15 LGBT Movement

Contents

1. Objective

2. Introduction

3. Learning Outcome

4. What and/or who is the ‘queer’?

5. Pre-colonial India: Queering Ancient Texts

6. Post-colonial India: Defiant Desires – the Making of a Queer Consciousness

7. Section 377: A legal Project

8. Some successes

9. Summary

1. Objective

The objective of this module is to trace and analyse the LGBT (lesbian, gay, bisexual, transgender) movement as it has grown in the past few decades as a social movement that challenges patriarchy and inherent hetero-sexism in society that posits love between men and women as natural, necessary and compulsory.

2. Introduction

The LGBT movement has in the last decade gained a visibility to reckon with, reflected in Pride marches in both metropolis and suburban towns, advertisements (Anouk clothing apparel, Fast Track watches), growing body of literature/films/television serial (Kari- a graphic novel, Dostana, My Brother Nikhil, Chitrangada, Memories in March, Ek Boond Ishq) celebrating the queer and an increasingly assertive, hyper-articulate, men and women challenging hetero-sexist assumptions and ‘outing’ themselves. Does this spell the death of ‘hetero-sexism’ and a celebration of different sexualities, an acceptance of human sexuality as a spectrum rather than water-tight, static identity, practice and behaviour? What does queer politics mean and what has queer theory done for the academia? Has it ‘queered’ lives and destabilized mainstream theories? Or are we seeing a cooption of what was traditionally at the margins? Is the ‘out’ now ‘in’? This module will trace the emergence of LGBT movement as both an oppositional force to state, law and medical establishments that try to establish homosexuality as unnatural and deviant as well as an affirmative politics in demanding human rights.

3. Learning Outcome

This module would acquaint you with the rising concern for the rights of persons belonging to ‘third sex’ along with the conceptual issues related to their identity. We would also learn how the LGBY movement has gained visibility in recent times due to certain intellectual and material developments globally. In India too we would notice certain initiatives on the part of stakeholders and NGOs to challenge patriarchy and inherent hetero-sexism in society.

4. What and/or who is the ‘queer’?

The social structures of society give primacy to only one kind of sexual and/or romantic desire: that between man and woman which ideally should be within the institution of marriage. This is further compounded by what is called ‘heteronormativity’, that is, strict understanding and conformity to gender norms and institutions of patriarchy. Judith Butler (1990) argues that a norm is neither a law nor a rule but a standard of normalization. In their operation as social practices, they are implicit and discernible mostly in their effects. The norm legitimizes and bestows recognition on actions and practices within the social field and to be outside it is also means to be defined in relation to it, as a lack— non-normative. The binary of masculine and feminine is also a norm that is produced by gender, and to see masculinity and femininity as expressions of gender is consolidating the norm. Gender then is a mechanism by which such binaries are created and it can operate otherwise to denaturalize the same. Gender by the very understanding of transgender (for one instance) shows a way to break out of the naturalized binary of masculinity and femininity.

