Why We’re Not Losing: Decoding Indian Sexuality Politics in an Election Year

By December 11, 2014, the day the Supreme Court of India upheld India’s anti-sodomy law (Section 377) in an already infamous judgment, I had been in India for the first three months of a nine-month research fellowship. From the start, I had heard discussions, critiques and complaints about the campaign to decriminalize consensual ‘gay sex’ between adults, the recent amendments to laws criminalizing sexual offences, passed after the horrible and widely discussed December 2012 gang rape in New Delhi, and Narendra Modi’s “campaign” to become India’s next Prime Minister. Now, six months after I left America’s East Coast, these three legislative themes continue to mark the overlapping conversations among social movements, the media, and, literally, almost anyone on what India is, how it works, and for whom. For progressives in the US, the question of solidarity in this tangled political moment inevitably rises.

 One conclusion we might draw from the Delhi rape case and subsequent reportage of horrific sexual violence throughout India, the retrograde 377 decision, and the possibility of Modi as India’s next PM, is that India is sliding into an era of unbounded conservatism, homophobia and misogyny. Understandably, this is what many progressives in India as well as in the US are feeling. At the same time, we may also interpret discussions about these overlapping events being as much about contemporary discourses on wealth, modernity and progress as they are predictive of India’s political future. The devil is always in the details, and in this moment, the details reveal (again) that national political discourses are idiosyncratic and often difficult to use predictively, except to say that whatever happens will be complicated and worth understanding carefully.

 The December 2013 Supreme Court judgment on ‘sodomy’ (Section 377) bears some explanation here, though much ink has been spilled already on Section 377, India's anti-sodomy law. One bright effect of the judgment has been to reinvigorate interest in and concern about Indian LGBTQI politics, bringing young people into spaces where the judgment is being discussed and a new campaign to decriminalize ‘gay sex’ in India is being crafted. At the same time, there is confusion both within and outside India on what this latest judgment actually means. Whether, for example, LGBTQI people are being newly criminalized in India through Section 377, or if the law is similar to the new anti-homosexuality laws in Nigeria and Uganda? (Respectively, we aren’t, and it isn’t.)

Briefly, Section 377 is so named because it is the 377th ‘section’ in the Indian Penal Code, the country’s main criminal code, which is literally a comprehensive list of laws defining criminal offences and their punishments. First written in 1860 under the supervision of Sir Thomas Babington Macaulay, and amended many times over, some sections still reflect tenets of the British legal system during Macaulay’s time. 377 criminalizes “sexual acts against the order of nature,” a politely Victorian euphemism for ‘sodomy.’ The law’s actual wording is vague on which sex acts are prohibited, thus literally rendering it applicable to all non-procreative sex, although it is conventionally interpreted to prohibit anal sex between men. Relatively few convictions have materialized under 377, but a focus on convictions alone misses the point of why the law requires reform. As with any anti-sodomy law, the actual effect of the law is in its sense, rather than what it technically empowers the judiciary to regulate. The sense of the law has been to identify and harass people who do not conform to gender and sexuality norms, such that we may all effectively disappear.

The sense of Section 377 authorizes police to harass, intimidate or physically assault anyone who seems to be in violation of this law, and assures legal immunity to anyone who may potentially harass others on the basis of their sexuality or gender expression. It seems that many of those picked up or harassed by police have been people who were identified as being hijras, or male-bodied effeminate men, where the arrest or harassment occurred while people were in a space that was legally defined as being 'public.' A significant number of hijra and gender non-conforming men have been arrested while doing HIV/AIDS outreach workers, where carrying condoms was used as enough evidence of intent to commit a crime to justify an arrest, if not a trial and conviction. Section 377 has also been used to arrest lesbian couples who have run away from home, and to rationalize a range of abuses again queer, gender non-conforming and transgender women and men. At the same time, some LGBTQI activists have criticized the importance being vested in the SC judgment, arguing that this reflects the rise of liberalism, urbanizing modernity and an emphasis on elite concerns in South Asia. These arguments have aimed to show that that the harassment of queer and gender non-conforming people is more properly linked with the power dynamics of class and caste, and will therefore remain unchanged even if 377 is reformed or repealed.

While a definitive history of the anti-377 campaign is yet to be written, several signposts are worth noting if we aim to interpret what the judgment and debate around 377 mean in this political moment.  The first legal challenge against 377 was brought in 1994 by ABVA (AIDS Bedbhav Virodhi Andolan), a volunteer collective based in Delhi that was doing HIV/AIDS work. Although it was dismissed, ABVA’s case laid a foundation for the subsequent legal battle against 377.

By 2001, a new campaign was taking shape within the LGBTQI organizations that had emerged during the mid and late 1990s in several of India’s largest metros. This campaign was shaped by a cadre of then-newly minted lawyers in these metros, many of whom were gay themselves or allies to their gay friends, and had come together to comprise the core legal expertise needed to see the campaign through. After much debate, it was decided that a case would be filed to ‘read down’ the law, meaning that the portion of 377 criminalizing any aspect of consensual sex between adults would be repealed, leaving the remainder of the law in place to criminalize sexual assault involving children.

