Naz and its detractors: A response by Jordan Osserman

Guest Post by Jordan Osserman

Amidst the outcry of queer rage and mourning against the Supreme Court judgment has emerged a strand of skepticism (For examples See here , here and here)  from within queer circles, directed at the participants in the anti-377 campaign. These skeptics allege that the 377 organizers failed to adequately consider the impact of their activism on the most marginal queers in India (lower class/caste hijras, kothis, MSM, etc.). In the most biting version of the critique, the 377 campaign is portrayed as an elite middle class movement, fueled by foreign-funded NGOs, against a largely symbolic, immaterial enemy. 377, these critics allege, was never a central cause of LGBT oppression; a paper tiger, relatively unknown by police and Indian society writ large until middle-class queers arbitrarily put it on the agenda and invested it with symbolic meaning. To the extent that marginal sexual minorities have been represented at all, their voices have been appropriated in the service of a campaign at best irrelevant, and at worst dangerous, to their lives.

In this post, I’d like to challenge some of these claims. We can summarize the critics’ arguments as follows: 1. Section 377 has not historically targeted LGBT people, and rarely affected the lives of sexual minorities prior to the activist mobilization against it. 2. Instead of fighting 377, activists should have prioritized campaigns which would concretely benefit LGBT people, particularly the most marginalized. Alternately, if the 377 campaign had to go forward, the legal strategy and organizing should have been more inclusive. 3. The “liberal outrage” against 377 may be as much to blame for violence justified in the name of the law as the Supreme Court’s decision. For, now that queer activists and the Indian media have popularized the notion that the Supreme Court has “re-criminalized homosexuality,” homophobes have become aware of a new weapon with which to target sexual minorities. I will attempt to address these interlinked arguments in their respective order, before drawing some final conclusions about activism and organizing.

First: Has 377 been used to target and criminalize LGBT people in India?

As is well known, Section 377 itself makes no specific reference to lesbian, gay, bisexual or transgender people. It refers only to a vague, Victorian notion of “carnal intercourse against the order of nature.” Yet, contrary to the accusations of skeptics, the lawyers and advocates fighting 377 amassed substantive evidence that the law has indeed served as justification to intimidate, arrest, harass, abuse and torture sexual minorities. For example, a glance at the Supreme Court “Voices Against 377” petition (http://orinam.net/377/wp-content/uploads/2013/12/SC_VoicesAgainst377_WrittenSubmissions.pdf) reveals a number of cases where 377 served as legal pretext for the persecution of LGBT people, including the infamous 2002 Bharosa Trust police raid; the 2006 entrapment of four men in Lucknow who held online profiles on a gay dating website; and a Delhi Magistrate’s decision to deny an adult lesbian the right to defend her choice to leave her family and be with her partner, on the grounds that she may have violated 377. (This last example particularly highlights how the law targets LGBT-identified persons over and above its identity-neutral reference to penetrative sex acts, given that the case in question involved a lesbian couple.) While the text of the law makes no explicit reference to LGBT people or identities, applications of 377 demonstrate clear animus towards those identities.

Critics have made a related claim: that most cases of LGBT persecution either do not invoke 377 at all, or do so only indirectly. The argument here is that police do not “need” to use 377 to target LGBT people, as they frequently enact the same violence via laws related to public decency, obscenity, or without any legal pretext at all, thus making decriminalization hopelessly impotent against homophobia. Here, a broader understanding of what the decriminalization campaign accomplished prior to Koushal is necessary. While no single legal tactic will eliminate homophobic prejudice and violence, state-sanctioned or otherwise, the fight against 377 made legible the Indian LGBT community and the previously unrecognized violence committed against them. As Akshay Khanna observed (http://www.openthemagazine.com/article/nation/right-to-sexuality), the campaign facilitated collective consciousness-raising against LGBT oppression, bringing together otherwise disparate groups (hijras, kothis, middle class gays and lesbians) under a common banner. The effect was such that, while other homophobic laws still remained on the books after summer 2009, LGBT Indians and their supporters were now empowered to invoke the historic Delhi High Court Judgement in their defense against homophobia, both in their daily lives and in larger struggles. And indeed they did: activists frequently used the decision as leverage against homophobic oppression, from defending their right to hold pride marches across the country, to censuring TV9 for its notorious “expose” on “gay culture in Hyderabad.” (The News Broadcasters Standards Association injunction against TV9 invoked the Naz judgement to justify its condemnation of the inflammatory news broadcast.)