The ‘queer’ is somebody who displaces gendered norms and practices. In fact the word ‘queer’ has been hotly debated and contested. It is now understood as both an epistemological and ontological category. Historically the term, ‘queer’ has meant the strange, odd, peculiar, eccentric, of questionable character, suspicious, dubious, contemptible, worthless, untrustworthy, disreputable, amongst others. To use the word as a political tool for identity politics is to reclaim the word from its pejorative, discriminatory, derogatory usages in the English language. It is both a personal identity and political defiance; the act of naming oneself ‘queer’ is to reject the logic of inclusion within the centre and a celebration of the margin. Therefore, at one level it is used for lesbian, gay, bisexual, and transgender subjects and collectives, and at another level, the “queer” is enlarged and made heterogeneous enough to include not just the “non-heterosexual,” but also the “non-normative” in terms of gender and sexuality. Teresa de Lauretis (1991) first proposed “queer” as a theoretical intervention to magnify the resistive potential of outlaw sexualities, and push back against the desire for normalcy that she saw as dominating gay and lesbian politics. The ‘queer’ is, thus, someone who does not fit into the rigidly defined masculine/feminise subject. Gayle Rubin (1984) in her essay ‘Thinking Sex: Notes on a Political Economy’ argues that modern western societies maintain strict hierarchies when it comes to sexual behaviour, practices and attitudes. “Marital, reproductive heterosexuals are alone at the top erotic pyramid. Clamouring below are unmarried monogamous heterosexuals in couples, followed by most other heterosexuals. Solitary sex floats ambiguously. The powerful nineteenth-century stigma on masturbation lingers in less potent, modified forms […] Stable, long-term lesbian and gay male couples are verging on respectability, but bar dykes and promiscuous gay men are hovering just above the groups at the very bottom of the pyramid. The most despised sexual castes currently include transsexuals, transvestites, fetishists, sadomasochists, sex workers such as prostitutes and porn models, and the lowliest of all, those whose eroticism transgresses generational boundaries” (ibid.:151). She goes on to argue that institutions such religion and medico-psychiatric establishments reward individuals whose sexual practices conform to those at the top of the hierarchy and punish and ostracize those who are located at the bottom. The sexual economy legitimizes reproductive, monogamous, conjugal relationships and extreme stigma is associated with all others forms of desires. At one end of the spectrum, there is zero tolerance, ridicule, mockery, discrimination and on the other end, there are hate crimes such as murder, rape and mutilation towards those who refuse to conform to social norms and behaviour.

Feminist scholars like Elizabeth Grosz, amongst others, have used the term ‘queer’ to signify the oppositional politics towards what Gayatri Spivak calls ‘reproductive heteronormativity’ (Spivak 2007). ‘The heterosexual can, I believe, remain a heterosexual but still undertake subversive or transgressive sexual relations outside the copulative, penetrative, active/passive, stereotyped norm (but does so only rarely); and lesbians and gays can of course produce sexual relations that duplicate as closely as they can structures, habits, and patterns of the straightest and most suburban heterosexuals (but succeed only rarely) […]it depends on how one lives one’s queerness, or renders one’s straightness, one’s heterosexuality as queer’ (Grosz 2012: 200). Treading the path laid out by Teresa De Lauretis (2007), recent scholarship on LGBT politics have raised the efficacy of using the term ‘queer’ as oppositional politics, particularly in the context of the rise of the gay marriage movement in North America and Europe, where we witness the playing out of normativity within the margins, an attempt to enter the mainstream by embracing dominant values and aspirations, and thus gaining social, economic and political equality; a move coined as ‘homo-nationalism’ (Puar 2007). In the context of the modern binary between the homo and the heterosexual which defines what they are and freezes meaning, there are other intersectionalities particularly between gender and sexualities that needs to be explored. Radical feminists, such as the lesbian author Adrienne Rich in On Lies,Secrets, and Silence (1980) and the African American lesbian author Audre Lorde, Sister Outsider: Essays and Speeches (1984) used poetry, speeches, and writing to link heterosexuality and women’s oppression. Adrienne Rich in her landmark essay, Compulsory Heterosexuality and Lesbian Existence argues how lesbian existences are either completely ignored (even in feminist scholarship) or violent, coercive means are used to crush it out of existence. “[…] it becomes an inescapable question whether the issue we have to address as feminists is, not simple ‘gender inequality’, nor the domination of culture by males, nor mere ‘taboo against homosexuality’, but the enforcement of heterosexuality for women as a means of assuring male right of physical, economical and emotional access” (ibid.: 647). Instead, she suggests using the term ‘lesbian continuum’ to include all kinds of emotional and sexual connection between women; for her a lesbian existence is not just women loving women but a resistance to patriarchy, that is men’s rights over women. She is also clear that homosexuality is not a coherent, consistent term, and that lesbian women have to be distinguished from homosexual men, because for the former the experience of being a female in an androgenic world, makes her relatively less privileged than gay men viz-a-viz heterosexual men (ibid.)

