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Azadi ! Jeene Kee Azadi ! Pyaar Karne kee Azadi !

-Shiv D Sharma
Mother, are you more troubled because I lied to you, or that I am who I am?

The above dialogue between a gay male


character and his mother in an intense
coming out scene in the recently released
bollywood family-drama film Kapoor &
Sons (Since 1921) captures in its simplicity
the intricacies that mark the debate on
homosexuality in India, and probably
elsewhere in the world. The history of what
is now termed as the queer movement in
India is fairly recent, but has primarily been
anchored to the legal struggle against the
Section 377 of the Indian Penal Code (IPC)
that reads:
Unnatural offences Whoever voluntarily
has carnal intercourse against the order of
nature, with any man, woman, or animal,
shall be punished with imprisonment for
life, or for imprisonment of either
description for a term which may extend to
ten years, and shall also be liable to fine.
This is interpreted to include all those
sexual acts that fall outside the category of
penile-vaginal penetration, which even
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implies that oral sex between a man and a


woman is a criminal offence under Section
377. While the provision does not explicitly
mention any particular group of people
that it criminalizes, however, it is the
homosexual community that is mostly
implied under its enforcement as any form
of sex feasible between homosexuals is
against the order of nature as suggested
by Section 377. But more importantly, the
fear and apprehension of getting arrested
under 377 looms over the queer community
like a demon, thus depriving them of a
sense of social security and dignity, and
legal protection. At worst, section 377 has
often been misused by the police to harass
LGBT (Lesbian Gay Bisexual Transgender)
individuals, lead to the sexual exploitation
of hijras and other transgender people both
by the police and civilians, and has been
used by blackmailers to extort money from
people indulging in gay sex.
From Tihar to Pride Parades:
The history of organized action as the

movement for the rights of homosexuals or


queer community in India can be traced
back to the aftermath of a 1994 survey
which revealed that two-thirds of the
inmates of Tihar Jail in New Delhi were
engaging in homosexual acts. With this
began an era of the queer movement that
took itself to fighting against the antisodomy law by focussing on the threat that
it poses to public health as an obstruction to
HIV/AIDS prevention efforts. In 2001, Naz
Foundation, a Delhi-based NGO working
on HIV/AIDS issues, filed a writ petition in
the Delhi High Court, asking to exclude the
acts of private consensual sex from its
purview. Between the back-and-forth in the
Court, the Health Ministry joined the Naz
Foundation in its struggle with the
National Aids Control Organization
(NACO) filing an affidavit stating that the
Section 377 impedes its efforts to HIV
prevention. On the other hand, the Ministry
of Home Affairs remained opposed to the
repeal of Section 377 coinciding with the
perception that homosexuality was against
public morality.
In 2006, a coalition of 12 NGOs and
progressive groups based in Delhi
representing different social movements,
called Voices Against 377 joined the
struggle by adding their petition to the case.
The Alternative Law Forum, which is now a
key advocacy group in the movement for
LGBT rights, joined as its counsel. The
language of the movement became the one of
human rights and inclusiveness. The
emphasis on violation of right to privacy,
equality, non-discrimination, dignity, and
health of queer individuals by Section 377
also fuelled both the academic efforts and
social activism to think more actively about
the queer identity and queer politics in India.

As a result, several formally and informally


organised queer collectives, such as Queer
Campus, came up in several cities closer to
the end of the decade. As several of these
groups were organised within educational
campuses, there was a rise of scholarship
on queer issues as well. The debate of
homosexuality became increasingly visible
in public and with that, the year 2008 saw
several cities in India organizing Pride
parade for the first time. Equally, the
subject started gathering wider public
attention through media in newspapers, as
well as with gay and lesbian characters
making appearances in Bollywood movies.
In 2009, in a landmark judgement Naz
Foundation v. Government of NCT of Delhi
and ors, the Delhi High Court struck down
Section 377 decriminalizing consensual sex
between adults, in effect decriminalizing
homosexuality.
Together We Are One:
While the queer communities and their
advocates across India hailed the
judgement as historic, a number of groups
filed petitions against it in the Supreme
Court, following the first Special Leave
Petition (SLP) filed by an astrologer, Suresh
Kumar Koushal. On the other hand, several
interventions were filed in support of the
Naz Foundation, Voices Against 377, and
NACO in the Supreme Court. These
included voices from diverse groups such
as parents of LGBT persons, mental health
practitioners, scholars and teachers, law
academics, and even a Member of
Parliament.
However, the 2009 judgement was an
important milestone for many in the LGBT
community. Relieved with now having the
legal support and constitutional
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acknowledgement of who they were,


