Sexuality Policy Watch

Article Newsletter N 14 – akshay

The Queer body between the Judicial and the Political – reflections on the anti-homosexuality laws in India and Uganda

akshay khanna*

Nostalgia for a recent time – or how we miss the ‘post-Naz’ days in India

India is dramatic. Anyone who has felt its sweltering summer and waited — eyes beseeching the cloudless sky — for the first monsoon shower, knows why. The first cough of monsoon thunder is a resounding proclamation that the struggle, for the year, is done. People stream onto the streets to get drenched in the first heavy drops, breaking into dance, singing songs of the rain – just like in the movies.  This is not merely relief, it is jouissance.  Just when one forgets everything but the relentless, oppressive heat, just when the monsoon can only be spoken of in hushed tones, as though it were a mystical, mythical saviour, the clouds arrive and burst in an affirmation of life, of the cycle of life, bellowing out the inevitability of the end of summer’s tyranny. It is a moment of epic emotions. Strangers smile knowingly at each other, joined in a carefree laughter, as though we had won the cricket world cup. But imagine, for a moment, the intensity that this experience could muster where it magically coincides with a victory that those eyes have demanded of the sky not for one summer, but for ten, or a hundred and forty. How does one speak of a moment where the skies burst forth in celebration precisely when, at the end of a long battle that has drawn blood, sweat and tears, a State that has always despised you, attacked and ridiculed you, turns around in an open embrace and announces “you are citizens, free, equal, with the right to be who you are”?

I was not in Delhi that momentous morning, the 2nd of July 2009, when the Delhi High Court ruled that homosexuality could no longer be considered an offence under Indian Law. After a decade-long litigation, the Court had declared that Section 377 of the Indian Penal Code — an anti-sodomy provision brought into force in 1860 by the British colonial administration, under which homosexuality has been deemed criminalised — violated constitutionally guaranteed Fundamental Rights, recognising, for the first time, lesbian, gay, bisexual and transgender folk as citizens. Technically, the judgement simply held that consensual sex between adults of the same sex, in private, is no longer punishable under Section 377. The implications, however, of this judgement are far greater than this. “The terms of the debate have been reset;” argued Gautam Bhan, a Queer activist (and contributor to this collection) on television that evening, “we will now speak as full citizens”.  That day will be remembered by Queer Indians across the world as the day when we ‘finally became free’. National television channels ran this as the top story for two days, merging colourful images of the recently concluded Pride marches in five major cities of India with those of my friends, comrades and lovers breaking into tears of disoriented delirium.  “India has finally entered the 21st Century,” newspapers reported, even as religious figures across the board shook their heads in angry disapproval – the Hindu Sadhvi, Christian Reverend and Muslim Maulvi echoing each others’ (mis)conceptions of India as ‘conservative’. Having now had a taste of this ‘freedom’, this sense of being ‘full citizens’, it seemed, from here on, there was no going back.

This 21st Century that India had entered, it turns out, is not linear.

The day the Supreme Court cut itself, and us, to size

While I missed the drama of 2009, as luck would have it, I was present outside the Supreme Court of India a mere four years later for an equally dramatic moment. I had spent the best part of the morning shuttling between counters trying to get a pass to enter the premises in hopes of watching the highest court of the land lay to rest doubts on the simple fact that the Right to Life must include a Right to Sexuality, dismissing the irrational demands of no less than 18 appeals against the Delhi High Court’s sterling verdict. The sudden commotion in the lawns of the Court, teeming with journalists, television cameras, lawyers, inquisitive onlookers and interns of various international organisations, was inescapable. And as the mass of people elbowed their ways into earshot of lawyers who had just stepped out of the court with news, I heard, in disbelief, the words ‘appeal allowed’.

We had waited for more than a year since the arguments in the Supreme Court had been completed, and when the bench had reserved judgement. We had, in this period, imagined all kinds of outcomes and scenarios. And even as the complete reversal of the High Court decision was always a possibility, it had, in honesty, simply been fuel to the perverse enjoyment of imagining the worst case scenario, possible only because such an outcome could not really happen. In the din that followed over the subsequent minutes, hours and days, journalists and TV channels cornering anyone who seemed remotely related to the case for sound bites, for reactions, for tears and anger, and as we waited to read the actual judgement that had so summarily dismissed our struggle, some things became clear – at stake were the juridical possibilities of citizenship, what it means to be a ‘minority’ in the Indian nation, the balance of powers in the state, and, significantly, our experience of time.