The term ‘queer’, however, has had a different political charge in India. It signifies an opposition to the procreative, conjugal, monogamous, sexual economy and reclaims other expressions of sexuality as marginal, abhorrent and abject. Contemporary Indian sexuality are not just about lesbian/gay/bisexual/transgenders but span the heterosexual-homosexual-transsexual divide. In a country where the only legitimate sexuality is that which is expressed in monogamous, conjugal relations, it is only a narrow hetero-norm within heterosexuality that has gained widespread acceptance. Even today, particularly with the rise of a vocal Right wing moral brigade, adults engaging in consensual sex, outside conjugal relations, whether in public or private or non-heterosexual people fighting for rights and recognition is seen as condemnable (Bose and Bhattacharyaa, 2007). The term ‘queer’ thus is a rejection of this sexual economy which has as its hegemonic paradigm – the hetero normative. As Meditative Menon (2005) has eloquently argued that in India, the women’s movement(s) has not addressed the question of sexuality. On the contrary, most of its activism has focused on the oppressive structures and violence faced by women and children within the family— dowry, domestic violence etc. It is held as axiomatic that if violence is eliminated within the marriage, then the institution of family gets strengthened: ‘[…]the target of our critique is not the heterosexual, monogamous, patriarchal institution of marriage— we attack only the practices that surround that institution: polygamy, dowry, domestic violence’ (ibid.: 36). Thus ‘queer’ is used globally at two levels: a celebration of sexual identities, a battle for rights and legitimacy; secondly, ‘queer’ is also used to signify a challenge— a challenge to normative institutions like marriage, monogamy and reproductive sexual economy; it also articulates various expressions of love, desire and pleasure experienced outside the heteronormative. In India, the word ‘queer’ took a longer time to gain currency, as culturally and socially there has always been a presence of non-normative sexualities in the public sphere. Narrain and Bhan (2005: 4-5) argue that ‘[…]gender identities, sexual practices, sexual identities, culturally sanctioned forms of erotic behaviour— which contest the embedded nature of heterosexism in our society have traditionally existed and continues to exist in the contemporary context’. They include hijras, kothis, LGBT and other non-normative identities that are region specific and contest sex/gender norms. 

The hijras are a community which includes men who have undergone sex changes, inter sexed bodies, men who reject their masculine identity to identify either as women, or in-between man and woman, or neither man nor woman and live within the traditions of Hijra Gharanas. Each Gharana has formal reets (rituals) to admit a new member. The term Hijra is used in North India, Kinnar in Delhi, Kojja in Andhra Pradesh, Chakka in Karnataka and Aravani and Thirunangai are used in Tamil Nadu. Often men who cannot fit into the ideal masculine roles prefer to leave home or are sometimes turned out and take refuge in hijra community. Many of them continue to remain biologically male or may go for voluntary castration. Kothis are biological men who identify with the feminine and thus their identity is marked by gender non-conformity. They take on feminine mannerisms, attitudes and attire and couple with masculine men (Nanda 1999; Reddy 2007). Lesbian, Gay, Bisexual and Transgender (LGBT) are men and women who do not conform to heteronormative sexual and romantic desires. There are also other genders and sexuality based identities that are region specific and enjoy social, ritual, and cultural sanction.

