How Has “Progressive” Thought About Homosexuality Evolved Since the 1990s?

In 1996, Economic and Political Weekly (EPW) published an article, "Gay Rights in India" by Vimal Balasubrahmanyan. Written at a time when homosexuality was not as widely addressed in mainstream and coverage was less than nuanced, the article decried how even within “progressive” circles there appears to be ignorance and prejudice on the subject of homosexuality. Balasubrahmanyan pointed out that none of the civil liberties groups had so far listed gay rights as an item on their agenda, although individual activists may have been sympathetic to it.

Her article prompted a series of discussions within the pages of the EPW. Reading them now highlights how much the discourse around heteronormativity and sexuality has shifted in the past decades. We map out this trajectory through a list of articles that discuss section 377, and to some extent, queer lives in India. 

H Srikanth attacked Balasubrahmanyan’s article based on  various assumptions: that homosexuality does not contribute to the healthy reproduction of society; that it is a western import; that it is only “occurs” to individuals who have been denied access to healthy heterosexual relations for a longtime and that the gay movement does not play any emancipatory role in society.  The article ends with the words:

“If some people, much against public conscience, take to the streets on the plea that they have the right to gratify their sexual urges in any way they like, Marxists do not hesitate to use force against such homosexual activists.”

Sharmila Rege responded to this article, stating that Srikanth’s article is one more piece in a mainstream homophobic tradition. She goes on to dismantle each of his assertions, while also providing an overview of the history of the articulation of LGBTQ identities. She concludes by stating that it is Marxists (and feminists) who should be developing a new culture of sexuality and a different morality. 

A Suneetha also refuted Srikanth in 1996, by pointing out that homosexuality has existed in all cultures and has even been institutionalised in some. Using examples of psychological research, she challenged the claim that homosexuality is deviant and argued for the inclusion of various modes of sexual behaviour as part of normal human sexual behaviour. 

Srikanth’s rebuttal can be found here.

This article took on right wing claims of homosexuality and other sexual behaviours which do not adhere to social norms being Western imports. Writing in 2016, Kishalaya Mukhopadhay stated that ancient and medieval texts clearly show examples of not just such queer practices but even examples of tolerance and celebration of the same.

Section 377

In the early 2000s, most articles regarding with the queer community focused on the validity of Section 377 from a jurisprudential and constitutional position. 

Animesh Sharma examined how the application of criminal law in the area of sexual behaviour, has been challenged throughout the world both in theory and in practice.
He states that popular morality should not form the basis of a criminal law.

Naz

On 2 July 2009,  the Delhi High Court “read down” the aspect of Section 377 of the Indian Penal Code which hitherto criminalised “carnal intercourse against the order of nature”. The result was that the Section remained to protect minors and guard against rape, but that consensual sexual acts between adults of the same sex were no longer criminal.

An EPW editorial asked: now that the court has decriminalised homosexuality, would the executive take a categorical stand?

Naz Overturned

However,  on 11 December 2013, the Supreme Court of India overturned the landmark Naz judgment. In doing so, the court effectively re-criminalised millions of lesbian, gay, bisexual and transgender (LGBT) individuals across the country, just four years after the lower court had allowed them the status of equal moral citizenship. 

Danish Sheikh and Siddharth Narrain undertook a close reading of the judgment upholding Section 377, finding that the Supreme Court misread the Constitution and legal precedent and worryingly, and that it failed to uphold the fundamental rights of Indian citizens.

 In 2014, Upendra Baxi analysed Naz 2 and concluded that constitutional judgments should not be based on judicial disgust or disagreement at particular acts or conduct.

How can the Privacy judgement change 377?

Last month, in December 2017, Danish Sheikh discussed how the judgment in K Puttaswamy v Union of India (2017) opens up a discussion on the intersection of privacy and the rights of queer persons along multiple grounds. In particular, he looks at two scenarios: first, how the decision impacts the continuing challenge to Section 377, and second, how the decision might speak to challenges faced by queer individuals beyond the specific threat of criminality.