What is the legal, cultural and sociopolitical import of the Supreme Court judgement? Why is it not just about a “miniscule” group? Explains Rukmini Sen.
November, 2013 was my first participation in a Queer Pride March in New Delhi, which was the sixth for the city. Before the Pride march, the organisers posted the following: ‘Given that Pride has also always been about our lives and struggles, we turn our attention to one aspect that oppresses us all – the strait-jacket of gender. We open out the possibilities with our theme – Genders’ (delhiqueerpride.blogspot.in).
The pride was preceded with various events like fundraising party, queer mela, one-day seminar to discuss queer genders, placard making and press conference. The march was from Mandi House Metro Station to Jantar Mantar Road, a common distance travelled during marches in this city. Having previous experiences being part of marches, and protests that have been organised by women’s groups in the city, my first reflection was to compare a queer pride march with a women’s movement protest rally or remembering 8th March (International Women’s Day). Of course, the use of colour in the dresses, in the rainbow flag, in the colourful masks or hairdos was striking. The fact that there were many in masks represented how difficult it still is to come out of the closet, how necessary it is for the face to remain hidden, and yet for the voice to be heard and for the genders to perform in the public space. The use of dholaks and dafli and the practice of participants stopping regularly in the middle of the ‘parade’ to dance to the rhythm of the dholak also gave the pride a ‘carnivalesque’ flavour, which would be uncommon in women’s movement rallies. Such performance of the body through dress as well as dance seemed to be an integral component of the pride. The erotica in shaking the belly or the bosom, the sensuousness in the red lipstick, the appeal in the black surma or the caressing of the rainbow pride flag—all were spectres of performance, and act of claiming and reclaiming a public space which humiliates, victimises, coerces and punishes the ‘queer’.
The use of dholaks and dafli and the practice of participants stopping regularly in the middle of the ‘parade’ to dance to the rhythm of the dholak also gave the pride a ‘carnivalesque’ flavour, which would be uncommon in women’s movement rallies. Such performance of the body through dress as well as dance seemed to be an integral component of the pride.
It is important to keep in mind that the route of this pride march is through the heart of New Delhi—starting from the intellectual hub of the city (around the Mandi House area) to the business centre of the city (around Barakhamba Road) to the most popular market space ( Janpath and Connaught Place) ending at the designated space for any kind of public gathering ( Jantar Mantar Road). The poster, ‘Nach nach kar kranti layenge’ (‘we will bring the revolution through dancing’) resonated in the pride parade performance, this performance of the plural as well as the politically embodied genders. The pride in the plurality and the unfathomable energy in expressing love through posters like ‘Pyar Kiya to Darna Kya?’, ‘Pyar Huya Iqrar Huya’, ‘Queer Huya to Kya Huya’, ‘Love over Bigotry’ or ‘Love is a Human Right’ only emphasise the freedom to love. On the other hand, claiming that ‘Genders are Diverse not Disordered’, ‘Stop Assuming my Gender’ or ‘Be Straight not Narrow’ encompasses a a strong message sent to the hetero-patriarchal structure that by default assumes two genders, heterosexual union and marriage among these two genders and procreation as a result of that marriage. Moreover, asserting ‘Queer and Desi’, is, of course, a direct response to the criticisms that ‘queer’ is not Indian and that these ideas are influenced by Western values. It could also be a critique of the ‘Indian’ values of morality; the fact that India was written on rainbow coloured placards, besides signifying love and equality, also revealed the imagination of the nation accommodating plural gender identities. My favourite poster was ‘I am the Rainbow sheep of the Family’, which not only re-defines familial relationships but also rechristens connotation attached to colours–black being associated with negative, non-normative in this instance. So, just like the civil rights movement in the USA raised the slogan ‘Black is Beautiful’, similarly, it is interesting to note how the queer pride is using the colours of the rainbow to celebrate the ‘ab-’ normality, the ‘non’ normativity, the ‘dis’ order, in order to emphasise diversity. The message in this poster matched with a slogan that was shouted continuously. One common slogan that I have given voice to, being part of women’s movement’s rallies, has been ‘Awaaz do, hum ek hain’ (“Raise your voice to say, we are one”). Here, while I was about to echo ‘hum ek hain’, someone pointed out to me that ek could be changed to anek making the slogan ‘Awaaz do, hum anek hain’ (‘Raise your voice to say, we are many’). It was a meaningful tweaking of the original slogan reminding me of the title ‘Affirming Diversities, Resisting Divisiveness’ of the 7th National Conference on Women’s Movement in 2006, Kolkata. The slogan affirmed that by including anek (many), movements and their agendas can only get enriched. It needs to be mentioned that by the fifth gay pride event in 2012, the slogans and demands had become innovative, like, ‘Hindu, Muslim, Sikh, Isai; Hetero, Homo bhai bhai’, ‘My son is Gay’, ‘Fifty shades of Gay’ or ‘Keep your laws off my body’.
