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Law like love

by Gautam Bhan, 2 July 2010

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Indian Express, 2 July 2010

One year ago, in Court Number One of the Delhi High Court, a group of people — including this writer — huddled together in a hushed courtroom, barely breathing. By the time the judgment reading down Sec 377 was read out, my palms had turned white from clutching the hands of the two crying, happy women who stood on either side of me. These were the same women in whose house I and so many others had found our first queer community — a house where protests had been planned, victories celebrated, friends mourned and wounds healed. The world seemed to have come full circle.

Has the world changed since July 2, 2009? It has and it hasn’t. Earlier this year, Dr Ramachandra Siras of Aligarh Muslim University was humiliated, defeated and vilified for his sexuality. Yet in writing the press release against his suspension from AMU, activists for the first time were able to definitively argue that he had committed no crime in having consensual sex with another man. No one questioned that — not even AMU authorities. Something had changed. AMU still had other, older weapons: “gross indecency,” “obscenity”, “moral corruption.” Dr Siras, however, had newly empowered responses: equality, dignity, rights and citizenship. He moved the Allahabad High Court to get a stay on his suspension. He won. The fact that, in his lifetime, he was able to demand and receive some justice is no modest victory. A few days after his victory, however, he was found dead in his house. It is unclear exactly how he died but beyond doubt that, one way or the other, he was driven to his death by the treatment meted out to him by his beloved university. In Dr Siras’ story is all of our stories and the story of this past year. New victories amidst still deep wounds, new hope amidst older uncertainties, new milestones but also new struggles.

Justice Shah, one of the co-authors of the judgment, said in an interview that he had gone home from the court that day and refused to turn the television on, afraid of what the reactions might be. He knew he was writing a judgment that would meet stiff resistance. The judgment reflects this and it is singularly the reason why it is so powerful. More than just an attestation of sexual equality or gay rights, the judgment is a plea for democracy and the necessity of inclusivity amidst the tremendous differences and entrenched inequalities of contemporary India. Truly democratic practice, the judges reminded us, lies in the dignity with which we disagree and respect those who we think differ from us. It lies in our ability to become citizens from individuals, to hold alongside and above our personal morality a constitutional morality. It lies in the necessity for empathy and respect — not just law — to be the foundations of a shared citizenship.

Nowhere is the practice of constitutional morality harder to realise and yet more critically needed than in the private, intimate spaces of love, sex, sexuality, and intimacy. The recent spate of “honour killings” across the country remind us yet again of the how sexuality and love are still matters of life and death in India, cloaked in arguments about honour, tradition, family, community, faith, and about what is “natural”, and “normal”. These are familiar words not just for gay people but for all Indians. Queer politics has long argued that sexuality is not just about homosexuality, it is about is about all those who are considered to be outside the narrow, normative ideal marital family structure. These murders remind us of the urgent need to open debates about different ways of thinking about honour and tradition when it comes to love and sex. It is here that the judgment’s words must be brought to bear and brought to life. It is within our families and community’s notions of proper and improper love that the ability to manage a divided and changing society must be aided so that no family feels that it must take the life of one of its own. There is no greater purpose to remember this judgment on its anniversary than to remind ourselves of the work that remains to be done in extending its words beyond gay rights and Sec 377. To celebrate this judgment, we must use it to shift the discourse of all politics around us to a more equitable, inclusive and democratic tenor.

Today, in Delhi, many will head towards Jantar Mantar in the heart of the city to mark the anniversary of the July 2 nd judgment. The location is one of the few democratic and public spaces left in a national capital which is rapidly gating, policing and surveilling itself against its own citizens and publics. Like our politics, our city’s spaces are fragmenting. Spaces for genuine public interaction are under threat. A constitutional morality comes with a set of values also embedded in our founding document: equality, dignity, and respect for all, be it economic, social, political or cultural. It is the distance between our everyday lives — whether we are queer or not — and this vision that is our struggle today. The struggle this judgment has begun then — and it is only a beginning — is one that challenges us to use constitutional morality to move closer towards our imagined constitutional values as a people. Our hands and our tongues were untied last year: the question now is what we do with them.

The writer works on urban policy