coming out to friends and family became a
lot easier. More people took their queer
identity to streets, and the queer movement
gathered further momentum. As the
movement expanded to think about the
larger ideas of azadi (freedom) and
equality, it has grown to value intersectionality, often supporting and
supported by other social movements.
Most recently in 2015, the Delhi Queer
Pride observed its march in solidarity with
other campaigns against the threat to a
whole range of freedoms. Activists from
Occupy UGC movement, Dalits Rights
movement, and FTII (Film and Television
Institute of India) attended the march and
spoke about the need of collective action
against patriarchal oppression and
violations of human rights. Queer Azadi
became one of the prominent chants of the
movement.
Acts Versus Identities: Can We Count on
What We Count?

The case witnessed 15 days of arguments


over 6 weeks in 2012 in the Supreme Court.
The mystifying exchange in the Court
mulled over the lack of empirical data, on
one hand, that there was a homosexual
community in India, and whether Section
377 actually targets any particular group of
individuals, on the other hand. The
discussions spiralled into the questions
posed by the bench which seemed to be
interested only in knowing what were the
acts that were criminalized under Section
377, invariably dismissing the idea that by
criminalizing certain sexual acts it
criminalizes identities that engage in such
sexual activity.
The question it prompts us to ask is
whether our constitutional rights should be
provisional, subject to validation from
statistics, and whether the public
perception should guide our acceptance of
ones identity. Can we count with accuracy
identities that are stripped of their human
rights and are criminal before the law? And
should such a count steer our struggle for
their rights? In December 2013, the
Supreme Court of India reversed the 2009
judgement by Delhi High Court,
recriminalizing homosexuality in the
country, claiming the LGBT community to
be a miniscule minority, thus challenging
the very idea of equality by making it
subservient to numbers.
The Supreme Court judgement and the
governments passive attitude on the issue
invited flak from all over the world. As a
last resort, batches of curative petitions
were filed in the Supreme Court by Naz
Foundation and others in March 2014. Very
recently on February 2nd, 2016, the
Supreme Court accepted the curative

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petitions in an open court hearing and


referred them to a five-judge Constitutional
Bench for an in-depth hearing of the case.
Though the legal battle for LGBT rights
suffered a huge setback from the 2013
Supreme Court judgement, the queer
movement did not lose the spirit. There
were protests held widely across the
country to oppose the Supreme Court
judgement. The on-going campaign No
Going Back was officially launched by
Voices Against 377 on the first
anniversary of the judgement. The queer
movement simultaneously has been
focussing on the specific issue of the rights
of transgenders and Hijra communities in
India. The efforts finally culminated in the
official creation of the category third
gender for transgenders, and the Rajya
Sabha passing the rights of transgenders
bill, hence moving forward in action
towards equality for transgender people.
No Going Back: 377 and the Road Ahead
to Equality:
As Jacques Ranciere, a political thinker
said, Equality is not something we must
expect from state institutions, it is
something that we must both presuppose
and create through collective action. This
takes us back to the quote from the film I
mentioned at the beginning of this article:
the phobia of queer identification. From
1994 refusal to distribute condoms in Tihar
Jail to the ambiguous language of Section

377, and the Courts refusal to admit that it


targets any specific community, or whether
that the community exists in the first place,
weve always only been at a tacit admission
to the existence of LGBT population.
However, with the public debate on legal
fight against 377 and the efforts of the queer
movement, the community has finally
begun to assert its identity and claim its
space in the society: Were here, were
queer, were not going anywhere. But the
fight for equality goes much beyond the
law. In order for the queer community to be
able to realise its rights fully, the changes in
law must be accompanied by the change in
the mindset of the society.
With the curative petition due for hearing
in the Supreme Court, there is still hope to
set right the legal injustice and
discrimination against the queer
communities. At the same time, we must
not stop where the battle against 377 ends.
Voices against 377 should and must be
transformed to voices against homophobia
and social prejudices. As the LGBT
community starts to dream of the
possibilities ahead- legalisation of gay
marriage, amendment to rape laws, etc., the
queer movement must continue to nurture
its bigger dream of queer azadi and stand
against all kinds of social injustices; moving
from a language of rights to a language of
freedom and pride.

(Shiv D Sharma is a gender and sexuality education trainer. He is currently the Deputy Manager
of the Centre for Studies in Gender and Sexuality at Ashoka University.
shiv.sharma@ashoka.edu.in)
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