QUEER LAW AND DESPISED SEXUALITIES IN INDIA

Arvind Narrain

Chapter I: Introduction

Table of Contents

Chapter I: Introduction

Foreword

Foreword
Despised sexuality has diverse histories. But these all unite in the denial of affected people's right to be and to remain human. Unsurprisingly, even in this Age of Human ights, the human right to sexual orientation and conduct remain late, and much !elated, arrivals !earing, as it "ere, the appearance of asylum see#ers. $ndeed, foundational human rights texts and operational human rights cultures display homopho!ic resilience. At the same time, the struggle to rearticulate the meaning of 'human' in the phrase regimes of 'human rights' has at least ena!led the manifold invention of ne" forms of discourse, event, and social action concerning forms of intimate human association. Ho"soever falli!le and fractured, human rights tal# has rendered prevalent forms of administration of silence illegitimate%%% a no small gain. &onspiracy of silence constitutes the very grammar of violent social exclusion. $ts displacement is the first step to"ards a 'ourney of million miles. (his inaugural monograph names this struggle in the $ndian contexts. $ call it 'inaugural' not merely in the sense that it !rings to a "ider vie" the variegated struggles and movements already in place in $ndia. $t also invites sustained attention, in e)ual !ut separate measure, to the utility as "ell as futility of the 'rights' discourse. $ndeed, Arvind *arrain interrogates the very notion of the 'la"' as 'emancipatory tool.' +et, overall, this "or# offers a human rights friendly yet human rights wary narrative. (his precipitation, this founding am!ivalence, this movement to"ards a hori,on that escapes enunciation of essential truths, this fear and trem!ling '!efore the la"' -as Derrida names all this. ma#e this "or# inaugural. Visibility and voice furnish the #ey categories of this "or#. /ean 0ran1ois 2yotard reminded us in his Mirror of Production of the importance of the distinction !et"een seduction -processes and outcomes that render the visi!le invisi!le. and production -la!ours that ma#e the invisi!le visi!le.. Homopho!ia mar#s modes of seduction3 this "or#, in your hands, !egins the specifically $ndian material as "ell as sym!olic la!ours of production. $t importantly raises varied interlocutions concerning the "ays of production of )ueer thought and discourse, "hich amply re"ard reflexive reading. 0urther, $ read this "or# as raising some "eighty issues addressing the pro!lematic of voice. 4hose voice may articulate '!est' or 'most' the politics of cruelty confronting the multiplex !earers of forms of despised sexuality5 Ho" may "e avoid essentializing the many sided identities of the despised sexuality situated su!'ects, and of insurrectionary agents5 Ho" may "e trace the varied itineraries of politics of desire5 Ho" may "e construct its manifold voices in

Foreword "ays that avoid ne" hegemonies of )ueer thought, even 'theory5' $n many implicit, though never complicit, modes the "or# in your hands richly invites attention to this constitutive am!iguity. $ndian la" and 'urisprudence here confronts the acuity of )ueer thought. 6ne has to read "ord%!y%"ord &hapter $7 to realise ho" extraordinary is their homopho!ic tenacity even to the point of remaining hermetically sealed from social learning arising from developments else"here. $ndian la" and 'urisprudence continue to unfold the sodometric colonial 'urisprudence even after fifty plus years of the "or#ing of postcolonial $ndian constitutionalism. (he enormity of its violence also names the tas#s of struggle. $ for one !elieve that the auspices of gifted solidary )ueer theory and action hold promise for constitutional renaissance !ecause, as social and conceptual histories have repeatedly sho"n, only 'discrete and insular minorities' emerge as the !est pedagogues of freedom, dignity, decency, and 'ustice. $ applaud the courage of the rather rare authorial conviction. $ end "ith a hope that this "or# "ill nourish vigorous $ndian pursuit of human right to !e, and to remain, different. Upendra University 8arch 29, 2::3
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Preface

Prefa e
$ came out as a human rights activist !efore $ came out as )ueer. (o !e a person concerned a!out human rights issues in an environment in "hich profits came !efore people "as not easy. (here "as, ho"ever, a small !ut resilient group of human rights activists across the country "ho had consistently espoused the causes of the marginali,ed. (here "ere !rave people such as 8r ;uresh from the <U&2%(amil *adu and <rof. Ba!u 8athe" at *2;$U, Bangalore, "ho "ere deeply inspirational and encouraging "ith respect to ta#ing up a human rights practice. Ho"ever, to !e =out> as )ueer "as that much more difficult as there "ere a!solutely no !rave predecessors on "hom $ could rely. $t "as only the courage and encouragement of a friend of mine, as "ell as the support of many others, that gave me the courage to come out as )ueer. (oday $ thin# it is important to !e =out>, due to the =invisi!ility> "hich still surrounds the issue of !eing )ueer. (his =invisi!ility> leaves the space open for a "hole series of myths a!out )ueer people>s perversity, a!normality and criminality on one hand and allo"s for the dismissal of our lives as an =import from the 4est> on the other. 6ne of the "ays of com!ating this pervasive myth%ma#ing is to !e open a!out ones sexuality and locate oneself in every forum as )ueer, so that, there at least, everyone is forced to concede that )ueer people exist in $ndia. (his paper is !ased on the !elief that the struggle for a !etter "orld for )ueer people has to !e !ased not 'ust on )uestioning the larger frame"or#s of legal in'ustice, state intolerance and societal indifference, !ut also )uestioning and challenging ignorance, misconceptions and hatred in our families, our schools and colleges and our places of "or#. $t is clear that changes in the la" "ithout changes in mindset and perceptions "ill not !ring a!out a !etter "orld for )ueer people Hence it is crucial that !roader civil society is forced to rec#on "ith )ueer people as human !eings and one small "ay of !eginning that process is for )ueer people to !e open a!out their sexuality. $n this context, to identify as )ueer is really to !egin the =struggle.>

lossary

!lossar"
Berdache: $n many *ative American tri!es, men "ho "ore "omen>s clothing, occupied themselves "ith ="omen>s "or#> such as pottery and !as#et "eaving, and too# a sacred role in tri!al rituals. Berdaches only had sex "ith non%!erdache men and dressed in "omen>s clothing or a mix of men>s and "omen>s clothing. Biphobia: <re'udice against or fear?hatred of !isexuals. Bisexual: a person "ho is attracted romantically?emotionally?sexually to !oth men and "omen. Coming out: the process !y "hich a gay?les!ian?!isexual person ac#no"ledges his?her sexual identity to himself?herself and a transgendered person ac#no"ledges his?her gender identity to himself?herself and then proceeds to tell others a!out it. &oming out has many levels, starting from coming out to oneself, to coming out to family, friends, colleagues and the "ider society. Discourse: a term used !y the 0rench philosopher 0oucault to descri!e ho" statements function according to a set of rules to produce a notion of =truth> (hus for example, the idea of the homosexual as a deviant is a =truth> produced !y the discourse of modern la". Eunuch: derived from eun! @!ed,A and e"hein! @to #eep.A 8edically, a castrated male or a male "ith non%functioning testes. (he "ord originates from the ancient function of eunuchs as harem attendants or as functionaries in certain Asian courts. $n the $ndian context, it largely refers to the h#ras and is often used in a deorogatory sense. Gay: a "ord used to descri!e a man "ho is attracted to another men emotionally?sexually?physically. Gender: "hether someone is @mentallyA male or female3 this !ecomes pro!lematic "hen it does not coincide "ith the sex of the person -as in transgender people.. Heteronormative: a heterosexist frame"or# or discourse "hich determines the norms !y "hich people are expected to live in society -usually !iased against )ueer people.. Heterosexism: the heterosexually%dominated ideology that naturali,es male%female sexual relationships as the only permissi!le relationships in society. (his ideology !ecomes institutionali,ed as a structural !ias against sexuality minorities in the la", state and "ider society. (his !ias is most often fully internali,ed and su!conscious and is often difficult to detect and reverse. Heterosexual: a person "hose sexual?romantic?emotional feelings are for the opposite gender. Hijra: a transgender person "ho is !iologically male and ta#es on the gender role of a female. Hi'ras in $ndia have their o"n form of social organi,ation and form a parallel society. Homophobia: pre'udice against or fear?hatred of homosexuals. Homosexual: a person "hose sexual?romantic?emotional feelings are to"ards those of their o"n sex?gender.

lossary Kothi: in the ;outh Asian context, a male homosexual "ho is femini,ed and ta#es a passive?receptive role in sex. Lesbian: a "oman "ho is attracted to "omen emotionally, sexually or romantically. LGB : an acronym for 2es!ian, Bay, Bisexual and (ransgender. Usually used as an um!rella term for )ueer people. !"!: a general term used to refer to 8en "ho have ;ex "ith 8en. #uting: a practice "herein the sexual identity of a )ueer person is made #no"n to other people "ithout the consent of the person in )uestion. $ueer: a term "hich arose in the context of a dissatisfaction "ith les!ian and gay politics and a need to em!race the diverse "ays in "hich heterosexism "as contested. Cueer also implied a solidarity "ith the concerns of other movements !e it anti racism, anti sexism or struggles for a !etter pu!lic health system. (he term )ueer "as initially a derogatory term used for sexual minorities !ut has no" !een reclaimed !y all those "ho are contesting a heterosexist social order. $n the $ndian context it "ould include all those "ho do not identify "ith the heterosexual norm including #othis, hi'ras, les!ians, !isexuals, transsexuals and gay men. "ex: an anatomical construct D i.e. one>s sex is determined !y one>s anatomy. (his is pro!lematic "hen the standard !ipolar male?female division is called into )uestion or "hen sex and gender do not coincide, as in the case of transgender people or hi'ras. "exual orientation: a term "hich is used to indicate the gender or sex to"ards "hich one is emotionally?sexually?romantically attracted to. $t often denote same sex attraction. "exuality minorities: an um!rella term for people discriminated against due to their sexual identity?orientation or gender identity, including all non%heterosexuals. "tone%all: a term used to refer to the 9EFE riots at the ;tone"all $nn in *e" +or# &ity. (his incident is commonly recogni,ed as a turning point in the )ueer rights movement as one of the first signs of resistance to ;tate oppression. ransgender: a person "ho assumes the gender identity of the opposite sex. ranssexual: someone "ho is more comforta!le "ith the gender identity of the opposite sex, and chooses to go in for a sex reassignment surgery or hormonal treatment.

Chapter I: Introduction

Introd# tion
(he last decade of the 2:th century in $ndia has seen the emergence of another form of political assertion centring on the hitherto private realm of sexuality. 4e are increasingly "itness to people asserting their right to !e different as sexual !eings, either in terms of sexual orientation or gender identity. (he traditional definitions of activist politics is !eing forced to engage "ith ne" political concerns articulated !y people "ho claim gay, les!ian, hi'ra, transgender, #othi and numerous other identities. 4hat is common to these identities apart from their roots in sexuality is the fact that they )uestion the heteronormative ideal that the only "ay in "hich t"o human !eings can relate romantically, sexually and emotionally is in a heterosexual context. (hese identities operate outside the heterosexual matrix. (o encompass the complexity, variety and diversity of identities, $ have used the "ord =)ueer>. i =Cueer> has come to signify practices "hich )uestion the heterosexual norm, i.e. that the only valid "ay of sexually relating to one another is "ithin the frame"or# of marriage and procreation. $t includes the gay man cruising in a pu!lic par#, the transgender person changing her name from ;an'ay to ;an'ana and living in society "ith her ne" identity and the t"o !rave "omen "ho decide that they are going to live "ith each other regardless of societal disapproval. 4hile =)ueer> includes stories of resilience and !ravery it also signifies violence and hatred, "hich have severely !rutali,ed and in some cases !ro#en the resistance of the =)ueer>. (here is thus the college student "ho attempts suicide !ecause he feels he is alone in his shameful perverted homosexual desire and hence feels "orthless in the eyes of Bod, his family and "ider society, the les!ians "ho consume poison !ecause society "ill not allo" them to live together and the hi'ra "ho is su!'ect to !rutal and repeated rape !y the police. (he "ord )ueer also signifies a political understanding of the structural nature of oppression and a "illingness to ta#e on !oard the variety of social struggles. (he term arose in the context of a frustration "ith les!ian and gay struggles that "ere increasingly moving to a li!eral agenda. $n this context )ueer came to mean opposition to all forms of discrimination and =!eing )ueer came to mean everyday fighting oppression homopho!ia, racism, misogyny, the !igotry of religious hypocrites and our o"n self hatred>.ii &ho are the $ueer' $n $ndia though the "ord )ueer is not commonly used, the realities of the )ueer experience, i.e. lives and "ays of living "hich contest the em!edded nature of heterosexism in la", culture and society, have traditionally existed and continue to exist in the contemporary context.iii $ndia encompasses a diversity of lives "hich can !e called )ueer. 4ithout !eing exhaustive, a !rief listing "ould include G (he hi#rasG (he hi'ras as a community represent an existing $ndian tradition "hich clearly contests heteronormativity. Hi'ras include men "ho go in for hormonal treatment, those "ho undergo sex%change operations and those "ho are !orn hermaphrodite. (he hi'ra community has its o"n cultures and "ays of living, including its o"n festivals and gods and goddesses. Hi'ras divide themselves into gharanas or houses and the strength of the hi'ra community lies in its

Chapter I: Introduction close%#nit relationships.iv 8em!ers of the hi'ra community have even contested elections, "ith ;ha!nam 8ausi and Asha ani !ecoming a mayor and an 82A respectively. (he hi'ra community is one of the most visi!le of the )ueer cultures in $ndia. (he "othisG ecent "or# !y organi,ations "or#ing "ith H$7?A$D; issues has !rought to the fore another identity called the #othi. (he #othi is a femini,ed male identity, "hich is adopted !y some people in the $ndian su!continent and is mar#ed !y gender non%conformity. A #othi, though !iologically male, "ould adopt feminine modes of dressing, speech and !ehaviour and "ould loo# for a male partner "ho adopts masculine modes of !ehaviour, speech and dress. (he politics of resistance lies in the inherent challenge to the connection !et"een anatomical maleness and gender !ehaviour, i.e. one expects someone "ho loo#s male to act male, !ut the #othi refuses to !ehave in conformity "ith heterosexist norms. (he =modern> communities that have emerged "hich contest the heteronormative frame"or# are the les!ian, gay and !isexual communities. (he emergence is closely tied to the increasing spread of a glo!al culture as "ell as the impact the spread of capitalism is having on the traditional family structure. (he structural foundations of this ne" form of community lie in same%sex interactions existing in $ndian societies. (hese have traditionally ta#en the forms of relationships !et"een friends, neigh!ours, cousins, etc. Due to the emergence of pu!lic spaces such as par#s, schools, colleges, military !arrac#s, "or#spaces and other social spaces "here same%sex interactions are intensified, ne" social possi!ilities arise. (his intensification of same% sex relationships is accompanied !y a loosening of the hold of traditional structures such as the family and allo"s for the emergence of les!ian, gay and !isexual groups, helplines, ne"sletters and other forms of community mo!ili,ation !ased on gay, les!ian and !isexual identities.v (he norms of $ndian families, such as compulsory heterosexuality and marriage to a spouse of the opposite sex, are !eing challenged and re'ected !y more and more people "ho opt to identify themselves as gay or les!ian. esistance to heterosexism ta#es place through a proliferation of identities, "hich are too many to !e enumerated. 0urther resistance is !oth individual and collective. (here are stories of individual persons asserting their right to a different life as "ell as entire communities and communities in formation slo"ly asserting their right to an alternative life. (he most pu!licised example is the marriage of Urmila ;hrivastava and 2eela *amdeo, t"o "omen from a rural !ac#ground "ho "ere serving in the 8adhya <radesh consta!ulary. (hey got married in front of H: "itnesses in a temple. (he media pic#ed up on the marriage and the conse)uent press pu!licity ensured that the "omen "ere pilloried as =les!ian> and action "as ta#en to dismiss them from service. (his of course is not the first such instance of resistance as there have !een at least ten documented cases of "omen "ho not 'ust live together !ut "ant societal recognition for their relationship and hence go in for a marriage "ith each other. 4hat is also interesting to note is that these "omen have invaria!ly !een from

Chapter I: Introduction a small%to"n !ac#ground and have had no exposure to 4estern culture or the )ueer rights discourse. (hus, even "ithout the strength of a community to !ac# them, these "omen have individually contested the heteronormative social order. Ho"ever it is important to note that the price doing so is high, as seen !y the enforced separation of 2eela and Urmila as "ell as the continuing series of suicides of "omen "ho try to lead their lives together !ut are prevented !y the po"erful societal ta!oo against same sex relationships.vi (he $ndian context is thus sufficiently complex in the "ay heterosexism is contested, encompassing !oth individual and collective "ays of resisting heterosexism. A far more detailed ethnographic attempt needs to !e made to understand the myriad "ays in "hich people in their day%to%day lives contest the enforced heterosexism of the dominant culture. (ssues )acing the $ueer Community 4hile outlining the diversity of lives in "hat has !een descri!ed as =)ueer $ndia> it is not immediately o!vious "hy one needs to consider the rights of the )ueer community specifically. ;ince the fundamental rights specified in the &onstitution are guaranteed to all citi,ens, the )uestion "hich arises isG "hy mention the )ueer community in particular5 (his is an important )uestion to ans"er as there are specificities to the )ueer context "hich ensure that the &onstitutional safeguards remain merely on paper. $t is only "ith an understanding of the )ueer context that one can try to use the frame"or# of the la" to the advantage of )ueer people. ;ome of the issues "hich are specific to the )ueer community "hich need to !e understood areG La $ of So ial A e%tan e Due to the pressure of social movements such as the feminist movement and the dalit movement, in today>s context these struggles are !y and large seen as legitimate struggles, "hereas in the realm of )ueer activism there are still very fe" people identifying as )ueer and ta#ing for"ard the issues affecting )ueer people. A large part of the reason for the silence has to do "ith the social attitude to sexuality in general and "hat is perceived as =perverse> sexuality in particular. ;ocial attitudes of =intolerance> to )ueer sexualities !ecome em!edded in institutions such as the family, media, la" and "or#spaces, conditioning the "ay in "hich society understands and spea#s a!out )ueer people. (his rhetorical space "ithin "hich one can spea# of homosexuality is necessarily moulded !y perspectives "hich are !oth pathological and criminological. (his construction of homosexuality directly affects the issue of social acceptance. A fe" examples are given !elo"G oondas were harassing Manorama $a hi#ra% opposite &angam 'heatre in Ma#estic while the public gathered around and watched in amused tolerance. Manorama angrily turned on the public: (If your brother is li"e me will you "eep staring)* +s she observed to us! (,ven if it-s dogs! people show pity! but when they see us they start abusing .us/ and throwing stones. 0hy don-t they see us as human beings)*vii (I approached a psychiatrist! assuming he would help me. 12elp- he did. 1It-s all in the mind!- he said. My bouts of depression $which I never realised arose from bottling up my gay orientation% he glibly informed

Chapter I: Introduction .me/ was a disease called schizophrenia. 13our gayness is the cause of delusions and hallucinations.- 2e prescribed 14rap- and 1&erenace-! which are powerful neuroleptic medications. 'he nightmare began in earnest! lasting fifteen years! ravaging body and soul5 I too" an overdose of 4rap hoping to die. I did not. I was rescued. +s a reward I was given shoc" therapy which played havoc with my memory for over two years5 My moods were always blea"! my senses dull! and my thin"ing blurred.* 2emantviii (0e can-t live apart from each other any more6 our homose7ual love will not be accepted by the society. 8ot only that others have come to "now about our homose7ual relationship. ,ven if we get married we have to live separately from each other.* 'he suicide note of two lovers! eetala7mi and &umathi.ix ('he neighbours started teasing me. 'hey would call out to me and say 10hy don-t you go out and wor" li"e a man)- or 10hy are you staying at home li"e a girl)- I li"ed being a girl. I felt shy about going out and wor"ing. 9elatives would also abuse me on that. ,veryday I would go out of the house to bring water. +nd as I would wal" with bac" with the water I would always be teased. I felt very ashamed. I even felt suicidal. 2ow could I live li"e that) :ut my parents never complained. 'hey were helpless. 'hen one day my parents as"ed me to leave the village to avoid the shame. 1 o wor" somewhere else-! they said. I don-t "now how to read or write! I never went to school! how would I ever get a #ob) 'hat night I cried a lot. I realised that for my parents respect in society was much more important than their own son. &hrini! a ;<=year=old "othix 4hat is common to all these narratives is the extreme hostility of society to any expression of either same%sex desire or gender non%conformity. ;ocietal institutions in fact function under the imperative of having to mould the non% conformists into a heterosexist frame"or#. (he narrative of Hemant in "hich the psychiatrist tries to =cure> him of his homosexuality !rings to the fore ho" the discourse of medicine functions to produce "hat 8ichel 0oucault "ould have called =normali,ed !odies>. (he suicide note !y the t"o les!ian lovers indicates the tragic reali,ation that =our homosexual love "ill not !e accepted !y society.> ;hrini>s narrative very po"erfully indicates the nature of societal expectations of "hat masculinity should !e a!out. (o non%conformists such as ;hrini there is no refuge, "ith even the family privileging their standing in society over their child>s happiness. (hus it is either through "ritten codes such as the medical discourse or the po"erful un"ritten codes inscri!ed in the daily functioning of institutions such as the family that social intolerance is produced. ;ocial intolerance has the impact of driving some such as Hemant to attempt to change themselves and others such as ;umathi and Beetalaxmi to commit suicide. $n yet many others social intolerance has severe psychological conse)uences, "ith many perceiving themselves as =perverted, dirty and unclean> (he unremitting social intolerance has its impact on

Chapter I: Introduction perceptions of )ueer people !y others as "ell as self perceptions of )ueer people. (his "ould need to !e ta#en into account in any intervention on !ehalf of )ueer people. Q#eer Invisibilit" and &"%er'(isibilit" ;ocial intolerance of )ueer sexualities and cultures produces at least three #inds of effects. (he first effect is "hen )ueer cultures and people are smothered into conformity, driven to self%destruction or are completely marginali,ed. (he second effect is "hen )ueer cultures and people are produced as hyper%visi!le su!'ects of the criminal la", figures "orthy of derision in the media or pathological su!'ects in medicine. (he third effect is "hen )ueer people, in response to the first t"o effects, !uild an alternative culture of resistance. Firstly! the effect of =social intolerance> is to invisi!ili,e the contri!utions of )ueer culture and )ueer people to $ndian culture, history, and society. (he po"er of the codes governing the social intolerance of )ueer sexualities can !e seen in the fact that the invisi!ility spans the array of social discourses in $ndia. ight from media coverage to academic disciplines such as sociology, la" and politics, )ueer lives are a!sent as non%pathological, non%criminal su!'ects. &econdly, the effect of social intolerance is the reconfiguration of the =a!sence> "hich !ecomes a presence "hen it comes to !eing o!'ects of the criminal la", figures of derision in the media or victims of a pathological condition in the medical discourse. (hus right from ;ec. 3II of the $ndian <enal &ode, "hich defines =unnatural> sexual offencesxi, to the concept of ego dystonic homosexualityxii to the u!i)uitous presence of the hi'ra in Hindi cinema, the =invisi!ility> of the normal )ueer citi,en gets transfigured into the hyper% visi!ility of the )ueer =deviant>. 'hirdly! the gap !et"een the invisi!ility of the real lives of )ueer people and the hyper visi!ility of the mythical )ueer person means that responses to )ueer people are often conditioned !y the discursive construct of =)ueer> as opposed to !eing !ased on having a gay son or a close friend "ho is a hi'ra. $t is thus in these t"in contexts of hyper%visi!ility and invisi!ility that the third response to social intolerance ta#es place through creatively !uilding a culture of resistance "hich tries to define as opposed to !eing defined. ;ince one of the pro!lems of )ueer people is that they are al"ays defined !y discourses outside their control as pathological and deviant, "hat )ueer activists have proposed as one "ay of com!ating !oth invisi!ility and hyper%visi!ility is the method of =coming out>, "herein )ueer people ma#e their sexuality #no"n. (hus there is the development of activism centring on the politics of =visi!ili,ation>. $n the $ndian context, during the protests against @0ireA, "e had a poster saying @$ndian and 2es!ianA. ;imilarly, in a programme in Bangalore, the )ueer community has =outed> itself !y organi,ing a seminar entitled =;exuality 8inorities ;pea# 6ut>. Apart from pu!lic actions as descri!ed a!ove, the politics of visi!ili,ation also ta#es the form of revealing one>s sexuality at the "or#space, home, to friends and family and there!y slo"ly )uestioning the invisi!ility surrounding )ueer lives. (hus any advocacy effort including the use of la" "ill have to "or# at not only putting a face to the issues one is advocating !ut also pointing to an alternative culture of resistance !ased on a criti)ue of institutions such as compulsory heterosexuality, family and the state.