Could a campaign against another law — one which the critics find more relevant to LGBT oppression — have achieved the same (or better) results? Perhaps. The making of a political decision, such as the one to focus on 377, involves myriad factors, from strategic legal considerations to geopolitical context and, indeed, power imbalances amongst the different concerned parties. Naisargi Dave’s recent book (http://www.dukeupress.edu/queer-activism-in-india) chronicles how some of these factors played out in the 377 campaign, demonstrating the always-unsatisfactory struggle to balance the “ideal of social justice and the reality of practical legal choices.” A couple important points in defense of the decision to fight 377, however, are worth noting: First, many of the legal arguments against 377, and the broader public campaign, put the issue of violence against the most marginalized sexual minorities front and center. Second, IPC 377 is a colonial vestige and plain example of cultural imperialism; a campaign against it combats the ever-popular nationalist belief that homophobic laws prevent foreign cultural invasion. Relatedly, 377 remains on the books in many other ex-colonies, where it is also used to justify homophobic violence. The Indian campaign has therefore served as inspiration, and a chance for solidarity-building, amongst postcolonial LGBT activists worldwide. (Numerous postcolonial activists across the globe expressed their disappointment in the Supreme Court judgement, viewing it as a setback for a worldwide cause.)

We must also recall here the expansiveness, inclusiveness and moving eloquence of the Naz decision, and the road it paved for future instances of legal redress. As many have noted, the judgement didn’t simply read down a bad law. The Naz judgement affirmed fundamental rights of dignity, equality, and the expression of sexuality; offered an innovative conception of “constitutional morality” against majoritarian oppression; and connected the Indian judiciary to progressive human rights case law worldwide. As Khanna writes, “The Delhi High Court judgment generated the conditions for developing a far more nuanced and radical legal landscape for the rights of all minority communities, whether based on religion, ethnicity, caste, or gender and sexuality.” Against an alarming trend in the West wherein LGBT rights are protected at the expense or exclusion of other minority communities, the Naz decision offered a blueprint for a progressive legal alternative.

Another common criticism regards the petitioners’ embrace of the right to privacy. Sexual freedoms which hinge on the “right to privacy,” it is argued, apply only to those middle class people who possess private space within which to express their sexuality, implicitly excluding lower caste/class sexual minorities. This argument ignores the innovative way in which the petitioners defined the constitutional right to privacy, as both “zonal” and “decisional.” Whereas this criticism of privacy applies to the former “zonal” definition, the latter “decisional” definition is significantly more expansive, associated with freedom of choice and personal autonomy regardless of private property ownership. Indeed, the Naz judgement’s own words regarding what it understands as the right to privacy directly contradict the critics’ claims: “The [right to] privacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which one gives expression to one’s sexuality is at the core of this area of private intimacy. If, in expressing one’s sexuality, one acts consensually and without harming the other, invasion of that precinct will be a breach of privacy.” While there may be classist deployments of privacy in popular discourse, as far as the case law is concerned, the inclusiveness is crystal clear. As a side note, I find it worrying that so many leftists are eager to do away with the right to privacy — especially one as powerful and nuanced as this — at a time when state surveillance and intrusion into our personal lives has reached an all time high.

Perhaps the most difficult argument to tackle regards the post-Koushal backlash. It is likely true that the campaign against 377 is at least partially responsible for bringing the issue to public consciousness and framing it as one of homophobia. In this (hopefully temporary) moment of defeat, it is surely possible that homophobic violence will increase, that the now widely-known law will be used as a weapon against queer people, and that the prime victims will be, as they always have been, the most marginalized sexual minorities. Some critics allege that, had activists and the media framed 377 as a law which criminalizes more than simply LGBT people (as the letter of the law technically does), this backlash could have been prevented. Vulnerable queers, it is argued, will pay the price for activists’ reductionism.

