Monday, September 20, 2004

There are no short cuts to queer utopia: Sodomy, law and social change-- Arvind Narrain

There are no short cuts to queer utopia: Sodomy, law and social change-- Arvind Narrain



Law stands linked to justice in our very imagination of social change. Perhaps nothing illustrates this process better than the persistent championing of legal reform as the end point of emancipatory change by many social movements. There has been an over juridification of social struggle, converting what is a wider social project into a narrow legal project. This process of envisaging law reform as the end point of social struggle has its hazards particularly due to the undemocratic and secretive way in which the legal process works.

The point of this article is to draw attention to the limitations of law in the particular context of sodomy law reform in India so  that we are better able to locate law reform as a part of a wider and more meaningful  process of social and political change. To do this article will strive to understand what is the meaning of Sec 377 of the Indian Penal Code for India's sexual minorities and critically examine the way law reform has worked in bringing about social change and address what could be the role that law reform ( a la sec 377) could  play in a newly emerging political movement centering around sexuality.

Sec 377 as violent social exclusion

Ever since the emergence of  the queer articulation in the Indian context a lot of effort has gone into focusing on Sec 377 as the locus of oppression of the diverse groups which make up India's sexuality minorities.

Sec 377 which was drafted in 1860 by Lord Macaulay as a part of the colonial project of regulating and controlling the Indian subject reads:

Unnatural sexual offences: - Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment ... which may extend to ten years, and shall also be liable to fine.

Explanation - Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
The study of the use of Sec 377 reveals that  it has hardly been used to prosecute cases consensual adult male sexual relationships. Rather the main use of Sec 377  has been to prosecute  cases of child sexual abuse. [1]  

However it needs to be noted that use cannot be seen purely in terms of  reported decisions. There are possibly many trial court decisions in which Sec 377 has been used. Even leaving that aside, documentation in India, through reports such as the PUCL Report on Human Rights Violations Against sexuality  minorities demonstrates that Sec 377 becomes the basis for routine and continuous violence against sexual minorities at the level of the street and the police station by the police. The report in fact goes on to note that the police engage in practices of  illegal detention, sexual abuse and harassment, extortion and outing of queer people to their families,  which are all forms of violence practiced against sexuality  minorities.[2]

While these are indeed important effects of Sec 377, one needs to understand the constitutive role that Sec 377 plays in making possible the  above mentioned forms of violence. What one needs to do when analyzing the role Sec 377 plays is to go beyond the idea of 'enforcement of law'   and look more closely at what is  the socially constitutive role that law plays. The questions one needs to address are whether  the law constitutes a form of social reality, whether it legitimizes  violence against sexual minorities or does the law go one step further and  permeate social discourse and condition the very minds of common people?[3]

The impact of Sec 377 is far beyond the so called  'enforcement' principle. Foucault used the analogy of the panoptic to put forward the idea that the law is not external to you, but rather internal to you. You behave in a certain way because you have internalized the prohibition of the law. The real danger of  Sec 377 lies in the fact that it permeates different social settings including the medical establishment, media, family, and the state. Thus it becomes a part of ordinary conversations and ultimately a part of the very social fabric in workplaces, families, hospitals and the popular press. To take thre eexamples:

*   this emerges strongly in an interview with the Chairman of the National Human Rights Comission, (NHRC). On being asked why the NHRC refused to admit the case of a person who was treated for his homosexuality  with the objective of 'converting' him to heterosexuality, the response of the Chairman was to note that, 'To talk of homosexual rights is okay in other countries but there was little you could do when the law in India, Sec 377  was against it. Youadvised that one should strive to get rid of the law but nothing could be done till it was repealed. This opinion seems to be buttressed by other reported opinions within the NHRC. As one source within the NHRC put it, "homosexuality is an offence under IPC, isn't it? So, do you want us to take cognizance of something that is an offence?'[4]

*  Similarly in an interview with a Police Officer conducted by the PUCL Team it was noted that  'as regards the nature of homosexuality, Mr Hegde was quite clear that it was an animal like behaviour.'[5]