Chapter I: Introduction

A )Silen ed* Co++#nit" (he extreme social intolerance also has enormous psychological effects. $t manifests itself in social attitudes "ithin the )ueer community itself. (he rigorous and harsh policing of the !orders of =normal> sexuality as distinct from the =a!normal> means that fear !ecomes a part of the daily life of )ueer people. (here is the fear of !eing caught !y the police, the fear of one>s family or colleagues at "or# discovering your sexuality and the fear that sooner or later one>s secret "ill !e discovered. (he fear stems from the fact that discovery could mean a great deal of shame for the person and a possi!le ruinous impact on his or her future life. (he emotion of fear goes hand in hand "ith the feeling of shame at possessing "hat society insists are a!normal sexual desires. (he effects of this fear and shame are poignantly captured !y a !isexual man thusG @I began to disli"e myself for being a homose7ual and felt ashamed that I had to hide my se7uality all the time. Many >uestions haunted me. 10hy did I become a homose7ual) +m I not man enough) 0hat if somebody discovers I am gay) 0ould I be able to live the rest of my life with shame)- I could own my se7uality under the cover of dar"ness! in a world peopled by anonymous individuals6 everywhere else I had to suppress it. ?eading a double life was tearing me apart.Axiii (he psychological effects of the emotions of fear and shame mean that many )ueer people are extremely fearful of ta#ing any steps to"ards the formation of a community. (he group of individuals "ith same%sex desires is thus in many cases often under%confident, silent and often completely closeted a!out its identity. (his even manifests itself as a social phenomenon as the community is a =silenced community>, deeply closeted and fearful of pu!licity. 4hile this is changing "ith emerging activism, any form of legal activism, such as going to court to litigate rights as a homosexual, is still a distant dream for many )ueer people. Persistent (iolation of t,e Ri-,ts of t,e Q#eer Co++#nit" (he )ueer community due to its marginal and highly stigmati,ed existence has also !een su!'ect to a silent !ut persistent pattern of violation of its !asic rights. 4e lac# the language to name such violation as a part of the violence that compulsory heterosexuality imposes on )ueer people. (he violence has !een normali,ed as a part of the daily existence of )ueer people "ith =rights language> not !eing seen as anything to do "ith =perverts> of this #ind. (he violation has !een conceptuali,ed !y the <U&2%J report xiv as !eing inflicted !y !oth state through the la"s and police and civil society through the family, media, popular culture, "or#spaces and household spaces. 4hat emerged strongly through the report is the understated and little%understood nature of violations to "hich )ueer people are su!'ect. (his encompasses the routine extortion, harassment, a!use, illegal detention and rape perpetrated !y the police under the cover of legitimacy provided !y the criminal la" frame"or#. ;uch violence !y the state is often under"ritten !y the social codes of intolerance of )ueer sexualities. (his in turn leads to violence !y institutions of civil society, "hich means that, ironically, the protection of the police is re)uired. (hus, "hen hi'ras are su!'ect to rape !y goondas, the only source of protection remains the main violators, the police, leaving hi'ras "ith no options. 6ne of the specificities of violation of the rights of )ueer people is its strong !asis in civil society. A recent example of the same is the series of les!ian suicides in

Chapter I: Introduction Jerala. 4hen t"o "omen decide to ta#e their o"n lives purely on the grounds that society "ill not tolerate their love, one needs to expand the traditional focus of civil rights activism !eyond the state as violator and seriously examine ho" institutions such as the family and the community deny a !asic autonomy to les!ian "omen leading to the ta#ing of one>s life. As noted !efore, the nature of violation is not really understood !y mainstream society. Kven the victimised communities sometimes have little conception of ho" violation is unaccepta!le "ithin a human rights frame"or#. (hey internalise the daily violence and stop seeing it as anything out of the ordinary. (hey may see it as a part of the natural order, as evidenced !y statements such as @the police "ere very niceL3M they !eat me only onceA.xv (o give an example, as a part of the <U&2 0act%finding report on violence against sexuality minoritiesxvi, $ spo#e to a hi'ra "ho said that she had had sex "ith a policeman as he had forced her to do so repeatedly. Ho"ever there "as no conception that "hat "as happening "as a serious human rights violation. $nstead it "as seen as part of the "ay life has to !e lived in $ndia as a hi'ra. (he violations are !eing grasped as a human rights issue "ith the !eginning of )ueer rights activism in the country. (he documentation of violation is possi!ly the first step for"ard in the redressal of the violation. $ueer "truggles and their Contexts: he "cope and )ocus o* this +aper 4hat the introduction has sought to depict is the contemporary existence of )ueer people as "ell as the specific #inds of issues faced !y them. $n &hapter $$, it is contended that )ueer rights activism in $ndia dra"s from the strengths of and yet is different from the glo!al )ueer rights movement. 6ne has to understand the )ueer rights movement in the context of its glo!al roots. (he history of the )ueer rights movement glo!ally can !e traced to its !eginnings in modern ur!an centres "ith the formation of homosexual net"or#s "hich got translated into the modern les!ian and gay identities. (he human rights history of the )ueer movement really !egins "ith the genocide of the first modern gay su!culture in the "orld in 4eimar Bermany !y the *a,is and emerges once again strongly "ith the ;tone"all $nn iots in *e" +or# and goes on to the esta!lishment of gay and les!ian rights as an emerging part of the glo!al human rights discourse. (he emergence of the glo!al discourse is of course not entirely unpro!lematic as it is contested ferociously !y (hird 4orld ;tates "ho continue to perceive homosexuality as a =4estern disease> and relegate )ueer citi,ens to the status of non%people. $n this contested field the remar#a!le achievements in ;outh Africa, "here, for the first time, sexual orientation has !een made a part of the &onstitutional provision against discrimination, need to !e understood. $n &hapter $$$, after tracing the glo!al response in the context of the *orth%;outh divide, the paper "ill trace out the historical context in $ndia, loo#ing at the traditions in $ndia and the space that exists for diverse sexualities. (hrough loo#ing at legal texts such as the 8anusmrithi as "ell as practices of people in ancient and medieval $ndia one can attempt to loo# at the context in "hich the colonial intervention happened. After !riefly tracing out this history, the nature of the colonial intervention "ould need to !e understood. (he homosexual as a criminal su!'ect and medical su!'ect as "ell as a criminal tri!e -eunuchs. "as a product of the colonial intervention and might really !e the #ey to understanding the nature of violence "hich )ueer people are su!'ect to even today.

Chapter I: Introduction $n &hapter $7, the paper "ill focus more closely on the nature of pro!lems faced !y )ueer people and the legal interventions that are !eing made !y the emerging )ueer activism in the contemporary era. (here has developed in the course of the last decade an emerging !ody of activism "hich engages )uite closely "ith the violence perpetrated !y the la" as "ell as the silences in the la" "hen it comes to rights of )ueer people. (his section "ill map out the engagement of )ueer people "ith the la" in the follo"ing contextsG 9. &ourtroom%!ased struggles 2. &ampaigns for the reform of homopho!ic la"s 3. $nterventions at the level of the police station H. $nterventions against the medicali,ation of homosexuality N. Building up a human rights history of violation !y the state and civil society F. 2in#ing up to glo!al discourse on )ueer rights &hapter 7, after mapping out the struggles around the la", "ill loo# into the )uestion of "hether the la" has al"ays !een integral to the oppression of )ueer people and ho" it can !e deployed to )uestion the practices of po"er. (he lessons of other social movements particularly the feminist movement and their use of the la" "ill !e explored in this context. (he chapter "ill then loo# at the challenges posed !y the contemporary context and ho" the )ueer rights movement responds to them. 0inally, the chapter "ill conclude !y loo#ing at possi!le responses to the challenge of articulating )ueer rights in the contemporary context.

Chapter II: 2uman 9ights of @ueer People in a lobal Conte7t

&#+an Ri-,ts of Q#eer Peo%le In A !lobal Conte.t

(In ermany! they first came for the Communists! and I didnAt spea" up because I wasnAt a Communist. 'hen they came for the Bews! and I didnAt spea" up because I wasnAt a Bew. 'hen they came for the trade unionists! and I didnAt spea" up because I wasnAt a trade unionist. 'hen they came for the homose7uals! and I didnAt spea" up because I wasnAt a homose7ual. 'hen they came for the Catholics! and I didnAt spea" up because I was a Protestant. 'hen they came for me = but by that time there was no one left to spea" up.* % 8artin *iemOller -(his verse appears on a "all at the +ad 7ashem Holocaust shrine, "ithout a date of its "riting.. 4hile it is clear that )ueer people in $ndia are su!'ect to a specific form of oppression and there has emerged a gro"ing activist articulation opposing the violence, it is not possi!le to understand !oth violation and resistance "ithout reference to their glo!al roots. 7iolation itself is not a local phenomenon, "ith )ueer people in countries as diverse as the U;A and ;ri 2an#a !eing su!'ect to violence. $n fact, it is difficult to thin# of many cultures in "hich )ueer people are not su!'ect to some form of violation. ;imilarly the very impulse to )uestion the violation in the net"or#ed society dra"s upon many glo!al strands. $n this section it is proposed to loo# at one such strand, namely the human rights discourse, and ho" )ueer people have used it. $ueer ,ights in (nternational Human ,ights La% Human rights movements as an international !asis for mo!ilisation and resistance to oppression emerged after the ;econd 4orld 4ar "ith the $nternational Bill of ights.xvii (hough the second half of the t"entieth century has !een characterised as @the age of human rightsA "ith the point !eing made that @no preceding century in human history has !een privileged to "itness such a profusion of human rights enunciations on a glo!al scaleAxviii, there have also !een extraordinary silences. 6ne such silence has !een the entire discourse on the rights of )ueer people "hich finds no express mention in either the $nternational Bill of ights or the regional human rights conventions.xix (he silence is all the more extraordinary "hen one ta#es into account the fact that it "as the supposed horror of the holocaust "hich triggered the development of international human rights la". +et "hat is ignored in this telling of history is that thousands of homosexuals "ere persecuted !y the *a,is and thousands of gay men died in the concentration camps.xx (hose "ho suffered and died are not considered "orthy victims, "hich only goes to sho" the profoundly homopho!ic nature of modern society. 0or example, the poem !y concentration camp detainee 8artin *iemOller cited a!ove has !een )uoted innumera!le times in the recent past, !ut almost al"ays "ith the reference to homosexuals edited out. <ersecution on the !asis of sexual orientation did not produce acceptance of the rights of gays and les!ians. $n fact in true 6r"ellian fashion the ;talinist state persecuted homosexuals, denouncing homosexuality as a

Chapter II: 2uman 9ights of @ueer People in a lobal Conte7t =fascist perversion>, completely ignoring *a,i perpetrated genocide of )ueer people.xxi $t "as only the greater visi!ility of )ueer people "orld"ide and the mo!ilisation "hich too# place on the !asis of a gay?les!ian identity "hich pushed sexual orientation onto the human rights agenda. $t "as only in 9EE9 that Amnesty $nternational reinterpreted its mandate to consider as prisoners of conscience @persons arrested for their homosexual identity or for engaging in consensual homosexual activity in privateA, despite considera!le internal opposition. (his sharply polarised "ay in "hich the glo!al silence "as !ro#en indicates three ma'or issues that proponents of the rights of )ueer people "ill have to faceG -a. Demonstrating the cross%cultural existence of )ueer people -!. Demonstrating the glo!al scale of oppression of the rights of )ueer people guaranteed under !oth national and international la" -c. ;ho"ing that glo!al oppression on the !asis of sexual orientation has resulted in a glo!al resistance to the forces of oppression "hich is !oth local and international in scope /a0 T,e Cross'C#lt#ral E.isten e of Q#eer Peo%le (his )uestion has to !e addressed to lay to rest once and for all the notion that )ueer rights are a 4estern cultural import "hich has no relevance to other societies. /ust as one cannot homogenise communities as male and construe male cultural practices as the practices of a culture, one needs to ta#e seriously the notion that definitions of community are very often not only patriarchal !ut also heterosexist. $n fact, as 7eena Das puts it, @there is a dou!le definition of culture as a system of shared meanings "hich !oth define collective life as "ell as #eep an individual "ithin strict social !ounds. (his manifests itself in definitions of community in the polarity LofM community rights versus the state as specifically maleA.xxii $f one starts from the stories of )ueer people in non%4estern societies and see "hat they thin# of the notion of their desires as 4estern and of the notion that homosexuality does not exist in @our cultureA one "ould arrive at a very different notion of our culture "hich pro!lemati,es !oth the notion of @ ourA and the notion of @culture.* 7arious studies seem to indicate that )ueer people exist in all cultures. $n a seminal anthropological study in 9EN9 +ale University professors, &lelan ;. 0ord and 0ran# A. Beach found that @in HE of the I9 societies for "hich information is availa!le homosexual activities of one sort or the other are considered normal and socially accepta!le for certain mem!ers of the community.A (hey go on to conclude that @the cross%cultural and cross%species comparisons presented com!ine to suggest that a !iological tendency for inversion of sexual !ehaviour in inherent in most if not all mammals including the human species.A xxiii 4illiam Ks#ridge, /r. has "ritten of the existence of same%sex or transgender unions in various societies, ranging from ancient Kgyptian to contemporary Asian societies.xxiv Bil!ert Herdt has also edited a !oo# in "hich he documents "hat he calls the @third sexA or @third genderA, the @people "ho did not fit the sex?gender categories male and female, "ho have !een #no"n !ut typically dismissed from reports of certain non%4estern societies, "hile in the Kuropean tradition they have !een marginali,ed, stigmati,ed and persecutedAxxv. (hrough cross cultural studies of the =!erdache> in *ative American culture, the hi'ras in $ndia, and transsexual

Chapter II: 2uman 9ights of @ueer People in a lobal Conte7t people in <olynesia, the Bal#ans, and *e" Buinea, the sexual diversity of different societies is sho"n. $n the light of this compelling evidence of the existence of )ueer people across cultures and through time, /ames 4ilets notes that if there is a specifically 4estern contri!ution, it is not homosexuality !ut homopho!ia. As he argues, @much of the contemporary hostility to"ards )ueer people in non "estern societies is a direct result of 4estern colonialism, /udeo%&hristian $slamic homopho!ia and anti%sexuality in general, none of "hich is rooted in indigenous tradition.Axxvi (he understanding that homopho!ia is largely a colonial legacy emerges from the fact that anti sodomy legislations throughout the third "orld "ere !orn in colonial times.xxvii /b0 T,e !lobal S ale of 1%%ression $nternational human rights treaties are explicit in the applica!ility of their provisions to all people. Ho"ever, "hat 4ilets> glo!al survey reveals is that )ueer people in the practise of states and civil society are often excluded from the protection afforded to all people. $n the survey he loo#s at the right to life, freedom from torture, freedom from ar!itrary arrest, right to e)ual protection and non discrimination, right to privacy, freedom of expression, freedom of association, right to marriage, right to asylum and right to "or#. (hough these freedoms are guaranteed !y international la" and very often !y national la"s to all people, he sho"s that "hen it comes to )ueer people these !asic rights are violated "ith impunity. (o give some flavour of "hat 4ilets documents at length, if one ta#es the most !asic right, the right to life, xxviii a cross%cultural survey revealsG $n $ran, Art 99: of the $slamic <enal &ode provides that @the punishment for sodomy is #illingA. Art 929 provides that @punishment for tafhiz -ru!!ing of the thighs or the !uttoc#s. and the li#e committed !y t"o men "ithout entry shall !e a hundred lashes for each of them.A Art 92E provides that the @punishment for les!ianism is a hundred lashes for each party and Art 939 provides that @if an act of les!ianism is repeated three times and punishment is enforced each time death sentence "ill !e issuedP Lupon theM fourth timeA. $n ;audi Ara!ia, all homosexual acts are su!'ect to the death penalty. $n many parts of 2atin America, though the la" does not prescri!e the death penalty, governments have !een implicated in the extra 'udicial #illings or have ta#en a passive approach to"ards stopping the #illing or apprehending the perpetrators. $n &olom!ia, right%"ing death s)uads carry out #illing of social undesira!les "hich include vagrants, petty criminals, street children and homosexuals. (he &olom!ian human rights group Brupo di Am!ieste has claimed that more than 3:: gay men "ere #illed !et"een 9EQF and 9EE:. $n recent years right "ing death s)uads have openly stated that homosexuals, along "ith left%"ing politicians, drug users and street children, are a scourge and need to !e "iped out. $n <eru, murders of )ueer people, particularly transvestites, have !een carried out on a systematic !asis !y the left%"ing revolutionary organisation 8 (A as part of their =cleaning of undesira!les> since 9EQ:. $n Bra,il unidentified groups have #illed more than 93:: )ueer people since 9EQ:. According to one study in 9EEI, on an average one anti%gay, les!ian or transvestite #illing occurred every three days in Bra,il. xxix Asylum "as recently granted to a gay Bra,ilian man !y the U;, "ith the 'udge citing evidence that anti%gay groups

Chapter II: 2uman 9ights of @ueer People in a lobal Conte7t appear to !e prevalent in Bra,ilian society and continue to commit violence against homosexuals "ith little official investigation and fe" criminal charges !eing !rought against the perpetrators. Argentina and <eru too have their documented cases of murders of gay men. (his is not to say that the right to life of )ueer people is not violated in advanced industrial countries "ith "ell%esta!lished )ueer rights movements. (he 6cto!er 92, 9EEQ murder of 29%year%old University of 4yoming student 8atthe" 4ayne ;hepard in 2aramie, 4yoming, U;A !y t"o men "ho pic#ed him up in a !ar, found out he "as gay, pretended to !e gay themselves, too# him to a secluded place, tied him to a fence and then !rutally pistol%"hipped him to death is testimony to ho" pervasive the social hatred of )ueer people is.xxx (his murder resulted in a huge outpouring of rage and led to demonstrations and vigils in many parts of the United ;tates. -;ee Annexure $$ for 8atthe">s father>s statement to the court.. (he $nternet "as also used effectively to mo!ilise the )ueer community in other parts of the "orld. Ho"ever, the &atholic &hurch came out in favour of the #illers, consolidating its anti%)ueer stance and perpetuating the notion that homosexuality is someho" against &hristianity. xxxi Baptist preacher ev. 0red <helps and his congregation even pic#eted ;hepard>s funeral, "aving signs "hich read @*o 0ags in HeavenA. xxxii Bay%!ashing as a phenomenon is fairly "idespread in the U;A and 8atthe" ;hepard "as !y no means the first gay person to !e murdered.xxxiii (he state stands implicated in this form of violation of the right to life of )ueer people !ecause the very existence of la"s that ma#e )ueer people criminals or su!'ects them to discrimination encourages violence against them. As *icholas (oonen put it in his path%!rea#ing complaint to the U* Human ights &ommittee, the anti%sodomy la"s @chilled the pu!lic expression of his sexualityA and created @the conditions for discrimination through constant stigmatisation, vilification, threats of physical violence and the violation of !asic democratic rights.A xxxiv $n effect, the state acts as an ideological instrument "hich legitimises violence against )ueer people. (hus the right to life "hich is guaranteed under international la" is violated directly through state la", as in the case of $ran, through the complicity of the state in the aiding and encouraging of right "ing groups, as is the case in &olom!ia, and through state la"s "hich create a climate of hatred "hich manifests itself in the violation of the right to life, as is the case in the U;A. (he )uestion "hich comes to the fore after this description is a!out ho" does oen understand the glo!al nature of the oppression to "hich )ueer people are su!'ect to5 4hat accounts for the glo!al nature of the phenomeneon5 6ne "ay of conceptuali,ing the glo!al nature of )ueer oppression "ould !e through the understanding of ho" the =po"er?#no"ledge complex>, as descri!ed !y 0oucault, !ecame esta!lished as a specific technology of control and regulation of sexuality. $n 0oucault>s understanding, po"er is seen not as a repressive force !ut a productive force producing the legal and medical truths a!out sexuality. (hus our very notions of homosexuality as perverse emerges through the constitution of the figure of the homosexual as perverse and deviant "ithin the medical and legal discourses. (he ela!oration of the category of the homosexual in !oth the medical as "ell as the legal discourse allo"s for a more systematic and rigorous policing of the =unnatural> through defining the unnatural in either pathological or criminal terms.

Chapter II: 2uman 9ights of @ueer People in a lobal Conte7t As 0oucault puts it, @(he persecution of peripheral sexualities entailed an incorporation of perversions and a ne" specification of individuals. As defined !y the ancient civil and canonical codes, sodomy "as a category of for!idden acts3 their perpetrator "as nothing more than the 'uridical su!'ect of them. (he nineteenth century homosexual !ecame a personage, a past, a case history, and a childhood, in addition to !eing a type of life, a life form, and a morphology, "ith an indiscreet anatomy and possi!ly a mysterious physiologyPthe sodomite "as a temporary a!erration, !ut the homosexual "as a species.>xxxv (his more systematic and rigorous ela!oration of the figure of the homosexual deviant gradually supplanted existing tradition of regulating sexuality throughout the glo!al ;outh. (he implantation of modern la" as "ell as modern medicine in colonial societies meant that the )ueer person "as no" defined in southern societies !y !oth la" as "ell as medicine. (he reasons for the successful introduction of these discourses into colonial societies has something to do "ith the needs of the colonial state itself. ;ince !oth la" and medicine "ere deployed !y the colonial state as essential technologies of governance, the production of homosexuals as pathological and criminal su!'ects "ere clearly a part of introducing =colonial order.> (his theme "ill !e explored in greater detail in &hapter 3, "hich deals "ith the colonial $ndian context and the regulation of )ueer lives. Ho"ever, it must !e ac#no"ledged that the production and export of the category of the =deviant> and =perverted> homosexual is not necessarily the introduction of oppression "here none existed !efore. $n many cases societies had their o"n series of prohi!itions dealing "ith homosexuality to "hich religion "as often complicit. (he colonial order sometimes !uilt upon the existing frame"or#s of regulating homosexuality to produce a more far%reaching and invasive mode of regulating )ueer lives. (hus, in the contemporary context, "here !oth medicine and la" are all pervasive, )ueer people throughout the glo!e are constructed as pathological and criminal su!'ects. / 0 T,e !lobal S ale of Resistan e Ho"ever, the discourses that produce the homosexual as a pathological species are not unidirectional. As 0oucault puts it, @discourses are not once and for all su!servient to po"er or raised up against it any more than silences are. 4e must ma#e allo"ance for the complex and unsta!le process "herein discourse can !e !oth an instrument and an effect of po"er, !ut also a hindrance, a stum!ling !loc#, a point of resistance and a starting point for an opposing strategy.Axxxvi (he point !eing made !y 0oucault is that the nature of oppression through the discourses of la" and medicine is not of a totali,ing nature. (here "ill al"ays exist spaces for !uilding up an alternative vision !y )uestioning these practices of po"er. As he puts it, @/ust as the net"or# of po"er relations endLsM !y forming a dense "e! that passes through apparatuses and institutions, "ithout !eing exactly locali,ed in them, so too the s"arm of points of resistance traverses social stratifications and individual unities. And it is dou!tless the strategic codification of these points of resistance that ma#es a revolution possi!le.Axxxvii esistances !y their very nature are multiple, ranging from individual acts of non% conformity to the emergence of collective assertion in the form of the )ueer rights movement. (he )ueer rights movement itself uses many strategies, from tal#ing a!out the !road goal of li!eration to the more specific use of rights language. (his

Chapter II: 2uman 9ights of @ueer People in a lobal Conte7t section "ill loo# at one such language of resistance to the exercise of this form of !io%po"er, namely the use of rights language. (he very articulation of the violence inflicted on )ueer people in terms of the violation of rights and the categorisation of the violence in terms of the violation of the rights guaranteed under the $nternational Bill of ights is a counter% discourse "hich is !eing patiently and systematically !uilt up.xxxviii (he reason "hy resistance can !e conceptualised as glo!al is not only !ecause resistance to po"er occurs in every part of the "orld "here there is po"er !ut also !ecause today the resistances are !eing increasingly net"or#ed. xxxix Human rights discourse means that the violation of the rights of )ueer people in any part of the "orld is a legitimate concern of every human !eing. (hus, normatively, the fact that gay people in the United ;tates are su!'ect to gay%!ashing is a concern of human rights activists "orld%"ide. (his concern is slo"ly !eing forged through the various gay?les!ian organi,ationsxl and human rights groupsxli, "hich are !rea#ing the silence on the rights of )ueer people. (he progressive internationalisation of the rights of )ueer people has !een achieved through the follo"ing modesG $C% Dse of @uasi=Budicial :odies to ?itigate for the 9ights of @ueer People (he use of the )uasi%'udicial procedure under the Human ights &ommittee xlii in the case of 'oonen v. +ustraliaxliii "as really the first time that )ueer people>s rights "ere internationalised. $n this case, *icholas (oonen, a )ueer rights activist resident in the Australian state of (asmania, challenged the anti sodomy la" as violative of Art. 2-9., Art. 9I and Art. 2F of the $&&< .xliv (he Human ights &ommittee held that the anti%sodomy statute did violate (oonen>s right to privacy guaranteed under Art. 9I. (he &ommittee also held that the reference to the "ord =sex> in Art. 2-9. and Art. 2F is to !e ta#en as including sexual orientation. $t held that Art. 2-9. "as also violated !ut refused to rule on "hether Art. 2F -the non%discrimination clause. "as violated. According to Helfer, the decision @represents an advance over the rulings of the Kuropean &ourt of Human ightsxlv !oth !ecause it extends the protection of the international human rights norms from the regional to the glo!al plane and !ecause it contains a decidedly rights%protective interpretation of the $&&< P By accepting that even enforced criminal sanctions against consensual homosexual conduct harm les!ians and gay men in their pu!lic and private lives, the &ommittee recognises that one of the most pernicious conse)uences of sodomy la"s is their threat to the dignity of individuals.Axlvi (he decision had the material effect of forcing (asmania to repeal its anti%sodomy la". At the discursive level, it opened up sexual orientation as a part of human rights language. (he rhetoric of rights !ecame a ne" tool through "hich one could articulate the complex feelings, emotions and desires associated "ith non% conformity "ith heterosexuality in a language "hich had to !e listened to. xlvii At the level of the la" it opened up the use of the right to privacy to )uestion the validity of anti%sodomy statutes, and also put for"ard the understanding that the "ord =sex> included sexual orientation in anti%discrimination clauses.xlviii $;% Dse of International ?aw for the Purpose of +dvocacy of the 9ights of @ueer People $n the international arena, "here human rights is a mar#eta!le commodity, there is a sad tradition of human rights !eing used in the service of the national interest of

