Queer people and the law


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WHEN the word queer is used in the Indian context, it signifies lives which challenge the heterosexual norm, i.e. that the only valid way of sexually/ romantically relating to one another is within the framework of either marriage or a heterosexual relationship. It includes the gay man cruising in a public park, the transgender person changing her name from Sanjay to Sanjana and living in society with her new identity, the two brave women who decide that they are going to live with each other regardless of societal disapproval.

While ‘queer’ stands for stories of resilience and bravery it also signifies violence and hatred which have severely brutalized and in some cases broken the resistance of the ‘queer’. There is thus the college student who attempts suicide because he feels he is alone in his shameful perverted homosexual desire and hence feels worthless in the eyes of God, his family and wider society, the lesbians who consume poison because society will not allow them to live together, and the hijra who is subject to brutal and repeated rape by the police.

In the last decade we have begun to hear more about the ‘queer’, both the celebration and the defiance as well as the relentless smothering of yet another life by the brutality of an order which cannot tolerate these forms of ‘defiant desire’. This essay is dedicated to the memory of one such person who embodied the defiance and the celebration, Nishit Saran, a talented gay filmmaker who died at the young age of 26. Nishit’s most memorable work was a documentary entitled Summer in my Veins in which he filmed his ‘coming out’ to his mother as gay.

Watching the documentary and witnessing this incredible act of courage and political commitment was a great sense of affirmation to many of us who identify as queer. At a personal level, Nishit’s public sharing of an intensely personal experience made it possible for me to raise the issue of my being gay to my family. At a wider level, I know that wherever the documentary has been screened it has helped numerous young people to be more comfortable with their homosexuality and also created space for a public discourse on being queer as a lifestyle as well as an erotics and a politics.

I will examine the struggles of the queer community with the law from the perspective of a movement which, much like Nishit Saran’s documentary, is still ‘coming out’. It is a newcomer, compared to the more established activisms of dalits and women and environment. Its ‘legitimacy’ is still not clear even as queer people try to claim a place among the communities of suffering. While some spaces have opened out, we are still liable to be dismissed as advocating a personal choice or a lifestyle issue at best or a perversion or deviation at worst.

As an activist friend put it, ‘More often than not, the abuse suffered by these subaltern sexual cultures has been made invisible even by the activist community using a convoluted logic that arrogates to itself the ability to calibrate pain. First comes class, then comes caste, then come gender, ecology and so on. If there is any space left on this ark of suffering, then sexuality is included as a humble cabin boy. There is no hope of the last being the first in this inheritance of the meek.’



When I use the word queer my explicit concern is to put on board the fact that we are talking about a new kind of politics – a politics which takes seriously the violence suffered by gay, lesbian, bisexual and transgender people and which looks at ways to combat this violence. At a basic level we are talking about rights – the right to love persons of our choice regardless of gender or sexual orientation, the right to be free of violence, the right not to be discriminated against and, most importantly, the right to life itself. At another more fundamental level we are talking about the freedom to create a different kind of world, a world which is not governed by the constrictive framework of heterosexism and patriarchy.

There is a revolutionary prospect in a queer project wherein institutions such as marriage are questioned and other more democratic ways of relating envisaged. Such indeed is the vision of a queer politics, which changes the way we see ourselves and our sexual desires and our ways of relating to each other. Can our politics question the normativity of marriage, the inevitability of procreation and the necessity of monogamy? Can we create spaces through our questions for women’s expression of their sexuality or for a greater diversity in people’s lives? Can this movement counter-pose increasing authoritarianism with greater democracy as well as struggle against the attempt to sacrifice the lives of those infected with Hiv/Aids at the altar of profits?



Queer people are newcomers to the language of rights itself. The language of ‘universal’ rights excluded one kind of people who were never deemed worthy of possessing rights. The most poignant example of this exclusion is the status of queer people as ‘victims’ of the Nazi holocaust. Even in this brotherhood of the oppressed, the thousands of homosexual men prosecuted and killed by Nazi Germany were denied the victimhood that was the inheritance of the people of Israel.

The memory of the loss of the Jewish people and culture is insistently commemorated through the Holocaust Museum, as well as in the poetry and literature of the post holocaust period through powerful writers such as Elie Wiesel and Primo Levi. What stands almost obliterated as a memory is the persecution of men with the Pink Triangle (homosexuals were made to wear the pink triangle just as the Jews wore the yellow star) and the Nazi destruction of the first modern gay subculture in the world.