The judgement of the Supreme Court, of which there have now been an impressive slew of analyses and critiques, can barely be summarised in this short piece. This is partly due to the fact that it stands out as one of the worst written judgments to come out of an otherwise prosaic court, being an incoherent cut-and-paste of disparate arguments, a disregard of evidence and jurisprudence. The core of this judgement is that the Delhi High Court judgement relates to what it termed a ‘miniscule minority’. The question of the amendment or deletion of Section 377, it held, was not a matter to be decided by the judiciary, but a subject to be taken up by the Parliament. In essence, it stated that the Rights of this ‘miniscule minority’ are subject to the will of the majority.

At one level, this notion that same sex desire in India is contained and exhausted in discrete bodies that might be considered a ‘minority’ is itself inaccurate. There is a far greater diversity of ways in which gender diversity and sexualness are experienced, spoken of and transacted in India, and  equally , far more complex ways in which hetero-normativity generates exclusions. Activists, including myself, are complicit in the process through which same sex desire came to be intelligible in Indian courts as being contained within an ‘LGBT’ framework.  But given this (mis)recognition, (or rather, the limited recognition of same sex desire as articulated in bodies of those who identify with sexuality and gender non-conforming identity categories) by the High Court of Delhi and by the Supreme Court itself, the implications of the Court’s position are deeply troubling.

This statement that the rights of the minority are subject to the will of the majority goes against the very structure of the state as envisaged by the Constitution of India, and as clearly obtained from successive Supreme Court judgements over the decades. The very function of Fundamental Rights, and of Human Rights, in a Constitutional democracy, is the protection of the Rights and interests of minorities in the face of the majority. The role of the Court in this regard, that of Judicial Review, is a key element of this structure – the role of the Court to ensure that the actions of the Legislature and the Executive, and more broadly of ‘law in force’, are in line with the Fundamental Rights guaranteed in the Constitution. While most of the appellants, so enthusiastically celebrating a ‘victory’, represent shades of the Hindu right, including bodies affiliated with the Bharatiya Janta Party (BJP) that has so dramatically came into power at the centre in May this year, several of the appellants claimed to speak for religious minorities such as Muslims, Christians and Jains. The irony of this moment was the inability of these groups to recognise that the core principle laid down in the judgement threatens precisely the rights of communities that are considered as ‘minorities’. This is something akin to dancing at one’s own funeral. Given that India is now set for at least five years of rule by the aggressive Hindutva right wing, one that has systematically played an exclusionary politics and framed the nation and the bounds of citizenship within patriarchal, masculinist, upper caste norms, the power of judicial review in the protection of the rights of minorities is crucial to Indian politics like never before.

And yet, there is something important that this seemingly anachronistic moment inaugurated. At one level, it reaffirmed something that activists had known all along – that the judicial route for juridical recognition has its limitations – and that the true struggle must ultimately to be carried out in the domain of politics – whether in terms of formal politics, or in terms of the realm that, following  Partha Chatterjee, we might call ‘political society’. The Court, in throwing the ball to the Parliament had inadvertently begun that political struggle. In the days immediately after the judgement, several of the main national political parties – the Congress (I), the fledgling Aam Aadmi Party and the Communist Parties made public statements in opposition to the Supreme Court judgement. The government itself filed a review petition challenging the judgement. The BJP, on the other hand, made it clear that they supported the Supreme Court verdict, just as they had opposed the original petition when in power in 2001. The question of same-sex desire and the Right to Sexuality, had, overnight, become an explicitly formal political question. The political struggle, in other words, is now upon us. At another level, this failure of the apex Court brought with it the imperative of critiquing the civil society obsession with the Law that has marked feminist, Queer and other struggles, the trust in the power of the formal symbolic realm, with Constitutionalism, and the very possibility of beginning to imagine a project of making the law irrelevant.

Return to a properly Queer politics

There have been, and continue to be, diverse reactions by Queer activists to this moment. On the one hand was the recognition that the political struggle implied more explicit engagement with other people’s struggles and movements, with marginalised groups and other political formations. The need to act upon the intersections of oppressions of class, caste, religious fundamentalism and aggressive masculinity has now returned to the centre of Queer organising, at least in Delhi. The ‘Global Day of Rage’ a week after the judgement brought together expressions of solidarity and dialogue on these intersections, as did the ‘Reclaim the Republic’ protest that explicitly brought together groups recognising the connections between different forms of marginality. In some ways this was a return to a more properly ‘Queer’ politics, which had, at least in the mainstream public sphere been eclipsed by a neo-liberal absorption of the question of sexuality into a framework of identity, with the emergence of the ‘pink rupee’, and the near monopoly of the male Gay figure over the urban English media, and a complacency of an otherwise privileged class of people freshly rid of the symbolic violence of the Law.