This campaign filed its case in the New Delhi High Court in 2001, with the Naz Foundation (India) Trust, one of the country’s first NGOs dedicated to fighting the spread of HIV/AIDS, as its main plaintiff. Two of the key legal arguments against 377 were: 1) that it violates individuals’ right to privacy, where privacy was defined in terms of personal autonomy as well as space, and 2) that the law greatly hinders efforts to combat the spread of HIV/AIDS in India. A number of other arguments were made in addition, with much debate among activists about which strategies to pursue at any given time. Some of these debates remain active.

In 2009, the New Delhi High Court gave a remarkable decision in favor of reading down the law and decriminalizing ‘gay sex’ between consenting adults, citing, among other things, the law’s colonial legacy and protections the Indian constitution affords to the rights of minorities in India. The court affirmed that queer people were a legitimate minority, and that 377 subverted their constitutional rights as a minority, citing protection from caste-based discrimination as an example of the kinds of minority rights the constitution articulates.

The present frustration and anger about the Supreme Court judgment stems from the outcome of what happened in the wake of the Delhi High Court judgment. Though Delhi High Court’s legal jurisdiction is technically limited to the National Capital Region, which includes New Delhi, the 2009 judgment was seen to have national ramifications. Organizations all over India claimed the judgment as their own, rightly arguing that it was national in its scope. This claim was made even more real by the media’s understanding of the judgment in this vein, and it did have a national effect, for a time. A certain kind of LGBT representation in the press and on college campuses flowered, an identity-based visibility that had not existed before, which did not come without its own challenges and confrontations, not the least of which include the reductive and narrow representation of transgender people in mainstream media.

The Government of India declined to appeal the 2009 judgment, a remarkable turn considering that the case was won against the government. The central government’s tacit approval of reading down 377 might have been the end of the story, had a coalition of Hindu, Muslim and Christian religious fundamentalist groups not banded together (under the acronym “JACK,” Joint Action Council, Kannur-India) to appeal the judgment. This appeal triggered the case being sent to the Supreme Court, which agreed to hear the matter, when it could have chosen to decline and let the High Court judgment stand. After delaying a decision for nearly four years, the decision was finally handed down by a two-person bench, that too on the very day which one of the deciding judges was set to retire. Readers unfamiliar with the Indian legal system might find this bit particularly confusing; India has some twenty Supreme Court justices, with a two to five judge bench assigned to hear each case.

There is much to be criticized about the 2013 judgment, which obviously gets its constitutional law wrong, and about its provenance—that is, why was such a high profile, historic, and vastly consequential case only heard by a two-judge bench? Other key criticisms included the mindboggling way in which the bench ignored all of the arguments against 377 entirely, and seemed to overlook the fact that India is a constitutional democracy rather than a majoritarian one. (LGBT people in India not being a large enough minority to matter were among the reasons that the judges gave for upholding 377 in full.) All of these criticisms were made in the numerous review petitions that were submitted to the Supreme Court following the judgment. By now, every available legal avenue for having the decision reassessed has been exercised. A highly publicized series of protests, press statements and interviews have been organized as well, all requiring an extraordinary amount of expertise and time. The result of all this time and energy was clear in the loud and sustained outcry against the judgment from literally all around the world, and definitively from all over India. The Global Day of Rage protests protests on December 16, 2013 demonstrate this amply. While protests would have been held in several Indian metros at the very beginning of the campaign, protests this December were held in more than a dozen places throughout the country, including in cities like Guwahati, Nagpur, Bhopal and Sangli, where protests may not have taken place a few years earlier. The Day of Rage garnered national press attention in both English and non-English media. Plans are now underway to pursue parliamentary and state level interventions to decriminalize “acts against the order of nature,” with an imminent national election on the horizon.

If the story were to end here, it would be logical to assume that India is simply experiencing a fresh onslaught of homophobia, one that we might have even expected. But the point of this disquisition is both to offer a rough sketch of the anti-377 campaign, and to emphasize the at-times unwieldy social movements that have put the issue on the map in the first place. If anything, the campaign against 377 has shown that there is a powerful set of LGBTQI movements with broad based support in India, and that there is a great deal of political diversity among these movements’ constituents. "The criticism that a focus of movements’ resources on 377 takes energy away from issues of caste and land use, slum demolitions, queer women, and transgender people and politics is a case in point. Some of these kinds of criticisms are aimed at the allocation of crucial movement resources for an exclusively legal campaign, arguing that, at the end of the day, a focus on the law does not equal or mitigate all of the other challenges of daily life that LGBTQI people must navigate everywhere. The movement resources that these criticisms reference include the tremendous legal expertise, advocacy, outreach, workshops, community based fundraising, etc. that LGBTQI activists and organizations all over India have devoted to this campaign.

