There are no short cuts to queer
utopia: Sodomy, law and social change
-- Arvind Narrain
Introduction
Law stands linked to justice in our
very imagination of social change. Perhaps nothing illustrates
this process better than the persistent championing of legal reform
as the end point of emancipatory change by many social movements.
There has been an over juridification of social struggle, converting
what is a wider social project into a narrow legal project. This
process of envisaging law reform as the end point of social struggle
has its hazards particularly due to the undemocratic and secretive
way in which the legal process works.
The point of this article is to draw
attention to the limitations of law in the particular context
of sodomy law reform in India so that we are better able to locate
law reform as a part of a wider and more meaningful process of
social and political change. To do this article will strive to
understand what is the meaning of Sec 377 of the Indian Penal
Code for India’s sexual minorities and critically examine the
way law reform has worked in bringing about social change and
address what could be the role that law reform ( a la sec 377)
could play in a newly emerging political movement centering
around sexuality.
Sec 377 as violent social exclusion
Ever since the emergence of the queer articulation in the Indian
context a lot of effort has gone into focusing on Sec 377 as the
locus of oppression of the diverse groups which make up India’s
sexuality minorities.
Sec 377 which was drafted in 1860 by Lord Macaulay
as a part of the colonial project of regulating and controlling
the Indian subject reads:
Unnatural sexual offences: - Whoever voluntarily has carnal intercourse against the order of
nature with any man, woman or animal, shall be punished with imprisonment
... 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.
The study of the use of Sec 377 reveals
that it has hardly been used to prosecute cases consensual adult
male sexual relationships. Rather the main use of Sec 377 has
been to prosecute cases of child sexual abuse.
[1] However it needs to be noted that use cannot
be seen purely in terms of reported decisions. There are possibly
many trial court decisions in which Sec 377 has been used. Even
leaving that aside, documentation in India, through reports such
as the PUCL Report on Human Rights Violations Against sexuality
minorities demonstrates that Sec 377 becomes the basis for routine
and continuous violence against sexual minorities at the level
of the street and the police station by the police. The report
in fact goes on to note that the police engage in practices of
illegal detention, sexual abuse and harassment, extortion and
outing of queer people to their families, which are all forms
of violence practiced against sexuality minorities.
[2]
While these are indeed important effects
of Sec 377, one needs to understand the constitutive role that
Sec 377 plays in making possible the above mentioned forms of
violence. What one needs to do when analyzing the role Sec 377
plays is to go beyond the idea of ‘enforcement of law’ and look
more closely at what is the socially constitutive role that
law plays. The questions one needs to address are whether the
law constitutes a form of social reality , whether it legitimizes
violence against sexual minorities or does the law go one step
further and permeate social discourse and condition the very
minds of common people? [3]
The impact of Sec 377 is far beyond
the so called ‘enforcement’ principle. Foucault used the analogy
of the panoptic to put forward the idea that the law is not external
to you, but rather internal to you . You behave in a certain way
because you have internalized the prohibition of the law. The
real danger of Sec 377 lies in the fact that it permeates different
social settings including the medical establishment, media, family,
and the state. Thus it becomes a part of ordinary conversations
and ultimately a part of the very social fabric in workplaces,
families, hospitals and the popular press. To take three examples:
Ř
this emerges strongly in an interview with the
Chairman of the National Human Rights Comission, (NHRC). On being
asked why the NHRC refused to admit the case of a person who was
treated for his homosexuality with the objective of ‘converting’
him to heterosexuality, the response of the Chairman was to note
that, ‘To talk of homosexual rights is okay in other countries
but there was little you could do when the law in India, Sec 377
was against it. You advised that one should strive to get rid
of the law but nothing could be done till it was repealed. This
opinion seems to be buttressed by other reported opinions within
the NHRC. As one source within the NHRC put it, “homosexuality
is an offence under IPC, isn’t it? So, do you want us to take
cognizance of something that is an offence?’ [4]
Ř
Similarly in an interview with a Police Officer
conducted by the PUCL Team it was noted that ‘as regards the
nature of homosexuality, Mr Hegde was quite clear that it was
an animal like behaviour.’
[5]
Ř
In another interview with a doctor who practices
aversion therapy to convert homosexuals to heterosexuals noted,
‘“Sodomy is illegal in India.” (Dr. S) [6] Thus what is clear is the
existence of Sec 377 legitimises the doctors willingness to treat
homosexuals for being homosexual.
The very existence of Sec 377 goes beyond
the question of the enforcement of the law and crystallizes the
deep societal repugnance towards homosexuality by considering
it perverted ,animal like behavior. If we have people in law enforcement,
medical practice and the judiciary treating homosexuals as people
without rights, the power of the societal mindset comes from the
law. Thus Sec 377 functions as a condemnation of India’s sexual
minorities be it gays, lesbians, kothis and hijras. It is not
anymore a narrow technical legal issue of the gender neutral prohibition
of sodomy( it applies equally to heterosexuals and homosexuals)
but instead embodies and enacts a wider societal condemnation
of sexual minorities. Sec 377 is thus not just a law, but a worldview
which remains entrenched in legal structures, medical discourses,
family discourses and media discourses and perhaps most strongly
in the ‘common sense’ understanding of people. It is in this light
that the challenge to Sec 377 must be framed.