The Supreme Court judgment has thus (once again) united variously located Queer folk in a realm of symbolic injury and opened up the possibility of examining such a unity with others marginalised by related structures of oppression. This requires, on the one hand, an experiential and sincere engagement with other movements – to go beyond symbolic solidarity and to understand and act upon the ways in which the politics of caste, class, region, language, race, gender and sexuality, amongst others, contribute to each other, constitute each other, and how these relate to broader realities of the political economy. On the other hand, it is now imperative that the Queer movement sincerely challenge itself along these axes of caste, class, gender, and the like that have, for the large part, been avoided perhaps by the occupation of a demarcated identity of victimhood based on sexuality alone. In India, we have the benefit of learning from the Feminist Movement which, over the decades, has critically disaggregated the stable category of ‘woman’ as being invisibly structured by upper caste, hetero-normative, Hindu imaginaries, and generated a range of political positionalities relating to specific experiences of caste, class, religion, sexuality and gender itself. It is not my case that we now must now exclusively engage with each other from ‘Dalit Queer’, ‘Muslim Queer’, ‘Trans* Queer’, etc. political positionalities, but simply that it is time to recognise the challenge that the intersectionality of oppressions poses for political praxis.

Diversity within and between Queer movements

This is related to the second, and perhaps more important response to the judgement – a return to the crucial questions of representation, of relative privilege and of the diversity of the experiences of differently located Queer folk vis-a-vis the law. Several of the pieces in this collection, especially those by Nitya Vasudevan, Vqueeram Aditya Sahay and Jordan Osserman, speak directly to these debates and it is these debates that instigate a deeper consideration of the apparent primacy afforded to a certain imagination of the law as the space for struggles for justice. The simple point here is that the law, the state and its functionaries are experienced and negotiated disparately and that there is an exclusionary violence involved in bringing these to speak to a single narrative of the violence, or indeed, the potential of the law. These debates marked a return to a focus on the fissures in the very narrative of a unified movement held together by either the moniker of ‘LGBT’ or ‘Queer’.

This is not, of course, the first time that the diversity of experience has challenged the all too easily made claim of a unified struggle. As a matter of fact, the first response of Queer activists from around the country to the original petition filed by two NGOs, had already articulated with nuance the impossibility of representation, the hierarchies within and between Queer communities, and the conflicts in political struggles of different groups. The fact that the petition had depended, in part, on the argument for a Right to Privacy, or that the prayer in the petition was for the exclusion of ‘consensual sex between adults in private’, for instance, was already dissonant with working class Queer folk, who do not afford the luxury of ‘privacy’, and whose sexuality expresses more often in public spaces, where they have complex relationships of negotiation, violence and eroticism with the police. This question of privacy also militated against the feminist struggle to undo the falsity of the public-private divide that justified the apathy of the state towards violence and discrimination within the family, and somehow reinforced the patriarchal control over women’s bodies and lives. Significantly, it was in the face of the aggressive response of the BJP-led UPA government in the initial years of the litigation, that a series of conversations took place between these groups, and which led to a broader convergence of a movement to rally behind the petition. The Supreme Court judgement allowed for a return to these crucial debates, to these conflicts, pushing towards a more diverse interaction of political agendas. Now that the BJP is back in power, and making a false claim to a broad mandate for Hindutva, I suspect the question of strategically converging yet again will soon be upon us again. And perhaps the challenge will be to either imagine a politics that is based on dissensus (rather than the construction of a false unity) or to engender a politics that transcends one’s bonds and identities, one’s place in the world.

The judgement has also made necessary a deeper questioning of the potential and limits of Law as the site for struggle. In the late 1990s, when the idea of filing a petition challenging the Constitutional validity of Section 377 had first been broached, Hijra groups had opposed the proposal on the basis that the provision had little relevance to their everyday engagements with the police. While carrying out doctoral fieldwork in several sites across India between 2005 and 2007, as well, it had become clear that before the campaign against Section 377 taken on by civil society groups, there was little social knowledge of the provision. Until quite recently, I was told in all of these sites, the police did not even know about this provision. But the Queer movement generated a social life for the provision and increasingly, in that period, the provision began to be mentioned in interactions between working class Queer males and the police, and used as a tool for extortion and violence. It was not the case that in an earlier period the relationship with the police had been bereft of violence, but the violence was now related to a provision of law. This also engendered a greater demand for knowledge of the specificities of the provision, which criminalises sexual acts and not the mere fact of being Queer. This also gave rise to a greater understanding of legal rights and procedure. The social life of Section 377, in other words, has juridified the relationship between working class Queer males and the police.