Emphasizing the complexities of the anti-377 campaign does more than to show India cannot be understood in terms of a singular conservative shift, although it does that too. These complexities demonstrate the basic fact of the history and continued importance of radical social movements all over India. We could tell a similar story about the continued reportage of sexual assault and harassment in India, while also undermining the idea that India is moving to the right from top to bottom, and that these developments are signs of the essential and basic conservatism of a country that is corporatizing fast.

The rise in the reportage of sexual assault cases in India could indeed be due to the rise in the absolute number of sexual assaults, or it could be due to the impact of feminist organizing and public outrage unleashed by the egregiousness of the 2012 fatal rape of a physiotherapy student in South Delhi, or a combination of these. (I’m going with the second option.) Feminists in both urban and rural locales have been effective in raising a host of issues in the Indian press, including sexual assault, and were part of the massive public response in 2012. Feminist organizations and advocates were influential in the subsequent reforms to laws criminalizing sexual violence, passed in 2013. These reforms included revising the gendering of some of these laws, such that rape is now defined as an act committed by a man against a woman. To be sure, these changes have been part of ongoing debates that have elicited a great deal of controversy among activists, and they continue to do so. That the debates are active indicate a complex situation with many actors and, of course, a wide range of political perspectives.

The fear of a rightward shift in India is perhaps most intense with respect to the possibility of Narendra Modi becoming India’s next prime minister. Since 2002, Modi has expanded his base of support within the BJP, mobilizing a national campaign and the idea of a ‘Modi wave’ that will inevitably result in a Modi government at the center. His relationship with the US government seems to be thawing, with the American consul general in India recently meeting with Modi after a nine-year silence. Polls are looking foreboding for the incumbent Congress Party, and Modi is offering economic prosperity on a plate, it seems, touting (disputed) developmental gains in Gujarat as a sign of things to come for the whole country. If Modi wins, does this mean that India has become essentially communal and corporatist, despite its incredible history of radicalism?

There are actually two questions here that bear thinking about distinctly: First, will Modi be PM? Second, what would it mean for India’s political culture if Modi succeeds in becoming PM? Regarding the first question, although Modi is styling himself as ‘presidential’ in the American sense, waging a campaign with his face on every ad he can swing (having had a rumored make-over and facial), it bears remembering that India’s political system is not an American-style congressional one, in which people vote for a party-affiliated individual for the country’s highest governmental post. India’s is a parliamentary system. People vote for party representatives from their districts in state and national elections; state legislatures also themselves vote for their representatives in parliament’s upper house, known as the Rajya Sabha. Everyone votes to elect members to the lower house, known as the Lok Sabha. The President of India is elected by both houses of parliament. The President then appoints the Prime Minister. Since the 1980s, India’s national politics have been wrought through the coalitions that parties manage to negotiate following elections. As in many previous election cycles, no one expects one party to garner an absolute majority this time around, either. Who becomes prime minister in these negotiations is not necessarily clear, and the political mandate that the PM will have is even more uncertain.

Any Prime Minister is a member of parliament, and so in this election, Modi is running to gain a seat in the Lok Sabha. That he is running for two seats, from Vadodara in Gujarat and from Varanasi in Uttar Pradesh, has caused at least one state chief minister to wonder why Modi feels the need to hedge his bets. Why not just run for one parliamentary seat, like everyone else? Although the stakes are high, and Modi may succeed, the interpretation of what this means for India changes drastically if we consider the way in which this may happen, and if we acknowledge the scope of the resistance to Modi and Hindutva in India, including the important challenges that have been articulated against the narrative of development in Gujarat, and the level of mistrust that Modi had garnered within his own party. Allegations of grievous mismanagement by the incumbent Congress Party, and of rife corruption within every party, complicate matters further, as does the success of the Aam Admi Party (AAP) in the 2013 New Delhi legislative assembly elections, and the dire need for an alternative to the BJP and the Congress. AAP's appeal was significantly based on its anti-corruption platform, which specifically named Mukesh Ambani, the head of Reliance Industries, as both a symbol and agent of the status quo of economic inequality in India. While AAP is aiming to be a force in the national elections, there are also numerous, powerful regional parties throughout the country.

None of this is to say that Modi as PM would not be unimaginably horrifying, and that the consequences would not be grave. Neither is it to say that there is not a deep, nightmarish seam of bigotry and fascism in places where Modi is popular. Nor, reflecting on 377 and reports of sexual assault, that there is no homophobia, transphobia, or misogyny to reckon with, here as elsewhere. It is to say that, regarding each of these three phenomena, the details and the sites of resistance matter, because if they allow for even a small space to maneuver, then the possibility of some kind of progressive intervention and political redress, great or small, remains at hand. Tracking resistance to communalism within Gujarat, for example, is instructive, as is tracking various political parties' responses to the 377 verdict. The complexities of the contemporary moment is a collective call to arms for progressives everywhere to understand the contours of what is happening and the details that define the stakes. Ultimately, all of these developments contextualize and impact, but do not necessarily predict, the vagaries of daily life, which are more complicated still.

 

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