Human rights law is a product of this way of remembering the past. The silence is deafening. The non-discrimination clauses do not even refer to the category of those who have been victims of persecution on grounds of their sexual orientation and gender identity.

However, the interesting thing about rights language is its strange vulnerability to appropriation. Histories of natural rights theory insist on its originary link to authoritarianism as well as to the protection of private property. At various points in time women, indigenous people and black people were excluded from the possibility of being rights bearing subjects. It is strange that the same rights, which have been complicit in the practices of exclusion, can today speak to power about the moral imperative of inclusion.

This was precisely what happened in the case of the struggle against apartheid in South Africa and segregation and slavery in the USA, to cite just two examples. However, one also needs to be acutely conscious of how rights language is vulnerable to appropriation by the interests of multinational capital, fashioning what Upendra Baxi calls ‘trade related market friendly human rights.’

The rise of the gay, lesbian liberation movement and the emerging global articulation has resulted in an appropriation of human rights law to defend those who were victimized on grounds of their sexuality. Post the historic complaint by Tasmanian activist Nick Toonen to the Human Right Committee, universal human rights are now being read to include the concerns of queer people.



Today rights language is being used in many parts of the world to make power accountable and as a way of questioning the violence to which queer people are subject to. In many parts of the world there is growing recognition of the necessity for non-discrimination in employment and education, for partnership rights for homosexual couples as well as the rights of gay adoption. Rights language has become the new language in which queer suffering is articulated and remedies are fashioned.

One of the remarkable victories fashioned through rights language has been the South African Constitution which, in its non-discrimination clause, embodies the category of sexual orientation making South Africa the first country in the world to prohibit discrimination on the grounds of sexual orientation. The South African Constitution was a product of a liberation struggle in which black, socialist and gay/lesbian people participated and when the time came to make a new beginning an attempt was made to include all minorities. It is due largely to the courage of those who were in the anti-apartheid movement and still identified themselves on the basis of a queer identity that we had the first democratic revolution in which queer people were taken to be equal citizens with their heterosexual compatriots.



The story of Simon Nkoli, an anti-apartheid activist who was gay is illustrative. As he put it, ‘There are lots of gay activists involved in political organizations. But because of the pressure put upon the gay and lesbian community we are afraid to come out. What will people think if they know I am a gay person? I better fight against apartheid in a hidden way. The danger is when South Africa is liberated, we as gay people will never seem to have taken part in liberating our people.’

However, this increasing appropriation of rights language still faces formidable difficulties. Queer people worldwide are still subject to a high degree of violence and discrimination with the violence itself getting linked to other global discourses viz. the discourse of homosexuality as a western disease. In many African countries such as Namibia, Kenya and Zimbabwe, queer people are linked to the ‘West’ and seen as the embodiment of a ‘western disease’. Mugabe of Zimbabwe has been particularly adept in using gay/lesbian people of Zimbabwe as a scapegoat for the many failings of the post-colonial Zimbabwean state. The backlash against the authoritarianism of his one-party state and his failure in ensuring that the people have access to the basics of human existence including clean drinking water, healthcare and education is sought to be deflected on the new enemy, the gays and lesbians of Zimbabwe. In public speeches Mugabe derides gays and lesbians as worse than ‘pigs and dogs’.

This kind of rhetoric conflating gays and lesbians with the ‘enemy’ is an emergent discourse in many parts of the developing world. Right from Daniel Arap Moi in Kenya, Nujoma in Namibia, Mahatir in Malaysia to aspiring nationalist leaders like Pat Buchanan in the USA and Bal Thackeray back home, stigmatising queer desire seems to be an essential part of the nation building project. Nation states are built upon the bodies of stigmatised others and queer sexuality is particularly vulnerable to being perceived as the ‘other’, regardless of its often indigenous status.

Universal human rights language is today vulnerable to the challenge of being culturally insensitive. The rights of queer people are seen as embodying a western discourse, thereby not particularly relevant in the context of a developing country. This issue of ‘relevance’ needs to be answered from the point of view of people in the developing countries.