*  In another interview with a doctor who practices aversion therapy to convert homosexuals to heterosexuals  noted, '"Sodomy is illegal in India." (Dr. S) [6]

Thus what is clear is the existence of Sec 377 legitimises  the doctors willingness to treat homosexuals for being homosexual. The very existence of Sec 377 goes beyond the question of the enforcement of the law and crystallizes the deep societal repugnance towards homosexuality by considering it perverted ,animal like behavior. If we have people in law enforcement, medical practice and the judiciary treating homosexuals as people without rights, the power of the societal mindset comes from the law. Thus Sec 377 functions as  a condemnation of India's sexual minorities be it gays, lesbians, kothis and hijras. It is not anymore a narrow technical legal issue of the gender neutral prohibition of sodomy( it applies equally to heterosexuals and homosexuals)  but instead embodies and enacts  a wider societal condemnation of sexual minorities. Sec 377 is thus not just a law, but a worldview which remains entrenched in legal structures, medical discourses, family discourses and media discourses and perhaps most strongly in the 'common sense' understanding of people. It is in this light that the challenge to Sec 377 must be framed.

Law Reform as backroom politics: Some experiences  

Once we are clear that Sec 377 does indeed form a key part  of a discriminatory worldview against sexual minorities, the next question is as to how does one tackle the problem posed by Sec 377. As noted earlier, many social movements see the reform of the law as an end point of their social struggles with all activism  being geared towards bringing about a change in the law. In this context the experience of law reform by the feminist movement in India as well as the experience of anti sodomy law reform in the USA and Sri Lanka will be examined to see what light they can shed on anti sodomy law reform in India.

Law reform in India - The feminist engagement

The feminist movement in India has had an sustained engagement with the question of law reform with many of the demands of the women's movement being  posited in terms of reform of the law.

Flavia Agnes in her study of the womens' movement's engagement with law reform notes that in the context of the women's movement, demands for law reform have often resulted in laws which end up further marginalizing the women and making prosecution that much more difficult.

She gives the example of rape law reform and concludes that, 'the campaign against rape is a classic example of the impact of public pressure on the judiciary. More favourable judgements were delivered before the amendment, during the peak period of the campaign, than during the post-amendment period when they have been consistently regressive. Perhaps public pressure is a better safeguard to ensure justice than ineffective enactments.'[7]

What is being articulated is a notion wherein law reform by itself is not the solution. The movement underlying legal demand remains crucialto bringing about the desired social change. In fact the over reliance on law as an end point of social activism might need to be seriously questioned.

As Flavia puts it, 'This view is only strengthened by the experiences of the women's movement in India, which at least at its inception granted the State the role of a benign patriarch which will deliver goods. Two decades down the line, there is a growing realisation within the women's movement that the plethora of legal interventions has not really changed the ground reality in very substantial terms.'[8]

Though Flavia's articulated this concern is the last decade ,even today it remains a crucial question for the feminist movement to take on board. The recent experience with the attempt at law reform around the issue of domestic violence is telling. While there was an excellent draft prepared by the Lawyers Collective on domestic violence, when the bill went to the state, the state came out with its own draft which in effect was a legitimisation of domestic violence by the man provided the violence was in defence of his private property. Regardless of the final outcome of this process, the signs are clear, one must be wary about approaching the state to change the law , because what you get might be the very opposite of what you asked for, as the example of anti sodomy law reform from Sri Lanka illustrates.

Sodomy law reform as politics: From Sri Lanka to the USA

Two countries illustrate well the dangers and opportunities presented by sodomy law reform. The Sri Lankan case is illustrative of the dangers of trying to force change from above, while the USA example illustrates the social context in which law reform succeeds.

a) Sri Lanka

Sri Lanka has  a similar provision  to Sec 377 in its Penal Code. The changes to the Penal Code were recommended in the context of the need for amendments to the law to protect the victims of incest, marital rape, sexual harassment and the exploitation of children. Though gay rights groups and human rights activists such as the late Neelan Thiruchelvam clearly opposed the continued operation of Sec 365A of the Penal Code arguing that the provsion was archaic,  the amendment
broadened the ambit of acts considered criminal under the law. The term 'man' was changed to 'person' and 'carnal intercourse against the order of nature' became act of 'gross indecency with any person.' Thus, a provision which did not apply to lesbians in its colonial avatar was actually expanded to include lesbians in the wake of this reform rather than ceasing to apply to gay men.