Chapter II: 2uman 9ights of @ueer People in a lobal Conte7t po"erful states. As Boaventura de ;ousa ;antos notes, @if "e loo# at the history of human rights in the post%"ar period it is not difficult to conclude that human rights policies !y and large have !een at the service of the economic and geopolitical interests of the hegemonic capitalist states.Axlix Ho"ever there is the other tradition, "here concern for human rights flo"s from glo!al civil society. ;antos says, @(hroughout the "orld, millions of people and thousands of non% governmental organi,ations have !een struggling for human rights, often at great ris#, in defence of oppressed social classes and groups that in many cases have !een victimised !y authoritarian capitalist states.Al $t is this other tradition "hich can !e seen as the source of international pressure !eing applied upon nation%states to change their discriminatory practices regarding )ueer people. (his flo"s from the logic that all states are to some extent heterosexist in nature. All advances in the rights of )ueer people have !een "on due to !itter and difficult struggles !y )ueer people themselves. $f discrimination against )ueer people is ever made an issue internationally, it is !ecause of )ueer activism. *o state "ould "illingly taint itself "ith the la!el of championing the rights of )ueer people. 0or example, the 8exican government>s cancellation of the $2BA &onference in Buadala'ara, 8exico, occasioned "idespread protest !y Amnesty $nternational -A$., the $B2H & and even 2Q mem!ers of the United ;tates &ongress !ased on the argument that the right to freedom of association is guaranteed to all under international la".li (his culture of treating the rights of )ueer people as human rights is also !ecoming institutionali,ed through the most po"erful regional human rights su!% regime, that of the Kuropean Union. Cueer concerns have !een integrated "ithin this regime !oth through decisions of the Kuropean &ourt of Human ights and through other institutional mechanisms. $n fact, in 9EEH, the &ommittee on &ivil 2i!erties and $nternal Affairs of the Kuropean <arliament issued a eport on K)ual ights of Homosexuals and 2es!ians in the K& -also #no"n as the oth eport.. (he oth eport recommended adopting a resolution to recogni,e civil unions for same%sex couples and eliminate discrimination "ith respect to freedom of movement and other areas of civil life. $t "as approved !y the Kuropean <arliament in 0e!ruary of that year.lii (his institutionali,ation, in turn, acts as a form of pressure on mem!ers to change their discriminatory la"s and can also !e useful in ensuring that nations "anting to 'oin the Kuropean Union have a commitment to the rights of )ueer people. (he test case is omania, "hich is re)uired to repeal its anti%sodomy la"s !efore its application to 'oin the Kuropean Union can !e considered. $E% 8ational 2uman 9ights Initiatives and their Internationalisation $n a net"or#ed society, changes at the national level often have international implications and glo!al changes have their impact on national 'urisdictions. As 4ilets notes, @the formation of international la" is a dialectical processG it is affected !y the domestic la" of individual nations "hile the domestic la" of individual nations is simultaneously influenced !y the development of international norms, "hich reflect the consensus of the international community as to "hich human rights are fundamental and "orthy of universal protectionA.liii Among the momentous changes in recent years have !een the passing a Bay 8arriage la" in the *etherlands and an overturning of a U; ;upreme &ourt decision "hich has upheld the validity of a Beorgian anti%sodomy la". (he U;

Chapter II: 2uman 9ights of @ueer People in a lobal Conte7t ;upreme &ourt finally in , ?awrence vs 'e7asliv overturned the validity of a same sex sodomy la" on the grounds that it violated the due process rights of the petitioner. Ho"ever one of the most crucial changes in national 'urisdiction "hich has international implications is the adoption of the ne" &onstitution of ;outh Africa on Decem!er 9:, 9EEF. ;outh Africa is the first country in the "orld to expressly include sexual orientation as a prohi!ited ground of discrimination in its non%discrimination clause.lv (his development is seminal as ;outh Africa is the first country in the "orld to expressly include protection against !eing discriminated on grounds of sexual orientation. (he constitution also allo"s for affirmative action measures to achieve e)uality.lvi 4ith regard to affirmative action, 7oris /ohnson argues that @no language in the correctional action clause re)uires that remedial measures have as their sole aim economic e)uality. ;ocial e)uality is 'ust as important a goal. $ndeed gay and les!ian ;outh Africans have a vital interest in !oth economic and social e)uality. 4hile it is possi!le for gays and les!ians to conceal their sexual orientation and avoid discrimination in employment or education this denies them their social e)uality !ecause they are not free to express themselves fully. (hus in some instances the state should !e allo"ed to ta#e measures to ensure that gays and les!ians have the e)ual opportunity to participate in the same institutions as all other ;outh Africans. $n this "ay correctional action is extremely applica!le to issues regarding sexual orientation.Alvii (he position of the human rights of )ueer people is further strengthened due to the provision in the ;outh African constitution "hich provides that international la" must !e considered in the interpretation of the Bill of ights. (he constitution also provides that foreign case la" may also !e considered.lviii (his means that progressive decisions in all 'urisdictions !ecome instrumental in interpreting the &onstitution. 'oonen v. +ustralia,lix the decisions of the Kuropean &ourt of Human ightslx and decisions such as 9omer v. ,vanslxi and :aehr v. ?evinlxii in the U;A and M v. 2 in &anadalxiii all have implications for the lives of )ueer people in ;outh Africa. (he changes in ;outh Africa also have glo!al implications. (he entire de!ate on the universality of human rights versus cultural relativism is given a ne" understanding !y ;outh African developments. 0or the first time a developing country has ta#en the lead "ith respect to the rights of )ueer people. lxiv (his o!viously means that it !ecomes that much more difficult to dismiss the rights of )ueer people as a =4estern> concern. (he ;outh African constitution as a normative instrument is the !est challenge to the virulent homopho!ia of many African and other (hird 4orld leaders.lxv (he ;outh African constitution also sho"s that its existence is the product of the struggles of !lac#, socialist and )ueer people ali#e and that "hen the time came to ma#e a ne" !eginning, an attempt "as made to include all minorities. Due to the courage of those "ho participated in the anti%apartheid movement and still identified themselves on the !asis of a )ueer identity, "e had the first democratic revolution in "hich )ueer people "ere ta#en to !e citi,ens on e)ual terms "ith their heterosexual compatriots. $n this context, the story of ;imon *#oli, a gay !lac# anti%apartheid activist, is particularly enlightening to those of us struggling "ith a multiplicity of issues in the developing "orld. As he put it, =@there are lot of gay activists involved in

Chapter II: 2uman 9ights of @ueer People in a lobal Conte7t political organisations. But !ecause of the pressure put upon the gay and les!ian community "e are afraid to come out. 4hat "ill people thin# if they #no" $ am a gay person5 Better fight against apartheid in a hidden "ay. (he danger is "hen ;outh Africa is li!erated, "e as gay people "ill never seem to have ta#en part in li!erating our people.Alxvi he ,elevance o* the Global 4hat this chapter has sought to sho" is that, li#e the oppression of "omen, the oppression of )ueer people is a glo!al reality. 4hile there are specifically local conditions "hich either further stigmati,e )ueer people or ena!le the articulation of resistance to the oppression, there is no dou!t that !oth su!ordination and resistance ta#e place in a context "hich is framed !y the glo!al. (he language of resistance, as framed in the human rights discourse, o"es a lot to its glo!al history. 6ne reading of the resistance might !e as a movement from )ueer people !eing defined o!'ects to !eing su!'ects "ho articulate their concerns. *o"here is this more apparent than in the refashioning of human rights language to address the concerns of )ueer people. Ho"ever it has to !e noted that "hile the glo!al does play a #ey role in providing a normative language to evaluate the a!uses inflicted on )ueer people, it might not al"ays !e relevant. Human rights doctrines are also su!'ect to serious limitations. Human rights norms are useful "hen it comes to contesting a!uses "hich occur in the pu!lic sphere, !ut "hen the discrimination is more su!tle and depends on the existing social frame"or# of homopho!ia, it !ecomes much more difficult to contest. ;ocietal attitudes and pre'udices "hich cause discriminatory !ehaviour are difficult to target using human rights language. (a#e, for example, the issue of ho" the family enforces heterosexuality as the only option possi!le for all its mem!ers. $n such a case the pain, isolation and re'ection faced !y those "ho come out is difficult to capture in human rights language. 0urther, human rights doctrines might also !e una!le to tac#le structural factors of homopho!ia and the lin# of homopho!ia to capitalism and patriarchal structures.

Chapter III: @ueer People in Indian ?aw and &ociety: +ncient! Medieval and Colonial Periods

Q#eer Peo%le in Indian Law An ient4 5edieval 2 Colonial Periods

So iet"3

-pproaches to $ueer +eople in -ncient (ndia (he issue of the existence of )ueer people and their lives in ancient $ndia has generally !een dealt "ith in the follo"ing three "aysG -i. through silence3 -ii. !y a dismissal of same%sex tradition as completely irrelevant3 or, in some cases, -iii. a "ilful attempt to heterosexuali,e existing )ueer traditions. 8ost historians of ancient $ndia, ranging right from omila (hapar to D. D. Josam!i, exemplify the tradition of the first approach, silence. Ho"ever, this silence itself, as 0oucault reminds us, is an integral part of discourses of po"er. He notes, @;ilence itself % the things one declines to say or is for!idden to nameP is less the a!solute limit of discourse, the other side from "hich it is separated !y a strict !oundary, than an element that functions alongside the things said, "ith them and in relation to them "ithin overall strategies. (here is no !inary division to !e made !et"een "hat one says and "hat one cannot sayP (here are not one !ut many silences, and they are an integral part of the strategies that underlie and permeate discourses.A lxvii 4hat emerges through this analysis is that the silence on homosexuality in ancient $ndia is a deeply political act. (he silence is an integral strategy of po"er through "hich ancient $ndian history has !een produced as a heterosexual history. $t is only the silence on )ueer lives that has allo"ed the emergence of a history of $ndian family and society !ased on normative notions of sexuality. Kxemplifying the second approach, a dismissal of same%sex traditions, is the reno"ned historian A. 2. Basham. Basham, in the course of a N9I page study of ancient $ndia, cursorily ac#no"ledges homosexuality as a phenomenon "hich "as than#fully not present in ancient $ndia. As he notes =the erotic life of ancient $ndia "as generally heterosexual. Homosexuality of !oth sexes "as not "holly un#no"n3 it is condemned !riefly in the la" !oo#s, and the Jamasutra treats of it, !ut cursorily and "ith little enthusiasm. 2iterature almost ignores it. $n this respect ancient $ndia "as far healthier than most other civili,ations3 the eunuch "as also rare, though not completely un#no"n. &astration, "hether of men or animals, "as disapproved of, and harems "ere generally guarded !y elderly men and armed "omen.> lxviii 4hat emerges through "ritings such as Basham>s is the author>s o"n "ilful ignorance of same%sex traditions. (he ignorance once again is a product of a homopho!ic politics. Basham>s dismissal is o!viously !ased on a clear value 'udgement that, since homosexuality "as hardly present, =ancient $ndia "as far healthier than most other civili,ations>. (his underlying value 'udgement conditions his reading of the presence of homosexuality in $ndia and his understanding of the erotic life of ancient $ndia and its treatment in texts such as the Jamasutra. egarding the third approach, heterosexuali,ing )ueer histories, uth 7anita and ;aleem Jid"ai demonstrate ho" often instances "hich are clearly a!out )ueer lives are !o"dleri,ed to convey a heterosexual past. (o use one example of the many that they cite, in a recent Knglish translation of the Jrittivasa amayana, "here the text descri!es the t"o "ido"s of Jing Dilipa as living together @in extreme love LsampritiMA, the translator renders this as @living together !ehaving li#e hus!and and "ifeA.lxix Biti (hadani ma#es a similar argument "ith respect to les!ian histories, "hich she contends have !een expurgated !y the translators.lxx Another example of this approach is the "or# of ichard Burton, "ho translated the Jamasutra #eeping in

2F

Chapter III: @ueer People in Indian ?aw and &ociety: +ncient! Medieval and Colonial Periods mind the 7ictorian sensi!ilities of his contemporaries and there!y invisi!ili,ed )ueer desires. $ts only recently that the discourses of the past on )ueer lives !e it silence, condemnation or !o"dleri,ation are !eginning to !e )uestioned. 6ne of the pioneering "or#s in this regard in uth 7anita and ;aleem Jid"ai>s &ame=&e7 ?ove in Indialxxi in "hich the authors loo# at mythology, literature and history "ith a vie" to )uestioning silence, misinformation and the !o"dleri,ation of the )ueer part of our past. $n their history of same%sex love they put for"ard the notion that =many societies have vie"ed romantic attachments !et"een men and !et"een "omen as perfectly compati!le "ith marriage and procreation, that is, a person may !e a responsi!le spouse and parent, !ut his or her primary emotional attachment may !e to a friend of his or her o"n gender. $t is only relatively recently in human history that the heterosexual monogamous relationship has come to !e vie"ed as necessarily a married person>s chief emotional outlet.> lxxii Based on this premise that emotional attachments do not necessarily fall "ithin a heterosexual relationship, they point to an array of texts in "hich the closest relationships are !et"een men and men or "omen and "omen. (he examples include the close relationship !et"een Ar'una and Jrishna as "ell as other mythological traditions, all of "hich are explicitly a!out sexual and love relationships !et"een people of the same sex. 4hat is clear is that there is a history !ehind same%sex relationships, "hich is !eing reclaimed !y emerging )ueer scholarship. Ho"ever the reading of "hat )ueer lives must have !een li#e in ancient $ndia is still am!ivalent. 6n one hand, the authors conclude that @there is an overall tolerance and relatively non%'udgemental attitude, and an a!sence of violent persecution.Alxxiii (o push it one level further, they note that there is clearly an imagination that goes !eyond the conventionally heterosexual. By reference to the various mythologies in "hich people remain unmarried !y choice -Bheeshma., Bods !orn out of the union of t"o Bods -the !irth of Jarthi#eya. and the stories of divine !irths, uth 7anita concludes that @here "e see the imagination straining !eyond compulsory procreative sex, grounded in the ine)ualities of marriage and parenthood, to"ards past and future utopias.Alxxiv 6n the other hand, uth 7anita and ;aleem Jid"ai also conclude that @they Lthe ancient textsM tend to ta#e a some"hat derogatory vie" of those "ho are homoerotically inclined. (he range of terms used for such persons suggests a groping for "ords rather than complete social integration. 8any of these terms spring from heterosexual assumptions ascri!ing effeminacy, impotence, or some sort of inade)uacy to non%heterosexual persons.Alxxv he Legal Discourse on Homosexuality in -ncient (ndia (he preceding section ma#es it clear that there is an emerging !ody of "or# "hich "ill help us to understand "hat the nature of same%sex love could have !een in the $ndian context. Ho"ever the legal frame"or# surrounding homosexuality is still am!ivalent. (he only express mention of homosexuality in the ancient $ndian legal texts is in the 8anusmrithi. $n the chapter on penance and expiation it is notedG $n'uring a Brahmin, smelling of "hat should not !e smelt, intoxicating li)uors, deceit, and intercourse "ith a man are said to cause a loss of caste.-99.FQ. (he la" is applica!le only to a Brahmin and "as easily expiated !y having a !ath fully clothed -99.9IN.lxxvi. (he misconduct "as e)uivalent to having intercourse during the day "ith either a man or a "oman.

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Chapter III: @ueer People in Indian ?aw and &ociety: +ncient! Medieval and Colonial Periods Ho"ever sex !et"een "omen merits a more serious punishment "hich cannot !e expiated. A "anya$virgin% "ho does it to another "anya must !e fined 2:: panas, pay the dou!le of the !ride price and receive ten lashes of the rod. -Q.3FE. But a stri$married woman% "ho does it to a "anya shall instantly have her head shaved or t"o fingers cut off and !e made to ride through the to"n on a don#ey -Q.3I:. (o interpret the meaning of the t"o provisions on homosexual conduct one "ould firstly have to note that the ;mrithis are not !ased on e)uality of all !efore la". (here are higher standards of !ehaviour prescri!ed for Brahmins and the penalties for those of the lo"er castes "ho slander their superiors are much more severe that the other "ay round. (he hierarchies and gradations of punishment are reflected in the fact that there is a prescription that a Brahmin man must not have intercourse "ith another man. Ho"ever there is no prescription regarding a lo"er caste%person having intercourse "ith another lo"er%caste person of the same sex. ;imilarly the penalties for a married "oman having intercourse "ith a virgin are far more severe than if t"o virgins have intercourse. (hese prohi!itions operate in the context of a deeply stratified society !oth on grounds of caste and gender. (here is thus no uniform prohi!ition against any homosexual conduct applica!le to all in $ndian society, as the idea of e)uality itself seems to have !een alien to ancient $ndia. &econdly, one "ould have to understand the place of the 8anusmrithi in $ndian legal traditions. Derrett argues that placing the ;mrithis as the source of $ndian la" itself is really a product of the colonial intervention "ith the need of the British to find certainty in la" resulting in the ;mrithis attaining this status as the source of la". $n pre%colonial $ndia, as per Derrett>s understanding, =interpretation, restriction to rare circumstances or flat a!rogation D all these methods have !een used from time immemorial to accommodate the "ritten texts to the practical needs of the times. $n addition, the political authority has in fact supplemented and contradicted the Dharmashastra "here it seemed necessary in the pu!lic interest.> lxxvii 0urther he notes that custom played a #ey role as a supplementary source of la" "ith it even overriding the authority of the ;hastras. $f one is to attempt to dra" any conclusions on the stance of la" regarding homosexuality, it !ecomes o!vious that the ancient $ndian legal traditions did not have a strong prohi!ition of homosexuality. 4hat "as minimally conceptualised "ithin the legal tradition "as acts of intercourse, "hich elicited a penalty. (he contrast to modern traditions, "herein the focus is not the homosexual act !ut the homosexual person, is important in comparing the t"o. Adopting a 0oucauldian frame"or#, "hat is clear is that the concept of the =deviant> and =criminal> homosexual "as not a reality in ancient $ndia. $nstead there "as the theoretical possi!ility of any person -su!'ect to considerations of caste and gender. violating the Dharmic la" through homosexual intercourse and !eing punished for such an act. Ho"ever even this possi!ility of punishment could really !e overruled !y an interpretation of la" "hich did not rely exclusively on the ;hastras. $ueer Lives in !edieval (ndia (he literature and history of medieval $ndia seems to indicate a greater space for those "ho "ere homosexually inclined. As ;aleem Jid"ai notes, @8edieval poetry depicts romantic and erotic interaction among men across class and religious divides. $n 8ir>s gha,als different male youths, including the sons of ;ayyids, Brahmins, 8ughals,

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Chapter III: @ueer People in Indian ?aw and &ociety: +ncient! Medieval and Colonial Periods (ur#s, gardeners, soldiers, masons, fire"or#%ma#ers, "ashermenP and even sons of 'udgesP are included among =!a,aar !oys.> 8ir>s narrative poem &hola=I=Ish> is an example of a love affair !et"een t"o males, one 8uslim, one Hindu.Alxxviii Descri!ing the social environment he notes that @in addition to meeting in the !a,aars, men attracted to men also met at taverns, houses of entertainment and !rothels. Although a comparatively late account, Dargah Culi Jhan>s description of Delhi sho"s the tom!s of saints and religious shrines as sites of festivals "hen li)uor "as drun# and homoerotically inclined men congregated.Alxxix (he emergence of the mystical tradition in $slam "herein the regimen of dogma "as replaced !y personal devotion also contri!uted to a li!eral society. $n ;ufi literature the relationship !et"een divine and human "as often expressed in homoerotic metaphors. 8any ;ufis insisted that only same%gender love could transcend sex and therefore not distract the see#er from his ultimate aim of gnosis.lxxx (he other phenomenon "hich got institutionali,ed "as the relationship !et"een the rulers and the slaves, "ith some of the slaves !eing eunuchs. (he !est #no"n relationship "as !et"een ;ultan Alauddin Jhil'i and his eunuch slave 8ali# Jafur. ;uch "as 8ali# Jafur>s hold over Alauddin Jhil'i that he "as appointed deputy ruler -Mali" 8aib.. Riauddin Barani, a commentator on Alauddin>s reign, said in reference to the last years of the ;ultan>s life, @$n those four or five years "hen the ;ultan "as losing his memory and his senses, he had fallen deeply and madly in love "ith the 8ali# *ai!. He had entrusted the responsi!ility of the government and the control of the servants to this useless, ungrateful, ingratiate, sodomiteA.lxxxi Ho"ever, this opening out of space for the expression of some forms of )ueer desire did not extend to "omen, either in the literature or in historical events. 0urther the existing social institution of marriage "as not really distur!ed, as )ueer desire and close emotional and sexual relationships could go hand%in%hand "ith !eing married. (his might "ell reflect on a very different understanding of the institution of marriage in medieval times. he Legal Discourse on Homosexuality in !edieval (ndia 4hile the a!ove account of )ueer lives in medieval $ndia seems to communicate a picture of tolerance and acceptance of )ueer desire, the $slamic la" conveys a different picture. (he sources of $slamic la" are the Curan, the 2adith -the =trodden part> or tradition derived from the practice and precedents of the <rophet>s life, including sayings attri!uta!le to <rophet 8ohammad., the I#ma -agreement among legal scholars. and the @iyas -reasoning !y analogy.. (he ;hariat, "hich is the un"ritten la" of $slam, is derived from the 2adith. (here are explicit references to homosexuality in the Curan and the 2adith as "ell as the "or# of legal scholars. 8any consider the Curan une)uivocal in its condemnation of homosexuality "hich it addresses in connection "ith the He!re" prophet 2ot and the destruction of ;odom and Bomorrah. 2ot said to the sinners of his cityG @Do ye commit le"dness? ;uch as no people? $n creation -ever. committed !efore you5? 0or ye practice your lusts? 6n men in preference to "omenG? +e are indeed a people transgressing? Beyond !ounds.A -7$$G Q:%Q9. @And "hen they did not heed him, Bod =rained do"n on them a sho"er of !rimstoneG? (hen see "hat "as the end? 6f those "ho indulged ? $n sin and crimeSA -7$$G QH. At least seven other passages in the Curan condemn the perceived sin of 2ot>s people. (he Curan also saysG @$f t"o men among you are guilty of le"dness, ? <unish them !oth.? $f they repent and amend, leave them aloneG for Bod is 6ft% eturning, 8ost 8ercifulA. -$7G9F. (here is similar condemnation much later in the

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Chapter III: @ueer People in Indian ?aw and &ociety: +ncient! Medieval and Colonial Periods Curan in TT7$G9FN, "hich says, @4hatS 6f all creatures do ye come unto the males, and leave the "ives your 2ord created for you5 *ay, !ut ye are for"ard fol#.A (he 2adith, "hich are a !inding source of ;hariat la", are e)ually explicit in their condemnation of homosexuality. ;ome of the pronouncements attri!uted to the <rophet areG =Doomed !y Bod is he "ho does "hat 2ot>s people did. (he <rophet is also supposed to have said, @*o man shall loo# at the private parts of another man, and no "oman shall loo# at the private parts of another "oman, and no t"o men shall sleep under one cover and no t"o "omen shall sleep under one cover.A $n his last speech to the community <rophet is supposed to have said a!out anal sex, @4hoever has intercourse "ith a "oman and penetrates her rectum or "ith a man, or "ith a !oy shall appear on the last day stin#ing "orse than a corpse3 people "ill find him un!eara!le until he enters hell fire and Bod "ill cancel all his good deeds.A Another hadith notes, @4hen a man mounts another man, the throne of Bod sha#es.A $n another hadith 8ohammad says, @Jill the one that is doing it and also #ill the one that it is !eing done to.A Another verse says, @&ursed are those men "ho "ear "omen>s clothing and cursed are those "omen "ho "ear men>s clothing.A ;till another says, @&iha> -les!ian sexual activity. of "omen is zina -illegitimate sexual intercourse. among them.A Based on the Curan and the Hadith, the various $slamic schools are all united in their condemnation of homosexuality. (he Hanafite school -predominant in ;outh Asia and Kastern Asia. maintains that same%gender sex does not merit any physical punishment. (he Hana!alites -predominant in the Ara! "orld., on the other hand, !elieve that sex !et"een males must !e punished severely. (he ;hafi school of thought -also predominant in the Ara! "orld. argues that punishment for sodomy can only !e carried out if there are four adult male "itnesses "ho actually see the penetration as @though a #ey is going through the #ey holeAlxxxii 6rthodox 8uslim theologians in $ndia insisted that the <rophet recommended the harshest of punishments for homosexual sodomy. ;hai#h A!dul Ha) 8uhaddis Dehlavi and ;hah 4aliullah severely condemned sodomy in the seventeenth and eighteenth centuries on the !asis of !oth the Curanic in'unction and the reported Hadith traditions and advocated extreme punishments for those "ho committed it.lxxxiii Ho"ever there are some "ho have attempted a reading against this !lea# vie" !y pointing out to other evidence in the Curan "hich, according to them, ma#es the orthodox position untena!le. (hey cite passages from the Curan -2$$G2H3 27$G2H3 2TT7G9E. in "hich =!eautiful !oys> and houris are promised to the virtuous in heaven. (here are also contradictions in the hadith. $n one hadith the <rophet allo"s an =invert> -the "ord formerly used to denote homosexuals. "hose "it pleased him to !e in the same room as his "ives. $n another hadith the <rophet sa" Bod as a !eautiful youth "ith long hair and his cap a"ry.lxxxiv (he social attitude to"ards homosexuality is seemingly contradictory in the medieval period as there is a coexistence of homosexually inclined people and literature along "ith severe in'unctions against homosexuality. (his illustrates that the relationship !et"een la" and society is not al"ays a straightfor"ard one. (he "ord of the prohi!ition often translated into a high !urden of proof -re)uirement of four "itnesses to prove penetration. and punishment itself had a restitutive component. (his meant that the offendor could also !e forgiven !y the offended. (hus the mere existence of severe in'unctions against homosexuality did not translate into a society "here homosexual men "ere !eing vilified, tortured or executed, as "as the case in medieval Kurope. $n fact, there is no recorded evidence of the execution or pu!lic torture of )ueer people in medieval $ndia.