5. Pre-colonial India: Queering Ancient Texts 

Ruth Vanita and Saleem Kidwai’s book, ‘Same-sex love in India’ has taken on the task of unearthing same sex relations and queer practices in both past and present India. It reads texts such as Mahabharata to demonstrate how same-sex friendship and companionship was celebrated as against cross-sex relationships. They read against the grain to demonstrate that the highest form of love and companionship was not the patrilineal, conjugal husband-wife coupling, but that of same sex friendships, most evident in Krishna and Arjuna’s relationship. ‘The Gita only reiterates what Krishna says in his many declarations to and about Arjuna— that he and Arjuna are not two but one.’ They also demonstrate how in the Rig Veda, deity pairs are celebrated always in terms of same-sex pairs rather than conjugal couples. The earliest records of sex-change in ancient texts and the most famous one is that of Amba practicing austerities to be reborn as a man. She, however, was born as Shikhandini, a female and was later changed into a male. Similarly, both Kamasutra and Tamil epics have references of men changing forms to become a woman to engage in love play with other women. However, in ancient texts the conversion of male body to female body is not seen as either conducive or celebratory, whereas women being reborn as men were almost impossible. Even in Jataka (Buddhist texts) one notices a celebration of intimacy and friendship between male bodhisattas. These homo-erotic tones in both Buddhist and Hindu texts also question the category ‘gender’ as a fixed, natural, static identity. The very understanding of gender as not two mutually exclusive categories, but easily permeable and socially constructed to uphold institutions of marriage and patriliny, questions the primacy and absoluteness of heterosexual relations (Vanita and Kidwai, 2000).

6. Post-colonial India: Defiant Desires – the Making of a Queer Consciousness

“I am the love that dare not speak its name” was a sentence in the poem “Two Loves” by Lord Alfred Douglas, published in 1894 in England, where homosexuality was illegal. In 1895 Oscar Wilde was brought to court charged with indecency and sodomy and Charles Gill, a schoolmate of Wilde’s and the prosecutor in the case asked him “What is the love that dare not speak its name?” It was interpreted as a euphemism for homosexuality, though Wilde denied it. It was this Victorian regime of morality that was transported to a country, such as India, with very different cultural and sexual practices that led to the drafting of Section 377 of the Indian Penal Code (377, IPC.) by Lord Macaulay and enacted in 1860. This section reads: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life or with imprisonment of either description for a term 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. Nowhere does the law distinguish between consensual and non-consensual sex and can bring in its ambit all sexual acts that are non-procreative. Through the colonial period, as well as post-independence, the law has been invoked to blackmail male homosexuals and transgender persons (Narrain Gupta, 2011). Some have argued that this law does not address lesbians as technically the legal definition of intercourse required penetration. However as Ashwinin Sukthankar argues ‘But the invisibility conferred on us by the law— our special share of the country’s colonial legacy— does not necessarily result in lesbians being ‘legal’, and therefore having legal recourse to fighting discrimination and harassment. On the contrary, invisibility means that the fact of our existence is still more shocking when it is revealed, and the very law that seems to ignore the reality of lesbian existence is employed to crush it out. Section 377 is used by families to coerce daughters out of lesbian relationships, it is used by employers to justify firing lesbian employees, it is used by mere acquaintances to blackmail and persecute’ (Sukthankar 1999: xiv-xv).

Since the 1990s, the LGBT movement has been focusing on Section 377 to bring about decriminalization of queer individuals. The HIV/AIDS epidemic with its close association with homosexuality has also garnered a lot of support and became the centre of queer activism. The first queer collective was Aids Bhedbhav Virodhi Andolan (ABVA) and it organized the first gay protest in 1992 in Delhi. In 1993, the first AIDS conference was organized that brought the question of homosexuality straight into the public sphere. Deepa Mehta’s film ‘Fire’ (1998) which depicted two married women getting sexually and romantically involved brought homosexuality into the drawing rooms of the Indian middle class. Suddenly homosexuality, particularly lesbianism, an otherwise taboo word, became common parlance. It also brought on the ire of Right wing moral brigades (ShivSena, Hindu Mahasabha) who went on a rampage preventing the screening of the film and damaging cinema theatres that did so. As Sibaji Bandopadhyay (2007) argues that shortly after Fire, another film dealing with male homosexuality— Bombay Boys— was released; however, it did not incite the kind of protest, arguments, debates or garner the support that Fire did. ‘[…]it is not homoeroticism per se but a distinct form of sexual deviancy, namely, “lesbianism” which was the root of all problems. The argument could be: the reason behind all that rage and tumult was the disturbance produced in the male psyche at the sight of females locked in each other’s gaze absorbing enough to be detrimental to the interests of the patriarchal family’ (ibid.: 25 ). The furore over the names of the protagonists (Radha and N/Sita) which Right wing brigades demanded be changed into names of the Muslim actress who played the character of Radha (Shabana Azmi) and the Muslim actress who headed the censure board (Saira Banu). The conflating of homosexuality with a minority religious identity brought to focus the debates of ‘nationalism’, ‘Indianness’, ‘Hindu’ straight into the heart of queer activism and politics. The framework which worked as a context for queer academics and politics became the ‘Indianness’ of homosexuality viz-a-viz its alleged ‘westernness’; soon a plethora of scholarship challenging homosexuality as a modern invention, a ‘western import’ started emerging. As Vanita and Kidwai (2000: xxiv) argue that ‘the myth that same-sex love is a disease imported into India contributes to an atmosphere of ignorance that proves dangerous for many Indians. In such an atmosphere, homoerotically inclined people often hate themselves, live in shamed secrecy, try to “cure” themselves by resorting to quacks or forcing themselves into marriages, and even attempt suicide, individually or jointly’.