What the Sri Lankan story tells us very clearly are about the hazards of law reform in a context where there is no movement. Nandita Haksar could very well have been speaking about the Sri Lankan case when she noted, "[A]n alternative to a movement cannot be a petition. I strongly feel we should resort to the law only when the movement is strong enough to carry the law reform forward. In almost all such cases a legal battle should only supplement the political battle outside the courts. If the legal battle is allowed to take precedence over the political one the law is easily used by the state to subvert the political battle's objectives."[9]

b) USA

The US Supreme Court in a  1986  decision , Bowers vs Hardwick [10] decided that  the anti sodomy law of the state of Georgia does not violate the constitutionally protected right to privacy. In 2003 the same US Supreme Court  in Lawrence vs Texas,[11] struck down the anti sodomy law on  the same ground that it does indeed violate the constitutionally protected right to privacy.  The question to be answered is  what enabled a conservative US Supreme Court to strike down the anti sodomy law in 2003, expressly overruling its 1986 decision?

Cass Sunstien notes that the 'the decision was possible only because of the ludicrously poor fit between the sodomy prohibition and the society in which the justices live. And if I am correct, Lawrence will have broad implications only if and to the extent that those broad implications receive general public support. For example, the Supreme Court may or may not read Lawrence to require state  to recognize gay and lesbian marriages. But if it does so, it will be following public opinion and not leading it. Political and social change was a precondition for Lawrence, whose future reach will depend on the nature and extent of that change.'[12]

Sunstien's argument is that the answer lies in the dramatic change in public opinion since the days of Bowers. It is difficult to find public sympathy with an archaic statute which criminalizes sodomy.  It is not to say that public opinion is uniformly sympathetic to gays and lesbians in the USA, but merely to note that while gay marriage , and gays in the military might be issues on which US society is split, the anti sodomy law has lost its public force. Of course this remarkable shift in public opinion has been the result of the sustained advocacy of the gay and lesbian movement in the USA. Perhaps a fascinating vignette which captures the nature of change is the fact that in the Bowers court none of the judges knew anyone who was gay or lesbian where as in the Lawrence court , even the most conservative judge knew someone who was gay or lesbian. This would have naturally had its impact on the decision which was delivered.

Further the point about law reform which emerges through Sunstien's analysis is that in the context of sexuality, law fails to deliver justice until and unless there has been preceding work in building a movement. It is only the impact of the movement which results in a momentous decision such as Lawrence vs Texas. Sunstien speculates, that if the US Supreme 'Court had held in 1980, that the due process clause requires states to recognize same sex marriage, it would (in my view) have been responding to the right conception of liberty. But it would undoubtedly have produced a large scale social backlash, and very likely a constitutional amendment, that would have made same sex marriage impossible.'[13]

Sec 377 : Whither now?

The question to be answered is in the context of  the above discussion is, how then can we approach the question of the reform of sec 377 in the Indian context. The feminist experience with law reform in India along with the analysis of the experience in Sri Lanka and the USA with respect to anti-sodomy law reform  leads us to the conclusion that law by itself is not an answer. It is clear that any petition can only be supplementary to the movement. The petition should be a part of a wider socio -political struggle.[14]

This conclusion is further buttressed when we consider that  in its response to the Sec 377 petition filed by Naz Foundation, the Government Affidavit literally buried any notion that the state might respond to the carefully calibrated submission. ( reading down not repeal  , decriminalize private consensual sexual activity between adults ) in a sane and reasonable manner. It seriously questions the notion that if the queer rights movement makes 'reasonable', 'sane'
demands the Government would see the sense of it and  acquiesce to the reading  down of Sec 377. In fact what the Government's response indicates is a virulent homophobia which is willing to give no quarter to the emerging  queer rights movement.

