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Kaushal v. Naz Foundation: The real ‘revolting subject’

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By Nienke Boer

Last week, I was appalled to read that the Supreme Court of India, in what was generally considered a surprising decision, had overturned the 2009 Delhi High Court judgment decriminalizing consensual same-sex relationships between adults. Having volunteered for the Naz Foundation (India) Trust, the petitioners in the original case, at the time the 2009 judgment was handed down, my mind immediately went to what had been the highlight of my year in India – hearing that decision read in the High Court and celebrating with my colleagues afterwards. This piece reflects back on the giddy hopes and high expectations of those days, expressing my trust that the openness and acceptance I had experienced in Delhi then will triumph over the small-mindedness of this most recent decision.

Whilst the petition filed by the Naz Foundation had been under judicial review since 2001, I still remember the shock and surprise that filled the office when we received a call on Wednesday, 1 July, 2009: ‘Be at the High Court tomorrow – they’ll be handing down the judgement on your case.’

The case, of course, was the famous Naz Foundation v. Government of NCT of Delhi, challenging Section 377 of the Indian Penal Code, 1860, criminalizing ‘unnatural offences’ or ‘carnal intercourse against the order of nature.’ I was volunteering at Naz at the time, and had spent a year working in their office – mainly doing documentation and other work for the Care Home they run for children living with HIV/AIDS, but also spending some time at the centre they run supporting men who have sex with men (MSM), which formed the social heart of the whole office. Naz had originally filed the petition because Section 377 made their work in this particular community much harder. I had become emotionally invested in the success or failure of this petition, and so I was excited to be able to witness the judgment being handed down. Due to clerical error and the High Court being a bit of a maze, we finally slipped into court only to hear the final few words: ‘…Section 377 to be amended to exclude consensual sex between adults over the age of 18.’ (Section 377 was thus only amended, not completely overturned, as it still applied to non-consensual sex and sex with minors.) Everyone started clapping, and it slowly dawned on me that yes, we had won! People were crying, but it was a quiet moment of happiness. I was awed by the fact that I was able to be there – it felt like experiencing history in the making.

Afterwards, the celebration was unstoppable. My colleagues, most of whom had been fighting this battle since long before 2001, when the petition was filed, were ecstatic, and it was an incredibly humbling experience to watch men, who had spent their lives being told that their very identity was a crime, finally, being recognized as no more ‘criminal’ in their desires than anyone else. The party took over the streets of Delhi, and after painting our faces, the whole office headed over to Connaught Place, where there was dancing, screaming, and endless media attention. I just remember the sense of possibility that filled the streets along with the celebration. Delhi, which at times could feel so incredibly hostile to anything ‘strange’ or ‘foreign,’ seemed on that day, and the days following, to be displaying its true inner hospitality and openness.

I remember being enormously moved by part of the judgment:

If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracised.

***

Now, turn the clock forwards by four years. It’s 11 December, 2013, and no-one is expecting the Supreme Court to overturn the 2009 decision. And yet they do, on what seems to me to be the flimsiest of pretexts. According to the verdict in Kaushal v. Naz Foundation, the population under discussion forms too small of a minority:  ‘While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders’ – something which, to my mind, would make them more in need of protection rather than less! This is, of course, a terrible blow. Symbolically, you are throwing their ‘difference’ back in the faces of the LGBT community, telling them that they are a ‘minuscule’  exception to the norm. Even though the law is hardly ever used to prosecute homosexuality (it was always more of a bully stick in the hands of the police), this law recasts same-sex desire and love as criminal, as  ‘against the order of nature,’  and that criminalization is in itself a thoroughly heinous act.

Section 377 is, in itself, incredibly ambiguous:

377. Unnatural offences: 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 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 offense described in this section.

This convoluted formulation is a legacy of its Victorian roots. Lord Macaulay, commenting on an earlier version of what would become section 377, writes:

We are unwilling to insert, either in the text, or in the notes, anything which could give rise to public discussion on this revolting subject; as we are decidedly of opinion that the injury which would be done to the morals of the community by such discussion would far more than compensate for any benefits which might be derived from legislative measures framed with the greatest precision.

***

The decision in Kaushal v. Naz Foundation will presumably not lead to renewed prosecution of homosexual acts under Section 377. What this decision seeks to do is, perhaps, close to the original intention of the minds behind this section: to silence public discussion, to reinscribe this kind of desire as ‘revolting.’  The Supreme Court decision is a scandalous mistake, one which will hopefully be overturned by  a democratic government (though it is hard to predict when this will happen.) However, we should take courage from the public outcry that has followed this decision. Homosexuality in India is now, more than ever, a subject of public discussion, an issue for debate. The shame the Victorian legislators tried to brand onto this form of desire is being eradicated, and it is no longer a whispered taboo.

Further reading:

Short article placing the ruling in legal context: http://www.slate.com/articles/news_and_politics/jurisprudence/2013/12/kaushal_v_naz_foundation_the_supreme_court_of_india_s_shockingly_bad_gay.html

A number of sources related to the history of Section 377: http://orinam.net/377/wp-content/uploads/2013/12/Short_History_377_UK_India.pdf

Full text of Naz Foundation v. Government of NCT of Delhi: http://lobis.nic.in/dhc/APS/judgement/02-07-2009/APS02072009CW74552001.pdf

Full text of Kaushal v. Naz Foundation: http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070

Nienke Boer is a Ph.D. candidate in the department of Comparative Literature at New York University. She was a Princeton-in-Asia fellow at the Naz Foundation (India) Trust, New Delhi, India in 2008-2009. Her dissertation, Indian Ocean Chronotopes: Indentured Laborers and Prisoners-of-War in Literature, Law and Archival Ephemera, focuses on the narratives produced in the wake of the mass movement of people between South Asia and South Africa at the turn of the last century, looking specifically at two groups: Indian indentured laborers who arrived in South Africa between 1860 and 1909, and South African Prisoners-of-War who were held in South Asian POW camps during the second South African War (1899-1902).

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