The Politics of Section 377, IPC (An Excerpt from the book ‘Criminal Love? Queer Theory, Culture, and Politics in India’)

In December 2015, I was on a panel to discuss the “Section 377 Impasse” at the Goa Arts and Literature Festival. Both my co-panelists, Nandita Haskar and Jason Keith Fernandes, came from a human rights background. They asked me whether Section 377 concerned only the gay community in India, or was it a reprehensible law that bothered everyone who stood up for human rights. What they were really lamenting was the fact that our agendas had become too narrow. Each marginalized group had become so myopic that it could not see beyond its own immediate concerns. There was no attempt on the part of the groups to build coalitions with other groups. However, I pointed out to my co-panelists that the gay community was at the receiving end here. While we were certainly willing to broaden our support base by building coalitions with other groups such as the feminists and the Dalits, it was they who kept away from us, possibly because our cause had to do with sex. This was proved during the JNU protests of February and March 2016, when some JNU students allegedly issued a statement saying, if Section 377 can be debated in Parliament, why cannot Afzal Guru’s hanging. The implications of this statement, according to me, were that Section 377 was a less legitimate issue than the Kashmir problem, with which Afzal Guru’s hanging was connected. Human rights should concern all sections of society, regardless of what our separate agendas are. However, there is a tendency to prioritize human rights, with some issues taken to be more important than others. In such a fallacious classification, the rights of sexual minorities are always at the bottom of the ladder. One reason for this is that LGBT people in India comprise, may be, less than 2 percent of the overall population. Whereas, other constituencies concerned with caste, class, gender, and ethnicity issues have a much larger membership.

However, as explained earlier, a more insidious reason is that the demands of the LGBT community have to do with sex, which in turn has to do with morality. In short, the demands of LGBT people are often seen as immoral.

The alleged statement by some JNU students, referred to above, meant that to them the business of an independent homeland for the Kashmiri people (for which Afzal Guru died) was entirely different from the business of sexual preference. For, while human beings cannot live without a homeland, they can certainly live without sex. Religion and sexuality are strange bedfellows. In 2015, when I gave a talk on the late poet Agha Shahid Ali at Kashmir University, Srinagar, my hosts forbade me from making a mention of the poet’s homosexuality. I found this strange, considering that Agha Shahid Ali was as much of a poet expressing his longing for (male) companionship as he expressed his longing for a free homeland. Why is it that the people of Kashmir wanted me to concentrate not on the former but only on the latter? The JNU students were supposed to be anti-establishment. Thus, it was out of character for them to pit Afzal Guru against Section 377.

Both Afzal Guru and the LGBT community in India are outlaws. Our goals may be different but we are outlaws all the same. So, shouldn’t we be speaking of a coalition of outlawed persons? If there is a witch hunt for militants, there is equally a witch hunt for homosexuals.

Toward the end of the year 2015, the Bollywood film star Aamir Khan spoke of leaving India, given the (unspoken) fact that he was a Muslim, and India was ruled by a Hindu fundamentalist party that was intolerant toward Muslims and other minorities. The Government of India immediately accused Aamir Khan of sedition. I responded to Aamir Khan’s statement and the government’s reaction in informal conversations, pointing out that the LGBT community in India would be happy to leave the country, given the fact that Section 377 made us criminals in our own country, while even a neighboring country like Nepal (a Hindu nation at that) had decriminalized homosexuality.

I said, given a chance, we would much rather immigrate to a country where the laws of the land were in our favour. These countries could be (other than Nepal) the UK, the USA, France, Germany, Spain, and South Africa. It was obvious that we would live happier lives in these countries than back home in India. However, as far as the Government of India was concerned, for LGBT people to speak of leaving India was obviously not the same as Aamir Khan speaking of it. We would not merely be called seditionists. On the contrary, the Government of India would be glad that we were leaving, for it would help them to ‘cleanse’ the nation.

An excerpt fromChapter IX: The Politics of Section 377, IPCfrom the book,“Criminal Love? Queer Theory, Culture, and Politics in India”byProf R. Raj Rao,Head, Department of English, Savitribai Phule Pune University, India, and published by SAGE India

Message from Aarti David, Director – Publishing, SAGE Publications India :

“SAGE has always supported publishing about issues related to the LGBT community and will continue to do so. Prior to the SC judgment a lot of focus was given to the criminal provision of Section 377. We now hope to see content that will be more focused on equality, rights and acceptance in the society. We believe that equality and freedom of choice are pillars of a just society and this landmark judgement is a testament to the judicial system of our country.”