I agree that it is worthwhile to publicize the broadtechnical implications of 377: that it criminalizes all non-procreative sexual acts and therefore technicallyapplies not simply to LGBT people, but the vast majority of Indian citizens. Nevertheless, there was sound justification for framing 377 as a “queer issue.” First, we must recall that the historical enforcement of the law, however rare, has indeed targeted LGBT people; it is not dishonest to associate 377 with LGBT oppression. Perhaps more importantly, without proof of animus towards a minority community, the legal case had very little chance of going forward. It is one thing to argue that the identity-neutral letter of the law is unfair, sexually repressive, or archaic (a tactic that might have been wise for parliamentary redress); it is another to build a legal case that has a chance of succeeding in court. If we accept that it is worthwhile to advocate against queer oppression in the judiciary — as I believe the Naz decision demonstrated — then we must accept the structural limitations that come alongside it.

The question remains: why couldn’t advocates have restricted this framing to the courts? Why publicize the existence of this “homophobic law”? I struggle to understand what might be a “less dangerous” alternative to this approach, one which would have somehow better safeguarded lower caste/class LGBT Indians against backlash. If the law protects homophobic violence ­­ as
it does ­­ and if it is worthy to make visible legally sanctioned homophobic abuse ­­ as I believe all parties agree it is ­­ how then would publicizing a different example of legally­sanctioned homophobia change the scenario? Wouldn’t any example have equal potential to embolden homophobes? Perhaps the issue is not so much about decision to fight 377, but the unequal distribution of wealth among Indian queers (and society at large), enabling some to live in relative safety and comfort over others, no matter the social/legal climate around queerness. The

solution here is not to reduce “class privilege,” or begrudge wealthy queers their safety, but to universalize it.

Moreover, it would be a mistake to assume that the Supreme Court judgement will necessarily increase gender­ and sexual­based violence. After all, the defeat has generated widespread sympathy for the

cause.

Ultimately, I believe the argument regarding the post­Koushal backlash over­emphasizes the agency of LGBT activists and their sympathizers (middle class or otherwise), implicitly
prioritizing the (alleged) moral failings of the privileged to adequately include/represent the underprivileged, over structural and macro­political limitations. The clearest example of this is
the criticism of “liberal outrage” against the Supreme Court judgement. Here, the public is blamed for the messiness and imprecision of their emotional response to the Supreme Court judgement. If only those hysterical liberals would accurately represent the text of the Indian Penal Code! This approach, which attempts to institute quality control on the libidinal drive of social movements, is doomed from the start.

It is no secret that decriminalization is insufficient to stop the targeted abuse of sexual minorities. The fight against 377 is not a zero­sum game. Battles against other forms of homophobic and

discriminatory abuse can and will continue. It would be foolish, however, to believe that the major problems facing socio­economically marginalized queer people will be solved by a queer movement alone. These problems ­­ which include lack of adequate shelter, food, healthcare and leisure time; exposure to police violence; severely restricted opportunities for education and employment ­­ cut across various groups (though they manifest in different ways) and demand a different kind of solidarity and struggle. This kind of struggle requires radically rethinking the internal organization of socio­economic life. Criticism against the 377 campaign for failing to adequately include these concerns is thus misplaced. For, such a struggle is not one that rights­based movements, circumscribed as they are within the logic of liberalism, are equipped to wage.

Political intervention of any kind necessarily involves undesirable concessions and exclusions. One does not change a violent system without implicating oneself in its violence. It is important to make known the limitations and erasures involved in activism and organizing. However, it is equally vital to recognize when a political struggle, however flawed, deserves one’s (critical) support.