The LGBT movement has charted its struggle against mainstream discrimination within a human rights framework and identity politics. There have been attempts to non-pathologize sexual preference, and recognize gay and lesbian people as deserving human rights. This has been reflected in the liberal agenda of all kinds of sexuality within the mainstream. However, a disjuncture has developed between male homosexual community which has joined cause with the anti-AIDS discrimination movement and the lesbian community which has established linkages with the women’s movement(s). However, the women’s movement(s) has always been divided in opinion when it has come to the question of sexuality. The focus of Indian women’s movement(s) has been on rape, dowry, domestic violence and questions of poverty and unemployment. Lesbian activists and queer collectives have often been faced with the indifference of majority of feminists who question the primacy of sexuality (particularly counter-heteronormative sexuality) and peg it as trivial and secondary. As Chayanika Shah (2005: 151) has eloquently argued ‘So far as women’s movement has been concerned, we have by and large, concentrated on the rights of those who live by the norms laid down by society. Women who have relationships outside of marriage— monogamous or multiple, with whomever they want to; women who choose to acknowledge, express and act on their desire[…]  women who challenge the very basic norms and structures of how society thinks that women should behave— talking of rights for all these women is a difficult task. Acknowledging their existence could be interpreted as endangering the movements of and for the ‘good’ women. But feminism is not about maintaining status quo. It is about challenging all oppressive structures of society’. 

An important phenomenon that has been affecting the trajectory of the LGBT movement is the rapid growth of the HIV/AID pandemic. In fact, scholars have been pointing out that AIDS is an epidemic of globalization and the international mobilization that has responded to it, is also a sign of globalization. The discourse surrounding the epidemic has had as its target group, ‘men who have sex with men’ and sex workers. This has also resulted in questions of sexuality becoming part of human rights (Dennis Altman 2007).

7. Section 377: A legal Project

Section 377 of the IPC has been the centre piece of much of the queer activism. ABVA was the first to challenge it in the Delhi High Court in 1994. Ever since this law has become a locus of queer activism, such movement has began with the basic premise of a demand for non-criminalization of counter heteronormative desires and practices. While many argue that the number of convictions under this law has been insignificant, it is also widely recorded that it has been used as a tool to manipulate, blackmail and intimidate queer people. One could argue that the queer community has been politicised around this law in its bid to be counted as legitimate subjects. The two pronged strategy – of opposition (to the law) and recognition (of human rights) has formed the basis for much of queer collectives that have formed across the country in the last two decades. ABVA was the first queer body to come up with a report called ‘Less than Gay’ where it put on record violence faced by lesbian and gay people. India had its first comprehensive document on queer rights and violence against homosexuals as early as 1991. It was followed by ‘Campaign for Lesbian Rights’ (CALERI Report 1997), ‘Humjinsi’ (1999) and People’s Union for Civil Rights- Karnataka’s reports on violation of human rights on lesbian and gay people (2001) and transgender (2003). In 1992 ABVA held its first open gay meeting protesting against police harassment and is considered as the first recorded gay protest meeting. The next two decades saw many more such protests, meetings and activism which caught the attention of both national and international media, funding agencies and policy bodies.

