Sexuality in India: Ambedkar’s fight still remains the battle of our time
[Book excerpt] As India turns 70, a gay citizen looks at the (In)dignity of our sexualities.
- Total Shares
There are many lines you can read again and again from the 2009 Delhi High Court judgment — commonly known as the Naz case — that decriminalized same-sex sexual relations in India. Let me give you one that has stayed with me since that day in the courtroom:
For every individual, whether homosexual or not, the sense of gender and sexual orientation of the person are so embedded... that the individual carries this aspect of his or her identity wherever he or she goes. While recognizing the unique worth of each person, the Constitution does not presuppose that the holder of rights is an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times.1
Bodies, communities, cultures, places and times. In one sentence, the judges reminded us of what we talk about when we talk about sexuality. Not just sexual orientation or gender identity, meant to be only about some people who are lesbian, gay, bisexual or transgender. Not just something called "gay rights", somehow separated from other intrinsic rights and freedoms. Not even just individual lives lived as if they could exist on islands of freedom.
When they spoke of sexuality, the judges spoke of more than this. They spoke of sexuality as an intimacy both public and private, something we individually possessed but whose life was stitched into what we made together: families, communities, cities, nations. Sexuality as being not just about sex, body, identity and desire, but equally about politics and democracy. Sexuality, they reminded us, can be a powerful litmus test for the possibility of dignity within a constitutional democracy.
As a gay man, this is what I read and heard in Naz: the possibility of, and insistence on, dignity. Sexuality as dignity becomes something else in our hands. It becomes not just about a life free of violence but one of personhood, even of joy. It imagines bodies not just tolerated but loved and desired by ourselves and by others. It speaks of rights not just possessed but practised. It holds choices of ways to live lives that are not just possible but meaningful and feasible, without needing extraordinary courage or immense privilege. It draws spaces from our homes to the public spaces of our cities that can invite and embrace our presence.
We have begun to believe that we have the right to dignity, the right to our bodies, the right to be happy.
When sexuality comes with dignity, we don’t hold our breath so often, whether in fear or regret.
As India turns 70, what can we say about the possibilities of dignity within our sexualities? In this essay, I offer just two of the many stories one can tell of sexuality in contemporary India.
The first is the story of the legal challenge to Section 377 of the Indian Penal Code, an 1861 Victorian-era law that criminalised "voluntary carnal intercourse against the order of nature" and acted, effectively, as an anti-sodomy statute. The second is a rumination on the Indian city to see what kind of places it offers sexuality, how it holds it, and what it tells us about the possibilities of dignity. These are stories that are both intertwined and distinct, seemingly unconnected but, I will argue, actually deeply imbricated in each other with much to offer us in terms of reading the nation in what seems like another moment of transition and churning.
Moving, perhaps forward
In 2015, a student at the Indian Institute of Science (IISc) in Bengaluru was blackmailed and threatened with being publicly exposed for being gay. When he refused to pay extortion money, the private letters turned into notices pinned on noticeboards on campus. The words were sharp, relentless and inhumane: "I think it’s completely shameful, bad, immoral and disgusting. You should go kill yourself. Why do you think it’s illegal to be gay in India?"
For many queer people, this moment is familiar. It is one that many of us have faced or live in constant fear of facing. In some ways, it is the latter that is worse. We live our lives anticipating prejudice. Even before it comes, we are constantly censoring, moving and shaping our lives to evade it or, if we can’t, survive it.
Left, Right and Centre: The Idea of India; Nidhi Razdan; Penguin Random House India
Those of us who have the privilege of privacy, scan rooms to find allies, weigh what to tell our doctors, measure out information in our offices and seek safe spaces. Those without this privilege face a much more direct battle to be who they are: an unrelenting and legitimised public violence that falls on working-class bodies in our streets, police stations and public spaces. The law is not the only force behind this violence, but it is an important one. "Why do you think," the blackmailer asks, "it’s illegal to be gay in India?" When petitioners in the Naz argued that Section 377 of the Indian Penal Code played an important part in shrouding our lives in criminality and legitimizing violence, this letter was one of many that we wrote against in our heads.
In 2009, Naz gave many of us — not all, never all, for the law does not have such power by itself — a feeling of complete personhood. This was not just because of the judgment in itself but also because of the kind of judgment it was, the modes of argument, the language it gave us. The judges sought to use the law to build a space around our lives that would embrace, protect, nurture and even love queer people.
They never spoke of tolerance. They imagined law at its best, its highest form, as an instrument that would not just protect difference but value it. When they asked us to embrace our "constitutional morality" — our morality as citizens, not as individuals — they gave us a way to be democratic, to separate our personal beliefs and our faith from our duties as citizens in a plural, open world. Naz was never just a judgment on gay rights: it was a judgment on dignity, on the possibility of social as well as political equality.