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Chapter III: @ueer People in Indian ?aw and &ociety: +ncient! Medieval and Colonial Periods $ueer Lives in Colonial (ndia uth 7anita and ;aleem Jid"ai in their analysis note that the colonial period "itnessed an amplification of the hitherto minor homopho!ic voice. 0or evidence of this they dra" upon a "ide variety of literature produced in the colonial period "hich reproduces the homopho!ic voice as it originated in the "estern "orld. 4hat is interesting to note is the shifts !rought a!out in the colonial period in thin#ing a!out )ueer lives. (he prohi!ition against homosexuality entered the coloni,ed nation through the discourses of la", medicine and literature. All these discourses exemplified a 7ictorian morality "hich seems to have ta#en root not 'ust in the coloni,er>s discourse !ut also in the coloni,ed>s responses. Jatherine 8ayo, "ho exemplified the 7ictorian attitude to sexual purity, noted in her !oo# Mother India that deviant sexuality is a characteristic of $ndians and painted a @horrific picture of licentiousnessA among Hindus. Ho"ever the response to 8ayo from $ndian nationalists "as not to as# "hat "as "rong "ith homosexuality and mastur!ation !ut to state that these phenomena "ere un#no"n in $ndia, that it "as as strongly disapproved in $ndia as it "as in 7ictorian Kngland or that it "as imported from else"here.lxxxv (his response to the coloni,er>s discourse "as really a product of "hat Ashis *andy calls the =intimate enemy> D internalising the coloni,er to the extent that the coloni,er is, so to spea#, inside one>s o"n s#in. Hence the response to the coloni,er !y the coloni,ed is in the coloni,er>s o"n language, "hich sets up a common communication !et"een the t"o. &olonialism, according to *andy, @alters the original cultural priorities on !oth sides and !rings to the centre of the colonial culture su!%cultures previously recessive or su!ordinate in the t"o confronting cultures. &oncurrently the codes remove from the centre of each of the cultures su!cultures previously salient to them.Alxxxvi According to *andy>s analysis, =the #ey change in consciousness "hich too# place L"ith colonialismM can !e stated in terms of three concepts "hich !ecame central to colonial $ndiaG purusatva -the essence of masculinity., naritva -the essence of feminity., and "libatva -the essence of hermaphroditism.. (he polarity defined !y the autonomous purusatva and naritva "as gradually supplanted, in the colonial culture of politics, !y the antonyms of purusatva and "libatva6 feminity%in%masculinity "as no" perceived !y as the final negation of a man>s political identity, a pathology more dangerous than feminity itself.>lxxxvii (hus the existing traditions of same%sex desire and forms of gender non%conformity "ere ignored and the past "as constructed !ased on the hyper%masculine principle. *andy gives the example of Ban#im &handra>s essay on Jrishna "here Ban#im @argues a"ay all references to Jrishna>s character traits unaccepta!le to the ne" norms relating to sexuality, politics and social relationshipsP.Ban#im &handra did not adore Jrishna as a child god or as a playful, sometimes sexually playful adolescent "ho "as simultaneously androgynousPHis Jrishna "as a respecta!le, righteous, didactic, =hard> Bod protecting the glories of Hinduism as a proper religionPAlxxxviii (his is reflected even in the contemporary depictions of Jrishna as the essence of masculinity in popular culture and in particular the Hindutva movement, "hich seems to !e actively do"nplaying any non%=masculine> traits Jrishna may have had. (he nationalism of Ban#im &handra and Dayanand ;aras"ati "as !ased on the erasure of a complex past in "hich androgyny "as a part of $ndian culture, so that the values of virility, con)uest and control could !e glorified. $ndian literature in the

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Chapter III: @ueer People in Indian ?aw and &ociety: +ncient! Medieval and Colonial Periods colonial period illustrated this shift in cultural self%perceptions. (o give a couple of examplesG uth 7anita and ;aleem Jid"ai cite the emergence of the attempt to purify Urdu poetry. @$n his polemical tract 8asl Fushi - ace ;uicide., "hich "as translated into several languages, 8ufti 8uhammad Rafiruddin !lames the <ersians as "ell as the ;hias for spreading this viceP 4arning that this is spreading li#e a plague in educational institutions, he emphasi,es the need for "atchfulness over self and others % adolescent !oys should !e "atchedG friendship !et"een men and !oys is dangerous3 and men should not even loo# at !eautiful !oys> faces.Alxxxix Another example is Chocolate, a !estselling collection of eight Hindi short stories "ritten !y Ugra -the pen name of <andey Bechan ;harma. in 9E2I. xc Ugra -"hich means =extreme>. "as a nationalist and a social reformer. (he title story "as pu!lished in 9E2H in the Hindi "ee#ly Matvala and prompted a massive controversy, "hich only encouraged Ugra to "rite more such stories. $n these stories, the narrator is depicted as !eing repulsed !y the homosexual conduct of the protagonist and his friends. Kxcept for one, all the protagonists are respecta!le mem!ers of society, most of them are married and a couple of them even com!at the narrators> attempts to dissuade them from their same% sex desire !y )uoting authors such as (ulsidas and giving examples as diverse as Jrishna, ;ocrates and ;ha#espeare. A character in another story denounces the "estern education system -especially the concept of !oarding schools and residential universities. !y saying that he "ould rather #ill his son than allo" him to !e educated in such a system -the implication !eing that such a system encourages homosexuality.. Although Ugra claimed that he "as denouncing homosexuality through these stories, he "as lam!asted for having discussed such a su!'ect in the medium of literature rather than through =pamphleteering>, "ith the stories !eing referred to as ghasleti -inflammatory. literature and Ugra himself !ecoming the su!'ect of fre)uent a!use and insults. $n 9EN3, he pu!lished a ne" edition of Chocolate "ith fore"ords !y himself and others, in "hich he "as portrayed as a @selfless nationalist crusader out to expose and eradicate the =plague> of homosexuality afflicting $ndian youth.Axci (he erasure of a )ueer past in the colonial period is !ased on the needs of $ndian nationalism. (he very stigmatisation of homosexuality as =foreign> and =other> "as !ased not 'ust in the mimic#ing of a colonial discourse !ut in the need to construct a =virile> nation "hich could unshac#le the coloni,ers. Ho"ever, as *andy presciently notes, @colonialism as a shared culture may not al"ays !egin "ith the esta!lishment of alien rule in a society and end "ith the departure of alien rulers from the colony.A xcii (hus one should !e "ary of either setting up the past as unpro!lematic from the point of vie" of )ueer people or thin#ing that the stigmati,ation of homosexuality "as a colonial pro!lem and had no post%colonial implications. 4hile ta#ing on !oard *andy>s criti)ue, it is important to note that, though the reality of )ueer lives in colonial $ndia "as mar#ed !y the coloni,er>s discourse, it "as not completely defined !y it either. $n <artha &hatter'i>s understanding, sites such as the home, the family and the local language "ere "here the nationalist pro'ect !egan. ;pecifically applying this understanding to "omen he notes that @the home "as the principal site for expressing the spiritual )uality of the national culture, and "omen must ta#e the main responsi!ility for protecting and nurturing this )uality. *o matter "hat the changes in the external conditions of life for "omen, they must not lose the

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Chapter III: @ueer People in Indian ?aw and &ociety: +ncient! Medieval and Colonial Periods essentially spiritual -feminine. virtuesP they must not, in other "ords, !ecome essentially "esterni,ed.Axciii (he stress of $ndian nationalism in the domain of sexuality "as to construct a sexual person "ho represented the superiority of $ndian culture over 4estern culture. (hus the nationalist pro'ect, in its construction of the inner "orld of sexuality, stressed on the normative aspects of sexuality. (he =perverse> and =deviant>, even if so defined !y colonial la", had to !e discarded to construct the =inner> as a realm of nationalist perfection. $n this pro'ect it "as inevita!le that the stress "ould !e on perfecting the institution of marriage and procreation, there!y mar#ing the =difference> from the coloni,ers and their culture. (his meant that the domain of sexuality "as defined !y the nationalist pro'ect using the idiom of the coloni,ers. Hence the marginali,ation of the androgynous traditions o"es as much to nationalism as it did to colonialism. Ho"ever only detailed ethnographies of )ueer lives in colonial $ndia "ill tell us ho" )ueer people dealt "ith the "ay their lives and desires "ere sought to !e controlled !y the ;iamese t"ins of nationalism and colonialism. 6ne can venture to guess that, even in the colonial period, there "as space for same%gender affiliations as long as marriage and procreation responsi!ilities "ere fulfilled. As long as the =outer> domain of sexuality, i.e. !eing married and having children, "as fulfilled, there "as no stigma around homosexual sex and homosexual relationships in the =inner> realm. $n this context, $ndia has !een descri!ed !y anthropologists as a =shame> culture as opposed to a =guilt> culture. As long as the "ider society is convinced a!out a person !eing a good father or mother, engaging in homosexual relationships is not seen as "rong. (herefore, although there is =shame> if one is found to !e having such a relationship, there is no =guilt> for it, leaving some space in $ndian society. he Colonial Legal Discourse on Homosexuality 4hile it is clear that the entry of the coloni,ers significantly altered the treatment of )ueer people, the role of la" in the shift is significant. 0irstly, it is important to recogni,e that modern la" as introduced !y the British in $ndia "as, in the "ords of the su!altern historian ana'it Buha, the =state>s emissary>. (he colonial state relied on the =la"> to em!ed its authority. ight from the mechanisms to ad'udicate civil conflicts to the slo" gro"th of fiscal and penal measures, la" figured as a #ey instrument of ensuring and consolidating colonial domination. 4hile there "as an existing structure of civil and criminal ad'udication in pre%colonial $ndia, the British esta!lished sovereignty !y slo"ly supplanting other sources of authority, ranging from family and caste to the #ing and the existing 'udicial system, to !ecome the supreme ar!iter of disputes. (his slo" process in the realm of criminal la" culminated in the draft <enal &ode in 9Q3I "hich "as finally implemented in 9QF: follo"ing the revolt of 9QNI. (he civil side sa" the consolidation of colonial authority through the construction of personal la"s governing each community administered !y the colonial courts. 4hile it "as as if the British left each community to govern itself, in effect the commentaries prepared under the direction of the British ensured that the personal la" itself "as more rigid and inflexi!le through the invocation of the scriptures as the main source of la". (he flexi!ility of pre%colonial la", "ith its reliance on multiple sources of la", gave "ay to a more rigidly defined system.xciv (he supreme authority of modern la" emerges )uite clearly "hen one contrasts it "ith the greater discretion under the pre%colonial situation. As adhi#a ;ingha o!serves in the context of criminal 'ustice administration in the pre%colonial era, =Ho"ever, as the &ompany officials "ere to discover, the range of offences for "hich

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Chapter III: @ueer People in Indian ?aw and &ociety: +ncient! Medieval and Colonial Periods a specific punishment "as fixed in $slamic la" "as very limited. 8oreover these specific punishments "ere often !arred !y criterion of evidence or !y legal exceptions. (he punishment actually handed do"n often depended upon the discretion of the "azi or of the executive officer present on the spot.>xcv (he role of colonial la" in regulating the sphere of sexualities "hich the la" considered non%normative can !e understood under the !road heads of criminal la" and civil la". (he construction of the )ueer person in colonial la" has had a profound impact in the post%colonial era and to understand the same a close study of !oth the civil and criminal la">s regime construction of =deviant> sexuality is re)uired. I6 T,e Cri+inal Law Re-i+e3 T,e Q#eer Person as a Cri+inal S#b7e t (he criminal la" regime introduced !y the coloni,ers gre" slo"ly through the introduction of &ompany regulations and legislations "hich !egan to supersede the existing system of 8uslim la". (he dramatic shift really came "ith the appointment of 8acaulay as &hairman of the $ndian 2a" &ommission and the drafting of the <enal &ode of 9Q3I. <remised on the utilitarian philosophy, it "as clear in terms of defining the offence and specifying the punishment. $t "as a complete departure from the earlier system as no" most crimes "ere clearly seen as offences against the state rather than against individuals only. (herefore, for example, there "as no possi!ility of the accused in a murder case !eing pardoned !y the family of the victim as murder "as no" seen as an offence against the state. (he 9Q3I draft <enal &ode sa" the light of day after the 9QNI re!ellion as the $ndian <enal &ode of 9QF:. (he t"o #ey provisions used !y the colonial state to regulate )ueer sexualities "ere !oth extraordinary measures. (he first "as the provision against =unnatural lust> in !oth the draft &ode and the 9QF: &ode and the second "as the &riminal (ri!es Act, "hich "as meant to deal "ith those communities "ho could not !e dealt "ith !y the ordinary criminal la". (his section "ill loo# atG -9. (he prohi!ition of unnatural lustG ;ec 3II of the $<& -2. (he &riminal (ri!es Act -3. (he criminal la"G (error through la" and terror outside the la". $C% 'he Prohibition of Dnnatural ?ust: &ec EGG 4f 'he IPC 'he 2istorical :ac"ground (he Draft &ode of 9Q3I also sa" the emergence of certain ne" offences, such as the offence of unnatural lust, "hich "as also an offence against the state. &lause 3F9 of the &ode stated that, =4hoever intending to gratify unnatural lust, touches for that purpose any person or any animal or is !y his o"n consent touched !y any person for the purpose of gratifying unnatural lust, shall !e punished "ith imprisonment of either description for a term "hich may extend to fourteen years, and must not !e less than t"o years.> &lause 3F2 stipulates the punishment for the same offence "hen it is committed or attempted "ithout the other person>s consent. 2ord 8acaulay, in commenting on the provision, noted that @&lauses 3F9 and 3F2 relate to offences respecting "hich it is desira!le that as little as possi!le !e saidP"e are un"illing to insert either in the text or in the notes anything "hich could give rise to pu!lic discussion on this revolting su!'ect, as "e are decidedly of the opinion that the in'ury "hich could !e done to the morals of the community !y such discussion "ould more than compensate for any !enefits "hich might !e derived from legislative measures framed "ith greatest precision.Axcvi

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Chapter III: @ueer People in Indian ?aw and &ociety: +ncient! Medieval and Colonial Periods Ho"ever the delicacy sho"n !y 2ord 8acaulay in discussing @this revolting su!'ectA "as not shared !y his fello" civil servants, "ho ensured that the 9QF: &ode "as framed more precisely. (hus ;ec 3II of the 9QF: &ode reads, @Unnat#ral offen es6 4hoever voluntarily has carnal intercourse against the order of nature "ith any man, "oman or animal, shall !e punished "ith imprisonment for life, or "ith imprisonment of either description for a term "hich may extend to ten years, and shall also !e lia!le to fine. E.%lanation. <enetration is sufficient to constitute the carnal intercourse necessary to the offence descri!ed in this section.A 8acaulay>s draft is generally ac#no"ledged to !e !ased firmly in the philosophy of utilitarianism in "hich the !asis of prohi!iting conduct "ould !e the goal of the greatest good of the greatest num!er of people. (he provision against unnatural lust "as in fact in complete non%conformity "ith the utilitarian philosophy. As a matter of fact, /eremy Bentham, "idely ac#no"ledged as the father of utilitarianism, himself argued in his "ritings that, !y utilitarian principles, intercourse !et"een t"o persons of the same sex should not !e an offence.xcvii $t is interesting to note that 8acaulay>s fear of @pu!lic discussion on the revolting su!'ectA "as rather "ell%founded as the 9QF: version of the &ode led to a 'udicial discourse in "hich the @revolting su!'ectA "as dealt "ith in excruciating detail. $n fact one can even ma#e the argument that this provision and its @revoltingA nature contri!uted to the very emergence of the homosexual as a rights !earing su!'ect "ho "ould one day )uestion his?her very criminali,ation. ;ec 3II of the $ndian <enal &ode comes under the ;ection titled =6ffences Affecting the Human Body> and follo"s the offence of rape. $t is not clear in "hat "ay the offence defined under ;ec 3II is an offence against the human !ody. $ts 'urisprudential !asis is rather the conceptualisation of a specific morality and the need to enforce the same. Ho"ever, the 'urisprudential !asis aside, ;ec 3II is clearer in its definition of the offence it see#s to criminalise as compared to &lause 3F9 of the draft &ode. $t does a"ay "ith the need to define =unnatural lust> and the vague act of =touching>. $nstead it replaces them "ith the concept of =carnal intercourse against the order of nature> and introduces the re)uirement of =penetration>, ma#ing it a more tightly%defined provision. Ho"ever, "hat constitutes =carnal intercourse against the order of nature> "as not expanded upon !y using any illustrations, pro!a!ly in deference to 8acaulay>s fears. (o understand the nature and scope of ;ec 3II one "ould have to study the 'udicial decisions under the follo"ing headsG 1Carnal Intercourse +gainst the 4rder of 8ature$n Fhanu v. ,mperor,xcviii the ;indh High &ourt "as faced "ith the situation of an adult having had oral sex "ith a child and loo#ed into the )uestion of "hether @the sin of Bomorrah coitus per osAxcix came "ithin the confines of ;ec 3II. 4hat could have !een an opportunity to clearly lay do"n the unaccepta!ility of adults sexually a!using children instead got collapsed into the )uestion of the @sin of ;odomA and "hether the @sin of Bomorrah "as to !e classified "ith it as =carnal intercourse against the order of natureA. (he appellant argued that oral sex did not fall "ithin the understanding of this phrase. (o ans"er this )uestion, the &ourt !egan !y saying that @the natural o!'ect of sexual intercourse is that there should !e the possi!ility of conception of human !eings, "hich in the case of coitus per os Loral intercourseM is impossi!leA. $t then "ent on to define sexual intercourse as @the temporary visitation of one organism !y a mem!er of the other organisation, for certain clearly defined and limited o!'ects.

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Chapter III: @ueer People in Indian ?aw and &ociety: +ncient! Medieval and Colonial Periods (he primary o!'ective of the visiting organisation is to o!tain euphoria !y means of a detent of the nerves conse)uent on the sexual crisis. But there is no intercourse unless the visiting mem!er is enveloped at least partially !y the visited organism, for intercourse connotes reciprocity. 2oo#ing at the )uestion in this "ay it "ould seem that LtheM sin of Bomorrah is no less carnal intercourse than the sin of ;odom.A c Based on an understanding "hich lin#ed sex "ith procreation, the parameters of =unnatural> sex "ere set to include any form of sex "hich did not result in procreation. (he &ourt as#ed itself the )uestion as to "hy modern states, @no" freed from the influence of superstitionA, should still ma#e the @sin of ;odomA punisha!le and concluded that it "as @partly !ecause of the desire of princes to encourage legitimate marriage in medieval societiesA and @LpMartly !ecause there is an idea, -perhaps erroneous. that the pu!lic or tolerated practice of that vice creates a tendency in citi,ens of the ;tate, "here it is practised, to adopt an unmanly and mor!id method of life and thin#ing, so that a person saturated "ith those ideas is less useful a mem!er of society, partly !ecause of the danger that men put in authority over other men may use their po"er for the gratification of their lusts, !ut principallyP !ecause of the danger to young persons, lest they !e indoctrinated into sexual matters prematurelyP surely all these ill conse)uences "ould e)ually follo" in a city "here the sin of Bomorrah "as tolerated.Aci An analysis of this decision sho"s that it "as framed in terms familiar to the coloni,ers. (he references to ;odom and the prohi!itions on non%procreative sexuality, "hile at the same time ignoring the real issue of child sexual a!use, are indicative of the 'udicial mindset. (he use of a supposedly &hristian notion as an instrument of criminal 'ustice is )uestiona!le !y today>s ethical standards. (he reasoning of the &ourt as to "hy sodomy should !e punished is also indicative of the fears of colonial society % the fear of =unmanliness> and =mor!idity> and the need for =usefulness> in society. (his decision continued to !e a precedent for the invo#ing of the idea of the =sin of ;odom> in cases of child sexual a!use, rape and sexual violence against children even in post%colonial times.cii 4hen it comes to the )uestion of forms of unnatural sex, there is a pattern of the 'udges not considering the )uestion of consent as relevant and instead functioning from a moral consensus as to the unnaturalness of sodomy. $n Chitran#an Hass v. &tate of Dttar Pradesh,ciii the &ourt "ent so far as to say that @the appellant "as a highly educated and cultured individual "ho "as suffering from a mental a!erration "hen he committed the offence of sodomyA. 4hat is visi!le in the colonial discourse is ho" homosexuality "as conceptualised "ithin the frame"or#s of pathology, and the notion of sin "as seen as threatening the ideology of masculinity and the =safety of children>. $n defining "hat constituted =carnal intercourse against the order of nature> in ?ohana Vasanthlal Hevchand v. 'he &tateciv the &ourt noted that @the act of oral sex involves enveloping of penis !y the mouth, thus creating an alternative socially unaccepta!le activity, "hich is against the order of nature.A (he &ourt also referred to the Corpus Buris &ecundum, in "hich it "as stated that @sexual perversity is the condemnation of unnatural conduct performed for the purpose of sexual satisfaction !oth of the active and passive partnersA and that =(he la" of sodomy holds not only anal sex, !ut any sexual activity involving the sexual organs of either of the participating partners, against the order of nature punisha!le. (his suggests that sexual acts li#e oral sex, cunnilingus etc are punisha!le through this la".>cv $n race Bayamani v. ,.P. Peter!cvi the &ourt noted that @the term =;odomy>P means non coital carnal copulation "ith a mem!er of the same or opposite sex. e.g. per anus or per os. (hus a man may indulge in ;odomy even "ith his o"n "ife.A (he continuing colonial mindset is evident in /.