Homosexuality suddenly hit the public spotlight in January 1988 with the high-profile marriage of Leela and Urmila, two policewomen from small-town rural Madhya Pradesh who were subsequently dismissed from the force. However, what started queer activism against Section 377 of IPC was the arrest of four staff members of an organization working on HIV/AIDs in Lucknow in 2002 on charges of promoting homosexuality. Known as the “Lucknow four’, the case drew major attention to the potential of Section 377 in intimidating, harassing and violating human rights. It also became the catalyst for the forging of solidarities amongst various queer collectives and organizations, despite ideological differences. It resulted in the formation of People for the Rights of Indian Sexual minorities (PRISM), which focused on queer rights and was instrumental in the formation of a people’s group called ‘Voices against 377’. As Narrain and Bhan (2005: 10) have noted that ‘Voices members come from different fields of work, and they take issues of same-sex desires back into movements on health, women’s rights, child rights and human rights. Increasingly the LGBT movement saw collaborations with health movements, women’s movements, mental health movements etc. It was thus a ‘queering’ of supposedly ‘straight’ movements.

Narrain and Gupta have argued that the turning point in mass mobilisation against Section 377 was an open letter by Vikram Seth and Amartya Sen where they argued love could not be criminalized. Amartya Sen wrote ‘Gay behaviour is, of course, much more widespread than the cases that are brought to trial. It is sometimes argued that this indicates that Section 377 does not do as much harm as we, the protestors tend to think. What has to be borne in mind is that whenever any behaviour is identified as penalizable crime, it gives the police and other law enforcement officers huge power to harass and victimize some people’ (cited in Narrain and Gupta 2011: xxvi-xxvii). The letter by Seth was co-signed by Swami Agnivesh, Captain Lakshmi Sehgal, Veena Das, Arundhati Roy, Upendra Baxi, Shyam Benegal and a host of other famous people. Both these letters were covered extensively by news channels and dailies and created conversation on what it meant to be a truly ‘democratic and plural’ nation (Khanna 2011).

One of the significant protests that the queer community engages in are the Pride marches, which celebrated the queer way of life. The first Pride march was held in Kolkata in 2003 and subsequently spread to other major cities. The slogans demonstrated an assertive, articulate and increasingly visible community of lesbian, gay, hijras and kothi; the latter widening the class basis of the movement. The state, the legal system and the medical system were questioned and held responsible for the discrimination and the denigration heaped on to queer people. It was not just queer-identified people, but a large number of heterosexual men and women who came in to stand by and for the demands and rights of the LGBT community. The visibility that these Pride marches and other events have had, reflected on judgements regarding Section 377. As in the documentary ‘Many People, Many Desires’ (2004) it has been noted that ‘Judges hearing the Section 377 petition referred to the Kolkata Pride and asked the advocate for the Government of India how we could hold on to such archaic laws, when the culture even within India is changing’ (Narrain and Bhan 2005: 10) .

In 2001 the Lawyers Collective, HIV/AIDS unit on behalf of Naz Foundation filed a case challenging the constitutional validity of Section 377, in the Delhi High Court, on grounds of equality, privacy and freedom of expression. By 2004 it was dismissed. The petitioners filed a review petition in the Supreme Court and it was referred back to the Delhi High Court. The final arguments began in September 2008 and as Narrain (2011) has argued much of the opposition to a reading down of the section was based on destruction of ‘morality’. In 2009, the 105 paged judgement overturned the archaic law and held that consensual sex between adults in private cannot be criminalised and that doing so is a violation of Article 21, 14 and 15 which said guaranteed dignity, equality and freedom regardless of sexual orientation. This reading down of Section 377 could be seen as a direct outcome of the LGBT movement and the struggles of the queer community. As Narrain and Gupta (2011: xxix) have noted that the judgement came at a ‘fortuitous moment of convergence between legal and political thinking and social attitudes’. The visibility of homosexuals had reached a peak by 2009 and more queer people were ‘coming out’ and this growing visibility affected legal thinking and social attitudes. There were plethoras of movies, literature, plays and performances that used the word ‘gay’ and celebrated queerness and inserted the gay and lesbian body straight into drawing rooms of the Indian citizen. All this coupled with the growing sense of entitlement within queer community led to a new form of assertiveness.