In December 2013, a two-judge bench of the Supreme Court overturned Naz. On that day, I remember, it had simply felt difficult to breathe. Naz had seemed to mark a threshold of some kind. Queer struggles had always been much more than the law and more than just one law in particular. Yet, as the battles that had led up to 2009 spilled outward as the judgment’s words travelled outside and beyond the courtroom, it felt impossible to believe that after this one could move — even though hesitantly — anyway but forward. That morning, no other verdict seemed possible. It was. Only one summary sentence was read out and a two-judge Supreme Court bench overturned Naz.2
So what does it look like from within our fears? What has happened since the Supreme Court reversal of Naz? In one sense, it has been extraordinary. The reversal drew widespread condemnation in different forms and sites, from an extraordinary range of voices. The then-ruling government, led by the Indian National Congress, came out for the first time in strong and public support of queer rights as did several other parties including the Communist Party of India (Marxist), the Janata Dal (S) and the Aam Aadmi Party.
Several parties endorsed sexuality rights in their election manifestos for the 2014 general election, making queer rights a part of every election debate. At the time of the judgment, the attorney general wrote an unprecedented opinion piece in a leading newspaper against the judgment and filed a review petition immediately.
Suddenly, politics of the party kind became a new battleground for queer rights — something the movement had evaded until now, certain that there was little support to be found. However, another powerful national party — the Bharatiya Janata Party (BJP) — remained steadfast in opposition, and many significant regional parties remained silent.
Yet, it was the support in everyday life that began to show many of us that something had shifted between 2001 when the Naz Foundation filed the petition, 2005 when Voices Against 377 intervened in the case, 2009 when the Delhi High Court ruled and 11 December 2013. The sense in the days post the judgment has been one where a sea of voices has risen against the Supreme Court. One set comes from a generation of urban young people who have come of age in a post-2009 world, a set of political subjects in one sense created by the queer movement of the past decade.
Whether these rights come through law or through struggle, they will come.
What’s important and a reflection of the movement itself is that the support has come not just from queer people, but across a range of actors, movements and institutions, many of whom had been hesitant friends in the early days of the movement. Progressive groups, state bodies like the National Human Rights Commission, teachers’ associations, professional associations including the medical and mental health establishments, women’s groups, student groups, trade unionists and private companies came out publicly against the judgment.
Thousands across the country stood together, repeating the chant that brought together our resistance: "No Going Back." A week after the judgment, "No Going Back" protests to mark a "Global Day of Rage" took place across thirty-six cities in the world, including 17 in India. That resistance remains amidst the uncertainty and the fear, unwavering, unafraid. It is that resistance that stands as the legacy of December 2013.
After what should have been a moment of dismissal and closure turned into a moment of beginning, defiance and resistance, I want to believe that efforts to not let the queer movement be reduced to just a legal case against Section 377 have, if only partially, succeeded. The legal journey of the movement looms large at this moment, but the everyday life of our politics has always been about much more — even if the story of that larger politics is less told. Film festivals, workshops, talks and seminars; books, pamphlets, missives, poems, biographies, charters, manifestos; political visions, solidarities with other struggles, protests, pride parades; the creation of social spaces; facing, countering and recovering from acts of violence, blackmail, rape, assault and suicide; the judiciary, the state; living open, everyday lives despite the odds, despite the pushback, refusing to stay "private", to stay silent — the 2009 judgment was born not just out of the letter of the law but from this politics that had paved the way for it, that made it possible.
For me, this is — the struggle to change the language and life of sexuality — the legacy of the fight against Section 377. It is not the court case, either in its victory or in its defeat. The communities, cultures and places that Naz reminded us we inhabit are not determined or governed by law alone, just as the victories in law are not made in the courtroom alone. Knowing this, recognizing it, is pivotal.
In February 2016, the Supreme Court once again churned, agreeing in an extraordinary move to reopen Naz. A constitutional bench will now hear a curative petition to decide on the way forward. The legal battle stands reinstated. Yet, regardless of what happens in court, what remains just as true is this: with or without the law, the IISc student wrote back. He pinned a reply on the same noticeboard and spoke about not being ashamed of his sexuality. He reminded us that slowly, even if still incompletely, queer people have begun to win the greatest battle of our lives: we have begun to believe that we have the right to have rights. We have begun to believe that we have the right to dignity, the right to our bodies, the right to be happy. Whether these rights come through law or through struggle, they will come. In a moment, where there are so many who are made to believe that they are redundant and negligible, the value of this cannot be underestimated. You cannot blackmail someone — said the student in his reply pinned with a familiar golden thumb pin on the green felt of the noticeboard — who isn’t ashamed.
