Moving forward, perhaps: The 2013 India Supreme Court Decision on Section 377
Gautam Bhan*
In the immediate moment, it simply felt difficult to breathe. It was December. After nearly a year and a half of silence, a Supreme Court bench was ready to rule on appeals in Naz Foundation vs Union of India, a celebrated and historic 2009 Delhi High Court ruling. In Naz, the High Court found Sec 377, India’s colonial-era anti-sodomy statute, to be unconstitutional. They said that the Section violated the equality and dignity of queer Indians. They spoke not just of LGBT rights but of democratic politics, of the need for a wide and inclusive reading of anti-discrimination, of the necessity for citizens to exercise and possess a “constitutional morality,” of the importance in emphasizing dignity rather than privacy as a rationale for expanding rights, and of the spirit of the Constitution.
It seemed to mark a threshold of some kind. Queer struggles had always been much more than about the law, and more than about just one law in particular. Yet the battles that led up to 2009 that spilled outward as the judgment’s words travelled outside and beyond the courtroom, it felt impossible to believe that after this one could move – even though still hesitantly – anyway but forward. That morning on December 11th, 2013, no other verdict seemed possible. It was. Only one summary sentence was read out and a two-judge Supreme Court bench overturned Naz.
How does read this moment? First instincts led to echoes of long held fears. Many, including many among the petitioners themselves, had long publicly voiced fears of letting the legal challenge against Sec 377 become too central and a dominant part of the movement. There were intertwined critiques. The first argued that the law had its own reasons and strategies that could frame, shape and limit the nascent queer politics building outside the Courtroom. Others argued that a focus on the law (and on this one particular section) was misplaced and that the foundations of discrimination and violence on the basis of gender and sexuality was better fought in other battlegrounds – within the family, on the streets, in schools, through the written word, in public parks, in movements, through struggle. A third critique was more strategic: were we playing a game of all or nothing? Could a nascent movement bear the impact of a loss in Court before a wider social acceptance — or at least awareness and dialogue — on queerness existed? If we lost, would it not make any further movement impossible? Would a summary judgment, quite literally, not be pronounced on us? In the early years of the case, this last question was, in fact, quite literal: the number of openly queer people and spaces of safety and support were thin on the ground and it was assumed that larger public opinion was firmly against us.
Different parts of the various queer movements across the country – and they have been always multiple — balanced these critiques in different ways, trying to guard against one or the other, or choosing one over the other. In light of that, the recent loss in the Supreme Court allows us to assess each of these critiques from a privileged site: the exact point where all our fears came true. I seek to do so here from the only vantage point I have, i.e. my own involvement in the case, as well as in queer struggles outside the courtroom. These are personal reflections, still uncertain, still being shaped as they are written. I am a member of Voices against Sec 377, one of the petitioners in the case, though I write here in a personal capacity. Voices is a coalition of organizations with a shared belief in queer politics and its foundations in the intersectionality of gender, sexuality, class, caste, religion, ability and other identities.
So what does it look like from here, from within our fears? What has happened since the Supreme Court reversal of Naz? In one sense, it has been extraordinary. The reversal has drawn widespread condemnation in different forms and sites, from an extraordinary range of voices. The ruling government, led by the Indian National Congress, came out for the first time in strong and public support of queer rights as did several other parties including the Communist Party of India (Marxist), the Janata Dal (S) and the Aam Aadmi Party. At the time of writing, several parties had endorsed sexuality rights in their election manifestos for the 2014 general election making queer rights a part of every election debate. At the time of the judgment, the Attorney General wrote an unprecedented opinion piece in a leading newspaper against the judgment and filed a review petition immediately. Suddenly, engaging with capital “P”olitics of the party kind, something the movement had evaded until now — certain that there was little support to be found — became a new battleground for queer rights. However, the other powerful national party – the Bharatiya Janta Party (BJP) – remained steadfast in opposition, and many significant regional parties remained silent. New spaces and battlegrounds remain equally contested.
Yet it was more the support in everyday life that began to show many of us that something had shifted between 2001 when Naz Foundation filed the petition, 2005 when Voices intervened, 2009 when the Delhi High Court ruled and this past December. The sense in the days post the judgment has been one of a sea of voices rising against the Supreme Court. One set comes from a generation of urban young people who have come of age in a post-2009 world, a set of political subjects in one sense created by the queer movement of the past decade.
