mumbai-based NGO for LGBT rights. Row Kavi credits the incumbent BJP government for the verdict (directly, or otherwise) despite it being the work of activist groups and the judiciary and not the government.
The Queer Hindu Alliance supported government actions such as the abrogation of Article 370 of the Constitution (which accorded Jammu and Kashmir special status) by claiming it to be a “gay liberation for Kashmir.” Their reasoning was that it would extend the application of the Supreme Court's judgement to Kashmir; but the continued violation of fundamental human rights within this region is tantamount to humourless irony. Kashmir’s year-long internet shutdown and communications blackout harmed closeted queers, putting them in danger in their own houses, depriving them of avenues for support and solidarity.
The Respectable Indian Queer is non-questioning: of institutions that give and take away their rights without accountability, and of structures which disadvantage certain queers over others.
In India, moral policing does affect everyone to some extent; women are scrutinised (if not attacked) for wearing the clothes they choose and heterosexual couples displaying affection in public are condemned, whereas certain actions are rewarded: wearing traditional and modest clothing, performing chastity and monogamous marriages. For example, an unmarried heterosexual couple will find it considerably more difficult to rent a house as opposed to married couples. However, the societal standards of respectability that queer persons are expected to adhere to are much higher.
These public performances of respectability are often aligned with cisheteronormative standards. They are a prerequisite for societal recognition and dignity. Acts such as gender non-conforming dressing and behaviour, sex positivity, non-monogamy and expressions of sexuality in public spaces are condemned. Therefore, the harsh consequences for engaging in cross-dressing or homosexual activities (which is far removed from “respectable sex used for procreation”) either forces you to engage in these activities privately or risk degrading comments, slurs and violence. When freedom of expressing oneself is so intrinsic to the queer identity, respectability politics is a tool to police the queer identity.
Adhering to the demands of respectability politics would be to align your activism to fit into the existing system, even if the system isn’t perfect. For instance, the gay right to marriage is prioritised over remedying other harms that queer people face on a regular basis such as conversion therapy, discrimination in the workplace and targeted sexual violence. Historically, marriage is a deeply unequal institution legitimized by the State; it has been a tool to control women’s sexuality, ensure caste hierarchy and fix individuals into rigid gender roles. Despite this, the pursuit of fitting into a broken system rather than questioning the institution of marriage and monogamy itself is how respectability politics manifests itself.
The Respectable Indian Queer is non-sexual. They don’t do sex work for a living, but rather choose to engage in more “respectable” professions (One may wonder who the scandalous sexually depraved deviants they offer these services to are, but that’s a question for another day). They neatly align with the patriarchy’s ideals of acceptable sexuality and behaviour, and to deviate is to become a non-person in the eyes of the law.
Controlling Queer Narratives
The mainstream discourse surrounding queer rights and activism is centred around individuals who are palatable to the public taste. Consequently, certain issues are prioritised over others. Certain aspects of the queer identity are deemed more socially acceptable than others; this is reflective of existing caste and class hierarchies in society as well.
For example, the public memory surrounding Navtej Johar will always be intrinsically linked to Menaka Guruswamy and Arundhati Katju. They’re immortalised as two lesbian lawyers, who fought all odds and finally won their right to love. Their love-story is widely celebrated and they’re firmly placed as the ‘face of the historic Section 377’ verdict, and by extension, the face of the LGBTQ+ movement in India.
While their contribution to the case is certainly relevant, contrary to widespread belief they weren’t the only ones. The case itself was also argued by other lawyers such as Jayna Kothari, Arvind Datar, and Pritha Srikumar, among others. The depiction of the case as Dr. Menaka Guruswamy and Arundhati Katju as the sole saviours of queer rights in India is reductive and disregards the extensive groundwork laid down by various queer groups, activists and lawyers to get to that position in the first place.
Immediately after Suresh Kumar Koushal v. Union of India, several curative petitions were filed by 13 mental health professionals, parents of LGBT persons, and groups such as Voices against Section 377 and the Naz Foundation Trust. There was mass mobilisation of LGBTQ individuals on the ground. In 2016, two fresh petitions were filed by Navtej Johar, and Dr. Akkai Padmashali, Umi and Sana, three prolific transgender activists from Karnataka, the latter being lost in the obscurity of mainstream media. This was followed by several other petitions by queer activists such as Anwesh Pokkuluri, Keshav Suri, Prof. Nivedita Menon etc. urging the Supreme Court to reassess the constitutionality of Section 377.