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Chapter III: @ueer People in Indian ?aw and &ociety: +ncient! Medieval and Colonial Periods ;a!ha!hit>s 'udgement, in "hich he )uoted the Bi!le -2eviticus 9QG22. in defining and condemning sodomy.cvii (he verse he )uoted reads, @+ou must not sleep the sleep of a "oman "ith a man3 it is ritually impure.A Ho"ever, the interpretation that he gave to the verse has !een challenged !y several scholars of the Bi!le. ev. Bo! Kllis holds, @8any scholars !elieve this saying represents an idiom that has lost its meaning over time due to cultural traditions of the time long since forgotten.A cviii /ohn Bos"ell points out that the "riter uses the He!re" "ord toevah, referring to the act as !eing @detesta!leA or an @a!ominationA, "hile the "ord used for sexual misconduct "as zimmah. He also says, @(he 2a" Las laid do"n in 2eviticusM "as specifically given to the $sraelites and never intended to !e the la" for the Bentiles. $n that sense, none of us have ever !een under the 2a" and there is no need for us to !e under it no".Acix Jen ;ehested adds that the church does not expect &hristians to follo" all the other mores in 2eviticus in the light of present%day #no"ledge. cx Hence it is )uestiona!le if /. ;a!ha!hit>s usage of this verse "as of any relevance or meaning in this case. (his also raises the )uestion of "hether a 'udge>s interpretation of a religious text should !e un)uestioningly accepted in a court of la". Prosecution of Consensual +dult &e7 and +dult ender Identities $n @ueen ,mpress v. Fhairaticxi! the police suspected the victim of !eing a eunuch, "ho dressed in "omen>s clothes and on occasions "as found dancing and singing "ith "omen, and arrested him under ;ec 3II. (he &ourt o!served that the accused "as a regular sodomite, due to the medical reports "hich sho"ed a distortion of his anal orifice as "ell as the accused>s feminine !ehaviour. (he &ourt held that ;ec 3II punishes the act of sodomy, !ut the la" did not prescri!e a punishment for a regular sodomite. $n H. P. Minwalla v. ,mperorcxii, the complainant discovered the appellant "ith his pants do"n on his #nees, performing passive anal intercourse "ith another man. (he police arrested !oth of them and charged them under ;ec 3II. Both consenting parties "ere convicted !y the trial court and the conviction "as upheld !y the High &ourt. $n the history of prosecution under ;ec 3II in the High &ourt and the ;upreme &ourt, there are very fe" cases of consensual sexual intercourse "hich have !een prosecuted. Ho"ever this is still not indicative of the "ay ;ec 3II could have !een used in colonial $ndia, as many cases might not have even reached the trial court, !eing decided at the level of the police station, many might not have !een appealed and only a fe" "ould have finally reached the High &ourt and the ;upreme &ourt. (he a!ove t"o cases are illustrative of the dangers of ;ec 3II "herein it is used to prosecute sex !et"een consenting adults and threaten adults on the !asis of a philosophy !ased on perceptions of the Bi!lical idea of sodomy, and social notions of appropriate masculinity and sexuality. 'he Dse of &ection EGG to Prosecute Child &e7ual +buse (here are no $ndian la"s that specifically criminalise child sex a!use, so ;.3II has !een used in prosecuting cases "here anal and?or oral intercourse "ith children "as involved. $n a study of forty%six 'udgements under ;ec 3II of the $<& it came to light that thirty cases -more than F:U. deal "ith child sexual a!use. 6ut of these t"enty cases involved a!use of a male child !y a man and ten involved a!use of a female child !y a man. All of these thirty cases "ere, o!viously, non%consensual.cxiii (his points to the lacunae in rape la" under ;ec 3IF "herein sexual intercourse is seen in purely penile%vaginal terms "ith the 'udges un"illing to conceptualise rape as including the fact of having oral sex or anal sex "ithout the consent of the

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Chapter III: @ueer People in Indian ?aw and &ociety: +ncient! Medieval and Colonial Periods "oman?man. 0urther the a!sence of a la" on child sexual a!use means that the only provision "hich one can use, inade)uate though it may !e, is ;ec 3II of the $<&. 'he Hifficulties of Proof $n a criminal trial the re)uirement of proof !eyond reasona!le dou!t ensures that the prosecution has an onerous tas# to perform. $n 8owshirwan Irani v. ,mperorcxiv, the &ourt dou!ted the veracity of the 9Q%year%old victim>s statement as the medical report revealed the !oy had a history of having had anal intercourse. 0urther the !oy had no mar#s or in'uries on his !ody suggesting resistance to the alleged overtures of the appellant. 0urther, the explanation under ;ec 3II re)uired that penetration, ho"ever little, should !e proved strictly, and in this case the appellant experienced seminal discharge !y mere friction "ith the !ody of the !oy. (hus there "as no direct lin# "ith an attempt to commit sodomy. 6n this !asis the accused "as ac)uitted. $n Mirro v. ,mperor,cxv a young !oy "ho "as anally raped !y the accused "as ac)uitted !y the High &ourt on the !asis that the medical evidence including the semen stains on the dhoti of the accused "ere not conclusive and the circumstantial evidence "as insufficient. $n :iren ?al v. &tate of :iharcxvi, the victim alleged that the appellant made an attempt to sodomi,e him as he "as sleeping in a road culvert. Here the &ourt held that penetration must !e proved !efore the accused can !e convicted. (he only allegations made in the case "ere of opening the victim>s lungi and pulling at his under"ear. (here "ere no allegations of any move to"ards penetration of the victim>s anus. (he a!ove cases are only illustrative of the difficulty of discharging the o!ligation of prosecuting anal rape successfully. &ection EGG and its Current 9elevance (a#ing the various aspects of the case la" under ;ec 3II under account, "hat is clear is that there is no difference one can ma#e !et"een the colonial and the post colonial era. (he 'udicial discourse in the contemporary period really is in many "ays a continuation of the colonial discourse (he Fhanu decision in 9E2N, the ?ohana Vasanthlal Hevchand decision in 9EFQ and the race Bayamani decision in 9EQ2 are part of the same discourse "hich constructs homosexuality as unnatural and sinful. $f anything, the post%colonial era only reiterates the pre'udices expressed in the early colonial era. (he case la" indicates that ;ec 3II has not !een used to prosecute cases of consensual sex extensively. Ho"ever this does not limit its significant role in perpetuating a certain #ind of discourse a!out )ueer people "hich classifies groups as criminal and stigmati,es sexual !ehaviour. $ts extraordinary that though one reading of ;ec 3II is that it expressly excludes les!ianism !y virtue of the Kxplanation re)uiring sufficient penetration necessary to constitute the offence it has !een read expansively !y ;tate authorities to harass and intimidate les!ian "omen as "ell. (he discourse "hich constructed )ueer people as =unnatural> and =perverted> therefore has the effect of legitimi,ing violence against all )ueer people. 0urther the la" has the impact of almost shutting out any further tal# of )ueer rights as all actors rely on the criminality of sodomy to legitimi,e discrimination against )ueer people. (he next &hapter "ill explore the continued relevance of ;ec 3II in these terms as "ell as the challenges "hich ;ec 3II "as su!'ect to in the late 9EQ:>s "ith the rise of the )ueer rights movement. .

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Chapter III: @ueer People in Indian ?aw and &ociety: +ncient! Medieval and Colonial Periods $;% 'he Criminal 'ribes +ct! CIGC (he &riminal (ri!es Act, 9QI9, "as an extraordinary legislation "hich departed from the principles upon "hich the $ndian <enal &ode "as !ased. (o prove an offence under the $ndian <enal &ode, the accusation against the accused has to !e proved !eyond reasona!le dou!t in a court of la". Ho"ever, the British seemed to feel that this system of =civili,ed 'urisprudence> "as totally inade)uate for dealing "ith certain tri!es and communities "ho "ere @addicted to the systematic commission of non%!aila!le offencesA.cxvii (hese communities and tri!es "ere perceived to !e criminals !y !irth, "ith criminality !eing passed on from generation to generation. $t fitted in "ell "ith the hierarchical $ndian social order, in "hich some communities "ere perceived as unclean and polluted from !irth. (he idea of criminal tri!es "as !ased on the notion that @crime as a profession passed on from one generation of criminal caste to anotherG li#e a carpenter "ould pass on his trade to the next generation, hereditary criminal caste mem!ers "ould pass on this profession to their offspring.Acxviii 6nce a tri!e "as notified as a criminal tri!e, all mem!ers of the tri!e including "omen and children, "ould have to register "ith the specified authority, "ith non% registration rendering the person lia!le to prosecution.cxix 6nce the mem!er of the tri!e "as registered he or she "as lia!le to !e punished "ith imprisonment of up to three years if he "as found in a place or in such circumstances as to satisfy the &ourt that he "as "aiting for an opportunity to commit theft or ro!!ery. cxx 0urther the registered person>s movement "as restricted to the limits prescri!ed !y the authority and any movement outside this authorised area meant that he could !e arrested. cxxi (here "ere more regulations framed under the rules the violation of "hich su!'ected the registered person to more penalties ranging from fines to imprisonment. cxxii All these provisions "ere violative of !asic freedoms given to more deserving colonial su!'ects. 8oreover, the criminal tri!es had to contend "ith the police as a very present and daily threat to their very existence. (he lin# of the criminal tri!es to sexual non%conformity lay in the fact that part of the reason for criminali,ation itself lay in the perceived licentiousness of the itinerant communities. (he itinerant communities comprised of entertainers such as acro!ats, singers, dancers, tightrope "al#ers, and fortune%tellers, "ho "ere perceived as a threat to the order of sedentary societies. As 8eena adha#rishna notes, @the nomads> lac# of property, and supposed lac# of due regard for others> property, is seen to !e a threat to the esta!lished order, and their independence from rigid norms and constraints of sedentary societies is found highly o!'ectiona!le. $n fact, itinerancy is seen as a possi!le escape route for the so called outcastes and refuse of sedentary societiesPAcxxiii @$n addition, for the #eepers of social morality, LtheirM lac# of visi!le social institutions implied complete disorder in their community life. (heir lac# of "ritten codes of conduct, and a!sence of articulated norms of morality implied a!solute licentiousness.Acxxiv (he lin# !et"een sexual non%conformity and criminality "as made more explicit in the 9QEI amendment to the &riminal (ri!es Act of 9QI9, "hich "as su!%titled =An Act for the egistration of &riminal (ri!es and Kunuchs>. Under the provisions of this statute, a eunuch "as @deemed to include all mem!ers of the male sex "ho admit themselves, or on medical inspection clearly appear, to !e impotent.A cxxv (he local government "as re)uired to #eep a register of the names and residences of all eunuchs "ho are @reasona!ly suspected of #idnapping or castrating children or of committing offences under ;ection 3II of the $ndian <enal &odeA.cxxvi Any eunuch so registered

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Chapter III: @ueer People in Indian ?aw and &ociety: +ncient! Medieval and Colonial Periods "ho appeared @dressed or ornamented li#e a "oman in a pu!lic streetP.or "ho dances or plays music or ta#es part in any pu!lic exhi!ition, in a pu!lic streetP. LcouldM !e arrested "ithout "arrant and punished "ith imprisonment of up to t"o years of "ith a fine or !oth.Acxxvii $f the eunuch so registered had in his charge a !oy under the age of 9F years "ithin his control or residing in his house, he could !e punished "ith imprisonment of up to t"o years or fine or !oth. A eunuch "as considered incapa!le of acting as guardian, ma#ing a gift, dra"ing up a "ill or adopting a son.cxxviii A phrase used !y a British officer for the criminal tri!es is e)ually appropriate to descri!e the colonial perception of the eunuchsG @they are a!solutely the scum, the flotsam and the 'etsam of $ndian life, of no more regard than the !easts of the field.Acxxix (he sexual non%conformity of the eunuch thus earned severe strictures and penalties from the colonial administration. Being a eunuch "as a criminal enterprise, "ith surveillance !eing the everyday reality. (he surveillance mechanism criminali,ed their existence as the )uotidian reality of a eunuch>s existence, namely cross%dressing, "as a criminal offence. 0urther the "ays in "hich eunuchs made their livelihood, i.e. singing and dancing, "ere criminalised. (hus, every aspect of the eunuch>s existence "as su!'ect to surveillance, "ith the surveillance itself !eing premised on the threat of criminal action. (he police "ere thus an everyday reality in the lives of eunuchs. 0urther, the very concept of personhood of eunuchs "as done a"ay "ith through disentitling them from !asic rights such as ma#ing a gift or adopting a son. Although some research "or# has !een done on the former criminal tri!es, there has !een a!solutely no "or# done on the "ay the colonial regime dre" on existing pre'udices to disentitle and marginali,e the eunuchs of colonial $ndia. Ho"ever, one can speculate that a great deal of "hat "as the lot of the criminal tri!es applied e)ually to the eunuchs. (he police and the infliction of violence through and outside the la" "ere as much a part of their lives as they "ere a part of the lives of the former criminal tri!es. As stri#ing as the similarities are, it is important to note that, !ecause of the stigmatised nature of their sexuality, they never found a voice in nationalist or su!altern histories. Kven the criminal tri!es, hard as their lot "as, had some voices of support in the nationalist movement. /a"aharlal *ehru, for example, noted that =$ am a"are of the monstrous provisions of the &riminal (ri!es Act "hich constitute a negation of civil li!ertyP An attempt should !e made to have the Act removed from the statute !oo#. *o tri!e can !e classed as criminal as such and the "hole principle is out of consonance "ith all civili,ed principles of criminal 'ustice and treatment of offenders.>cxxx Ho"ever, such "as not the case of the eunuchs, "ho "ere completely marginali,ed in all discourses save the discourse of criminal la", in "hich their sexuality and gender identity "ere conceptualised as a state of criminality, and the discourse of civil la", in "hich they emerged as su!'ects "ithout even the limited rights of other colonial su!'ects. $E% 'he Criminal ?aw: 'error through ?aw and 'error 4utside the ?aw <rof. Upendra Baxi used the phrase =force of phrases and force "ithout phrases> to descri!e the differential legalities organi,ed !y the colonial order. cxxxi $f one studies the "ay criminal la" has dealt "ith marginali,ed sexualities, !oth approaches are visi!le. At one level, through the perverse logic of the colonial order, the principles of utilitarianism "ere overloo#ed in criminali,ing =unnatural offences>. At an even more !asic level, all the claims of the British to having introduced civili,ation through

H:

Chapter III: @ueer People in Indian ?aw and &ociety: +ncient! Medieval and Colonial Periods modern la" "ere exposed as a complete sham through the construction of the eunuch as a community of offenders "hose very lifestyle "as criminali,ed. (he =force of phrases> "as crucial to defining the =unnatural> offence and in defining the eunuch community as a community "hich has al"ays already committed a crime. Ho"ever the terror of the colonial order did not lie exclusively in the politics of naming, as "hat underpinned it "as force "ithout phrases. (he regime of terror "as implemented against those "hom the la" had already constructed as offenders. (he violence to "hich the criminal tri!es "ere su!'ect far exceeded even the violence sanctioned !y the =force of phrases>. 4e have !etter documentation of this in contemporary times, "here there are fact%finding reports on the illegal !ut pervasive violence to "hich hi'ras are su!'ected. II6 T,e Civil Law Re-i+e3 T,e Q#eer Person As An )Unviable /Un0S#b7e t* 4hile the figure of the sexual deviant "as central to the pro'ect of criminal la" though his?her hyper%visi!ility in extraordinary criminal la" provisions such as ;ec 3II and the &riminal (ri!es Act, "hen it came to the civil la" the )ueer person "as constructed as a silence. As noted earlier, =silence> in the civil la" is less to !e seen as the a!sence of po"er and more to !e seen as another strategy of po"er. As Butler notes, @oppression "or#s not merely through acts of overt prohi!ition, !ut covertly, through the constitution ofP a domain of unvia!le -un.su!'ects D ab#ects "e might call them D "ho are neither named nor prohi!ited "ithin the economy of the la".Acxxxii Kven in the domain of national sovereignty, namely the personal la" "hich governed the various communities, the )ueer person "as a!sent. Kven the limited personhood conceptualised under colonial order "as denied to those "ho transgressed not only colonial prohi!itions !ut also prohi!itions "hich "ere a part of $ndian history in ho"ever muted a form. A lot of this has to do "ith the "ay the ancient $ndian legal order "as conceptualised through processes set in motion in colonial times. <articularly important "as the process of fixing $ndian la" in the ;hastric texts. A clear example is the emergence of the ;hastras as the authorities for finding the =authentic> $ndian position. (his interpretative approach has !een sho"n to !e deleterious to "omen>s rights and a similar argument can !e made "ith respect to the rights of )ueer people. A 'udgement of 9EN2 delivered !y the Bom!ay High &ourt cxxxiii is em!lematic of the "ay =tradition> "as mo!ili,ed to disentitle )ueer people though a process set in motion in colonial times. (his "as a suit filed !y a Hindu hus!and against his "ife to annul their marriage on the ground that his "ife at the time of marriage had neither a vagina nor a uterus and therefore "as incapa!le of having sexual intercourse "ith any male. /. (endol#ar interpreted the relevant verses from the "or#s of 8anu, +a'naval#ya, *arada, 8itha#shara and 8atridatta to sho" that the marriage of an impotent person, "hether male or female, is a!solutely void in Hindu la". 0or example, +a'naval#ya $$%9H:, as translated !y Bharpure, reads, @an impotent person, an outcaste and his issue, one lame, a mad man, an idiot, a !lind man, and a person afflicted "ith an incura!le disease and -li#e. others, must !e maintained, excluding them from any share.A 8anu $T%I3 reads, @$f any!ody gives a"ay a maiden possessing !lemishes "ithout disclosing them, the !ridegroom may annul that -contract. "ith the evil% minded giver.A According to *arada, @4omen have !een created for the sa#e of propagation, the "ife !eing the field and the hus!and the giver of the seed. (he field must !e given to him "ho has seed. He "ho has no seed is un"orthy to possess the field.A -/olly>s translation of T$$G 9Q%9E.cxxxiv /. (endol#ar held that the a!sence of a yoni -vagina. in the "ife automatically rendered the marriage void.

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Chapter III: @ueer People in Indian ?aw and &ociety: +ncient! Medieval and Colonial Periods (he important point "hich emerges from this is the heavy reliance on the ;hastric texts, "hich did a"ay "ith the flexi!ility of Hindu la" and deprived )ueer people of their rights through the institution of modern la". (he history of civil la"s and their disenfranchisement of the )ueer person in terms of !asic rights is a legacy that has continued in post%colonial times, "ith the first voices of protest only emerging in the contemporary era. (hus it is only in contemporary times that the su!'ecthood of )ueer people is !eing reclaimed. T,e relevan e of 8#eer ,istories 4hat this &hapter has sought to demonstrate is that there is no dou!t that )ueer people existed throughout $ndian history. $t is also clear that their existence has not al"ays !een easy and !een su!'ect to a series of prohi!itions and controls throughout history. Kach period has its o"n uni)ue mode for the regulation of sexuality along "ith the availa!ility of spaces for the expression of )ueer sexuality. Ho"ever it "as only the techni)ues and procedures of the colonial period "hich institutionali,ed the discrimination against )ueer people through the disciplines of !oth modern la" and modern medicine. 4hile it is true to say that the controls of colonial society penetrated far deeper into the !ody politic in terms of stigmati,ing )ueer desire, it is e)ually true to note that it "as only the controls of the modern period "hich could have resulted in the uni)ue resistance "hich is the contemporary articulation of )ueer rights.

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Chapter IV: @ueer &truggles around the ?aw: 'he Contemporary Conte7t

Q#eer Str#--les Aro#nd T,e Conte+%orar" Conte.t

T,e

Law3

(he contemporary context is constructed !y a diverse range of influences. (he colonial discourse exhi!its clear continuities in the contemporary period. As far as the =force of phrases> is concerned, ;ec 3II of the $ndian <enal &ode continues to exist. Although the &riminal (ri!es Act stands repealed, the violence is still inflicted as part of the =force "ithout phrases> as conceptualised !y Upendra Baxi. Ho"ever "hat is clearly different a!out the contemporary context is that the normali,ation of heterosexism is increasingly !eing )uestioned. As /effrey 4ee#s put it, @the homosexual is marching off the medical pages into the pages of history.A Undou!tedly, the history of this resistance has complex and manifold points of origin. (hese can !riefly !e conceptualised as follo"sG $n 0oucauldian terms, po"er elicits its o"n resistance, and identity categories such as gay and les!ian emerge in the context of the production of the homosexual as a pathological and criminal su!'ect. (hus, the emerging gay and les!ian communities paradoxically o"e much to the operation of provisions such as ;ec 3II of the $ndian <enal &ode. 8arxists such as /ohn D>Kmilio have argued that the emergence of the gay and les!ian identity really o"es much to the spread of capitalism. &apitalism plays a positive role in !rea#ing do"n traditional relationships and allo"s for the space for the development of ne" identities not defined !y the relationship to the family.cxxxv (he emergence of the discourse of universal human rights has also contri!uted to the emergence of )ueer activism centring around the la". Universal human rights though founded on the grammar of exclusion have also !een vulnera!le to appropriation. At various points in time "omen, indigenous people and !lac# people "ere excluded from the possi!ility of !eing rights !earing su!'ects. (oday, "omen, indigenous people and !lac# people can use the same rights discourse "hich has !een complicit in the practices of exclusion to spea# to po"er, a!out the moral imperative of inclusion. ;imilarly )ueer people are finding an uneasy space "ithin the contemporary human rights discourse !ased on the assertion of the right to !e considered human. (he emergence of ne" social movements and their foregrounding of different concerns has resulted in concerns around sexuality !eing !rought to the forefront. (he move started "ith the !irth of feminism and the foregrounding of "hat "as perceived as a private matter as a matter of politics. (he articulation of gender as politics opened other #inds of spaces, and )ueer desire, "hich existed in almost all cultures, transmuted into a form of politics, "ith the )ueer movement emerging as a glo!al force though "ith very specific local roots. $n a cosmopolitan "orld these struggles are glo!ali,ed, "ith local groups dra"ing inspiration from struggles around the "orld. (hus the ;tone"all $nn riots of 9EFE and the inauguration of the ;outh African &onstitution are points of inspiration for this glo!ally%lin#ed movement. At a more pragmatic level, the H$7?A$D; pandemic and the conse)uent identification of high ris# groups such as 8;8 -men "ho have sex "ith men. has greatly opened up spaces for discussion and "or# around sexuality. $n fact, the surfacing of identities such as "othi might itself o"e a lot to the emergence H3

Chapter IV: @ueer &truggles around the ?aw: 'he Contemporary Conte7t of the discourse around H$7?A$D;. $f one analyses the groups "or#ing "ith )ueer issues, it "ould !e immediately o!vious that the ma'ority of groups have funding for H$7?A$D;. <articularly impressive are groups in ;outh $ndia such as the ;outh $ndia Aids Action <rogramme -;$AA<., "hich has formed 8;8 net"or#s in most of the districts in (amil *adu, there!y opening out spaces for the articulation of concerns around )ueer issues. 4hatever the complex reasons for the emergence of the )ueer movement in the $ndian context, its institutional history is very short, spanning activism of a little over t"o decades. (he process started "ith the esta!lishment of :ombay Host, a gay maga,ine, in Bom!ay, and the esta!lishment of ;a#hi, a les!ian collective, in Delhi in the late 9EQ:s. (hese slo" !eginnings have spa"ned a num!er of )ueer groups in different parts of the country, right from the ma'or metropolitan centres to smaller to"ns such as A#ola, Bul!arga and (richy. (he categori,ation of 8;8 -men "ho have sex "ith men. as a vulnera!le group for H$7?A$D; has resulted in funding for 8;8 intervention pro'ects and spurred the development of sexuality minority net"or#s. As net"or#s of groups !egan to form, the collective nature of assertion emerged as the community started responding to issues of direct concern through pu!lic protests against extortion and violence, as "ell as )uestioning un'ust colonial la"s. (he a!ove modes, ho"ever, do not exhaust the forms of politics in the contemporary era. ;ince )ueer oppression is underpinned !y institutions of civil society such as the family as "ell as !y state institutions, there are areas of political contestation that are normally ignored. $n this context one needs to affirm that politics is varied and includes the everyday acts of resistance of all those "ho )uestion the heteronormative social order. $n fact, the supposedly more =pu!lic> articulations really !uild upon the courage exhi!ited !y many in often more =private> circumstances. &onversely, the emergence of a pu!lic discourse has had its impact on personal lives and the "ay politics around )ueer sexualities plays itself out in people>s lives. (hus, for example, one is increasingly "itness to the drama of children =coming out> to their parents as gay or les!ian, "omen going in for marriage "ith other "omen and men refusing marriage and living in "ith other men. 4hile ac#no"ledging the importance of the diverse forms of politics, this chapter "ill loo# at some of these more pu!lic forms of protest "hich centres on the use of la". $n this context, the contemporary era has seen the follo"ing struggles centring on la"G C. &ourtroom%!ased la"yering ;. &ampaigning for progressive la" reform E. Human rights interventions dealing "ith the medicali,ation of homosexuality <. $nterventions at the level of the police 5. Building up a human rights history of violations !y state and civil society 6. 2in#ing up to a glo!al discourse on )ueer rights /. Courtroom0based La%yering 4hat is significantly different a!out the last t"enty years is the emergence of activism around )ueer issues. &ases such as H. P. Minwalla v. ,mperorcxxxvi, in "hich t"o consenting adults "ere convicted for an offence under ;ec 3II, "ould not !e decided thus in the contemporary context "ithout considera!le protest. Ho"ever, in spite of the emerging voices of protest, the post%colonial era exhi!its strong continuities from the colonial era, "hich seem to drag the 'udicial discourse !ac# to the days of Fhanu v. ,mperorcxxxvii and the anachronistic understanding of the =unnaturalness> of non% HH

Chapter IV: @ueer &truggles around the ?aw: 'he Contemporary Conte7t procreative sex. (he tensions around this dual articulation are played out in the courtroom. (he court has !een the traditional mode through "hich la"yers have articulated rights claims. Ho"ever, in the context of the )ueer community, the difficulties of using this forum are manifold. (he num!er of )ueer people "illing to articulate their suffering in the courts has !een minimal compared to the scale of violation. Kven if one "ere a!le to net"or# effectively "ith the community and "in their trust and confidence, there "ould still !e an understanda!le reluctance on the part of )ueer people to use a pu!lic forum such as the court due to the fear of their sexuality !ecoming pu!lic #no"ledge. Ho"ever, this forum has to !e used in cases of the state clamping do"n upon )ueer people, "herein courtroom%!ased la"yering !ecomes crucial to safeguarding the !asic li!erties of the affected parties. Ho"ever, even in the rare instances "hen cases have come to court, la"yers have !een a!le to generate very little empathy from the 'udiciary. (he difficulties and opportunities em!edded in the use of the courtroom are !est illustrated !y reference to -i. the 2uc#no" case and -ii. the constitutional challenges to ;ec 3II of the $<&. 'he ?uc"now Case 6n /uly I, 2::9, raids "ere conducted on the !asis of an 0$ filed "ith the Ha,ratgan' police station in 2uc#no", "herein it "as alleged that a certain ;uresh had sodomi,ed the complainant. (he police, acting on the complaint, raided a par# that "as fre)uented !y the 8;8cxxxviii community and arrested ten people. Among those arrested "as an activist from Bharosa -an *B6 "or#ing "ith the 8;8 community.. (hereafter the police raided the offices of t"o *B6s "or#ing on safer sex issues, sei,ed safer sex material and registered an 0$ under ;ec 3II -unnatural sexual offences., ;ec 92:B -conspiracy to commit an offence., ;ec 9:E -a!etment. and ;ec 2E2 -sale, etc. of o!scene material. (he arrest "as follo"ed !y a media !lit, "ith prurient headlines such as @Bay &lu! ;upplied Boys to <oliticiansAcxxxix, @Bay &ulture ;tarted $n U< $n 9EEQ $tselfA cxl, @2uc#no" <olice aid Bay &lu!s, (en Arrested> cxli and =&all Boy ac#et ;ends ;hoc# 4aves in 2uc#no">.cxlii (he climate of homopho!ia generated !y the arrests and the su!se)uent media coverage "ere sanctioned !y state action. (he ;;< of 2uc#no", B.B. Buxi, claimed that @the t"o organi,ations, *a, and Bharosa, "ere running gay clu!s in contrast to the $ndian culture and ethics under the gar! of educating the masses a!out A$D; and H$7.Acxliii As if to complement the ran# pre'udices exhi!ited !y the police, the 8agistrate "ho heard the case also noted that these men "ere to !e denied !ail, "ith the 'udge approvingly )uoting the 2earned DB& L&rl.M, "ho opposed the !ail application, on the ground that @theyPare polluting the entire society !y encouraging the young persons and a!etting them for committing the offence of sodomy.Acxliv 0inally it too# an appeal to the High &ourt for the accused to !e released on !ail.cxlv (hese arrests thre" up a num!er of challenges "ith respect to la"yering for the )ueer community. Firstly, the very )uestion of getting the accused released on !ail seemed to !ecome lin#ed to "hat the 8agistrate thought gay people did. (he la" "ith respect to !ail "as not a relevant factor "hen it came to this case. cxlvi 4ithout even a perfunctory analysis of the relevant provision of the &riminal <rocedure &ode,cxlvii "hich statutorily mandated the reasons for not granting !ail, he "ent instead !y his perceptions of HN

