The Framework of Dignity
‘Safety is never imagined; it has to be felt’. Ten years after its first publication, Saurabh Sharma argues why Law Like Love—a text that singularly captured the relationship between law and queerness in India from varying vantage points—remains as relevant as ever.
On 6 September 2018, the Supreme Court declared Section 377 unconstitutional. In their four-part judgement, judges of the apex court unequivocally lambasted the two-centuries-old law. Justice Indu Malhotra went on to say that “history owes an apology” to queer people.
It was a momentous day; however, it wasn’t the first time that the penal code was scrapped. In 2009, the Delhi High Court, in response to a writ petition filed by the Naz Foundation (India) Trust (hereafter Naz), had decriminalised homosexuality, observing that Section 377 “denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexualities.” But in 2013, the Supreme Court overturned the High Court verdict, noting that LGBTQIA+ people constitute only a “minuscule fraction of country’s population”—a “fact” it said “escaped” the High Court. The SC took five more years to reverse its own verdict.
Over the years, much has been written on law, queerness, and Section 377. The latest such instalment was an anthology Sex and the Supreme Court: How the Law Is Upholding the Dignity of the Indian Citizen (Hachette, India, 2020) edited by senior advocate Saurabh Kirpal, who himself has been discriminated against by the government and the process of his becoming the judge hindered because of two reasons: (a) he’s gay and (b) his partner is a foreign national. While Sex and the Supreme Court discussed sex in relation to the law broadly, it only had limited coverage of Section 377.
A book much wider in its scope, which singularly captured the relationship between law and queerness from varying vantage points, is Law Like Love: Queer Perspectives on Law (Yoda Press, 2011), edited by Arvind Narrain and Alok Gupta. In 2021, this landmark book completes ten years of publication and remains as relevant as ever today.
So, what if the ‘right’ to have sex in the ‘private’ has been ‘granted’, does it translate to freedom? It is, thus, essential to think of the desirable, possible, and permissible, and if at all that which intersects all three above, enhances the definition of freedom.
Law Like Love was (1) a response to conservative critics, who branded the 2009 ruling as “the elitism of gay rights, as a battle for sexual pleasure and eternal fun with complete disregard to social priorities”; (2) a celebration of the 2009 ruling and critique of Naz’s approach; and (3) a way forward for the many queer futures that several activists had come to envisage—before they were gutted by the blow that followed four years later the initial judgement.
Beyond Section 377 (for the first time)
Describing what the 2009 judgement meant for him, Arvind Narrain notes that “for the first time in Indian judicial history LGBT persons were looked at not within the frame of criminality or pathology but rather from within the framework of dignity.” (An aside: It’s interesting that Narrain cites “Orwell’s analysis of the relationship between sexuality and power” and reads it in conjunction with “Ambedkar’s analysis of the relationship between marriage and the perpetuation of the caste system”, finding “astonishing parallels” between them, but he never discusses Orwell’s homophobia.)
However, Vikram Raghavan in the essay Navigating the Noteworthy and Nebulous in Naz, highlighting how the SC “unhinges privacy from its traditional moorings by insisting that privacy is linked to ‘persons’ and not places. In so doing, Naz articulates a unique nonspatial and portable understanding of privacy that extends beyond the home, bedroom, (or, perhaps, in this case, the closet?),” offers a “cynical” interpretation, too.
Raghavan points out how “in reality, Naz only prohibits prosecutions of sexual acts between consenting adults in a private dwelling or establishment,” making conviction in “non-private conduct between adults in a public place” a lawful response (emphasis by this author). And this reading of the law is not even hyperbole, it’s a reality.
In the event of the absence of what’s referred to as “place” in the language of queer people, public parks and sites are a refuge for a “good time” or “meaningful” interaction. It’s where queer people, including me, cruise, identify potential dates, and have sex. (An interesting read in this regard is Isaac Stone Fish’s article in Foreign Policy: Gay Cruising in Modi’s India.)
Image credit: Yoda Press
So, what if the ‘right’ to have sex in the ‘private’ has been ‘granted’, does it translate to freedom? It is, thus, essential to think of the desirable, possible, and permissible, and if at all that which intersects all three above, enhances or pushes the definition of freedom, and advances various queer movements in India and elsewhere.
At this moment, excerpts from Prof. Naisargi N. Dave’s essay are particularly helpful in examining one’s role in any rights movement. Sample these:
Progressive legal reform is everywhere haunted by this tension between the dreams of possibility that animate activist practice in the first place and the moral fixity of the legal discourse deployed in the eventual effort to turn those dreams into social reality.
Those who can (and do), become the bearers of representational authority and stake their claims to a privileged means of socio-political production; those who cannot (or do not), find themselves literally voiceless in the newly valued sites of political action.
It’s this tension—between the person exercising agency to empower and the people being empowered: the representer and the represented—that necessitates interrogation of any social movements’ goals.