But considerable media attention was centred around Navtej Johar and his partner, Sunil Mehra, a high-profile dancer and journalist respectively. This was followed by petitions by restaurateur Ritu Dalmia, hotelier Aman Nath, and businesswomen Ayesha Kapur, all individuals with considerable class privilege that insulates them from potential backlash; being virtually immune to the kind of blackmail and violence other LGBT individuals face.
Glorifying Navtej Johar comes at the cost of sidelining other issues that queer communities continue to face. Dr. Akkai Padmashali, in an interview with the Leaflet, said that while NALSA spoke about the right to gender identity, it was silent about the oppression of sexual minorities. Section 377 was frequently misused by the police and several transgender people were victimised, tortured and sexually abused in police stations. And it was this that motivated her to file a petition against Section 377.
But the judgement, apart from reading down Section 377 extensively speaks of the historical injustices faced by the queer community but does not provide any positive rights. Further, the introduction of the regressive Transgender Persons (Protection of Rights) Act, 2019 barely a year later, considerably pushed back transgender rights and activism. The Act is a product of apathy, ignorance and sheer absence of inclusivity. For instance, Section 4(2) guarantees the person right to self-perceived identity. But Sections 5 & 6, mention how the District Magistrate can provide trans people with a certification of identity of "transgender" (and not their identified gender) until they undergo a sex reassignment surgery. This delegitimizes a trans individual's right to identify and be recognized as a particular gender and instead chooses to lump them in the broad category of "transgender". There is an absence of clarity regarding the definition of intersex persons which dilutes their rights. Further, there aren’t positive rights for reservation and employment of transgender individuals.
The Union government was deaf to the criticism by members of the trans community throughout the consultative process. In the midst of the coronavirus lockdown it published the rules it has framed to implement the Act, but sought responses with an unrealistic deadline of April 30th (later extended to May 18).
This is a group especially vulnerable during the pandemic. There have been reports of increased violence against the transgender community and economic hardships have been especially exacerbated.
While transgender people and LGB individuals without significant class and caste privilege continue to face adversity, the media discourse revolves around the Marriage Project or same-sex marriage being the next ‘goal’ for queer liberation in India. Pushing for this in a country where the legal system has not demarcated gender and sexual identities comprehensively, or guaranteed fundamental rights through legislation, will always be trans-exclusionary.
On September 13 a PIL was filed before the Delhi High Court asking for same-sex marriages to be included within the Hindu Marriage Act, 1955. The Delhi HC adjourned the hearing after the Solicitor General claimed that same-sex marriage is not recognized under Indian Culture. However, such an endeavour merely provides an illusion of progress.
Once again, the beneficiaries of a favourable order in this case would inevitably be upper class, upper caste Hindus. It promotes religious endogamy in a country deeply divided along communal lines. The Hindu Marriage Act, 1955 is rife with problems. One, its undue emphasis on rituals and ceremonies reveals Brahmanical influence. In 1967, C. Annadurai passed an amendment to the Hindu Marriage Act, 1955, allowing for the recognition of self-respect marriages or marriages that don’t require priests or any religious ceremony in Tamil Nadu. This was a radical move to promote intercaste marriages and was the first of its kind in a country that promoted caste endogamy.
Two, it attempts to control and actively discriminate against women and dilutes individual autonomy in marriage. Section 9 of the Hindu Marriage Act, 1955 provides for the restitution of conjugal rights. This has been utilised by the Court to curtail a woman’s freedom to pursue employment of her choice by holding that it is the ‘sacred duty of a wife to follow her husband and to reside with him’. It controls an individual's autonomy in a marriage disallowing them to leave and reside where they wish. Further, in a State where marital rape is not an offence, it forecloses any opportunity for an individual to escape their abusive spouse.
Working homosexual marriages into such a deeply oppressive code is as far from progress as one can get.
Queer activism operates within the structures that exist: caste, class and gender privilege allow the Respectable Indian Queer to control the narrative and public memory relating to the same, often at the cost of other identities.