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The above dialogue between a gay male implies that oral sex between a man and acharacter and his mother in an intense woman is a criminal offence under Sectioncoming out scene in the recently released 377. While the provision does not explicitlybollywood family-drama film Kapoor & mention any particular group of peopleSons (Since 1921) captures in its simplicity that it criminalizes, however, it is thethe intricacies that mark the debate on homosexual community that is mostlyhomosexuality in India, and probably implied under its enforcement as any formelsewhere in the world. The history of what of sex feasible between homosexuals isis now termed as the queer movement in ‘against the order of nature’ as suggestedIndia is fairly recent, but has primarily been by Section 377. But more importantly, theanchored to the legal struggle against the fear and apprehension of getting arrestedSection 377 of the Indian Penal Code (IPC) under 377 looms over the queer communitythat reads: like a demon, thus depriving them of a

sense of social security and dignity, and“Unnatural offences – Whoever voluntarily legal protection. At worst, section 377 has

has carnal intercourse against the order of often been misused by the police to harassnature, with any man, woman, or animal, LGBT (Lesbian Gay Bisexual Transgender)shall be punished with imprisonment for individuals, lead to the sexual exploitationlife, or for imprisonment of either of hijras and other transgender people bothdescription for a term which may extend to by the police and civilians, and has beenten years, and shall also be liable to fine.” used by blackmailers to extort money from

people indulging in gay sex.This is interpreted to include all those

From Tihar to Pride Parades:sexual acts that fall outside the category of

The history of organized action as thepenile-vaginal penetration, which even

Azadi ! Jeene Kee Azadi ! Pyaar Karne kee Azadi !

-Shiv D Sharma

“Mother, are you more troubled because I lied to you, or that I am who I am?”

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movement for the rights of homosexuals or As a result, several formally and informallyqueer community in India can be traced organised queer collectives, such as ‘Queerback to the aftermath of a 1994 survey Campus’, came up in several cities closer towhich revealed that two-thirds of the the end of the decade. As several of theseinmates of Tihar Jail in New Delhi were groups were organised within educational

engaging in homosexual acts. With this campuses, there was a rise of scholarshipbegan an era of the queer movement that on queer issues as well. The debate oftook itself to fighting against the anti- homosexuality became increasingly visiblesodomy law by focussing on the threat that in public and with that, the year 2008 sawit poses to public health as an obstruction to several cities in India organizing PrideHIV/AIDS prevention efforts. In 2001, Naz parade for the first time. Equally, theFoundation, a Delhi-based NGO working subject started gathering wider publicon HIV/AIDS issues, filed a writ petition in attention through media in newspapers, asthe Delhi High Court, asking to exclude the well as with gay and lesbian characters

acts of private consensual sex from its making appearances in Bollywood movies.purview. Between the back-and-forth in the In 2009, in a landmark judgement NazCourt, the Health Ministry joined the Naz Foundation v. Government of NCT of DelhiFoundation in its struggle with the and ors, the Delhi High Court struck downNational Aids Control Organization Section 377 decriminalizing consensual sex(NACO) filing an affidavit stating that the between adults, in effect decriminalizingSection 377 impedes its efforts to HIV homosexuality.prevention. On the other hand, the Ministry

Together We Are One:of Home Affairs remained opposed to theWhile the queer communities and theirrepeal of Section 377 coinciding with theadvocates across India hailed theperception that homosexuality was against

judgement as historic, a number of groupspublic morality.filed petitions against it in the SupremeCourt, following the first Special LeaveIn 2006, a coalition of 12 NGOs andPetition (SLP) filed by an astrologer, Sureshprogressive groups based in Delhi

representing different social movements, Kumar Koushal. On the other hand, severalcalled ‘Voices Against 377’ joined the interventions were filed in support of thestruggle by adding their petition to the case. Naz Foundation, Voices Against 377, andThe Alternative Law Forum, which is now a NACO in the Supreme Court. Thesekey advocacy group in the movement for included voices from diverse groups suchLGBT rights, joined as its counsel. The as parents of LGBT persons, mental healthlanguage of the movement became the one of practitioners, scholars and teachers, lawhuman rights and inclusiveness. The academics, and even a Member ofemphasis on violation of right to privacy, Parliament.equality, non-discrimination, dignity, andhealth of queer individuals by Section 377 However, the 2009 judgement was analso fuelled both the academic efforts and important milestone for many in the LGBTsocial activism to think more actively about community. Relieved with now having the

the queer identity and queer politics in India. l egal suppor t and cons t i tu t ional