It is ironic that immediately after the queer pride march; the gathering that I was a part of was to protest the Supreme Court judgment on 11 December, 2013. What ideally should have been a celebratory gathering with the Supreme Court upholding the Delhi High court judgment of 2009, which decriminalised consensual private adult sexual relationships, the apex Court held that Section 377 does not suffer from the defect of unconstitutionality. According to the Supreme Court, lesbians, gays, bisexuals and transgenders constitute a ‘miniscule fraction’ of the country’s population. The Court also found that in the last 150 years, less than 200 persons have been prosecuted under S. 377 and, that record cannot be a ‘sound basis’ to declare the section ultra vires – i.e., beyond the legitimate authority – of the law, specifically, provisions of 14, 15 and 21 of the Constitution.
After the Delhi High court asserted that ‘pluralist societies rarely have majorities or minorities; the Constitution stands for the principle of minority protection’, the apex Court’s statement citing the ‘minority’ argument is surprising. It is unfortunate that after nearly two decades of mobilisation in support of sexuality rights in this country, after so many instances of police harassment of same sex partners, after so much public ridicule and humiliation faced by the transgender community, and after so many reported cases of tragic lesbian suicides; the Court takes the approach of using of numbers to define a community’s significance and also uses the phrase ‘so-called rights of LGBT people’ to further condemn them to invisibility. Is this judgment and/ or this queer pride parade only about a specific community of people? The answer is both yes as well as no.
Much as it is important to emphasise the importance of community in bringing the issues of sexuality, same-sex desire, love and violence out of the closet and into the public sphere and as important as it is to celebrate sexual pluralities through queer pride marches, it is also necessary to establish that a hetero-patriarchal sexual order also excludes other people besides LGBT people; it also considers a single woman, a single woman with a child, childless heterosexual couples and unmarried heterosexual live-in partnerships as non-normative and challenging the established marriage – family union. These situations also have problems of social and legal recognition.
It is a struggle to establish choice and autonomy to live in various kinds of plural partnerships, to question the exclusive legitimacy of heterosexual marital relationships and to fight castigation in a criminalised same sex relationship. But there are many intimacies and domestic spaces in between these two forms, as pointed above, and it is necessary to discuss them openly.
The level or the intensity of these discriminations is certainly not comparable to that experienced by the LGBT communities. It is, however, essential to understand the symbolic power of S. 377. To remember Nivedita Menon – who had stated that if heterosexuality was so normal and common then why was there a need for S. 377? It is a struggle to establish choice and autonomy to live in various kinds of plural partnerships, to question the exclusive legitimacy of heterosexual marital relationships and to fight castigation in a criminalised same sex relationship. But there are many intimacies and domestic spaces in between these two forms, as pointed above, and it is necessary to discuss them openly. The community that allows the khap panchayat to murder heterosexual couples who make a personal choice to marry against the disapproval of someone else who claims to have that authority; is part of the same a family structure that drives lesbian to commit suicide and creates mindsets that allows parents to not even claim the bodies of their daughters. The legal presence of S. 377 justifies/legitimises such acts, despite it being against the spirit of the Constitution, which ensures individual liberty. Whatever happened to the Constitutional morality that was referred to in the Delhi High Court’s judgment of 2009, as opposed to mere public morality?
In one sense, the Supreme Court judgment might be able to strengthen the fight against homophobia. It may be worthwhile to introspect how solidarities can be forged with sex workers; with dalit and adivasi women in their struggles to merely survive against everyday violences; and with urban and rural men and women, who for their gender-bending or non-normative life choices are harassed in public and private spaces. There is a need to understand and bring into the foreground – and protest – the culture of torture that lesbians are subjected to and the fact that this can go legally unnoticed and socially suppressed, becoming a mere statistic in calculating suicide rates in the country. The challenge is to sustain the spirit, passion and philosophy of the queer pride in the everyday, so that the performance aspect of the pride parade does not become only a spectacle to be witnessed by (laughing, surprised, or curious) onlookers for one day. That the judiciary abhors the performance, the family feels ashamed of ‘genders’ and the police ‘legitimately’ harass the queer performer is the result of of a colonial provision against ‘un-natural sexual performances’ irrationally continuing in a post-colonial legal framework.
(Rukmini Sen is an Assistant Professor with Ambedkar University)