What’s important and a reflection of the movement itself is that the support has come not just from queer people, but across a range of actors, movements and institutions, many of which had been hesitant friends in the early days of the movement. Progressive groups, state bodies like the National Human Rights Commission, teachers associations, professional associations including the medical and mental health establishments, women’s groups, student groups, trade unionists, and private companies alike came out publicly against the judgment. Thousands across the country stood together, repeating the chant that brought together our resistance: “No Going Back.” A week after the judgment, No Going Back protests in a “Global Day of Rage” took place across thirty-six cities in the world, including seventeen in India. That resistance remains amidst the uncertainty and the fear – unwavering, unafraid. It is that resistance that stands as the legacy of December, 2013.
In watching what should have been a moment of dismissal and closure turn into a moment of beginning, defiance and resistance, I want to believe that our efforts to not let the queer movement be reduced to just a legal case against Sec 377 must have, at least partially, succeeded. The legal journey of the movement looms large at this moment but the everyday life of our politics has always been about much more even if the story of that larger politics is lesser told. This everyday politics includes: film festivals, workshops, talks and seminars; books, pamphlets, missives, poems, biographies, charters, manifestos; political visions, solidarities with other struggles, protests, pride parades; the creation of social spaces; facing, countering and recovering from acts of violence, blackmail, rape, assault, and suicide; engaging with the police, with families, with religious leaders; the judiciary, the state; living open, everyday lives despite the odds, despite the pushback, refusing to stay “private”, to stay silent. The 2009 judgment was born not just out of the letter of the law but from this politics that had paved the way for it, that made it possible. The Supreme Court can reverse the judgment but it can reverse nothing else.
Moments of crisis are opportunities not to be lost. If this moment has made us realize that a new set of political voices and possibilities have already emerged around us, we must then ask anew: how should the struggle now be framed? The legal case against Sec 377 emerged as a political strategy at a particular moment. That moment, for certain, is irrevocably altered. We must now listen then to new (and some old) answers as a new political assemblage emerges: to continue to and expand our efforts to build social and peer structures of support that make it impossible for the law to be used; to mobilize and explore engagements with political parties and elected representatives; to stand on the evident solidarities extended to us by other movements to launch campaigns; to expand our own political vision beyond Sec 377 and the law to other forms of shaping what in the end is our object: the everyday lives of queer people.
One thread of this new politics that has particular salience with me is a focus on anti-discrimination rather on the criminalization implied in Section 377. The possibilities of securing queer rights through anti-discrimination seem feasible today in a way they didn’t before as engagements with other movements, arms of the state, elected representatives and political parties have emerged, partly due to the dismissal of the case in the Supreme Court. It is important not to romanticize a debilitating defeat in the highest court of the country by simply seeing it as the birth of a new set of political opportunities. The setback is real. Yet it is just has important to not see a legal defeat as the closure of a movement because empirically and affectively this has not happened. There are grave dangers in this moment – the case and its life in the Courts are over determined, the focus of relentless media attention and the dangers of reduction are very real. It is imperative that, as movements, while we exhaust every possibility legally of challenging the Supreme Court, we also remember not to buy into the story being told around us – that queer lives are somehow dependent on a victory against one particular law. This is a tight rope that all movements face – to take our vulnerabilities seriously but not let them erase our strengths. Yet this case has not been the only story of our movement and it must not become so now.
As I write, the Supreme Court has agreed to consider an extraordinary curative petition as the last legal resort we have for a legal reconsideration of the judgment. Whatever happens in that consideration, however, it will not change or impact these new emergent directions in queer politics. These new directions are ones that will move us, as for some time the 2009 victory did, hesitatingly but inevitably forward.
2 -Naz Foundation vs Union of India CWP 7455 of 2001
3 – Suresh Kumar Koushal vs Naz Foundation Civil Appeal 10972 of 2013, also recorded as SLP 15436 of 2009.
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* Gautam Bhan is a Delhi based Queer activist and all round diva. Having been involved with groups including Prism, Nigah Media Collective and Voices Against 377, he is also the series editor for the Sexuality series of the Yoda Press (http://www.yodapress.in/Sexuality.html ). He teaches at the Indian Institute of Human Settlement, Bangalore, where he works on the politics of poverty, inequality and development in Indian cities.