Chapter IV: @ueer &truggles around the ?aw: 'he Contemporary Conte7t homosexuality. (hese perceptions seem to have !een the reason for not granting !ail rather than the relevant statutory provision. (his sho"s that there are no discourses a!out )ueer people in society other than the pre'udices, myths and misconceptions that have !een perpetuated !y the existence of ;ec 3II. (hus la"yering for the )ueer community "ill constantly have to confront the challenges of homopho!ia "herein )ueer people are constructed as =deviant> and =polluting> !y the courts. &econdly, one has to note that the climate of homopho!ia at the time "as not a 'udicial discourse alone. (he media "ith its prurient reporting and the police "ith their irresponsi!le statements !oth played important roles in "hipping up a climate of pu!lic hysteria in "hich the 'udicial decision "as located. (his lin#s up to the point that courtroom%!ased strategies rely heavily on the "ay mindsets have !een constructed, "hich lin#s !ac# to the discourses in "ider society. 'hirdly, the response of the state and media ended up harming the accused, regardless of the final 'udicial decision. (he pu!lic hearings meant that in 2uc#no" the accused>s sexual identities !ecame pu!lic, "ith a definite impact on their futures and societal perceptions of them. (hey "ere shamed and disgraced !y the arrests. As one of the activists noted, @9: people are #ept in 'ail and all over the city malicious reports are !eing "ritten a!out them. (hese 9: people are emotionally and physically tortured. (heir reputation has gone do"n forever. 4hat is one of the most important things for anyone5 0ood, money, empo"erment etc., isn't it5 *o", it "ould !e next to impossi!le for these 9: people to go to any place in 2uc#no" "here they can get a 'o!... (hese people are compulsorily out as rapist 8;8 -conspirers of sodomy. not in the family !ut in the society and in the city too. (hat is not very good experience. (heir sisterLsM "ould not !e getting married easily. Brothers "ould !e loo#ed do"n upon. 0athers and mothers "ould !e commented on negatively.A cxlviii (his thro"s up the issue of the suita!ility of the courts to protect the rights of people "ho are still in the closet. $f approaching the courts means compulsory =outing> "ith all its attendant negative outcomes, ho" does one articulate the rights of such a minority5 Fourthly! courtroom%!ased la"yering is necessary in contexts such as these, !ut real change seems to !e premised on a "ider pu!lic discourse that com!ats the heterosexism of la" and society. $n this context one has to note ho" the arrests !ecame a focal point for a "ider pu!lic mo!ili,ation. <u!lic meetings "ere organi,ed in Delhi, Bangalore, <une and 8um!ai and press releases "ere issued and protests organi,ed in Delhi, <une and Bangalore.cxlix Amnesty $nternational declared them @prisoners of conscienceA and $nternational Bay and 2es!ian Human ights &ommission -$B2H &. demanded their release and dropping of all charges. (he arrests meant that )ueer issues came to !e highlighted. 0or example, in the protest held in Bangalore, some of the colourful posters held aloft !y the protesters proudly proclaimed, @Bay and $ndian, 2es!ian and $ndianG ;o 4hat5A, @Hi'ra and $ndianA, @2ove is a Basic Human ightA, etc. 4ith over 2::: leaflets !eing distri!uted at an important pu!lic centre, the protest introduced the issues of sexuality minorities to a "ider, though diffuse, pu!lic. Finally! one "ould li#e to note that events such as the 2uc#no" incident and the meanings constructed out of it definitely =out> the community. $n a culture as diverse as $ndia, "hat is the meaning of this =outing>5 Ho" long does it survive in pu!lic memory5 Ho" does one come out and stay out5 Ho" does activism constructed around events !ecome a more long%lasting presence5 (hese are )uestions that can most possi!ly !e ans"ered !y the "ay the )ueer community responds to the next such pu!lic =outing.>

HF

Chapter IV: @ueer &truggles around the ?aw: 'he Contemporary Conte7t Constitutional Challenges to &ection EGG of the IPC 4hile the 2uc#no" case "as em!lematic of organi,ing around a crisis situation "ith the )ueer community forced to respond to the arrest of H$7?A$D; activists, there have !een other attempts at challenging the very !asis of ;ec 3II !y social action groups. $n 9EEH the A$D; Bhed!hav 7irodhi Andolan -AB7A., a human rights activist group, filed a <u!lic $nterest 2itigation in the Delhi High &ourt. (he petition challenged the constitutional validity of ;ection 3II of the $<& and argued that the petition violated Articles 9H%9N -right to protection against discrimination., Article 9E -right to freedom of speech and expression. and Article 29 -right to life and li!erty "hich encompasses the right to privacy. of the &onstitution of $ndia. $t also advocated the supply of condoms to 'ail inmates, "ith a plea to restrain the authorities from segregating or isolating prisoners "ith homosexual orientations or those suffering from H$7?A$D;.cl (he petition "as filed in the "a#e of the report of a medical team "hich visited (ihar /ail in Delhi and reported a high incidence of sodomy in the male "ards. (he team recommended ma#ing provisions for condoms in the 'ail as recommended !y 4H6 guidelines, as there "as a ris# of H$7 infection !eing transmitted to the 'ail inmates. (he 'ail authorities refused to do so !ecause they felt that it "ould -a. encourage male homosexual !ehaviour in prisons, "hich "ould !e encouraging an offence under ;ection 3II of the $<& and -!. amount to a tacit admission that homosexual !ehaviour exists in prisons.cli Ho"ever, the petitioner group !ecame defunct soon after"ards and the <etition never came up for hearing. $t "as only in 2::9 that this legal strategy "as revived as the *a, 0oundation -an *B6 "or#ing "ith H$7? A$D; related issues. approached the Delhi High &ourt again to read do"n ;ec 3II as not criminalising private consensual sex !et"een adults. clii (he difference in this petition is that it argued for the reading do"n of ;ec 3II to exclude acts of consensual private sex, as opposed to as#ing for ;ec 3II to !e struc# do"n as a "hole. (he reason the group opted for this strategy is lin#ed to the use of ;ec 3II !y child rights groups to prosecute child sexual a!use, as there is no comprehensive alternative statute in this area. (his indicates that the concerns of other constituencies such as the child rights movement are also !eing ta#en on !oard in articulating )ueer concerns. (he argument in the *a, petition is really a pragmatic compromise in the a!sence of a la" on child sexual a!use. Both petitions have no" !een clu!!ed together and the hearing is pending !efore the High &ourt. (he division !ench, comprising acting &hief /ustice Devinder Bupta and /ustice B. D. Ahmed, has given the Union Bovernment a final opportunity and as#ed it to su!mit a detailed affidavit. (hey noted that, ==$n vie" of a num!er of petitions )uestioning the vires of section 3II of the $ndian <enal &ode, a notice "as issued to the Attorney Beneral for giving his vie"s. Despite a num!er of ad'ournments, no affidavit is filed !y the &entre and a last opportunity is given to it to su!mit it in four "ee#s.>>cliii (he Bovernment of $ndia finally filed its response to the *a, petition on F.:E.2::3. (he Bovernment>s affidavit )uestioned the locus standi of the petitoner , asserted that =;ec 3II applied to cases of assault, "here !odily harm is intended or caused and deletion of the said section can "ell open flood gates of delin)uent !ehaviour and !e misconstrued as providing un!ridled license to the same.> (he affidavit denied that ;ec 3II "as violative of the right to life, the right to e)uality or the right to freedom of speech and expression. $n fact the Affidavit disingenuously made the case that that ;ec 3II "as applied to cases of child sexual a!use and rape and in fact , it actually fulfilled the constitutional mandate to protect "omen and children. (he affidavit noted that there "as no evidence for the fact that homosexuality "as tolerated in HI

Chapter IV: @ueer &truggles around the ?aw: 'he Contemporary Conte7t $ndian society prior to colonial rule and "ent on to conclude that =o!'ectively spea#ing there is no such tolerance to practice of homosexuality?les!ianism in the $ndian society> $t "ent on to o!serve that = "hile the Bovernment cannot police morality, in a civil society criminal la" has to express and reflect pu!lic morality and concerns a!out harm to the society at large>cliv (he Bovernment>s response !uries the hope that ;ec 3II "ould !e read do"n "ith Bovernmental cooperation. $t seriously )uestions the notion that if the )ueer rights movement ma#es =reasona!le> , =sane> demands the Bovernment "ould see the sense of it and ac)uiesce to the reading do"n of ;ec 3II. $n fact "hat the Bovernment>s response indicates is a virulent homopho!ia "hich is "illing to give no )uarter to the emerging )ueer rights movement. (he Bovernment response indicates that it sees itself as articulating and reflecting pu!lic morality, protecting "omen and children and #eeping closed the flood gates of delin)uent !ehavior. (he protection and defence of ;ec 3II emerges as a #ey Bovernmental concern and the Bovernment significantly enhances its pu!lic role as the guardian of societal morality. <erhaps one should read this response as !eing a part and parcel of the Hindu right>s ideology "hich is !ased on demonising and stigmatising difference, !e it religious or sexual in nature. (he Affidavit signals the Hindu ight>s deep and unremitting hostility to )ueer people "ho have al"ays !een defined as =aliens> and threats to $ndian culture and values. As the Affidavit notes, =o!'ectively spea#ing there is no such tolerance to practice of homosexuality?les!ianism in the $ndian society> 6ne "onders "hat the notion of the ostensi!le lac# of tolerance presages for the )ueer population in $ndia% "hether it "ould allo" for state tolerated pogroms against )ueer people or restrict itself to opposing the repeal of ;ec 3II is a )uestion of the "ay the future unfolds. 4hat the Bovernment>s Affidavit has demonstrated is that social change cannot !e premised upon the la". (he only "ay that ;ec 3II can !e handled is as a matter of a "ider political campaign. 6ne cannot expect 'udges to decide on ;ec 3II, positively if "e have not started a process of pu!lic education a!out )ueer rights. (here is thus a a necessity of converting the court room !attle into a "ider political !attle to put on !oard the issue of violence and violation "hich )ueer people are su!'ect to. (he petiton has to !e a part of a "ider political strategy. 1. Campaigning *or +rogressive La% ,e*orm (his is one of the crucial tas#s in "hich la"yering for )ueer rights is engaged. 4hat the limited engagement of the )ueer community "ith the la" has demonstrated is that there are significant legal hurdles to empo"erment. (he most visi!le o!stacle, of course, is ;ec 3II of the $ndian <enal &ode. But, that apart, the $ndian statutory frame"or# deprives )ueer people of their rights in numerous "ays. (he $mmoral (raffic#ing in <ersons Act, 9ENF and the civil la" governing marriage have also elicited strong protest. Apart from the courtroom%!ased strategy highlighted a!ove, the la" reform process has also !ecome a site for the articulation of )ueer concerns around these legislations. &ec EGG and the ?aw Commission of India-s 9ecommendations $n its 9I2 report, the 2a" &ommission, chaired !y /ustice /eevan eddy -retd.., recommended the deletion of ;ec 3II in the context of a redefined la" on sexual assault to replace the old la" on rape. $n the ne" definition, sexual assault included oral, anal, vaginal and other forms of penetrative intercourse, including insertion of HQ

Chapter IV: @ueer &truggles around the ?aw: 'he Contemporary Conte7t o!'ects "ithout consent !et"een men and men, "omen and "omen and men and "omen, "ithin the am!it of the criminal la". (he proposed la" moved a"ay from the patriarchal definition of rape, "hich understands it only as forci!le penile%vaginal intercourse, to include other forms of sexual assault such as insertion of o!'ects and other parts of the !ody into any orifice. (he proposed la" also too# on !oard the concerns of the child rights movement !y defining child sexual a!use as an offence for the first time. Ho"ever, the most controversial part of the la" reform "as that the offence of sexual assault itself "as made gender%neutral, "hich meant that even "omen could !e prosecuted for the offence of sexual assault. $t "as in this context of the redefined and !roadened definition of sexual assault that the eport recommended the deletion of ;ec 3II. As the 2a" &ommission put it, @$n the light of the change effected !y us in section 3IN, -the a!ove mentioned changes. "e are of the opinion that section 3II deserves to !e deleted. After the changes effected !y us in the preceding provisions -sections 3IN to 3IFK., the only content left in section 3II is having voluntary carnal intercourse "ith any animal. 4e may leave such persons to their 'ust desserts.And (he 2a" &ommission of $ndia recommendations "ere themselves a product of a ;upreme &ourt directive to re%examine the la" on rape in the context of a child sexual a!use case in "hich intercourse "as held to connote only penile%vaginal intercourse.clv 4hatever might have !een the motivations of the 2a" &ommission of $ndia, the eport provided a uni)ue opportunity for sexuality%!ased groups, "omen>s groups and child rights groups to get together and examine the conse)uences of the ne" proposals. 4hile "omen>s rights groups have !een a part of many la" reform processes and child rights groups too had some experience "ith it, the )ueer groups "ere completely ne" to the la" reform process. (he "omen>s rights groups and the child rights groups "ere opposed to the proposed la" reform, mainly on the ground that sexual assault "as a gender%specific offence and gender%neutrality "ould end up harming "omen and girl children. (hat apart, there "as also dissatisfaction at the fact that marital rape "as still not recogni,ed and that there "ere inade)uate procedural safeguards for victims of child sexual a!use. clvi 0lavia Agnes, after dra"ing out the history of rape la" reform, cautions against hoping for too much from it !y noting that, @"hat is !ecoming increasingly apparent is that legal reforms are not only slo", !ut "hen they do occur, they may !e in'urious to "omen and other marginali,ed sections, or they may simply hide or relocate the fundamental pro!lems.>clvii As far as the )ueer groups "ere concerned, it "as clear that )ueer people had horrific stories to narrate of sexual violence in custodyclviii and there "as a pressing need for the recognition of violence against )ueer people as a serious human rights violation. Kven in human rights communities, this violence "as not yet recogni,ed as a persistent and systematic violation targeting the supposedly a!errant sexuality of )ueer people. Ho"ever the groups "ere clear that in the context of )ueer concerns not even figuring in the 2a" &ommission>s imagination, the present provision of !oth deleting ;ec 3II and "idening the definition of sexual assault "ould not help them. $n fact it "as the almost unanimous opinion of all sections that gender%neutral rape la"s might, instead of providing protection for )ueer people, might instead actually empo"er the state to further harass them. (he de!ates "ere indicative of the complete mistrust of the present administration and, in a larger sense, of the possi!ility of anything pro%)ueer coming out of an undemocratic and purely technical exercise such as la" reform.clix

HE

Chapter IV: @ueer &truggles around the ?aw: 'he Contemporary Conte7t (he profound mistrust seems to !e validated !y the remar#a!le silence on "hy precisely the provision needs to go. (here is no analysis of the emerging )ueer community or any understanding, li#e that of the ;outh African &onstitutional &ourt, that such a provision harms the dignity of the person or even that it conflicts "ith the constitutional norms of e)uality, privacy and freedom of expression. $nstead, the 2&$ merely seems to say that since the definition of rape is expanded and any"ay sex "ith animals is not our concern, ;ec 3II can !e deleted. 'he Immoral 'raffic"ing in Persons +ct! CJKL (he chief instrument in the $ndian state>s regulation of prostitution is the $mmoral (raffic <revention Act, 9ENF, "hose mandate is to prevent traffic in "omen and children. (he stated o!'ective of the la" on traffic#ing is to criminali,e !rothel% #eeping, traffic#ing, pimping and soliciting. (heoretically, the o!'ective is not to criminali,e prostitution per se !ut only to criminali,e a prostitute soliciting as "ell as "ell as carrying on prostitution in the vicinity of a pu!lic place. $n actuality, the enforcement of the $(<A invaria!ly targets the visi!le figure of the sex "or#er -"ho is also the "ea#est lin# in the chain. and generally spares the hidden and po"erful system that supports the institution of sex "or#. ;ec I and ;ec Q, "hich deal "ith prostitution in pu!lic places and soliciting respectively, are the #ey provisions "hich are used in the Act. $n fact, the ma'ority of arrests of sex "or#ers are under ;ec Q, "hich defines the offence of soliciting for purpose of prostitution. (his definition ma#es it clear that under $ndian la" sex "or#ers may, so to spea#, exist !ut not !e seenG sex "or# is allo"ed to exist as @a necessary evilA !ecause it serves a male sexual need, !ut its practice has to !e continually regulated "ith legal strictures, police harassment and intimidation. $n 9EQF the la" "as amended and one of the #ey changes !rought a!out "as the su!stitution of the "ord =person> for =female> throughout the statute, there!y ma#ing it a gender%neutral statute. (he am!it of this criminal la" thus !ecame "ider, "ith hi'ras also !ecoming lia!le for soliciting under ;ec Q of the Act, since they are not legally considered as "omen. (his Act has !een particularly used in targeting those "hose lives fall at the intersection of class, gender and sexuality. Hi'ra sex "or#ers in particular have !een vulnera!le to police harassment, extortion, rape and violence under the guise of !eing arrested for soliciting.clx (he forms of everyday violence suffered !y hi'ras and #othis under the la" that criminali,es sex "or# has resulted in the demand for the repeal of the anti%soliciting provision !ecoming one of the ma'or concerns of the hi'ra community. Marriage ?aws (he other area in "hich )ueer concerns have come to the fore has !een regarding the la"s dealing "ith marriage. ;ince marriage has al"ays !een understood as either a sacrament or a contract !et"een a man and a "oman, there exists no space for same% sex unions. $n fact the la"s are so rigid on the point that even impotence is seen as a ground for divorce or a ground to declare the marriage voida!le. (his points to the strong heterosexist !ias of the la" "herein =man> and ="oman> are defined in clearly procreative terms, "ith ina!ility to procreate rendering the marriage itself suspect. (hus, in a context "herein even the slightest deviation from the procreative heteronormative ideal renders the marriage suspect, there is very little space for a same%sex union. (his demand for a change in the marriage la"s to allo" same%sex marriage has !een put for"ard most strongly in the context of les!ian "omen. All the cases of same%sex N:

Chapter IV: @ueer &truggles around the ?aw: 'he Contemporary Conte7t marriages reported in the media have !een those of "omen see#ing to validate their relationships. (he strength of les!ian desire is sho"n in the fact that there have !een ten documented cases of "omen "anting to live "ith each other since 9EQQ. Here one is not tal#ing a!out t"o "omen "ho are silently and uno!trusively living together, !ut "omen "ho "ant societal recognition of their relationship and hence decide to go in for marriage.clxi ecently, there "as a case of t"o "omen, An'ali and *eera, expressing their intention to marry each other in Durg in &hhattisgarh. (he police referred the case to the ;pecial 8agistrate, "ho ordered that they could live together if they "anted to, !oth of them !eing adults. (he Durg ;< remar#ed that there is no la" to stop them from doing so.clxii 6ther "omen have exchanged garlands in the temple, registered a deed of agreement for partnership or entered into a maitri "arar -)uasi%legal friendship contract., all "ith a vie" to getting their relationships recogni,ed !y society. Ho"ever, there is no unanimity on the demand for recognition of same%sex marriages, as there is also the opinion that @in pressing for the companionship contracts for a couple "e "ere reinforcing the institutions of marriage and monogamy%!oth of "hich are restrictive.Aclxiii (he la"s of marriage in turn form the !asis of an entire regime of legal rights "hich is !ased on a presumption of the heterosexual family unit. (hus for example, nomination of !eneficiaries under employment la"sclxiv and the definition of a dependent under the 4or#men>s &ompensation Actclxv have a heterosexist !ias. $n fact, one>s existence in industrial society is governed !y la"s that construct heterosexuality as the norm from "hich there can !e no deviation. Hence the la" is complicit in enforcing and reproducing structures of hetero%patriarchy. 4hat is important to note is that it is not only gender that is regulated !y la", !ut also sex. A person, once !orn into one sex, is legally forced to live "ithin the same sex. ;ex changes are not yet legally recogni,ed in $ndia. (hus in another recent case affecting the )ueer community, the 8adhya <radesh High &ourt upheld the order of an election tri!unal "hich nullified the election of a hi#ra, Jamala /aan, to the post of 8ayor of Jatni on the ground that it "as a seat reserved for "omen and that Jamala, !eing a @maleA, "as hence not entitled to contest the seat. clxvi (he decision essentially implies that one cannot choose one>s sex and that one should remain "ithin the sex into "hich one is !orn. As it stands, the civil la" frame"or# presently produces the )ueer person )uite clearly as "hat /udith Butler calls the @unvia!le -un.su!'ectA. clxvii 4hat is clear is that the entire civil la" frame"or# is in need of change from the point of vie" of )ueer people. 8erely superficial change "ill !e useless as the !ias of the la" is deeply heterosexist and needs to !e challenged comprehensively to move )ueer people out of the domain of unvia!le -un.su!'ecthood and allo" them to !ecome rights%!earing su!'ects. 'he ?aw 9eform Process: ?egislative and Budicial (he larger )uestion that needs to !e raised in the context of !oth the la" reform efforts as "ell as the courtroom%!ased approach is "hether la"yering for the )ueer community re)uires an attempt at a closed%door approach to la" reform or ma#ing use of the la" as a "ider political strategy. 8y argument in this regard is that, !ecause of the fact that )ueer oppression is deeply rooted in !oth societal and state processes, any attempt at la" reform should !e a pu!lic movement process, as a mere removal of a statutory provision "ithout a "ider recognition of )ueer lives "ould not !e productive. N9

Chapter IV: @ueer &truggles around the ?aw: 'he Contemporary Conte7t $n this context there is a lot to learn from the experience of the feminist movement. *andita Ha#sar remar#s, @LAMn alternative to a movement cannot !e a petition. $ strongly feel "e should resort to the la" only "hen the movement is strong enough to carry the la" reform for"ard. $n almost all such cases a legal !attle should only supplement the political !attle outside the courts. $f the legal !attle is allo"ed to ta#e precedence over the political one the la" is easily used !y the state to su!vert the political !attle>s o!'ectives.Aclxviii (hus la" reform should not !e allo"ed to !ecome an undemocratic process "ithin the 2a" &ommission of $ndia. As Upendra Baxi noted "ay !ac# in 9EQ2, @the 2a" &ommission of $ndia is a technocratic !ody chiefly concerned "ith la"yers> la"P (he process of la" reform is deprived of any comprehensive grasp of social reality. (here is a lac# of any coherent philosophical or ideological !ase.A clxix (his analysis holds remar#a!ly true even today, as the de!ates around the 9I2 eport illustrate. 4e still have la" reforms !eing proposed "ithout any understanding of )ueer issues and possi!ly "ithout any concern. (herefore la" reform has to !ecome a part of a "ider political process, "hich "ould put the issue of )ueer lives and rights on a more pu!lic agenda. 2. Human ,ights (nterventions Dealing %ith the !edicali3ation o* Homosexuality A #ey aspect of the introduction of modernity !y the coloni,ers "as the implantation of the medical discourse. 4hile there is much enthusiasm for =modern medicine>, there are also "ays in "hich the medical discourse has constructed and specified pathologies and proceeded to =treat> these a!normalities "hich it itself specifies. As 8ichel 0oucault famously noted, @(his ne" persecution of the peripheral sexualities entailed an incorporation of perversions and a ne" specification of individuals. As defined !y the ancient civil or canonical codes, sodomy "as a category of for!idden acts3 their perpetrator "as nothing more than the 'uridical su!'ect of them. (he nineteenth century homosexual !ecame a personage, a past, a case history, and a childhood, in addition to !eing a type of life, a life form, and a morphology, "ith an indiscreet anatomy and possi!ly a mysterious physiologyP(he sodomite "as a temporary a!erration3 the homosexual "as a species.And 4hat is clear from 0oucault>s description is that medical sciences such as sexology, psychiatry and psychology have played a #ey role in this transition from conceptualising sodomy as a sin to "hich all people can fall prey to conceptualising homosexuals as a category of people "ith perverse desires. (here is also a shift from loo#ing at homosexuals as people "ho #no"ingly commit sin to people "ho !ecause of a medical condition are prone to this #ind of perverse !ehaviour. 4hat follo"s is the =discovery> that homosexuals are to !e treated and not punished for their !ehaviour. Ho"ever, "hether =treatment> rather than =punishment> is any real advance in terms of respecting the dignity of the person, or merely another mode through "hich society see#s to control the homosexual, is a )uestion "hich needs to !e as#ed. 6nce again, if "e ta#e recourse to 0oucault, it is clear that he envisages the ne" modes through "hich homosexuality is conceptualised as discourses "hich extend social controls more deeply than the previous attempts !y canonical la". <sychiatry and psychology are thus seen to incorporate perverse sexualities "ithin the system of #no"ledge of modern medicine and there!y extend the system of social controls over people "ith same sex desires. $t is necessary to examine =treatment> critically using the lens of human rights.