Law Reform
as backroom politics: Some experiences
Once we are clear that Sec 377 does
indeed form a key part of a discriminatory worldview against
sexual minorities, the next question is as to how does one tackle
the problem posed by Sec 377. As noted earlier, many social movements
see the reform of the law as an end point of their social struggles
with all activism being geared towards bringing about a change
in the law. In this context the experience of law reform by the
feminist movement in India as well as the experience of anti sodomy
law reform in the USA and Sri Lanka will be examined to see what
light they can shed on anti sodomy law reform in India.
Law reform in India – The feminist
engagement
The feminist movement in India has had
an sustained engagement with the question of law reform with many
of the demands of the women’s movement being posited in terms
of reform of the law.
Flavia Agnes in her study of the womens’
movement’s engagement with law reform notes that in the context
of the women’s movement, demands for law reform have often resulted
in laws which end up further marginalizing the women and making
prosecution that much more difficult. She gives the example of
rape law reform and concludes that, ‘the campaign against rape
is a classic example of the impact of public pressure on the judiciary.
More favourable judgements were delivered before the amendment,
during the peak period of the campaign, than during the post-amendment
period when they have been consistently regressive. Perhaps public
pressure is a better safeguard to ensure justice than ineffective
enactments.’ [7]
What is being articulated
is a notion wherein law reform by itself is not the solution.
The movement underlying legal demand remains crucial to bringing
about the desired social change. In fact the over reliance on
law as an end point of social activism might need to be seriously
questioned.
As Flavia puts it, ‘This view is only
strengthened by the experiences of the women’s movement in India,
which at least at its inception granted the State the role of
a benign patriarch which will deliver goods. Two decades down
the line, there is a growing realisation within the women’s movement
that the plethora of legal interventions has not really changed
the ground reality in very substantial terms.’
[8]
Though Flavia’s articulated this concern
is the last decade ,even today it remains a crucial question for
the feminist movement to take on board. The recent experience
with the attempt at law reform around the issue of domestic violence
is telling. While there was an excellent draft prepared by the
Lawyers Collective on domestic violence ,when the bill went to
the state, the state came out with its own draft which in effect
was a legitimisation of domestic violence by the man provided
the violence was in defence of his private property. Regardless
of the final outcome of this process, the signs are clear, one
must be wary about approaching the state to change the law , because
what you get might be the very opposite of what you asked for,
as the example of anti sodomy law reform from Sri Lanka illustrates.
Sodomy
law reform as politics: From Sri Lanka to the USA
Two countries illustrate
well the dangers and opportunities presented by sodomy law reform.
The Sri Lankan case is illustrative of the dangers of trying to
force change from above, while the USA example illustrates the
social context in which law reform succeeds.
a)
Sri Lanka
Sri Lanka has a similar provision
to Sec 377 in its Penal Code. The changes to the Penal Code were
recommended in the context of the need for amendments to the law
to protect the victims of incest, marital rape, sexual harassment
and the exploitation of children. Though gay rights groups and
human rights activists such as the late Neelan Thiruchelvam clearly
opposed the continued operation of Sec 365A of the Penal Code
arguing that the provsion was archaic, the amendment broadened
the ambit of acts considered criminal under the law. The term
‘man’ was changed to ‘person’ and ‘carnal intercourse against
the order of nature’ became act of ‘gross indecency with any person.’
Thus, a provision which did not apply to lesbians in its colonial
avatar was actually expanded to include lesbians in the wake of
this reform rather than ceasing to apply to gay men.
What the Sri Lankan story tells us very
clearly are about the hazards of law reform in a context where
there is no movement. Nandita Haksar could very well have been
speaking about the Sri Lankan case when she noted, “[A]n alternative
to a movement cannot be a petition. I strongly feel we should
resort to the law only when the movement is strong enough to carry
the law reform forward. In almost all such cases a legal battle
should only supplement the political battle outside the courts.
If the legal battle is allowed to take precedence over the political
one the law is easily used by the state to subvert the political
battle’s objectives.”
[9]
b)
USA
The US Supreme Court in a 1986 decision
, Bowers vs Hardwick
[10] decided that the anti sodomy law of the
state of Georgia does not violate the constitutionally protected
right to privacy. In 2003 the same US Supreme Court in Lawrence
vs Texas, [11] struck down the
anti sodomy law on the same ground that it does indeed violate
the constitutionally protected right to privacy. The question
to be answered is what enabled a conservative US Supreme Court
to strike down the anti sodomy law in 2003, expressly overruling
its 1986 decision?
Cass Sunstien notes that the ‘the decision
was possible only because of the ludicrously poor fit between
the sodomy prohibition and the society in which the justices live.
And if I am correct, Lawrence will have broad implications
only if and to the extent that those broad implications receive
general public support. For example, the Supreme Court may or
may not read Lawrence to require state to recognize gay and lesbian
marriages. But if it does so, it will be following public opinion
and not leading it. Political and social change was a precondition
for Lawrence, whose future reach will depend on the nature
and extent of that change.’