Sexuality and the Indian city
I have often wondered what it was that encouraged that student to write back. Somewhere in that moment is a future, a mark of where we want to be. If Naz is right, if we are not disembodied selves, then none of our courage is just our own. It is the public in which we are embedded that makes courage ordinary rather than rare. In public spaces where the norm embraces differences, dignity will not feel like a test. It will not require extraordinary amounts of privilege or courage. For every queer person who writes back to his blackmailer, there are dozens who didn’t, who won’t, who can’t. Our task is not just to celebrate the one who fought, but to create a scenario where the fight won’t be necessary.
Here is where our second story comes up. One that remembers the other lessons from Section 377 — the ones learnt outside the court. One that looks beyond the language of formal rights, institutions and the law. One that takes us back to sexuality in its public life, in the way it shapes the worlds we all must inhabit. The second story then is of one such site where many of us seek to make our lives: the city.
Cities, the story goes, are the roots of civitas and of demos. City, citizens, civility, civilisation. Demos, democracy. They are where we come to be modern, cosmopolitan, open to dealing with difference. If sexuality is a test of dignity in our democracy, then our cities are one of its most important examination rooms and battlegrounds.
They have been so, globally and in India, often. Let us not forget that Ambedkar rested his fate in the city, seeing it as a site where a new form of life that would shed caste could be possible. His faith is mirrored in much of our sense of urban life: its modes allow and are built on difference, its anonymity a protection. Cities belong to different publics, no single identity, no single way of life, no one sense of "right" or "wrong" can dominate a metropolis. It is in such a city that sexuality could, should, must be able to take its different paths, where it can reach for dignity rather than a bare life.
Today in India, our cities often seem silent in the face of this promise. They feel imperilled, distant from their own possibilities. Nowhere is this more evident than when one thinks of sexuality. It is fear, distance, prejudice and intolerance that seem to have dug themselves deeper, just as the institutions and democratic safeguards meant to combat these flounder.
If sexuality is dignity, then its roots are in the quiet everyday of our lives
The ranks of urban residents who have experienced that deeply queer moment of exclusion and otherness, whether it speaks the particular idiom of sexuality or not, have grown. This matters deeply for sexuality. Queer politics has long insisted that it is not just about the rights of the LGBT people. It has insisted that our multiple identities cannot be pried apart from one another.
We are not either Hindu or gay or transgender or Dalit or able or female; we are many or all of them at once. A city that cannot make space for difference and dissent will never be one where queer people can be safe, let alone possess dignity, or attain happiness. A city without a sense of the public — of a shared space, a sense of belonging across difference of all kinds — is and can only be a city of walls, gates and "others".
As I write, the streets of Lucknow are patrolled by anti-Romeo squads, seeking to punish love that they can only read in terms of jihad. Love that crosses caste, class or religion is routinely, violently and spectacularly punished. Difference is marked, berated, denied. Universities have become the sites of policing and moral, physical and sexual control.
The bodies of African women and men have been brutalised, laid open to legitimised violence in both public and private. People from Manipur, Mizoram, Meghalaya and Nagaland have left Bengaluru in midnight trains. The everyday occurrence of sexual violence that women and transgendered people face remains so ordinary that it is often not even recognised as violence until it takes the form of spectacular assault, often death.
The list is endless. We appear to be in our cities, in this historical conjuncture, immeasurably far from dignity, from the possibility of joy. Our fights are still about the barest of life, the right to be free from direct physical violence, to simply be acknowledged, to have the possibility of an encounter unmarked by assumptions and prejudice, to not constantly be on guard, to not constantly hold our breath. Legally winning against Section 377 will just bring queer people into this fight, to have the right at least to begin to fight it — it can do no more.
Why are our cities like this? Behind the incidents of rupture that overcrowd our attention and our outrage, there are patterns. It is those that we need to begin to see. Our cities are deeply divided geographies.
All have neighbourhoods, streets and buildings where only those of "one kind" can live, some through power and others through powerlessness. In no Indian city can either law or norm prevent discrimination in being able to rent a house if you step an inch outside marriage, gender norms, religious differences or caste hierarchies.
New forms of citymaking seek enclosures, privatise space and create peripheries. Gates rather than streets mark our urban forms, creating spaces where people can only meet as fragments, as others.
Speech feels increasingly censored by force or fear, muzzling both dissent and desire. The political establishment narrows the imagination of what can be said or thought, using the idea of a "people" to exclude rather than open; the imagination of a "nation" to build borders instead of undoing them.
A man who asked for the bodies of Muslim women to be exhumed and raped holds a high elected office, another who stood by their sexual and physical erasure holds one higher still. Marital rape remains legal. Sexual violence by the army still claims impunity. In Srinagar, Dantewada and Imphal, no one holds the right to their bodies at all, not even to basic life. Majoritarian power feels emboldened and entitled, the "norm" not a way of life, but simply the way of life. More often than not, such majoritarian thought exercises its power precisely on the bodies, communities, cultures and places that Naz told us we belong to. What does it mean for queer people, any people, to have rights in a moment like this?