N2

Chapter IV: @ueer &truggles around the ?aw: 'he Contemporary Conte7t Medical 'reatment of 2omose7uality ;ince the historical shift from sodomy as a sin to the homosexual as a species, the modes through "hich the rights of )ueer people are violated have changed. As noted earlier, treatment of the homosexual is individuali,ed, "ith each person having a case history. (he theoretical premise underlying treatment "as that @individuals are much ali#e sexually and that it is an e)ually simple matter for all of them to confine their !ehaviour to the single pattern "hich the mores dictate.Aclxx (he treatment of homosexuals formed a part of the treatment of a larger list of perversions, "hich included fetishism, voyeurism, #leptomania, sadism, masochism, transvestism, coprophilia, undinism, frottage, chronic satyriasis and necrophilia. (he ela!oration of these =perversions>clxxi further institutionalised the normality of heterosexuality. (o understand "hat "as normal one needed to stigmatise these =perverse> sexualities. As 4ee#s put it, @the negative side of this classificatory enthusiasm "as a sharp reinforcement of the normalP the de!ates over the causes of the perversions and the eager descriptions of even the most outrageous examples inevita!ly "or#ed to emphasi,e their pathology, their relationship to degeneracy, madness and sic#ness, and helped to reinforce the normality of heterosexual relationships.Aclxxii (he treatment model of homosexuality !uilds on the am!ivalence in 0reud>s understanding of homosexuality. According to 4ee#s, @0reud distanced himself from the vie"point that homosexuality "as a sign of degeneracy on the grounds that this "as no more than a ='udgement of value, a condemnation instead of an explanation>. $n a famous letter to the mother of a young homosexual, 0reud assured her that homosexuality "as no vice or degradation, nor "as it an illnessG it "as nothing to !e ashamed of. But he addedG =4e consider it to !e variation of the sexual function produced !y a certain arrest of the sexual development.> Aclxxiii $t "as the final part of 0reud>s statement, i.e. that homosexuality "as a @certain arrest of the sexual developmentA, that "as pic#ed up !y his follo"ers, "ho advocated heterosexuality as the only non%pathological sexual orientation. Homosexuality "as seen as the result of having a domineering mother?a!sent father and as a pathological condition to !e cured. $t "as one of 0reud>s follo"ers, ;andor ado, "ho laid the foundations of reparative therapies, "hich are designed to change the sexual orientation of the patient.clxxiv eparative therapies are aimed at changing the sexual orientation of the patient through a variety of techni)ues, including the administration of nausea%inducing drugs, shoc# therapy and !ehavioural therapy. $n the 4est in particular, reparative therapy even includes "or# done !y faith%!ased organi,ations such as Kxodus, "ho use religion as a therapeutic tool to !ring a!out a change in sexual orientation. 9eparative 'herapies: If It +in-t :ro"e! Hon-t Fi7 It) (here are pro!lems "ith reparative therapies at many levels. (hey can !e stated as follo"sG Firstly, ;tephen Halpert )uite neatly summari,es the fundamental o!'ection in the title of his article, @$f $t Ain>t Bro#e, Don>t 0ix $tA. $f "e see sexual orientations as an example of the incredi!le diversity of human desire, "hy should a person "ith a homosexual orientation !e converted to a heterosexual orientation5 0urthermore, in a "orld "here heterosexuality as the only via!le option is constantly drilled into us !y the various agencies of social conditioning such as the family, religion, media, the la", schools and social net"or#s, it !ecomes almost impossi!le for a person to even N3

Chapter IV: @ueer &truggles around the ?aw: 'he Contemporary Conte7t imagine a non%heterosexual alternative. $n such a context the role that the medical profession should play is to counter the heterosexism of mainstream society !y putting for"ard the idea of gay?les!ian?!isexual life as a non%pathological alternative. As Halpert aptly notes, @to attempt to cure is to reinforce !igotry.A &econdly, the techni)ues used, "hich include !ehavioural therapy, nausea%inducing drugs and electric shoc# therapy, are in themselves ethically )uestiona!le. At the very least, they violate the dignity of the patient, and at their most extreme they are a form of torture. (he human right to live "ith dignity guaranteed !y the $&&< -$nternational &ovenant on &ivil and <olitical ights., as "ell as !y the &onstitution of $ndia, is clearly violated in such cases. 'hirdly, in a heterosexist society, treatments such as aversion therapy provide enormous scope for doctors to act to the detriment of their patients "ithout )uestioning their o"n !iases. An intervie" "ith a !ehavioural therapist in Bangalore sho"ed that the doctor lin#ed gay men "ith drug use and H$7?A$D;, noting that !oth "ere more common in the gay community. ;uch negative stereotypical opinions in this case led the Doctor to prescri!e medical treatment to all patients "ho came to him even if he himself felt that the patient "as distressed a!out his homosexuality due to social and cultural factors rather than !eing distressed a!out his orientation per se.clxxv Finally, there are serious dou!ts of the efficacy of the treatment itself. $n his survey, Halpert remar#s, @L(Mhere is virtually no empirical evidence supporting the efficacy of the techni)uesAclxxvi. 0urther it is almost impossi!le to say if one has actually eliminated one>s homosexual desire through medical treatment or merely has coerced heterosexual activity. Conversion T,era%"3 T,e US Stand (his =disease> model of homosexuality has !een continually )uestioned since the !irth of the gay and les!ian movement. $n fact this sustained )uestioning has led to the American <sychiatric Association removing homosexuality as an illness from the Diagnostic and ;tatistical 8anual of 8ental Disorders -D;8%3. in 9EI3. (his "as follo"ed !y a resolution of the American <sychiatric Association in 9EEQ, "hich read, @(he American <sychiatric Association opposes any psychiatric treatment, such as reparative therapy or conversion therapy, "hich is !ased upon a prior assumption that the patient should change his?her homosexual orientation.A clxxvii =(he American <sychological Association did not go so far as to condemn reparative therapy as unethical, !ut the resolution on conversion therapy re)uires all psychologists to disseminate accurate information a!out sexual orientation, provide informed consent and alternative treatment information, and practise @in a non%discriminatory manner in a value%neutral environment.Aclxxviii Conversion T,era%"3 T,e Indian Conte.t $n contrast, the $ndian medical esta!lishment, viz. (he 8edical &ouncil of $ndia, the $ndian 8edical Association and the $ndian <sychiatric Association, has adopted the 4H6 system of classification of mental and !ehavioural disorders #no"n as $&D %9: -9EE2.. (his system distinguishes !et"een ego syntonic and ego dystonic homosexuality and specifically mentions ego dystonic homosexuality, !isexuality and heterosexuality as psychiatric disorders. $n ego dystonic homosexuality, !isexuality or heterosexuality the gender identity or sexual preference is not in dou!t, !ut the individual "ishes it "ere different and see#s treatment. $n such a case, according to the 4H6, treatment is "arranted. $n ego syntonic homosexuality, !y contrast, the individual is comforta!le "ith his or her NH

Chapter IV: @ueer &truggles around the ?aw: 'he Contemporary Conte7t sexual preference or gender identity and treatment is not "arranted. Apart from the ego syntonic?dystonic distinction, if a person faces pro!lems in maintaining a sexual relationship due to the person>s sexual preference or gender identity, then the $&D%9: classifies it as a sexual relationship disorder, "hich also "arrants treatment. (he syntonic?dystonic distinction is pro!lematic for the follo"ing t"o reasons. 0irstly, although it is claimed that the determination of "hether a person suffers from ego syntonic or dystonic homosexuality is a clinical determination, a reputed doctor at a prominent Bangalore hospital has conceded that a person>s distress "ith his homosexuality may !e due to different factors li#e pressure to get married or need to conform to culturally appropriate sexual practices.clxxix ;econdly, many doctors assume that any patient "ho comes to them is suffering from ego dystonic homosexuality. (here is not even a perfunctory attempt at verifying if the patient is indeed dystonic, although social pressure may very "ell force ego syntonic patients to see# treatment. (hus, in the context of a society "here there is little information a!out same sex desires and relationships, gays, les!ians, !isexuals, transgenders and other )ueer people have !een su!'ect to a "ide range of medical treatments, "hich include administration of drugs "hich induce nervous reactions, shoc# therapy and !ehavioural therapy, all aimed at coercing heterosexual !ehavior. Due to lac# of ade)uate research, there are no statistics as to the num!er of people treated !y aversion therapy in $ndia. (here are only occasional reports of psychiatric a!use, "hich elicit a column in the ne"spaper and are then forgotten. (he first case to !e ta#en up on a organi,ed !asis !y the )ueer community "as the case of the A$$8; patient, "hich "ent to the *ational Human ights &ommission -*H &.. T,e N&RC Case (he <rotection of Human ights Act, under "hich the *ational Human ights &ommission -*H &. has !een set up, defines human rights as @rights guaranteed under the &onstitution of $ndia or $nternational &ovenantsA. (he mandate of the *H & under ;ec 29-9. includes the po"er to in)uire suo motu into @a petition presented to it !y a victim or any person on his !ehalf, into complaint ofP violation of human rights or a!etment thereofPA (he *H & under ;ec 92-f., -g., -h. and -i. also has the po"er to study treaties and other international instruments on human rights and ma#e recommendations for their effective implementation, underta#e and promote research in the field of human rights, spread human rights literacy among various sections of society and encourage the efforts of non governmental organi,ations and institutions "or#ing in the field of human rights. (he a!ove reading of the statute indicates that the *H & has !een conceptualised as !eing in the vanguard of human rights struggles in $ndia. (hough it has no po"er to implement its orders, if the *H & fulfils its mandate, it must not only in)uire into complaints !ut also lin# up to understandings of human rights glo!ally and locally. $t must promote human rights cultures !y effectively lin#ing up glo!al developments in human rights "ith local initiatives. (he "ider definition of human rights in (he <rotection of Human ights Act seemed to indicate that the *H & "ould !e more hospita!le terrain "hen it came to protecting the human rights of )ueer people. $t is in this context that a petition "as filed in the case of a patient at the All $ndia $nstitute 0or 8edical ;ciences -A$$8;., "ho had !een undergoing treatment !y a doctor in the psychiatry department for four years to cure him of his homosexuality. (he patient "ent to *a, 0oundation $ndia -an organi,ation "or#ing on 8;8 issues.,

NN

Chapter IV: @ueer &truggles around the ?aw: 'he Contemporary Conte7t and the coordinator of the 8;8 pro'ect, ;haleen a#esh, filed a complaint "ith the *H & alleging psychiatric a!use. (he patient himself noted that @LmMen "ho are confused a!out their sexuality need to !e given the opportunity to go !ac# to heterosexuality. $ have never !een confused !ut "as nevertheless told that $ had to !e =cured> of my homosexuality. (he doctor put me on drugs, "hich $ had !een ta#ing for four years.A clxxx (he treatment reportedly involved t"o componentsG counselling therapy and drugs. During counselling therapy sessions, the doctor explicitly told the patient that he needed to cur! his homosexual fantasies, as "ell as start ma#ing "omen rather than men the o!'ects of his desire. (he doctor also administered drugs intended to change the sexual orientation of the patient, providing loose drugs from his stoc# rather than disclosing the identity of the drugs through formal prescription. (he patient reported experiencing serious emotional and psychological trauma and damage, as "ell as a feeling of personal violation.clxxxi (he moment the petition "as filed, there "as a "ide mo!ili,ation of the sexuality minority community and a num!er of letters "ere "ritten to the *H & urging it to protect the rights of the community. (he *H &, after admitting the complaint -V3E2:., finally chose to re'ect it. $nformal conversations "ith the &hairman of the *H & revealed that the &hairman !elieved that until ;ec 3II "as repealed nothing could !e done and in any case most of the organi,ations "ere foreign%funded, "ithout any real grassroots support.clxxxii -;ee Annexure $.. According to another *H & source, @homosexuality is an offence under $<&, isn>t it5 ;o, do you "ant us to ta#e cognisance of something that is an offence5Aclxxxiii 4hat is clear from the a!ove comments is that there is a significant lac# of understanding of gay people as human !eings "hose lives encompass a complexity !eyond the mere fact of a certain #ind of sexual act. (here seems to !e an easy collapsing of the category of sexual act, sexual identity and sexual orientation, "ith sexual acts defining identity and orientation. 0urther there is no understanding of the fact that same%sex love has its histories and traditions rooted in the history of $ndia and that the existence of )ueer communities is a fact that that "ill increasingly have to !e ta#en into account !y mainstream society and institutions. $n the a!sence of such understanding, there is little hope that future decisions of the *H & "ill encompass the !road frame"or# of international la" and the constitution, as "ell as the "or# of local groups. 4hat is clearly needed is a "ider mo!ili,ation and campaign around the issue of the medical treatment of homosexuality, clearly focusing on ho" such treatment violates the dignity and self%respect of )ueer people. (he particular issues one "ould need to focus on are as follo"sG (he distinction !et"een ego dystonic and ego syntonic homosexuality has to !e done a"ay "ith. (his "ould mean lo!!ying to change the $&D%9: classification system !y the 4H6. (he 8edical &ouncil of $ndia, the $ndian 8edical Association and the $ndian <sychiatric Association have to pass resolutions clearly specifying under "hat circumstances they "ill treat ego dystonic patients in a homopho!ic "orld. (reatment, if at all, should only follo" the transmission of value free, non% 'udgmental information a!out homosexuality, along "ith the existence and contacts of gay and les!ian groups functioning in the country. (he 8edical &ouncil of $ndia, the $ndian 8edical Association and the $ndian <sychiatric Association should clarify "hat informed consent of the patient to the treatment entails. $nformed consent should put the !urden clearly on the NF

Chapter IV: @ueer &truggles around the ?aw: 'he Contemporary Conte7t doctors to inform the patient of the variety of other options !efore contemplating treatment. (he 8edical &ouncil of $ndia, the $ndian 8edical Association and the $ndian <sychiatric Association should also underta#e sensiti,ation "or#shops "ith doctors on the issue of sexual orientation so that unconscious heterosexism among doctors can at least !e made conscious. 4. (nterventions at the Level o* the +olice As noted earlier, !ecause of the specificities of )ueer oppression, most instances of violation never come to court. Ho"ever, the police are central to the )ueer experience. (he <U&2 report indicates that gay?!isexual men, hi'ras and #othis are su!'ect to constant police harassment, intimidation, illegal detention, and extortion almost as a matter of routine in pu!lic places.clxxxiv $t also notes the particularly harsh treatment meted out to hi'ras. (hey are su!'ect to enormous harassment and are not secure any"here. (he report documents that even if they are at home, they are lia!le to !e pic#ed up and ta#en to the police station, as#ed humiliating )uestions a!out their gender and raped or threatened "ith !eing stripped on a regular !asis. (he police capitali,e on the fears of the )ueer community of !eing outed as "ell as the deeper societal homopho!ia to !latantly su!'ect )ueer people to all forms of harassment and violence, #no"ing fully "ell that the victims "ill never )uestion them. $n such contexts, interventions can !e made at various levels. (he experience of the Bangalore%!ased group ;angama is instructive as to ho" successful interventions can !e made at the level of the police station. Firstly, "hat ;angama has !een successful in doing is !uilding a strong community net"or#. (his has primarily ta#en the form of net"or#ing "ith the community needs to !e set up so that the violations of !asic rights are reported. (he first initiative in this regard "as the formation of (he &oalition for ;exuality 8inority ights -&;8 . "hich had its first case -the illegal detention of a !isexual man. reported to it only after an intensive distri!ution of over 9::: pamphlets in cruising areas a!out the rights of sexuality minorities along "ith contact num!ers in case of police harassment. ;angama !uilt upon this initial effort !y starting a support group called 7ividha, "hich met to discuss various issues, including the ma'or issue of police harassment. $n a context "here )ueer people never report a!uses against them, it re)uires a lot of community%!ased "or# to ensure that violations are at least reported. Ho"ever, the group "ent !eyond the o!'ective of reporting violence as the formation of the group ensured a certain degree of collective empo"erment, "hich ena!led people to stand up to violence. Ho"ever, the mere formation of a group alone is not enough to "ithstand police harassment. &econdly, !uilding on the community%!ased net"or#ing, ;angama has !een effective in intervening effectively "hen mem!ers of the )ueer community do come for legal help. 4henever the organi,ation found out a!out instances of violence and a!use, the matter "as ta#en up in court. (his intervention on a case%!y%case !asis had a positive impact in instilling confidence that crisis situations "ould !e responded to. Kven !igger challenges, such as the one posed !y the flat%o"ners association of the !uilding in "hich ;angama is housed, "hich o!'ected to hi'ras visiting the ;angama premises, "ere faced "ith determination. (hus, "hen the police refused to allo" hi'ras to use the ;angama premises, letters "ere "ritten to the <olice &omissioner, &hief 8inister, *H &, $B2H & etc "ith the o!'ective of pressuri,ing the police to cease their illegal action. (he pressure had the impact of actually forcing the police to !ac# do"n and there!y protecting the right of hi'ras to freedom of movement. NI

Chapter IV: @ueer &truggles around the ?aw: 'he Contemporary Conte7t 'hirdly, to tac#le the larger context of daily violence, there is a pressing need to !uild a more empo"ered community more "illing to stand up to authority. 6ne mode of empo"erment "ould !e a !asic understanding of ho" to negotiate the criminal la" frame"or# regarding arrest. $n this context, learning a!out one>s rights under the &riminal <rocedure &ode !ecomes important to !uild a greater sense of confidence. 6ther"ise )ueer people "ill continue to run from the police the moment they see them, even if they are not doing anything illegal. 5. Building up a Human ,ights History o* 6iolations by "tate and Civil "ociety ('he victim who is able to articulate the situation of the victim has ceased to be a victim: he or she has become a threat.* = Bames :aldwin (here are many "ays in "hich violence inflicted on people can !e articulated. Human rights is one such political language in "hich suffering can !e articulated in such a "ay that the modern state and society have no choice !ut to listen. As Upendra Baxi puts it, @human rights language LisM perhaps all that "e have to interrogate the !ar!arism of po"er, even "hen LthisM remainLsM inade)uate to fully humani,e the practices of the politics of cruelty.Aclxxxv $n fact, one of the #ey "ea#nesses of the )ueer movement has !een that the suffering visited upon the community has not !een rigorously documented in human rights terms. (his could also !e one of the reasons "hy the human rights community has not yet seriously dealt "ith the issue of )ueer rights. <ossi!ly the first report on homosexual rights in the $ndian context "as !y the AB7A, "hich, in a pioneering report entitled ?ess 'han ay, documented some part of the issues faced !y )ueer people in $ndia.clxxxvi At the end of the 9EE:s, the <U&2%J came out "ith a report titled 2uman 9ights Violations +gainst &e7uality Minorities In India: + Case &tudy of :angalore , "hich attempted to loo# at the human rights of sexuality minorities and their violation !y !oth state -la" and police. and civil society institutions -the medical esta!lishment, media, family, "or#spaces, household spaces, etc... $t is hoped that this report "ill stimulate a more organi,ed documenting of histories of a!use and violation. (he <U&2%J is also in the process of compiling another report to loo# specifically at the lives of #othis and hi'ras and the violence inflicted on them, entitled 2uman 9ights Violations +gainst 'he 'ransgender Community: + &tudy 4f Fothi +nd 2i#ra &e7 0or"ers In :angalore. (he documentation of human rights a!uses is an urgent need as there continues to !e an =invisi!ility> around the most serious forms of violation of the rights of )ueer people. (he rape of transgender people, the suicides of les!ian "omen and other forms of everyday violence continue to !e tolerated in the context of a =silence> around these issues. (he very process of invisi!ility allo"s violence to continue unrecogni,ed and unnamed !ecause little is #no"n a!out the very =fact> of violent denial of rights. (his documentation could lead in turn to "hat *andita Ha#sar calls @a systematic criti)ue of the state "hich leaves no room for dou!t that the la" is primarily an instrument for conservation and perpetuation of the present social, economic and political ine)uality and in'ustice.Aclxxxvii (he #ey difference in the )ueer context "ould !e that the systematic criti)ue is necessary not only in the context of the state !ut also the institutions of civil society, "hich are complicit in various forms of violence against )ueer people. (hus systematic documentation is li#ely to produce an image of NQ

Chapter IV: @ueer &truggles around the ?aw: 'he Contemporary Conte7t !oth state and civil society as seen through a )ueer perspective. (he violence of the state is complemented !y the deep societal codes of intolerance "hich legitimi,e and render invisi!le the very nature of violence. (he tas# of documentation is to render the homopho!ic nature of modern state and society visi!le and su!'ect to criti)ue. 7. Lin8ing 9p to a Global Discourse on $ueer ,ights Another form of activism "hich has increasingly ta#en hold in the contemporary era is the gro"ing lin#ages "ith the glo!al discourse on )ueer rights. (he struggles in the $ndian context are increasingly !eing net"or#ed glo!ally through the discourse on human rights. Ho"ever this form of glo!ali,ation of )ueer struggles falls on the fault lines of de!ates around the =cultural relativism> versus =universality> of human rights. (his conflict "ill !e follo"ed through a close examination of the institutions through "hich the glo!al lin# is !eing formed. (he terms of the glo!al discourse on )ueer rights have !een set !y the follo"ing agencies. $a% D8 +gencies 2in#ing up to the glo!al U* discourse remains fraught "ith tensions , as indicated !y the recent U* Beneral Assem!ly ;pecial ;ession -U*BA;;. on H$7?A$D; and the controversy over the right of the $nternational Bay and 2es!ian Human ights &ommission -$B2H &. to spea# at the session. Jaryn Japlan, the $B2H &>s H$7 <rogram 6fficer, "as !anned from the ound (a!le, follo"ing o!'ections !y the delegations of ;udan, ;yria, <a#istan, 8alaysia, Kgypt, 2i!ya, $ran ;audi Ara!ia, and 8orocco. A motion "as sponsored !y Argentina, &anada, *or"ay, and the Kuropean Union, among others, o!'ecting to the !an. After a heated de!ate the Beneral Assem!ly decided in favour of the motion allo"ing $B2H & representative to spea#, !y a vote of F2 in favour, : against, and 3: a!stentions. A num!er of delegations refrained from voting, hoping to avoid a )uorum, yet the vote "as ruled valid.clxxxviii 4hat is emerging is an international mo!ili,ation !y the right "ing "hich !asically aims to marginali,e )ueer people in all cultures. (he success of this strategy is evident in the mo!ili,ation against the participation of the $B2H & as "ell as the final resolution "hich "as arrived at. (he final resolution "as indicative of this glo!al mo!ili,ation effort as one of the strategies in the !attle against H$7?A$D;, the recognition of vulnera!le communities such as sex "or#ers and 8;8 communities, "as "ea#ened. (he U*BA;; undermined this fundamental commitment to tac#le H$7?A$D; !y studiously avoiding any allusion to )ueer people or sexual minorities, preferring to cloa# its concern in the more vague term @vulnera!le groupsA.clxxxix (hus it is clear that the commitment of the U* and U* agencies to the rights of )ueer people remains patchy though there are significant advances in certain areas cxc, in the context of the emerging false *orth%;outh polarity on )ueer rights, it remains a very hotly contested area. (he #ind of lin#ages $ndia "ill ma#e to this glo!al discourse are still uncertain. 4hether the $ndian state "ill deny the existence of homosexuals in $ndia and spea# of the issue as a =4estern concern> or ta#e a more sensitive stand is still not clear in the a!sence of de!ate on the point. $b% 4ther 8ational Conte7ts (he increasingly net"or#ed glo!al civil society is also influenced !y progressive changes in other 'urisdictions. (he passing of the ;outh African &onstitution and the series of la" reforms !eing carried out in ;outh Africa have !een of #ey relevance in this area. (he de!ates in $ndian civil society on 'uvenile 'ustice are using the materials developed in ;outh Africa, "hich is indicative of the #inds of lin#ages !eing !uilt. NE