However, as the battle against Section 377 became protracted and as this struggle started gaining more and more visibility in the mainstream media, there was backlash as well. There were newspaper reports that argued that decriminalization of homosexuality would mean male street children would be more vulnerable to sexual abuse by older boys and men. So it became imperative for queer activists to come forward and contest such claims. The judgment of the Delhi High Court in Naz Foundation v. Union of India, delivered on 2nd July, 2009, triggered a euphoric response from the Lesbian, Gay, Bisexual and Transgender (LGBT) community as well as from the wider activist community. The judgment was, however, not so much about giving LGBT people majoritarian rights as much as it was about the country and its democratic and plural spirit. What the Naz judgment also triggered was a wide conversation on LGBT rights in living rooms, offices and tea shops across the country. LGBT persons were out of the closet and literally onto the front pages of Indian papers and news channels.

Individuals and faith-based group appealed against the High Court verdict. The Supreme Court of India, on 11thDecember 2013, upheld Section 377 and overturned the judgment of the Delhi High Court that had decriminalized adult consensual same-sex conduct. It stated that the Naz petition did not have any “factual foundation” because “the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years, less than 200 persons have been prosecuted for committing offence under Section 377.” And in the face of all the evidence of torture, rape and violations due to Section 377, the Court stated that “harassment, blackmail and torture” of LGBT persons is “neither mandated nor condoned” by the Section. The judgement said: “We hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.” The judgment raises serious questions of the constitutional rights of citizens. It acts against the spirit of the Supreme Court which is to protect and promote fundamental rights and freedoms of all people, especially those who face marginalization in society. The need to seek an interim stay on the judgment takes on a graver tone as those members from the LGBT community who had become open about their sexual identity since the High Court judgment and are now at risk of prosecution under criminal law Following this judgment, a review petition was filed with the Supreme Court which too was rejected and then a curative petition was filed which awaits hearing. Post the verdict there have been some reported incidents of arrests under the Section as well. In a newspaper report (Livemint dated December 12 2013) gay rights activist Ashok Row Kavi described the ruling as an “earth shattering verdict”. Anjali Gopalan, of Naz Foundation, said “We have been set back by a hundred years. The ruling tells us what we are as a people. The whole process is reflective of the mindsets of those who have passed the judgment. It is bizarre, pathetic and sad” (Ibid). Anand Grover, lawyer for Naz in the matter, however, sounded defiant. “I am extremely disappointed with the judgement. The Supreme Court has taken 21 months to tell the lesbian, gay, bisexual and transgender persons that they are criminals in the eyes of the law. The movement for LGBT equality is unstoppable, rooted as it is in the dignity and resilience of the LGBT persons. We will be filing a review of the present decision as soon as it is available” (Ibid). 

Experts say any legal recourse will be very difficult. A review of the decision, if sought, is unlikely to reverse it as the matter will then be considered by the same bench—except that another judge will be selected to head the bench. A lawyer who represented some of the original petitioners said that even if the matter is heard afresh, the Supreme Court ruling will operate as a precedent, which will weaken the matter from the start. The re-criminalization of Section 377 may be counted as a setback for the LGBT movement but it would be an exaggeration to say that they are driven back into the closet. The struggle for legal change, the celebration of queerness, the demand for human rights by LGBT persons have opened floodgates that will not be shut easily.