The concept of ‘culture’ itself is a contested one; when one speaks from the standpoint of Indian culture it is not entirely clear if one can represent the whole culture. The contested nature of culture inevitably means there are many positions within ‘Indian culture’ with no one viewpoint capable of representing that ‘culture’ fully.

The politics of representation means that it is usually the more powerful who end up speaking for the less powerful and oftentimes represent a diverse and plural culture as a monolithic one. The right wing often mobilizes the concept of ‘culture’ to represent ‘tradition’ with works like the Ramayana and Mahabharata and temple sculptures as well as living practices such as arranged marriage, thread ceremonies, child marriage and sati. What is rigorously left out of this definition of culture is the queer face of tradition (as documented by Ruth Vanita and Salim Kidwai in their recent book, History of Same Sex Love in India) as well as the living practices of traditional communities such as hijras alongside modern communities such as the gay/lesbian, bisexual and transgender community. Thus the concept of ‘culture’ that is mobilized is built upon an exclusion of queer artefacts as well as non-recognition of the living cultures of queer people.

It is the above which provides the strongest rebuttal to the notion of queer rights being a western disease – a careful drawing of a narrative that traces the queer as a part of ‘our’ history and embodying a set of practises which exist at times unacknowledged, at others hidden, at yet others struggling to become ‘ visible’. In more simple terms, queer rights is an issue for Indians because there are queer traditions, queer practices and queer people in India and rights language is one mode of making this history visible.



Human rights language in the Indian context emerged as a part of the apparatus of the post-colonial nation state embedded in its constitutional structure. However, it is only the real struggles of people which convert human rights from a constitutional text to a living reality. What Baxi terms as ‘human rights realism’ is his understanding that the histories of human rights are made not in drafting chambers but in the day to day struggles of ordinary people and communities. The histories of human rights in India are linked to the struggles against the Emergency, the resistance to custodial deaths of Naxalites by human rights groups, the Dalit articulation against upper caste violation, grassroots environmental movements opposing big dams as well as the women’s movement taking up rape as a human rights violation. The above, of course, is more illustrative than exhaustive. All these struggles through their strong articulation, both give ‘life’ to an otherwise ‘bureaucratised’ notion of constitutional rights as well as invent new forms of rights.



In India it is only in the last 20 years that queer issues have begun to be articulated, and in the stories of ordinary people. One such beginning was in 1988, when two women, Leela and Urmila, living in a small town in Madhya Pradesh decided that they wanted to live together with societal acceptance and hence got married. This challenge to the heterosexist institution of marriage did not go unchallenged as it provoked a vigorous backlash resulting in their separation. However, this narrative of ‘individual courage’ provoked women living in urban contexts to start talking about the issue of lesbian and gay rights. Similarly, the police harassment to which gay/bisexual men are subject to resulted in the first organized protest against police violence against gays in 1993 in Delhi.

Since these early beginnings we have seen an emerging collective organization in most of the larger cities in India with violence and discrimination being seen not as a part of the natural order of things but instead, something which had to be questioned. The excesses of the state are gradually being questioned as seen in the protests over the banning of the film Fire as well as the protests over the arrest of Hiv/Aids workers in Lucknow for violating the anti sodomy law (Sec 377 of the Indian Penal Code).

These questions are being backed up by an effort to document the nature and history of violence against queer people. Both the Humjinsi resource book on gay, lesbian and bisexual rights as well as the People’s Union for Civil Liberties (PUCL-K) report on ‘Human rights violations against sexual minorities in India’ are examples of this kind of documentation.

The question remains as to how far this appropriation of rights will be allowed to advance. The recent petition in the Delhi High Court which asks for a reading down of the provision criminalizing ‘carnal intercourse against the order of nature’ may well be an important moment in determining whether or not citizenship will continue to be understood within a heterosexist framework.



Though queer right issues have begun to be articulated, the challenges are still immense. In a sense the challenge still facing activists is to make sexuality a serious human rights concern. Towards this the evidence of discrimination and violence needs to move from the anecdotal and be systematically documented, so that the state and society confront in no uncertain terms the systemic violence which queer people are subject to. In a phrase popularised by Upendra Baxi, it is the ‘little undone and the vast undone’ that confronts queer activists. The greatest tribute we can pay Nishit Saran is to bridge the abyss by committed and sustained activism questioning compulsory heterosexuality as the only valid way of life.