by Gautam Bhan
Today, as the Supreme Court hears the curative petition on Section 377, it has an opportunity to remember its promise to be the last resort of the oppressed, to let dignity be the domain of all.
In 2015, a student at the Indian Institute of Science (IISc) in Bengaluru was blackmailed and threatened with being publicly outed 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 a 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, to survive it. 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 Foundation case argued that Section 377 of the Indian Penal Code played an important part in shrouding our lives in criminality and of legitimising violence, this letter was one of many that we wrote against in our heads.
Yet, what happened next is also a story of what has changed since 2001 when the case was filed. The student, at some point, answered his blackmailer. He pinned a reply on the same noticeboard and spoke about not being ashamed of his sexuality. Even before the Delhi High Court judgment of 2009, the language of how we talked about homosexuality and gender identity had begun to — slowly, but surely — shift. When we spoke about our lives, we spoke of dignity, not obscenity; of persons, not acts; of friendship, love and sex; of genders in the plural, not the fixed and dichotomous; of a full human life. We fought our demons, we marched on streets, we made support groups, we sheltered people who ran away. We lost many along the way. Too many. We will lose more still. Yet 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 that are made to believe that they are redundant and negligible, the value of this cannot be underestimated. The Delhi High Court judgment made us believe it that much more — perhaps another generation has inherited only some of our fears. You cannot blackmail someone, said the student who isn’t ashamed.
Why a curative petition?
So then why does the curative hearing against Section 377 matter? The answer is the most basic principle of the quality and humanity of a democracy: dignity should not be a test. It should not take acts of courage, of defiance. For every queer person like the IISc student who wrote back to his blackmailer, there are dozens who didn’t, who won’t, who can’t. Professor Ramchandra Siras is not with us today. The law may not change our lives overnight, but neither can we undermine its oppressive force and what it takes to survive it. To be queer in India today requires an astonishing amount of economic, gender, and caste privilege. When dignity requires privilege, democracy has lost its way.
To make queer lives ordinary will take a number of different fights. The law is one such fight, and it is a critical one. In our lives, we feel the law not just as prosecution but as a moral register and ethical compass. It tells us how to think about ourselves and tells others how to think about us. It stands behind the gang rape in a police station, the forced conversion therapy in the psychiatrist’s office, in the drawing room of the family which disowns a gay child or forces a queer woman to marry.
It speaks not just to queer people but to the worlds we inhabit. From one of the most powerful paragraphs of the 2009 Delhi High Court judgment: “For every individual, whether homosexual or not, the sense of gender and sexual orientation of the person are so embedded in the individual that the individual carries this aspect of his or her identity wherever he or she goes. While recognising 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.”
The judges in Naz Foundation 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 a space that would not just protect difference but value it. When they asked us to embrace our constitutional morality, they gave us a way to be democratic — to separate our personal beliefs, our personal moralities, our faith, from our duties as citizens in a plural, open world. They urged us to breathe life into the spirit of our Constitution. They argued that the Supreme Court must, of all institutions, stand first and foremost to defend this spirit, to infuse the frozen letters of law with meaning and hope, to lead in a society scarred by layers of inequality and injustice. They argued that it should not need violence for us to want to ensure the dignity of our fellow citizens. They reminded us and themselves that they stand behind the rights inherent in us, and seek only to expand and protect them.
If we lose Naz, it is not gay rights we lose. We lose this imagination of our Constitution, of our court, of law and of the possibility of justice. We lose our ability to make dignity ordinary and injustice rare. We lose law at its most powerful and return it to its most penal.
Today, as the court hears the curative petition, it has an opportunity. An opportunity to defend not a “minuscule minority” but a democracy we all share. An opportunity to remember its promise to be the last resort of the bewildered and the oppressed, to remember that rights expand and grow and that they cannot be, must not be, taken back and shrunk. An opportunity, more than anything, to write back to the blackmailer’s letter and tell its author that they will not let dignity be the domain of the few and injustice the everyday of the many.
(Gautam Bhan is a writer and sexuality rights activist.)