Sexuality Policy Watch

Article Newsletter N 14 – Nitya Vasudevan

“When the light of our century may blind us”

Nitya Vasudevan*

When does the idea of a global solidarity threaten to compromise contextualised political struggles? When does a symbolic battle lose sight of the material and the everyday? When do translations between practice and understanding utterly fail? When does the law come to possess an iron grip over our political imagination? How do hierarchies come to operate within what is represented as a unified progressive movement? When do the “lights of our century” – to use Agamben’s phrase – blind us so that we don’t see its darkness? These are the questions that this piece is born from. Certain moments in history force these questions to be asked loudly, and this is one such moment in the history of sexuality politics in the Indian context that, however, resonates elsewhere.

No doubt everyone reading this newsletter is aware of the 2013 Supreme Court judgment that refused to read down Section 377 of the Indian Penal Code, which criminalizes acts of “carnal intercourse against the order of nature”. And no doubt you expressed solidarity with the Indian LGBT movement that is fighting this legal battle, one that is similar to battles fought in so many other locations in different forms.  I do not argue here that the section in question should be kept intact. As an inheritance from colonial law that seeks to render acts of sodomy and oral sex criminal it no doubt deserves to go. The question here is rather why this particular law and the desire to have it removed or read down have come to form the fulcrum of the LGBT movement in India in the present moment. What has shaped ‘our time’ in such way that people believe this to be our first task?

To provide some context, there has been a two decade-long debate about whether or not the legal struggle against Section 377 should be given center stage position in the LGBT ‘movement’ in India. The questions posed to those who believe that removing this law should be our primary concern, have been many.  The first of them was: why to prioritize the fight against Section 377, when it has very rarely been invoked to arrest members of the community? The argument behind this is that highlighting this fight has meant a necessary disavowal of the fact that it is most often only hijras and other working class members of the LGBT community who get arrested by the police, on charges of kidnapping, drug abuse, robbery and soliciting; that therefore, those who are most vulnerable to the law and to police brutality are the transgender community, who occupy public spaces on a daily basis and are therefore the most visible, because of their eroticized gendered-economic practices. A reading down of this section to decriminalize “private consensual sex between adults” would not address their lives in any meaningful way.

Secondly we have asked if the repealing of this law would address, in any substantial sense, the difficult relationships we have, as deviant sexual subjects, with the institutions that we inhabit – the courts, the police, the family, the school? And even if the public attention to this law manages to reduce social stigma and make more people speak out in support of LGBT rights, whose rights are they speaking out for? Are they speaking out for the right of hijras to carry out sex work? Are they speaking for reservations within educational systems and workplaces? For more stringent action against custodial torture and violence? Or are they simply speaking out for a right to be “gay”? What structural value lies in this demand?

The interrogation has then also raised if this legal battle amounted to protecting the “private” rights of privileged gay men, as opposed to working to change the lives of those who most need protection?  The late 80s and the 90s saw the rapid mushrooming of foreign-funded NGOs working on AIDS, accompanied by the discourse of the gay man at risk. It is important to recall that the case against Section 377 was filed by an organization working on HIV-AIDS, based on the argument that Section 377 = forced secrecy = unsafe sex = AIDS. But this did not mean that alliances were built between these organizations and sex workers’ groups, as these two fields continue to remain separated out from each other to this day. LGBT protests do not include demands for sex workers’ rights to health care and government support. Why this is so is a question that needs to be asked.

Last but not least, why have we made one legal battle the center of our movement? Feminist histories in India have taught us not to look only to legal redressing and constitutional change as a way of righting the wrongs of stigma, structural marginality and familial oppression. At every step, feminists have cautioned against trusting implicitly and only in legal change – whether in the debate on a uniform civil code for marriage, or that on sexual harassment laws in the workplace. The Supreme Court judgment backfiring, people starting to see themselves as second rate and criminal, the police taking on more authority than they already have – these are the dangers attached to making the law the primary arbiter of identity and selfhood.