Padma Govindan and Aniruddhan Vasudevan agree to this theory and write that any “rights-based movement demands a close examination of the techniques of visibility, inter-community tensions and nature of that movement’s engagement with processes of government” because the representation and visibility both offer “risk homogenisation in its presenting of a uniform community identity,” metastasising into something else together when mixed with nationalism, leading to the formation of “rescue narratives,” becoming the very site for construction of homonormative nationalism or “homo-nationalism” according to Jasbir Puar, as noted by Rahul Rao in the essay Queer in the Time of Terror.
Maybe it can’t alter an individual’s orgasm—a rhetorical question—but a law certainly can define the ‘individual’: their freedom and limits, and by doing that, it has power to control everything.
But all these fears and apprehensions are duly noted, if not well popularised. Then what did Law Like Love offer that it should be considered memorable, if not remarkable?
Personal and political journeys
The fact that the book traces the journey of queer rights since the first reported case of Section 377—Queen vs. Khairati in 1884, in which a hijra was arrested for “cross-dressing”—is in itself a testimony to the vast canvas it opened up for discussion when it was published. But not only that, it also has both jargon-free academic and entertaining essays. One of them, “The Presumption of Sodomy: Section 377 in India” by Alok Gupta elaborates “six peculiarities of a sodomite’s anus” that were popularised by Auguste Ambroise Tardieu in 1857, among other meditations on subjects intersecting law and queerness. The book also provides magnificent insights into the lives of queer people in direct contest with the law.
There are many examples of personal and political journeys of the sodomy law in the Indian context. akshay khanna is a social anthropologist, a lawyer, and a developmental practitioner whose work traces the many ways the law and its enforcers—police being one of them, being unlawful themselves—play a role in stigmatisation while studying lives of many kothis. khanna finds it “remarkable that there continue to be expectations of protection and support from the Police by queer folk” though they were the very people abusing them (kothis) on an everyday basis. khanna, thus, opines that the “emergence of the Law as an explanation … make(s) the violence intelligible, and significantly, actionable.”
The late Priyadarshini Thangarajah and Ponni Arasu argue how sexual identities in cases relating to fleeing away of lesbian lovers were “consciously invisibilised.” And, more specifically, they note how the relationship between “legal adulthood” and “sexual citizenship” is yet left to be explored in the queer context. A point that Mayur Suresh (previously a Delhi-based lawyer and now associated with School of Oriental and African Studies, London), citing Friedrich Engels’ 1884 work The Origin of the Family, Private Property and the State and John Locke’s “personhood is self-referential,” drives home through the interlinkage of “relationship of marriage and its link to the property.” The latter of which became (and was always) the principal connection to citizenship. The nationwide anti-CAA protests in the winter of 2019 are still fresh in one’s memories.
It’d be interesting to imagine what would happen if concepts of marriage, family, and inheritance get evolved, which is the debris of hesitancy of the law of the land. This is the reason that beyond reading down of Section 377 much hasn’t been done in India. The state of affairs, on the contrary, has worsened. The horrific Transgender Persons (Protection of Rights) Act, 2019 is an example.
What can one then expect from the State? Imagine the scandal if one is to table a discussion on the acceptability of “sadomasochism.” (Too much freedom?) This discussion has either been overlooked or shunned by the machinery of law. Namita Avriti Malhotra and Nitya Vasudevan in their essay The State of Desire and Other Flights of Fantasy: Sexuality, Pornography and Technology explore this eloquently in the book, pushing the negotiation(s) with the law further.
Where do we go from here?
In one of the final essays in this bulky volume, Me, My Mother and Many Ways of Imagining this ‘Fucking Law in Place’, Akhil Katyal, then a student and now a renowned poet, writes:
What do the sentences in the penal code have to do with my life and my thoughts? Perhaps I should ask: does it (can it?) change the way I desire, the way I always eroticise someone or move among the metro crowd, the way I fall in love with ‘that boy in the philosophy department’, the way I remember my first kiss? And finally: Can 377 change my poetry? Can it alter my orgasm?
In 2021, as I write this essay, Section 377 has been scrapped in India. But is there no possibility that the judgement can be reversed and India be pushed back into a pre-Section 377 era? Though the law no longer criminalises people for being gay, has the affliction attached to it by the society gone as well? Will a gay man like Xerxes from Mumbai (in Gupta’s essay “The Moral Order of Blackmail”) be able to avoid getting crippled by the fear of being attacked by a ‘blackmailer’ for being gay? To put it straightforwardly: Can he—or others like him—ever feel safe?
The answer is safety is never imagined; it has to be felt. Maybe it can’t alter an individual’s orgasm—a rhetorical question—but a law certainly can define the ‘individual’: their freedom and limits, and by doing that, it has power to control everything. For this very reason, some laws must stay, and others go.
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Saurabh Sharma is a reader and a writer. He works as a writer in an IT research and advisory firm in Gurgaon. He reviews books and pretends to write on weekends. You can find him on Instagram: @writerly_life and Twitter: @writerly_life.