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acknowledgement of who they were, The case witnessed 15 days of argumentscoming out to friends and family became a over 6 weeks in 2012 in the Supreme Court.lot easier. More people took their queer The mystifying exchange in the Courtidentity to streets, and the queer movement mulled over the lack of empirical data, ongathered further momentum. As the one hand, that there was a homosexual

movement expanded to think about the ‘community’ in India, and whether Sectionlarger ideas of azadi (freedom) and 377 actually targets any particular group ofequality, it has grown to value inter- individuals, on the other hand. These ct io na li ty , of te n supp or ti ng and discussions spiralled into the questionssupported by other social movements. posed by the bench which seemed to be

interested only in knowing what were theMost recently in 2015, the Delhi Queer acts that were criminalized under SectionPride observed its march in solidarity with 377, invariably dismissing the idea that byother campaigns against the threat to a criminalizing certain sexual acts it

whole range of freedoms. Activists from criminalizes identities that engage in suchOccupy UGC movement, Dalits Rights sexual activity.movement, and FTII (Film and TelevisionInstitute of India) attended the march and The question it prompts us to ask isspoke about the need of collective action whether our constitutional rights should beagainst patr iarchal oppression and provisional, subject to validation fromviolations of human rights. ‘Queer Azadi’ st at is ti cs , and whet her the publ icbecame one of the prominent chants of the perception should guide our acceptance ofmovement. one’s identity. Can we count with accuracy

identities that are stripped of their humanActs Versus Identities: Can We Count on rights and are criminal before the law? AndWhat We Count? should such a count steer our struggle for

their rights? In December 2013, theSupreme Court of India reversed the 2009

judgement by Delhi High Court ,recriminalizing homosexuality in thecountry, claiming the LGBT community tobe a miniscule minority, thus challengingthe very idea of equality by making itsubservient to numbers.

The Supreme Court judgement and thegovernment’s passive attitude on the issueinvited flak from all over the world. As alast resort, batches of curative petitionswere filed in the Supreme Court by NazFoundation and others in March 2014. Veryrecently on February 2nd, 2016, the

Supreme Court accepted the curative

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petitions in an open court hearing and 377, and the Court’s refusal to admit that itreferred them to a five-judge Constitutional targets any specific community, or whetherBench for an in-depth hearing of the case. that the community exists in the first place,

we’ve always only been at a tacit admissionThough the legal battle for LGBT rights to the existence of LGBT population.

suffered a huge setback from the 2013Supreme Court judgement, the queer However, with the public debate on legalmovement did not lose the spirit. There fight against 377 and the efforts of the queerwere protests held widely across the movement, the community has finallycountry to oppose the Supreme Court begun to assert its identity and claim its

judgement. The on-going campaign ‘No space in the society: “We’re here, we’reGoing Back’ was officially launched by queer, we’re not going anywhere.” But the‘V oi ce s Ag ai ns t 37 7’ on th e fi rs t fight for equality goes much beyond theanniversary of the judgement. The queer law. In order for the queer community to be

movement simultaneously has been able to realise its rights fully, the changes infocussing on the specific issue of the rights law must be accompanied by the change inof transgenders and Hijra communities in the mindset of the society.India. The efforts finally culminated in theofficial creation of the category ‘third With the curative petition due for hearinggender’ for transgenders, and the Rajya in the Supreme Court, there is still hope toSabha passing the rights of transgenders se t r ight t he legal i njust ice andbill, hence moving forward in action d is cr im in at io n again st the que ertowards equality for transgender people. communities. At the same time, we must

not stop where the battle against 377 ends.No Going Back: 377 and the Road Ahead Voices against 377 should and must beto Equality: transformed to voices against homophobiaAs Jacques Ranciere, a political thinker and social prejudices. As the LGBTsaid, “Equality is not something we must community starts to dream of theexpect from state institutions, it is possibilities ahead- legalisation of gaysomething that we must both presuppose marriage, amendment to rape laws, etc., theand create through collective action.” This queer movement must continue to nurturetakes us back to the quote from the film I its bigger dream of queer azadi and standmentioned at the beginning of this article: against all kinds of social injustices; movingthe phobia of queer identification. From from a language of rights to a language of1994 refusal to distribute condoms in Tihar freedom and pride.

Jail to the ambiguous language of Section

(Shiv D Sharma is a gender and sexuality education trainer. He is currently the Deputy Managerof the Centre for Studies in Gender and Sexuality at Ashoka University.

shiv.sharma@ashoka.edu.in)

23The Movement of India | Mar - Apr, 2016