It was in this context that the Delhi High Court judgement might have had significance beyond the symbolic: now that Section 377 had become a household object, the declaration of its invalidity implied a broader ability to draw on the status of citizenship in everyday negotiations with not just the state, but in relation to a range of public and private actors. And ironically, it is this fact, of the negation of Section 377 potentially writing itself into everyday negotiations on the ground that makes the Supreme Court’s reinstatement of the provision all  the more threatening and powerful. Now, in other words, everyone knows about the provision, and also that it has been validated by the highest Court. This raises the obligation on activists to organise wide and close to the ground, such that a collective provision of social, economic and legal support and protection is available to the most marginalised Queer folk. What must follow now, therefore, is a concerted effort at community level organising that goes far and wide.

To summarise the Indian case, thus, it might be said that, on the one hand, the Queer movement must now learn the ropes of formal political struggle and organising, engender the possibilities of an actual politics of intersectionality and cross-movement engagement, the recognition of the hierarchies within and between Queer communities. On the other hand, the movement must creatively refashion itself beyond the Law, and enter the more difficult and diffuse social, economic and political realms. It must, in other words, re-imagine the very site of its struggle and undermine the centrality of the judicial struggles.

Uganda – Inauguration of the Judicial

If the Indian case is one where the judicial route has come to an end and where the movement must now enter the political realm, in Uganda we see something of the opposite. It was a few days after the Delhi High Court judgement that a version of the Anti-Homosexuality Bill which has been introduced and re-introduced in the Ugandan Parliament over the last several years, was passed as a Law. The Bill, which was initially introduced as a private member’s bill by legislator David Bahati in 2009, has been best known as the ‘Kill the Gays Bill’, owing to a provision of the death penalty for ‘aggravated homosexuality’, to bring it in consonance with the already existing law relating to ‘defilement’, or the sexual abuse of children. While the provision of the death penalty has been removed from the final language of the Act, it contains provisions with a very broad reach that criminalise ‘homosexuality’ (defined broadly to include sexual acts including ‘touching’ persons of the same sex/gender, and persons), the ‘promotion’ of homosexuality, (which might be interpreted as broad enough to target activists and organisations that provide social support to LGBT and other Queer folk, or generate discourse around rights of LGBT folk), and broad provisions relating to ‘aiding and abetting’, and ‘conspiracy to engage in homosexuality’. There is nuanced analysis that points to the link between the interventions of Evangelical pastors and activists from the United States of America and the anti-homosexuality impulse in Uganda’s political circles. The crucial point here is that the site for struggle was already within the formal political domain with little agency of the LGBT movement in Uganda.

The most peculiar aspect of the Ugandan story, perhaps, is that in the period of more than 4 years that the Law was a Bill, the state, the media, and sections of society, had already begun to behave as though it was, in fact, a law, routinely targeting NGOs and activists working in opposition to the Bill. The Bill, in other words, already had a social and political life even while it did not, strictly speaking, have the legal status as law in force. In this period it was impossible to challenge the instrument – it was not a ‘law’ subject to judicial review and formal litigation.  And yet, it was having the effect of Law, generating fear and action against LGBT folk, activists, artists and the like. Now that the Bill is an Act, a law in force, its Constitutional validity could be, and has in fact been brought to Courts. A challenge has recently been brought in the Constitutional Court in relation to this Act, posing arguments relating to a wide range of Constitutionally guaranteed rights including the right to privacy, the right against discrimination, dignity, the right to freedom from degrading treatment and the crucial procedural question of the fact that the Bill was passed in the Parliament without sufficient quorum. A further challenge has been also been launched at the East African Court of Justice. The possibility, finally, in other words, is to be able to draw the question of sexuality out of the political realm and into the judicial realm where it might be assessed in terms of legal principles and Constitutional validity.

The political production of dangerous Homosexuality

The political life of this object, before becoming law, and the process of its becoming law is demonstrative of the idiosyncrasies and cynicisms inherent in formal political processes. On the one hand, as Stella Nyanzi’s contribution to this collection demonstrates, the Bill was first and foremost implicated in (if not already intended to be so) the construction of the Ugandan nation, the question of African-ness, purporting to signal the delivery of post-coloniality and affirmation of sovereignty. This acted as an articulation of ‘xenophobic queerphobia’ as formulated by Paula Bacchetta – the placing of the queer body outside of the self-same nation, while simultaneously generating an idea of what this nation is. At another level, it is important to note that the Bill was tabled in Parliament repeatedly, most often around the time when other controversial bills with political-economic implications were being discussed and under public scrutiny – Bills relating to the control over the newly discovered Oil, and attempted Bills against corruption. The Anti-Homosexuality Bill, I suggest, was an easily summoned red herring, distracting from the more crucial questions before the political system.

