The past few weeks, the Supreme Court (SC) has been debating Section 377 of the IPC, which criminalises sexual acts against the “order of nature”. The section came into public consciousness only in the last two decades and has been upheld by activists as the reason LGBTQIA people cannot live a life free of discrimination in India. In short, everything hinges on Section 377. Or so we are told.
But then why would someone like me — a lesbian — be indifferent to the outcome of the case? The answer lies in the two-decade-old history of debate within the queer community, about which little is known outside the narrow activist and academic circles. Don’t get me wrong, Section 377 has to be struck down. The question is how significant a change will it bring about?
Some of us within the community have felt that among the different laws affecting queer lives in India, Section 377 is not the one doing the most damage. The belief meant that the LGBT did not sit well together between themselves. Section 377 was chosen on the rationale that it was a tool of extortion and blackmail against gay men picked up by the police. While this may have been true, not everyone had the same social standing or networks to lose. As LBT women, we know how the laws on kidnapping are used against runaway couples. In fact, many of the issues we faced were similar to the other inter-caste and inter-religious heterosexual couples running away from hostile families.
In the last two decades, Lesbian Bisexual and Trans (LBT) people have met separately to chart out a different activist agenda. Since our numbers were small, we never got the funding that gay men got through AIDS money. Instead, we focussed on dealing with the pressure from families. We had little in common with the closeted gay men struggling to keep their private lives private. Economic struggles for livelihood among runaway couples were pressing, yet it found little mention in anglophone activist spaces. The LBT community’s fight was against the societal scripts of compulsory heterosexuality and forced marriage. And unlike Section 377, it is not a fight I expect to “win” in my lifetime.
Hijras continue to be arrested and brutally harassed by the police, often without any law being cited. When pushed into a corner, the police have the freedom to use trafficking laws, public nuisance laws or, more rarely, Section 377 against them. The behaviour of the police is unlikely to change significantly even if the legislation changes. There is also a growing distaste within queer circles for what the hijra represents. For the elite urban gay man or woman who model themselves on global ideas of cool, an association with the hijra is considered a loss of social status. Much of the attitude has to do with caste and untouchability, issues that were completely unspeakable in queer activist circles until recently.
Another debate is about the law itself. Do we want to put all our eggs in one basket and depend solely on the law? Even if we did approach the courts, some of us wanted to proceed with caution and demand legislation against discrimination instead of getting our identities mired in criminal law. Or even demand the passing of an act preventing atrocities against hijras.
Have things changed in all the years Section 377 has been debated in the courts? Yes. Today a national newspaper can ask me for a piece on how the fight against the section has turned into a “rich gay man’s party”. There is growing awareness that activism has to extend well beyond Section 377 and incorporate greater plurality in political vision. This new sense, however limited, is won by the hard work of those who stuck to the uncomfortable questions even at the risk of alienating the small community they have. That said, if I could live the last decade differently, I would take the debate on Section 377 less personally.
I was high on idealogical condemnation without fully realising that my anger had its roots in fear. Fear of a politically uncertain future, fear of a lifetime of unrequited love or affection, fear that I won’t live to see a world that can comprehend me, which are fears shared with so many. Perhaps understandably, the arguments being made in favour of reading down Section 377 tend to use the stable same-sex coupledom to win favour amongst the public and judiciary. I’m turning 30 at the end of the year and I haven’t yet wanted to be part of a self-enclosed pair. I’m still holding out for a life built on a bedrock of mutual emotional responsibility that extends beyond two people.
It looks increasingly likely that the SC will decriminalise homosexual sex. Significantly, the BJP government has not taken a legal stance, clearing the way for the court to deliver a verdict choreographed as the global and progressive Indian opinion. Since Section 377 is not an issue that most of the Indian electorate cares about, the strategy is likely to work. Before we are lured into celebrating the current government or the SC, let us consider what has happened to Section 498A of the IPC on dowry or the Prevention of Atrocities Act. They have both been severely diluted, which only tells us where the loyalties of the SC lie. Protecting upper-caste men has been the basis of so many recent SC judgments. A verdict on Section 377 should not divert our eyes from this fact.
Poorva Rajaram is a writer and co-organiser of Bangalore Queer Film Festival