Ashley Tellis questions the mindless celebration of the Supreme Court judgement on Section 377
By Ashley Tellis
Once again, like in 2009, the media has erupted in mass, delusional celebration over the Supreme Court judgement re-instating the Delhi High Court judgement which had read down Section 377 of the Indian Penal Code in 2009. Once again, the headlines are all misleading. Once again, there is no critical reflection from the so-called LGBTQ community on what the facts of the matter are and what their implications are.
Homosexuality has NOT been decriminalised
Firstly, it is important to note that homosexuality has not been decriminalised. Homosexuality is not even recognized as an identity by the state or indeed by Section 377 (as the much-hated Supreme Court judgement of 2013, which set aside the Delhi High Court judgement, pointed out), so it was never criminalised in the first place.
Section 377 criminalises a bunch of activities which are against the “order of nature.” This is a British law that follows the Christian logic that any non-procreative sex is unnatural. The section does not mention the word homosexuality. It includes buggery but buggery is by no means exclusive to homosexuality nor does it define homosexual identity.
The initial struggle against Section 377 since the 1990s by the first group to fight it, the AIDS Bhedbhav Virodhi Andolan (ABVA) in Delhi, was to repeal it. ABVA’s main work was around HIV/AIDS and with female sex workers but it was clear in its solidarity-based vision (enunciated in its report Less Than Gay) that the stigma on sexual minorities should go and the colonial law should go altogether.
This was watered down to a reading down to exclude private homosexual relations from its ambit by the NGO Naz Foundation who filed the petition in the Delhi High Court in 2001 which led to the 2009 judgement.
Section 377 was read down by the 2009 Delhi High Court judgement to allow consensual, adult, same-sex sexual relations in private. This is not the same as decriminalising homosexuality at all. Yet headlines across the board, both then and now, make this claim.
The more important observation, never made, is that is a curious way to bring homosexual identity politics into the public realm in India: through the privatisation of adult same-sex practice. It shows the class, caste and gendered nature of this ‘movement’ which is really about upper class, upper caste, male comfort.
The point surely should have been a public affirmation of homosexuality as an identity, not a demand to privatise adult same-sex practice.
Privatisation is NOT the basis of politics
Adult and consensual sex between members of the same sex in private was allowed by the Delhi High Court judgement in 2009 and has been allowed again. These are acts, not identities. Homosexuality is not even recognised as an identity by the state and been struggled for. Instead, this backdoor entry through privacy and sexual acts is what is being celebrated as a landmark struggle and judgement.
Privacy is a right only some can afford. Hijras who practice sex work on the roads have no privacy and yet the elite, gay lawyers used them to argue for the reading down of Section 377 in the Naz petition. Privileged same-sex subjects (who have bedrooms of their own) always had privacy anyway. We did not need this protracted legal struggle at all to establish that as a right.
Privacy is also a double-edged sword as we saw in the Hadiya case. Privacy can also be used by families seeking to police, medicalise and coerce same-sex subjects who will not be protected by this judgement at all.
The need for a public struggle for a public identity
What we always needed, and still need, now is a public, collective struggle for a public, political identity as homosexual. Minority rights are public rights, not private ones. Dalits, adivasis, Muslims, Christians did, and do, not fight for the right to be privately Dalit, adivasi, Muslim and Christian. They fought, and fight, for a public recognition of their marginalized identities and demanded, and demand, from the state their rights as citizens with a stigmatised identity.
This struggle demands an engagement with public morality. Public morality is where we live. It cannot be wished away with the wand of constitutional morality. As B. R. Ambedkar, the architect of the Constitution, pointed out clearly, constitutional morality is just the topsoil over a deeply unequal and rotten society. Nothing will change unless we attack it at the roots.
While the law is necessary, it has to be pushed at from below not through the sophistic short-circuiting of the Naz, and now this, judgement, both full of hot air and high sentiment and little or no relationship to the social.
Legal struggles have to be demanded through the politics of collective struggle on the ground for the law to have any relevance. If the social and cultural legitimacy of dowry, for example, has been dented by the law, it is because the law was a result of feminist struggles on the ground that fought for it. That dowry still continues shows that the struggle with public morality is not easy. It is a long haul and we have to be prepared for it. Law cannot be a shortcut to social change and definitely not this half-baked law.
These celebrations are ill-informed, premature and short-sighted. This elite law simply ensures that the rights of the elites are protected. More importantly, law can never be the means through which social change is effected. Law ensures that the rights of minorities are protected. Those rights have to be fought for first and in unequivocal terms.
Ashley Tellis is an LGBH, anti-communal, feminist, child, Dalit, adivasi, and minority rights activist. He lives and works in Hyderabad.
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