[12]
Sunstien’s argument is that the answer
lies in the dramatic change in public opinion since the days of
Bowers. It is difficult to find public sympathy with an archaic
statute which criminalizes sodomy. It is not to say that public
opinion is uniformly sympathetic to gays and lesbians in the USA,
but merely to note that while gay marriage , and gays in the military
might be issues on which US society is split, the anti sodomy
law has lost its public force. Of course this remarkable shift
in public opinion has been the result of the sustained advocacy
of the gay and lesbian movement in the USA. Perhaps a fascinating
vignette which captures the nature of change is the fact that
in the Bowers court none of the judges knew anyone who was gay
or lesbian where as in the Lawrence court , even the most
conservative judge knew someone who was gay or lesbian. This would
have naturally had its impact on the decision which was delivered.
Further the point about law reform which
emerges through Sunstien’s analysis is that in the context of
sexuality, law fails to deliver justice until and unless there
has been preceding work in building a movement. It is only the
impact of the movement which results in a momentous decision such
as Lawrence vs Texas. Sunstien speculates, that if the
US Supreme ‘Court had held in 1980, that the due process clause
requires states to recognize same sex marriage, it would (in my
view) have been responding to the right conception of liberty.
But it would undoubtedly have produced a large scale social backlash,
and very likely a constitutional amendment, that would have made
same sex marriage impossible.’ [13]
Sec
377 : Whither now?
The question to be answered is in the
context of the above discussion is, how then can we approach
the question of the reform of sec 377 in the Indian context. The
feminist experience with law reform in India along with the analysis
of the experience in Sri Lanka and the USA with respect to anti-sodomy
law reform leads us to the conclusion that law by itself is not
an answer. It is clear that any petition can only be supplementary
to the movement. The petition should be a part of a wider socio
–political struggle. [14]
This conclusion is further buttressed
when we consider that in its response to the Sec 377 petition
filed by Naz Foundation, the Government Affidavit literally
buried any notion that the state might respond to the carefully
calibrated submission. ( reading down not repeal , decriminalize
private consensual sexual activity between adults ) in a sane
and reasonable manner. It seriously questions the notion that
if the queer rights movement makes ‘reasonable’, ‘sane’ demands
the Government would see the sense of it and acquiesce to the
reading down of Sec 377. In fact what the Government’s response
indicates is a virulent homophobia which is willing to give no
quarter to the emerging queer rights movement.
The Government response indicates that
it sees itself as articulating and reflecting public morality,
protecting women and children and keeping closed the flood gates
of delinquent behavior. The protection and defence of Sec 377
emerges as a key Governmental concern and the Government significantly
enhances its public role as the guardian of societal morality.
Perhaps one should read this response as being a part and parcel
of the Hindu right’s ideology which is based on demonising and
stigmatising difference, be it religious or sexual in nature.
The Affidavit signals the Hindu Right’s deep and unremitting hostility
to queer people who have always been defined as ‘aliens’ and threats
to Indian culture and values. As the Affidavit notes, ‘objectively
speaking there is no such tolerance to practice of homosexuality/lesbianism
in the Indian society.’
The Government’s response outlines the
fact that ‘change from above’ is not an option in sensitive issues
such as sexuality. Lobbying for change is not only not going
to work ,but more importantly it might be a totally misplaced
strategy. The question to be answered is that if one sees that
there is no necessary link between law and justice and if experiences
documented above with the process of legal change demonstrate
that it is important be sceptical of the law’s ability to deliver
justice then what is the way forward ?
Does one take the line that the legal
space needs to be vacated and one needs to concentrate on building
the political struggle ? Or are there ways of working with the
existing petition making it an instrument of socio-political change?
It is contended that the law remains an important site of struggle,
but one needs to locate legal change as a necessary part of a
wider socio-political change. The premise of change with respect
to sexuality is as much a change in societal mores as it is about
legal change. If that is indeed the case, then there should be
a campaign to repeal Sec 377 with the petition forming one part
of the proposed change.
If this analysis holds the only way
forward is to mobilize and convert the petition from a narrow
legal struggle to a wider political struggle which takes on board
the concerns of the queer community. The petition should be the
peg on which on hangs a campaign whose objective is to question
the homophobic resilience of Sec 377 in the structures of media
, medical establishment and in public opinion. . The legal outcome
should not be the focus of the campaign but rather the process
of questioning itself. This of course flows from the understanding
that since Sec 377 is not purely a legal issue , the way we tackle
it cannot be through the court room alone. One cannot expect judges
to decide on Sec 377, positively if we have not started a process
of public education about queer rights. If we want the courts
to give us a decision like Lawrence vs Texas , then there
is no way out of the difficult process of building a campaign
based on queer visibility.
[9] Nandita Haksar, “Human Rights Lawyering: A Feminist
Perspective” in Engendering Law (Anita Dhanda et al.,
eds.), Eastern Book Company, Lucknow, 1999, p.87.
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