Recently, it should be said the Supreme Court in another case declared that the state would now recognize transgender identity in its governmental and welfare programs. Transgender people were to be considered part of the Other Backward Classes (OBC) and supported in terms of education, employment and health measures. This judgment was immediately celebrated as enlightened and as paving the way for an undoing of the ‘regressive’ judgment on Section 377. None bothered to scrutinize the implications of the judgment in terms of identity definition. The court nodded Yes to transgender identity and there was euphoria. Don’t mistake me, I don’t think this judgment is wrong or unnecessary – as one that implies structural change at every level, I welcome it more than I do the mere reading down of Section 377. My criticism is directed more at those who participate in a blind faith that the law exists at the heart of our lives. The case following the rape of the young girl on a bus in December 2012 ended in a death sentence for the men who raped her. In other words, it has reaffirmed the state’s glorious power to kill.  Every day, people from certain communities are killed in encounters or arrested on charges of terrorism and endangering national security. Atrocity and violence in the name of caste goes unpunished even though the ‘evidence’ is the dead bodies of several members of Dalit communities. Large companies get away with land grabbing, dispossession and environmental destruction. Where then does our faith in the law come from?
The 2009 Delhi High Court judgment that announced a reading down of the section was declared a landmark in the history of progressive legal decision-making. This was mainly because of two notions that it generated – one, the notion of a constitutional morality in place of a public morality. The argument was that instead of the colonial idea of public morality and the manifestations of this idea in the sphere of social and political thought and action, what the courts needed to put into effect was a constitutional morality, drawing deeply from the values embedded within the constitution. A constitutional morality could not then possibly abide the un-freedom that Section 377 was imposing on certain (sexual) communities in the country. Second, the High Court judgment produced a reading of privacy as “personal autonomy”, i.e. privacy is not about private space but about the right to be left alone, to govern your own life. So, even when in public, you have a right to be “private”.
What was obvious within the judgment was a constant slippage between “homosexuality” and LGBT. Large parts of the judgment spoke of Section 377 as criminalizing homosexuality, but wherever necessary, it referred to other identities within the movement, importantly that of transgender people, whose testimonies formed part of the evidence submitted to the courts.  Never mind the fact that transgender people and their partners often do not consider themselves homosexuals.

This slippage was repeated in the media frenzy after the Supreme Court judgment in December, 2013: “Gay Sex Criminal Again!” was the screaming headline on every TV channel. Add to this the fact that the protest against Section 377 and the Supreme Court judgment saw 5000 people coming out onto the streets of Mumbai during the pride march this year – an unprecedented number for any LGBT protest. On the other hand, protests against something like the Karnataka Police Act — which was amended to require hijras to register themselves at local police stations – saw maybe a maximum of 50 protestors and virtually no media publicity. Why is this? Is it because the struggle against Section 377 is a “larger” one, one that speaks to “everyone”? One of the arguments made on a feminist mailing list that I am a part of spoke of the repeal of Section 377 as a “minimum requirement” for the LGBT movement in India. The logic was that once this requirement was met, of “basic” sexual rights, we could then move on to other things.

Getting down to the “basics”, when we compare the number of cases that have been filed under this section, with the number of cases filed under kidnapping, drug abuse, robbery, soliciting and public indecency — most of these being filed against hijras, sex workers or lesbians and transmen who leave home with their partners–  the latter far outnumber the former. Why then is the former the larger struggle, or even the minimum requirement? Is it because we desire formal sexual citizenship and this is the only way to get it? We want the courts and the state to stand up and recognize our identities as citizens of this country, and this symbolic gesture and what it will give us apparently outstrip questions of education, employment, housing, gender identity on government documents, and the everyday police brutality that marks the bodies of those who have publicly marginal lives.