4 thoughts on “Naz and its detractors: A response by Jordan Osserman”

  1. Human rights have been defined as “basic moral guarantees that people in all countries and cultures allegedly have simply because they are people. Calling these guarantees “rights” suggests that they attach to particular individuals who can invoke them, that they are of high priority, and that compliance with them is mandatory rather than discretionary. Human rights are frequently held to be universal in the sense that all people have and should enjoy them, and to be independent in the sense that they exist and are available as standards of justification and criticism whether or not they are recognized and implemented by the legal system or officials of a country.” (Nickel, James. Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights, (Berkeley; University of California Press, 1987 1992:561-2)

    The doctrine of human rights aims to provide a fundamentally legitimate moral basis for regulating the contemporary life. Not all moral rights are embodied in law of the nation. While rights are justiciable, the moment the nation accepts human rights, it takes on itself the obligation or duty to uphold these rights no matter whether these are strictly coded in the law of the land or not.

    The fact that a right is not encoded in the law is not reason enough to accept its violation. Similarly, appeals to national sovereignty should not provide a legitimate means for nation-states to permanently opt out of their fundamental human rights-based commitments.

    Where existing law does not guarantee these rights, the sovereign nations have a duty to grant these rights to their people no matter whether a majority of the people want it or not. That would mean that it is not some thing on which the legislature can vote on and reject.

    This philosophical duty of nations is significant when courts defer the decision to legislature because may renege on this rights on the basis of majority. That would impose a duty on the judiciary to grant these rights as basic human rights. Failure to do so might be abdication of their responsibility.

    Where the judiciary prevaricates on this duty, there is violation of human rights and violation is caused by such prevarication, it s the judiciary who has failed the people of the nation.
    Morality is fundamentally concerned with what ought to be the case, and this cannot be settled by appeals to what is the case, or is perceived to be the case. But in the case of human rights, the strength is far more than just any moral rights. Hence the need for philosophical vindication of these rights in the mind of the judge to act even when no legislation exists.

    I am leaving the linking of this to recent events in the country for the readers to construct their own moral arguments. Whenever moral arguments are formulated, you are philosophizing the issue. Intelligent common men are required to do this as much as the judges. And when judges fail, it rises to level of duty for all men capable of questioning what is and urging what ought to be.

    A rights-based approach is the need for all intelligent discussion on the topic. When this is lacking, a violation of human rights occur in theory whether a violation has occurred in practice or not.

  2. Reblogged this on Diligent Candy and commented:
    A very sound analysis: “Perhaps the issue is not so much about decision to fight 377, but the unequal distribution of wealth among Indian queers (and society at large), leading some to live in relative safety and comfort over others, no matter the social/legal climate around queerness. Moreover, it would be a mistake to assume that the Supreme Court judgement will necessarily increase gender- and sexual-based violence. After all, the defeat has generated widespread sympathy for the cause.” This makes for an intriguing read given the regressive nature of the law. India continues to be largely homophobic. A latent double-standard regarding the issue.

  3. As one of the detractors I should probably respond in detail, but because of limited internet access, for now I will just ask a question: you assume that the alternative to publicizing 377 is publicizing another law in order to visibilize legally sanctioned homophobic abuse. You have to understand that many, many people in the hijra kothi community who risk police violence on a daily basis when they go out to beg or for sex work have clearly said they don’t want to visibilize any of the many laws that criminalize “us”, broadly speaking. My question is: why publicize or visibilize any law as part of fighting that law? Why not keep the fights against the law strictly within the courts? Why not strategically reserve the use of media publicity for atrocities, for cases of discrimination and denial of employment and housing and education, healthcare violations, etc. etc. – while I agree that liberals can not be expected to take these things up, surely they could agree to enable those struggles and not endanger the more oppressed members of the community?

    1. I’m surprised to read your argument, as I did not know that any of the “detractors” actually want activists to keep silent about the existence of homophobic laws – I thought it was mainly a dispute over whether 377 actually is homophobic. By what standard would you evaluate whether kothis/hijras endorse, or refuse, a campaign that openly fights homophobic laws? Certainly marginalized sexual minorities make up a large contingent within anti-377 demos, pride marches, etc, so we can at least say that there is not unanimous opposition to these types of legal strategies among kothis/hijras. It seems to me a very conservative argument, to suggest that one should not make one’s oppression visible before the law for fear of retribution. It also seems frankly unrealistic to expect that the lawyers could somehow make a Supreme Court such as this fly under the radar. Wouldn’t it be better to at least have queers influencing the media around 377 than to fight the case silently and let the media make its own story?

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