It is time we face the patterns of entrenched hierarchy, prejudice and intolerance that have taken hold in our cities. Urbanization has not brought — somehow magically by itself — new forms of social life. It will not until we begin to fight for a new kind of urbanism. Sexuality is never part of the usual discussions on what kind of cities we want. It should be. We will then understand why our newspaper headlines scream what they do, and why these headlines should not surprise us because they, in fact, reflect what we are, what we have let ourselves become.
For those who like to tell the stories through data, here are some. Across 2016–17, the Centre for the Study of Developing Societies (CSDS) surveyed — across the nation — young people aged between 15 and 34. What they found is the roots of the attitudes that result in the spectacular incidents that draw our outrage but cannot sustain the depths of our inquiry. The survey is stark.
Only 4 per cent of young urban residents have married outside their caste. The urban retains caste endogamy, nearly seven decades after Ambedkar’s warning. Nearly 41 per cent agree, in varying degrees, that married women should not work, and 51 per cent think wives should always listen to their husbands. Nearly 75 per cent disapprove of same-sex romantic relationships. For all the incidents we mentioned above, the roots are embedded: nearly 22 per cent express at least some unease about a neighbour from a different religion, 26 per cent about an African neighbour. Nearly half of respondents expressed concern about an unmarried boy and girl living together.
If sexuality is dignity, then its roots are in the quiet everyday of our lives. Once the difference between majority and other, normative and "different" is drawn, the possibility of dignity fades. It will fade, often, into the violence that we can see but this violence is not an agent or an act, it is merely an inevitable outcome. When we look at our cities, we are reminded that these lines of differences are not just between LGBT and "others" — difference disrespects such neat categories. It leaks into all our selves and our spaces, shapes the way we encounter and meet each other. It leaks into the possibilities of what we could become.
Where to from here?
In his last speech to the Constituent Assembly, Ambedkar warned us that the political equality that our Constitution ensures would mean little if the social inequality that marked us was to remain unchanged. His words are well worth quoting at length:
On the January 26, 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life?3
Today, both his diagnoses and warning feel apt and urgent. The contrasting tales in this essay can be interpreted as political and social equality being related but distinct fights. The fight against Section 377 will bring us more political equality. This is necessary, but not sufficient. The fight for sexuality as dignity cannot be won only through political equality in law and rights. The communities, cultures, places and times we inhabit are where differences take root. It is only in taking on these roots that we can move forward.
Each of us will fight this fight in a different way — in our intimate lives, in our communities, in law, in our streets, in our own minds.
That the roots are intertwined is a truism that is both banal and critical. Our challenge is to find how to fight these roots together, to find ways to take on the entrenchment of difference as inequality and shift its narrative to difference as joy, plurality and multiplicity. I write today to urge us to take the city seriously as a battleground for this struggle, a critical one that will shape much of our futures. Ambedkar’s hope was the cities that could hold the possibility for social equality. He was both right and wrong, but his hope must remain our own aspiration. We cannot cede our cities to an ordering of difference that falls too easily into prejudice, inequality and hierarchies. Doing so, however, means recognising the terms of this fight. Not just outrage at an incident of sexual violence, not just speaking of LGBT people as if they alone embody sexuality, not pretending that other inequalities — on class, religion, caste and ability — can persist while sexuality somehow changes and morphs into its island of freedom.
The first step then is to recognise all the multiple fractures that break the bodies of our cities today. It is to step away from our self-congratulation on our gains in political equality to face the reality of the entrenchment and deepening of our social inequalities. The second, for those of us who wish to fight this fight from within sexuality, is to give ourselves new language for this fight, to begin seeing sexuality as a fight for dignity and personhood. The third is to grapple slowly, uncertainly and without any promises of easy wins to find ways to take on the differences between us.
One way of moving forward that can hold both the needs and demands of social and political equality together is to frame our struggles for new laws and imaginations that protect different communities from discrimination. Anti-discrimination laws remain huge lacunae in our constitutional jurisprudence, and if the fight for them can create new openings that can begin to call out our existing cleavages, they may well be the first move in reimagining our differences.
Each of us will fight this fight in a different way — in our intimate lives, in our communities, in law, in our streets, in our own minds. All of these fights are needed; none of them alone will be enough. Yet, if sexuality can tell us one thing about India at 70, it is that Ambedkar’s fight still remains the battle of our time, and that it is high time that the fight for social equality finally found its place alongside, if not ahead of, political equality.
(Excerpted with permission from Penguin Random House India.)