The Government response indicates that it sees itself as articulating and reflecting public morality, protecting women and children and keeping closed the flood gates of delinquent behavior. The protection and defence of Sec 377 emerges as a key Governmental concern and  the Government significantly enhances its public role as the guardian of societal morality. Perhaps one should read this response as being a part and parcel of the Hindu right's ideology which is based on demonising and stigmatising difference, be it religious or sexual in nature. The Affidavit signals the Hindu Right's deep and unremitting hostility to queer people who have always been defined as 'aliens' and threats to Indian culture and values. As the Affidavit notes, 'objectively speaking there is no such tolerance to practice of homosexuality/lesbianism in the Indian society.'

The Government's response outlines the fact that 'change from above' is not an option in sensitive issues such as sexuality.  Lobbying for change is not only not going to work ,but more importantly it might be a totally misplaced strategy. The question to be answered is that if one sees that there is no necessary link between law and justice and if experiences documented above with the process of legal change demonstrate that it is important be sceptical of the law's ability to
deliver justice then  what is the way forward ?

Does one take the line that the legal space needs to be vacated and one needs to  concentrate on  building the political struggle ? Or are there ways of working with the existing petition making it an instrument of socio-political change? It is contended that the law remains an important site of struggle, but one needs to locate legal change as a necessary part of a wider socio-political change. The premise of change with respect to sexuality is as much a change in societal mores as it is about legal change. If that is indeed the case, then there should be a campaign to repeal Sec 377 with the petition forming one part of the proposed change.

If this analysis holds the only way forward is to mobilize and convert the petition from a narrow legal struggle to a wider political struggle which takes on board the concerns of the queer community. The petition should be the peg on which on hangs a campaign whose objective is to question the homophobic resilience of Sec 377 in the structures of media, medical establishment and in public opinion. The legal outcome should not be the focus of the campaign but rather the process of questioning itself. This of course flows from the understanding that since Sec 377 is not purely a legal issue, the way we tackle it cannot be through the court room alone. One cannot expect judges to decide on Sec 377, positively  if we have not started a process of public education about queer rights. If we want the courts to give us a decision like Lawrence vs Texas , then there is no way out of the difficult process of building a campaign based on queer visibility.


[1] Alok Gupta, The History and Trends in the Application of the Anti-Sodomy Law in the Indian Courts, The Lawyers Collective, Vol 16, No.7,p.9.


[3] For a powerful analysis of the constitutive role that law plays in producing a regime in which gays and lesbians are ultimately encouraged to police themselves and the way in which sodomy laws function as symbolic statements and as threats of criminal punishment and disempower lesbians and gays in a range of contexts. See  Ryan Goodman, Beyond the Enforcment Principle, California Law Review Vol 89:643 2003. 643

[4] Arvind Narrain , Queer: Dispised sexuality, law and social change, Books for Change, Bangalore , 2003. p. 120.


[6] Vinay Chandran et. al,  Its not my job to tell you that its okay to be gay , ( on file with the author)

[7] Flavia Agnes, "Protecting Women against Violence?: Review of a Decade of Legislation, 1980-1989", in State and Politics in India (Partha Chatterjee, ed.), Oxford University Press, New Delhi, 1997,p.523.

[8] Ibid. ,p. 522.

[9] Nandita Haksar, "Human Rights Lawyering: A Feminist Perspective" in Engendering Law (Anita Dhanda et al., eds.), Eastern Book Company,
Lucknow, 1999, p.87.

[10] 478 U.S. 186(1986)

[11] 123 S. Ct. 2472 (2003)

[12] Cass Sunstien, What did Lawrence hold ? Of Autonomy, Desuetude,
Sexuality, and Marriage,

[13] Ibid. p22.

[14] There is a petition filed in the Delhi High Court by Naz Foundation making the case that Sec 377 violates the constitutionally guaranteed protection of equality, ,privacy and freedom of expression and asking the court to read down Sec 377 so as to exclude consensual adult sex in private from the framework of Sec 377. The dilemmas which are inherent in a legal strategy which is not simultaneously a political strategy emerge strongly as police violence is about the public space where as the legal remedy specifically asks for decriminalizing  same sex acts in private.


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