There is no denying that gay men and lesbian women are often caught in conditions that threaten to destroy their sense of self: their families do not accept them; the institution of marriage looms large over their heads; they are forced out of workplaces on false grounds; they cannot express desire in public places, cannot cruise without being targeted by the police; they are blackmailed by strangers or even lovers; they suffer from depression and loneliness. And a symbolic victory might go some distance in relieving them of these conditions. But what does it mean to tie one’s life to one law? This legal struggle and the mindless media reports around it have made more policemen aware of the existence of this section, have drawn the attention of parents to the “criminality” of their children, and more people are now in danger of being accused of “carnal intercourse against the order of nature”. People who didn’t know what Section 377 was now know and take up positions.
The section was meant to deal with acts, not identities, and now it is wholly about identities. The fact that most of the cases filed under this section have been divorce cases in which wives have accused their husbands of, among other things, forcing them to have “unnatural sex”, has now been rendered a bizarre piece of information and nothing more. By its original intention, the section includes heterosexual people as well as others. What the Supreme Court judgment, a piece of purely logical writing, did was to question the alleged nexus between this section of the Penal Code and homosexuals as a specific community of persons. It found no such nexus, and stated that the law was meant only to protect public morality and if the law was being used to target only homosexuals, it was being misused. This rational move is not unexpected, it does not make me despair, it does not depress me. It is nothing more than the logical heights that a legal system founded on rational thought can attain. We all know that the law is not a monolithic entity, it is made of judges and court rooms, passionate utterances and biases, and the judgments themselves are not devoid of feeling. But it is essentially a system prone to rationality, one in which the lack of ‘evidence’ often ensures that injustice goes unpunished. It will fail you as a person whose life is not fully contained within rational ideals.

What is the price to be paid when the law becomes the arbiter of sexual subjecthood? We are then left with technicalities through which our lives are said to be defined. Is a legalistic imagination one that believes social change to be a trickle-down effect, moving from the text of the law and the pronouncement of judges into the bodies and practices of daily life? Also, do we participate in creating and generating a private sexual life by disavowing what happens to the most public of us? Or does that question have to wait around for us to first become “citizens”?

Moving to the question of solidarity across or without borders, in every context, whether local, national, even parochial, we need to ask ourselves what it is that travels across borders to constitute this solidarity. And what doesn’t. What presents itself as the face of LGBT politics and why? There is an ominous similarity that is “found” between LGBT articulations emerging from different corners of the world. There is a global graph drawn out, with countries like Uganda being seen as the most oppressive to deviant sexual subjects, and countries like Argentina and Uruguay being hailed as examples of successful political campaigns. This imagined graph is an ugly object, reducing everything in its path to mindlessly simple formulations determined by notions of neoliberal freedom and formulaic statistics of violence. It says nothing of history, nothing of context, nothing of culture. For instance, the cultural lives of hijras are nowhere captured, even in the term transgender. This is not to say that only “traditional” communities constitute context or history, but that histories, memories, practices do get lost when a global solidarity is sought without attention to how the question of identity comes to be framed in each specific location.

We live in an age in which we are prone to a certain blindness. An age in which the language of politics is more and more international in nature. India becomes the worst country in the world for women in these terms. Our Muslims become fundamentalists.  Hijras who work at NGOs stop calling themselves such and instead take on the term ‘transwoman’. The Slut Walk renders women all over the world sexual in the same way, very rarely aligning with sex workers. Young men and women who protest against rape do so without knowledge of Indian feminist arguments against capital punishment. Gay men agree with the ban on hijras begging at traffic signals, arguing that the latter violate their “personal space” (the closeness of this notion of personal space and the notion of privacy in the Delhi High Court judgment is frightening).

The very fact that the legal case headlining our present moment is one that has to do with private sexual acts, is revelatory of something, of the “private” in this moment being a generative concept, and one that is undeniably tied to late capitalist agendas. It is an age in which if we do not constantly scrutinize the ways in which we are complicit with neo-liberal agendas, we will be swallowed up by them. Internationalist narratives push us to first get decriminalized then get gay marriage rights, then adoption rights. Corporate houses are all LGBT-friendly nowadays, and send their banners to pride marches. What this means for a politics of speaking from the standpoint of marginality, is an examination in regard to being worth or not participating in.

*Nitya Vasudevan has recently completed her PhD at the Centre for the Study of Culture and Society, Bangalore. She is currently working as a course convenor at Baduku Community College, Samvada, Bangalore. She is also on the organising committee of the Bangalore Queer Film Festival.

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