8. Some Successes

The LGBT movement has seen some success. In 2012, a petition was filed by Lawyers Collective on behalf of Ms. Laxmi Narayan Tripathy, transgender activist, seeking recognition for those individuals who identify themselves either as male/female/third gender, and not on the gender assigned to them at birth. The writ petition, which functioned within a human rights framework sought granting of equal rights and protection to transgender persons, inclusion of a third category in recording one’s sex/gender in identity documents like the election card, passport, driving license and ration card and for admission in educational institutions, hospitals, amongst others. In 2012 the judgment was pronounced in National Legal Services Authority v. Union of India & Ors. [Writ Petition (Civil) No. 400 of 2012 (‘NALSA’)] where legal status was accorded to third gender persons. The Court issued a series of directions to the Central and the State governments which included legal personhood, treating transgender persons as socially and educationally backward classes of citizens and extending reservations in public education and employment etc (Lawyers Collective,). There has also been an upsurge in claiming public spaces by the trangender community. In Kolkata in 2015, a Durga Puja was organised by members of Koti, Hijda and other transgender women community in collaboration with Pratyay Gender Trust in another attempt to re-claim social space in the face of social ostracization marked by gender, class and caste. The transgender community has mostly been from working class, lower caste community unlike the LGB who are mostly middle class, upper caste and belonging to an English speaking community.

9.    Summary

The LGBT movement in India has had as its departure point the questioning of love and desire between men and women as natural, necessary and compulsory and any other form of love/desire as abject, pathological and aberrant. The term ‘queer’ increasingly has become synonymous with LGBT individuals, collective and communities. Originally meant as derogatory word for homosexuals, it has now been reclaimed as both a political and a personal identity. Queer is, however, not synonymous to being homosexual. Queer, as proposed by queer feminists, is a challenge to hetero-normative behaviour, practices and attitudes— one can be heterosexual and be queer and one can be homosexual and not be queer. It is particularly pertinent in our country, where any form of sexual relationship outside the procreative, conjugal space is frowned upon. The term ‘queer’ thus is a rejection of this sexual economy which has as its hegemonic paradigm – the heteronormative.

The LGBT movement has used a two-pronged strategy to fight mainstream discrimination – the discourse on human rights and identity politics. At one level, they have fought to be recognized as citizens of the nation and ‘normal’ human beings. At another level, they have celebrated their queer lifestyles, practices and beliefs. The field of LGBT movement has been further complicated with the global epidemic of HIV/AIDS and the male homosexual community has aligned itself with it. Lesbian and bisexual women have established links with the women’s movement(s) with an agenda of questioning heterosexism within feminist theory and praxis.

The centre piece of much of the queer activism in India in the last few decades has been Section 377 of the IPC, which criminalises all sexual practices except penis-vaginal penetration. Apart from that the queer community has put together reports documenting the violence and marginalisation that gays, lesbians and transgenders have been facing. One of the important strategies of being counted as a citizen and a human has been the PRIDE marches organized in metropolitan cities which have had a spinning effect even in the legal system. In 2001, the Lawyers Collective, HIV/AIDS unit on behalf of Naz Foundation filed a case challenging the constitutional validity of Section 377, in the Delhi High Court, on grounds of equality, privacy and freedom of expression. In 2009, a judgement was passed that held that consensual sex between adults in private cannot be criminalised and that doing so is a violation of Article 21, 14 and 15 which said guaranteed dignity, equality and freedom regardless of sexual orientation. However, the euphoria was short lived and there was an appeal against the High Court verdict. The Supreme Court of India, on 11thDecember 2013, upheld Section 377 and overturned the judgment of the Delhi High Court that had decriminalized adult consensual same-sex conduct.

These conversations, legal campaigns, PRIDE marches have been most effective in stirring up the civil society. Suddenly homosexuality became a drawing room conversation for the Indian middle class. This was also reflected in movies, serials and advertisements which depicted homosexuality, without ridicule or abjection. There has been an increasing assertion of human rights of the queer community and laying claim to public spaces. Gay bars, websites for dating, helplines and transgenders being recognized as a backward community needing reservations etc, amongst others. However, one also needs to note that as much as public spaces are being opened the marginalized body is being absorbed into the body politic there are still hate crimes, rape, correctives marriages unemployment and other violence that are inflicted on the queer body.