A third series of questions to be asked is relates to the passing and signing of the Bill into an Act as itself a political act, aimed at the electorate, and at the affirmation of the legitimacy of President Museveni. There was a time lag of about two months between the passing of the Act and the President’s assent. Responding to the context of the now powerful Christian conservative voice in politics, and the demands of modernity that formally mark relationships of development aid, Museveni appointed a panel of experts to advise him on the scientific evidence for whether there is a ‘gay gene’, or whether there is a social explanation for homosexual behaviour – a re-kindling of the nature/nurture debate. As Rahul Rao argues in his contribution to this collection, this period was marked by
‘an elaborately choreographed dance intended to retain the support of Ugandan Christian conservatives and anti-homosexuality activists in an otherwise challenging political environment, while retaining his modernist credentials and some measure of plausible deniability (‘I tried my best to stop it’) in the eyes of international donors’.
The time lag led to speculation that Museveni was bowing to donor agendas, this as a challenge to his image as the legitimate leader of the nation. In the fan-fare that followed his public signing , the mainstream media and social media alike were flooded with expressions of gratitude towards the President for standing up as a strong leader to western powers, for protecting the nation from moral corruption and for establishing beyond doubt Uganda’s sovereignty. This was followed by marches in Kampala in celebration of the signing of the Act, expanding the political mileage to be harvested through the passing and signing of the Act.

A final aspect of the political picture is of course the shifts in the geo-politics of development and the economy. Earlier in the narrative, European and North American donor governments had made statements threatening the stopping of development aid, which, as Stella Nyanzi points out in her piece, only resulted in further confirming a ‘homosexual agenda’ as being a part of a neo-imperialist ploy. Elsewhere, in Europe and North America, over the last few years, this apparent stand-off provided the United States of America, to re-affirm a position of the protector of Human Rights the world over, marking itself as progressive and the ‘non-west’ as its other, and enabling the erasure of the fact that it continues to be engaged in illegal wars, illegal surveillance and the denial violation of Human Rights both domestically and internationally. The Bill, in other words, provided fodder to the strategies of homonationalism whereby the western nations gain domestic and international legitimacy through symbolic performance of an LGBT rights stance.

These four aspects of the political life of the Bill and then the Act demonstrate the cynical appropriation of the Queer body into quite other equations and political processes. That is perhaps the truth of the political realm – objects articulate in the political realm always in assemblages with other disparate objects, get pulled in by the disparate local and transnational flows. It is a process through which the object is disavowed political meaning in and of itself – in this case the Queer body. This appropriation of marginalised bodies into quite other political and economic equations, I suggest, reveals the cynicism of bio-politics as a crucial feature of political landscapes around the world. The immediate challenge in Uganda is perhaps to be able to extract the question of sexuality form these cynical appropriations and to re-cast it as a juridical question.

Final reflections

What then might we derive from the juxtaposition of the case of India and that of Uganda? From the Indian context, it might be argued that engagement with the judicial, and more precisely entry into the ‘field of law’ is a process of delimitation   which more often than not implies the simplification of and disavowal of the diversity of experience and location. The entry into the Political realm, in this context implies a need to be able to re-imagine the question of sexuality as intersecting with other structures of oppression, marginalisation and exclusion, and to introduce the Queer body into assemblages with other bodies and political objects. From the Ugandan experience we get a sense of the challenges in this entry into the realm of politics – the challenges of ensuring that the Queer body not be reduced to an object, or a bare life, that might be appropriated into quite other political flows. The offering of the Indian experience to Ugandan activists, on the other hand seems to be that the entry into the judicial realm would be better served if it generates political effects. Broadly speaking, thus, the challenge seems to be to be able to not recognise either the law or politics as the site for struggle, but rather, to be able to allow the action in one to bolster efforts in the other. It is in the relationships between law and politics, in the ability to generate strategic permeability between these realms that that the potential for movements might lie.

1 – Succinct coverage of the signing ceremony and Museveni’s rhetoric and reasoning in assenting to the Act:

* akshay khanna is an anthropologist, activist and theatre practitioner who has been part of the Queer movement in India for several years, and enjoys engaging with and in Unruly Politics. Currently a Research Fellow at the Institute of Development Studies, where s/he convenes the Sexuality and Development Programme.

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