Chapter IV: @ueer &truggles around the ?aw: 'he Contemporary Conte7t Although many !attles have !een "on in the field of )ueer rights cxci, in this instance $ "ill focus on developments in one developing country, ;outh Africa, and their implications for )ueer issues "orld"ide. ;outh Africa has !ecome the first country in the "orld to constitutionally prohi!it discrimination on the !asis of sexual orientation. (he ;outh African &onstitutional &ourt has also struc# do"n the previously existing anti%sodomy la" as violative of the constitution. 4hat is astounding a!out the ;outh African developments is the development of a )ueer 'urisprudence "hich goes !eyond conventional categories. (o ta#e the case of 8ational Coalition for ay and ?esbian ,>uality and 'he &outh +frican 2uman 9ights Commission v. 'he Ministry of Bustice and others!cxcii the 'udges ruled that the anti%sodomy provision "as violative of !asic human rights of e)uality, privacy and dignity guaranteed !y the ;outh African &onstitution. (he remar#a!le innovation the 'udges introduced "as to say that the provision "as harmful to the dignity of gay men, there!y giving )ueer rights a "hole ne" 'urisprudential face instead of relying on purely technical arguments centring on formal e)uality. /. ;achs, in his concurring opinion, pointed to the approach ta#en !y /. Ac#erman in his ma'ority opinion and noted, @$ndeed his 'udgement is itself a good example of a refusal to follo" a formal e)uality test, "hich could have !ased invalidity simply on the different treatment accorded !y the la" to anal intercourse according to "hether the partner "as male or female. $nstead the 'udgment has, "ith appropriate sensitivity for the "ay anti%gay pre'udice has impinged on the dignity of mem!ers of the gay community, focussed on the manner in "hich the anti%sodomy la"s have reinforced systematic disadvantage !oth of practical and spiritual nature. 0urthermore it has done so not !y adopting the point of vie" of the so%called reasona!le la"ma#er "ho accepts as o!'ective all the pre'udices of heterosexual society as incorporated into the la"s in )uestion, !ut !y responding to the re)uests of the applicants to loo# at the matter from the perspective of those "hose lives and self "orth are affected !y the measures.>cxciii (he remar#a!le success in ;outh Africa can !e attri!uted to some pioneers li#e ;imon *#oli -see &hapter $$., a gay !lac# man "ho "as a part of the anti%apartheid struggle and in fact spent four years in 'ail on treason charges. $t "as the !ravery of people li#e him "ho "ere out as gay in the anti apartheid movement that resulted in the more egalitarian nature of the ne" ;outh African &onstitution. (he !uilding of lin#s !y $ndian civil society groups to the "or# happening in ;outh Africa "ould !e important to demonstrate the glo!al ;outh nature of the struggles of )ueer people. $c% International 2uman 9ights +dvocacy 4rganizations $nternational Human ights Advocacy organi,ations have traditionally not focused on )ueer rights. Ho"ever in recent years there have !een t"o #inds of significant changes % firstly, traditional civil li!erties organi,ations have included )ueer rights as a part of their agenda, and secondly, organi,ations devoted to )ueer rights have developed at the international level. $n this context $ "ill focus on Amnesty $nternational and the $nternational Bay and 2es!ian Human ights &ommission -$B2H &. as representative of the t"o trends. +mnesty International Amnesty $nternational has come a long "ay from its initial reluctance to advocate the rights of sexuality minorities. $t "as as late as 9EE9 that Amnesty $nternational interpreted its mandate to consider as prisoners of conscience @persons arrested for F:

Chapter IV: @ueer &truggles around the ?aw: 'he Contemporary Conte7t their homosexual identity or for engaging in consensual homosexual activity in privateA. (his reinterpretation of the mandate "herein the "ord =sex> "as ta#en to include =sexual orientation> "as not "ithout immense internal struggle.cxciv (he issue "as cast in terms of a @4estern notion of homosexual rightsA "hich "as a non%issue in non%4estern societies. 4hat the opponents of )ueer rights as human rights put for"ard "as that in societies "here homosexuality is considered a physical ailment or a reflection of socially deviant !ehaviour, activities on !ehalf of such individual "ould !e seen as not related to human rights and ma#e Amnesty loo# ridiculous. 8oreover if Amnesty "ere to "or# for imprisoned homosexuals, this "ould ris# involving it in having to deal "ith all sorts of other sexual practices.cxcv $n its resolution the $nternational &ouncil instructed the $nternational Kxecutive &ommittee to draft guidelines regarding action on !ehalf of imprisoned homosexuals @ta#ing into consideration the cultural !ac#ground of various areas "here "e have sections or groups of countries in "hich Amnesty $nternational is proposing development.Acxcvi (his only indicates the sharply polari,ed "ay in "hich the de!ate on )ueer rights has !een underta#en and the extreme care that international organi,ations advocating the rights of )ueer people "ill have to ta#e to ensure that the local roots of )ueer rights are never conveniently o!scured, "ith the entire movement !eing seen as completely derivative of the "est. (his shift in mandate has !een ta#en advantage of !y )ueer groups in $ndia. (he A$ eport on 2BB( ights in a glo!al contextcxcvii "as used as an opportunity to start tal#ing a!out the rights of )ueer people in the $ndian context. Cueer groups have also started using the international forums "hich Amnesty provides to tal# a!out concrete violations in $ndia "ithin the frame"or# of rights. (hus for example, Amnesty $nternational intervened in $ndia on !ehalf of those H$7?A$D; "or#ers "ho "ere arrested !y the 2uc#no" police !y "riting to the relevant authorities and posting a Bulletin.cxcviii I ?29C $International ay and ?esbian 2uman 9ights Commission% $n actual fact, the $B2H & is the only group that is committed exclusively to !ringing )ueer suffering "ithin a human rights frame"or#. $n comparison, if one ta#es the issues of relatively less controversial groups such as children, there are myriad international advocacy groups. (he $B2H & has !een very active in !ringing the #inds of violation )ueer people are su!'ect to in countries as diverse as Rim!a!"e, ;outh Jorea, (ai"an, Kgypt, ;audi Ara!ia and &olom!ia to international attention. cxcix (his, once again, is a lin# $ndian )ueer activists have esta!lished in the context of the 2uc#no" arrests and the complaint to the *H & "ith respect to the medical treatment of homosexuality.cc 'he global and the local: Cultural relativism versus universality 4hat is clear through the a!ove analysis is that the lin# !et"een the glo!al and the local stands su!'ect to numerous pressures. $n the case of local struggles ma#ing glo!al lin#s they are li#ely to !e accused of not having a grassroots !ase "ith the entire )ueer struggle !eing lia!le to !e dismissed as a funded agenda "ith no local relevance. Ho"ever it is only strong narratives from the south "hich can convincingly re!ut this notion. $n this context the ;outh African success is a pointer to"ards more "or# to !e done to convincingly demonstrate the importance of )ueer rights to the glo!al south. 2in#ing up to the glo!al discourse has its relevance particularly in the analysis of the glo!al discourse as !eing a site of struggle as far as local issues are F9

Chapter IV: @ueer &truggles around the ?aw: 'he Contemporary Conte7t concerned as "ell. (he mo!ili,ation of human rights language at a glo!al level to support local struggles is one "ay in "hich the glo!al can !e made relevant and useful to the local. Q#eer Str#--les aro#nd t,e law 9 -ains and a+bivalen es 4hat this &hapter has sought to sho" is that in the contemporary era, the hitherto personal domain of sexuality has !ecome irrevoca!ly politici,ed. (he future of activism in the $ndian context, "ill have to engage "ith )ueer struggles as part of contemporary activism. Cueer struggles as documented in this &hapter has ta#en the path of other more esta!lished activisms adopting the strategies used !y other social struggles such as courts, police, etc. Ho"ever the )uestion that )ueer activism "ill have to ans"er is ho" does it ta#e on !oard the discrimination perpetuated !y the social codes of intolerance5 4hen the =enemy> so as to spea# is not out there in the form of the =state> !ut rather em!edded in a diverse range of social structures right form family, marriage and religion "hat is the strategy one can adopt5

F2

Chapter V: Conclusion

Con l#sion
After mapping out the struggles around the la", a couple of #ey )uestions arise from the a!ove chapters. 4hile $ do not claim to have any final ans"ers, these )uestions are of considera!le significanceG $f the la" has al"ays !een integral to the oppression of )ueer people right from the colonial era, can the la" ever !e a tool of an emancipatory politics5 4hat are the challenges "hich advocating for )ueer rights "ill !e faced "ith in the contemporary era5 4hat is the #ind of la"yering one envisages in a )ueer context to deal "ith these challenges5 La% as an Emancipatory ool 4hile the role of the la" has !een significant in !oth criminali,ing )ueer people>s existence and in denying them rights, it is also clear that contemporary human rights language has opened out contestatory spaces. (he la" has !een used as a norm against "hich struggles have !een underta#en. 0or example, the legal challenge to ;ec 3II of the $ndian <enal &ode is really !ased on the norms of e)uality, right to life and freedom of expression em!edded in the &onstitution of $ndia. 4hile the role of the la" is clear as a norm esta!lishing a site for struggle "ithin the context of the larger movement, one has to ta#e on !oard the limitations of an over% reliance on la" as an exclusive strategy alone. As 0lavia Agnes notes, in the context of the "omen>s movement, demands for la" reform have often resulted in la"s "hich end up further marginali,ing the "omen and ma#ing prosecution that much more difficult. As she puts it, =(his vie" is only strengthened !y the experiences of the "omen>s movement in $ndia, "hich at least at its inception granted the ;tate the role of a !enign patriarch "hich "ill deliver goods. ("o decades do"n the line, there is a gro"ing realisation "ithin the "omen>s movement that the plethora of legal interventions has not really changed the ground reality in very su!stantial terms.>cci (he dangers of over%reliance on la" also come to the fore in the reforms of a similar provision to ;ec 3II of the $ndian <enal &ode in the ;ri 2an#an context. (he changes to the <enal &ode "ere recommended in the context of the need for amendments to the la" to protect the victims of incest, marital rape, sexual harassment and the exploitation of children. (hough gay rights groups and human rights activists such as the late *eelan (hiruchelvam clearly opposed the continued operation of ;ec 3FNA of the <enal &ode, the amendment !roadened the am!it of acts considered criminal under the la". (he term =man> "as changed to =person> and =carnal intercourse against the order of nature> !ecame act of =gross indecency "ith any person.> (hus, a provision "hich did not apply to les!ians in its colonial avatar "as actually expanded to include les!ians in the "a#e of this reform rather than ceasing to apply to gay men. (hus "hat is clear is that the la" can !e a part of an emancipative politics only in the context of a movement, as la" reform in other contexts can expand the domain of oppression. Kven in the context of a gender%!ased movement, 0lavia Agnes points out that the dangers of the use of la" against the interests of "omen are al"ays present. Contemporary Challenges o* $ueer La%yering $f one locates the rise of social movements historically, the )ueer movement in the $ndian context is really an emerging articulation of concerns that "ere hitherto F3

Chapter V: Conclusion considered private and apolitical. Ho"ever, the crucial )uestion "hich needs to !e as#ed is "hat it means for these )uestions to !e articulated in the contemporary context. $f one does a !rief run%do"n of the contemporary, the follo"ing points can !e madeG (he events of the last fe" years !eginning "ith the ;eptem!er 99 tragedy and the su!se)uent glo!al crac#do"n on terrorism, "ith the e)uation of terrorism "ith 8uslims, has placed religious minorities under serious threat. (his glo!al shift is paralleled !y an $ndian shift "ith an increase in state repression follo"ing the attac# on the $ndian parliament on Decem!er 93, 2::9. (he culture of =intolerance> to"ards minorities reached its "orst manifestation in the state%sponsored genocide in Bu'arat. (hese events have enormous repercussions on a li!eral constitutional order in $ndia. (he culture of intolerance ends up reinforcing notions of conventional "omanhood and sexuality. Aggressive nationalism !uilds on a culture of masculinity "hich actively marginali,es and stigmatises alternative sexualities and traditions. $n fact all non%conformists, including )ueer people, end up !eing perceived as enemies of the nation%state. (here "as some foretaste of this in the protests against Deepa 8ehta>s film Fire and the e)uation of the national culture to heterosexuality, "ith the construction of les!ianism as the enemy and the outsider. (he institutions of civil society !e it the family, marriage, religion have sho"n a tremendous resilience and continue to !e deeply complicit in violence against )ueer people. (he contemporary era only seems to have strengthened the conservative force of these institutions. Human rights language is under increasing threat 'ust "hen it is !eing claimed !y hitherto marginali,ed minorities, such as )ueer people. (he threats to human rights language come from the "ar against terror, "hich transmutes into a "ar against =difference> and non%conformity, and from the spread of corporate glo!alisation. As <rof. Upendra Baxi argues, corporate%led glo!alisation is slo"ly replacing the Universal Declaration of Human ights frame"or# "ith trade%related mar#et%friendly human rights.ccii $ueer La%yering in the Contemporary Context (he a!ove outline of the context ma#es it clear that )ueer politics has emerged at a very challenging time. (he "ay the )ueer movement negotiates these challenges "ill determine the future of the )ueer movement. (hus "hat is called for is a "ider political perspective, "hich is a!le to locate )ueer struggles as part of the struggle for human rights. $f "e see the la" as having a potentially emancipative role, the manner of la"yering needed to achieve that also needs to !e )ualitatively different. $n this context, it is important to understand that not only must la"yers !e sensitive to the issues of invisi!ility and lac# of social acceptance to "hich )ueer people are su!'ect, !ut the practice of la" itself needs to !e rooted in a socio%political understanding. $n this context $ have used the phrase =alternative la"yering> to denote a la"yering practice "hichG is deeply rooted in an understanding of social, economic and political marginali,ation and "hich sees la"yering as a socio%political practice to redress marginali,ation as part of a "ider political strategy. Alternative

FH

Chapter V: Conclusion la"yers are often deeply rooted in the social and political struggles against marginali,ation and devote a lot of their time to advocacy outside the courts. understands the interconnectedness of human rights struggles. (hus an alternative la"yer is also committed to all issues of marginali,ation. (here is no prioritisation of social issues, as has unfortunately !een the trend even in li!ratory discourses. As an activist friend noted, @8ore often than not, the a!use suffered !y these su!altern sexual cultures has !een made invisi!le using a convoluted logic that arrogates to itself the a!ility to cali!rate pain. 0irst comes class, then comes caste, then comes gender, ecology etc. and W if there is any space left on this ar# of suffering W then sexuality is included as a hum!le ca!in !oy. (here is no hope of the last !eing the first in this inheritance of the mee#.A $t is this that alternative la"yering hopes to com!at !y ta#ing all forms of human suffering e)ually seriously. understands the interdependence of human rights struggles as !oth an ethical concern as "ell as a pragmatic imperative. 0or example, if one ta#es the case of the rise of religious intolerance, it narro"s the space for diverse sexuality identities and it is important to conceptualise )ueer struggles more !roadly as "ell as to conceptualise the struggle against religious intolerance more !roadly to include the diversity of concerns. $t is only a process such as descri!ed a!ove "hich "ill ena!le us to see the larger picture of violation, treat all violations "ith e)ual concern and lin# up the diverse social movements "hich can resist the challenges thro"n up !y the contemporary to the existing rights frame"or# and rights cultures.

FN

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Reso#r e List
!R1UPS 2 1R!ANI:ATI1NS W1R;IN! 1N SEXUALIT< ISSUES
B-:G-L#,E
Alternative Law For#+ /ALF0 <rovides legal services for various marginali,ed groups including )ueer people. 922?H, $nfantry oad, -6pp. $nfantry 4edding House. Bangalore NF: ::9 (elG 2QF NINI KmailG alforumXvsnl.net 4e!site """.altla"forum.org !ood As <o# An informal support group for les!ian, gay, !isexual, transgender and other non% heterosexually identified people. 8eets on (hursdays from FG3: <8 to Q.3: <8 KmailG goodasyou!angaloreXyahoo.com3 goodasyou!angaloreXhotmail.com 4e!siteG """.geocities.com?goodasyou!angalore? (elG 223 :ENE Indian Instit#te of !eo-ra%,i al St#dies /#nder T,e D,arani Tr#st0 2oo#s at academic studies on various issues including sexuality minorities through their ;exualities and ;paces Division. KmailG thedharanitrustindiaXyahoo.com 4e!siteG """.geocities.com?thedharanitrustindia? =a-r#t,i ;exual health agency for 8;8 -8en "ho have ;ex "ith 8en. and transgenders, providing health services and H$7 a"areness. &3, 2nd 0loor, /yothi &omplex, 3H?9 $nfantry oad, Bangalore % NF: ::9 KmailG 'agruXvsnl.net (elG 2QF:3HF Prerana $nformal support group for les!ians and !isexual "omen. 8eetings are held on the first and third ;unday of each month. &ontact the ;ahaya Help 2ine, on 223 :ENE, on (uesdays and 0ridays, !et"een I and E <8 KmailG sahaya!angaloreXhotmail.com -;u!'ectG +ttn: Prerana &upport roup. Sa,a"a Tele%,one &el%line /a %ro7e t of Swab,ava0 Helpline for )ueer people. 6pen (uesday and 0riday, I <8 to E <8 (elG 223 :ENE KmailG sahaya!angaloreXhotmail.com """.s"a!hava.org?sahaya.htm San-a+a Documentation, outreach and advocacy on sexuality issues 0lat 93, 3rd 0loor, ' oyal <ar#' Apartments, 3H <ar# oad, (as#er (o"n, Bangalore % NF::N9, $ndia -Behind Hotel 'Harsha', *ear ;hiva'inagar Bus ;tand. KmailG sangamaXsangamaonline.org

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4e!siteG """.sangamaonline.org Swab,ava *B6 providing support to sexuality minorities *o. NH *an'appa oad, ;hantinagar, Bangalore % NF: :2I Kmail s"a!havaYtrustXhotmail.com """.s"a!hava.org (ivid,a An autonomous collective of sexuality minorities. 8eets every ;unday from 3<8 to F <8. 0lat 93, 3rd 0loor, ' oyal <ar#' Apartments 3H <ar# oad, (as#er (o"n, Bangalore % NF::N9, $ndia -Behind Hotel 'Harsha', *ear ;hiva'inagar Bus ;tand. (elG 2QFQFQ:?2QFQ929 KmailG vividha!angaloreXhotmail.com

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9esource ?ist K#LK- Co#nsel Cl#b ;upport group for sexuality minorities. 8eets 9st and 3rd ;undays of the month, N%Q pm. &?o an'an, <ost Bag IEH, Jol#ata % I:: :9I KmailG counselclu!E3Xhotmail.com <hone G 3NE Q93: -&?o $ntegration. Pal+ Tree Aven#e Inte-ration So iet" A health a"areness initiative for the youth and sexual minorities -les!ians, gay men, !isexuals and transgender people. 2i!rary service G (uesdays, (hursdays and ;aturdays, 3%F pm -Directions over phone. &?o <a"an, <ost Bag 9:23I, Jol#ata % I:: :9E <hone G 3NE Q93: -functions as helpline ;AHA+AJ on 8ondays, 4ednesdays and 0ridays, 3%F pm. KmailG pa"an3:Xyahoo.com Praa7a$ Develo%+ent So iet" Development organisation "or#ing around issues of masculinities "ith a primary focus on !oys and male youth. Also "or#s "ith gender variant males including hi'ras, #otis and duplis?doparathas. HFQA, Bloc# J, *e" Alipore, Jol#ata % I:: :N3 KmailG praa'a#Xyahoo.co.in (elG H:: :HNN 0axG H:: :NE2 Prat"a" ;upport group for #othis and other 8;8s HFQA, Bloc# J, *e" Alipore, Jol#ata % I:: :N3 KmailG pratyayXhotmail.com (elG H:: :HNN 0axG H:: :NE2 Sa%%,o ;upport group for les!ian and !isexual "omen KmailG malviEEXhotmail.com Sarani Kxperimental performing arts troupe focusing on development issues li#e sexual minority rights and sexual health. AddressG QH /ho"talla road, ;uite *o.2, Jol#ata % I:: :9I. KmailG "rong,oneXhotmail.com

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:E& DELH(
Ca+%ai-n for Lesbian Ri-,ts /CALERI0 An activist collective "or#ing for les!ian and !isexual "omen's rights KmailG caleriXhotmail.com &#+ra,i Broup for gay and !isexual "omen. 8eets every ;aturday from F to Q <8. uns a helpline -FQN 9EE3. on 8ondays and (hursdays from I to E <8, for gay?!isexual men DHN, Bulmohar <ar#, *e" Delhi %99: :HE KmailG humrahitrustXhotmail.com 4e!siteG """.geocities.com?4estHolly"ood?I2NQ (elG FQN 9EI:?9 Na@ Fo#ndation India Tr#st ;exual Health agency for 8en "ho have ;ex "ith 8en -8;8.. Also "or#s on H$7?A$D;, sexual health and sexuality issues DHN, Bulmohar <ar#, *e" Delhi %99: :HE KmailG na,indiaX!ol.net.in (elG FNF I:HE?3E2E 0axG FQN E993 PRIS5 ' Peo%le for Ri-,ts of Indian Se.#alit" 5inorities 4or#s on issues affecting sexuality minorities KmailG prismYdelhiXyahoo.co.in Law"ers Colle tive /&I(>Aids Unit0 F3 8as'id oad , /ungpura *e" Delhi 99::9H (el H3299:9?H3299:2 &#+an Ri-,ts Law Networ$ FN, 8as'id oad , /ungpura *e" Delhi 99::9H (el 2H32HN:9?2H39FE22 Kmail hrindelXvsnl.net

San-ini Broup for 2es!ian and Bisexual "omen. 8eets every ;aturday from 3 to N.3:pm. uns a help line on (uesdays and 0ridays F to Q pm for les!ian and !isexual "omen. DHN, Bulmohar <ar#, *e" Delhi %99: :HE KmailG sanginiEIXhotmail.com (elG FQN 9EI:?9 TARS&I /Tal$ Abo#t Re%rod# tive and Se.#al &ealt, Iss#es0 Helpline -8onday to 0riday. for information, counseling and referrals on sexuality issues (elG HF2 2229?HF2 HHH9

+- :-

9esource ?ist

Aasra Broup for gay and !isexual men B<6 Box FQ, <atna, Bihar % Q:: ::9 KmailG aasraXdte.vsnl.net.in

+#:D(CHE,,;
T,o@,en ;exual Health agency for 8en "ho have ;ex "ith 8en -8;8. 9:F?2 ue 0ran1ois 8artin, Jourousou#ouppam, <ondicherry % F:N :92 KmailG tho,henY2:::Xyahoo.com

+9:E
1lava A collective of les!ian and !isexual "omen <ost Box 29:Q, 8odel &olony <ost 6ffice, <une % 9F KmailG olavaY2:::Xyahoo.com

6-D#D-,La$s,"a Tr#st ;exual health agency for gay men, #othis and hi'ras 2:3, ;econd floor, ;hruti 0lats, Behind Jalpvru#sh &omplex, *ear (. B. Hospital, Botri oad, 7adodara. Kmail G la#shya923Xrediffmail.com

6(<-;-&-DSaat,i Bay support group 99%9%239?2, B < oad, 6ne (o"n, 7i'aya"ada % N2: ::9 (elG F3N 2H9

6("H-K-+- :-!
New -ro#% bein- for+ed 4rite to Dominic#, <.6. Box 2:3, 7isha#apatnam, A< % N3: ::9

WE?SITES
he -dvocate -U; maga,ine. httpG??""".advocate.com Al'Fati,a Fo#ndation -for )ueer 8uslims. httpG??""".al%fatiha.org

9esource ?ist

A+nest" International httpG??""".amnesty.org !a"?o+ba" /le-al iss#es se tion0 httpG??""".gay!om!ay.cc?support?legal.htm IL!A httpG??""".ilga.org I!L&RC httpG??""".iglhrc.org Peo%le*s Union for Civil Liberties httpG??""".pucl.org Cueer 2egal resources on the net httpG??""".)rd.org?)rd?"""?legal? Q#eer Notions3 T,o#-,ts on t,e Relation of Se.#alit" to Revol#tion """.)ueernotions.org

9esource ?ist

?iblio-ra%,"
A!elove, Henry et al -eds.., 'he ?esbian and ay &tudies 9eader, outledge, *e" +or#, 9EE3. Aids Bhed!hav 7irodhi Andolan, ?ess 'han ay = + Citizens- 9eport 4n 'he &tatus 4f 2omose7uality In India, *e" Delhi, 9EE9. Agnes, 0lavia, @2a", $deology and 0emale ;exualityA, ,conomic and Political 0ee"ly, 8arch 2, 2::2. Agnes, 0lavia, @<rotecting 4omen against 7iolence5G evie" of a Decade of 2egislation, 9EQ:% 9EQEA, in &tate and Politics in India -<artha &hatter'ee, ed.., 6xford University <ress, *e" Delhi, 9EEI. Agnes, 0lavia, ?aw and ender ,>uality, 6xford University <ress, *e" Delhi, 9EEE. Baehr, <eter, [Amnesty $nternational And $ts ;elf $mposed 2imited 8andate[ 92 *eth. C. H. . N -9EEH.., 6f6. International 2uman 9ights In Conte7t -Henry ;teiner et al., eds.., &larendon <ress, 6xford, 9EEF. Basham, A. 2., 'he 0onder 'hat 0as India, upa, *e" Delhi, 9EQ9. Baxi, Upendra, Mar7! ?aw and Bustice, *. 8. (ripathi <vt. 2td, Bom!ay, 9EE3. Baxi, Upendra, 'he Crisis of the Indian ?egal &ystem, 7i#as <u!lishing House, 9EQ2. Baxi, Upendra, 'he Future of 2uman 9ights, 6xford University <ress, *e" Delhi, 2::2. Blasius, 8ar# et al. -eds.., 0e +re ,verywhere: + 2istorical &ourceboo" of ay and ?esbian Politics, outledge, *e" +or#, 9EEI. Bos"ell, /ohn, , Christianity! &ocial 'olerance! and 2omose7uality: ay People in 0estern ,urope from the :eginning of the Christian ,ra to the Fourteenth Century , University of &hicago <ress, &hicago, 9EQ9. &astells, 8anuel, 'he Power 4f Identity, Blac#"ell, 2ondon, 9EEI. &hatter'i, <artha, 'he 8ation and its Fragments, 6xford University <ress, *e" Delhi, 9EEE. &or!in, Henri, Creative Imagination in the &ufism of Ibn -+rabi, <rinceton University <ress, <rinceton, 9EFE. D>Kmilio, /ohn, Ma"ing 'rouble, outledge, *e" +or#, 9EE2. D>;ou,a, Dilip, :randed by ?aw: ?oo"ing +t India-s Henotified 'ribes , <enguin, *e" Delhi, 2::9. Derret, /. D. 8., 9eligion! ?aw and the &tate in India! 6xford University <ress, *e" Delhi, 9EEE. Desai, 8ihir, @&ivil 2a"s Affecting Bays And 2es!iansA, httpG??""".altindia.net?altsex?&$7$2 U2:2A4;U2:A00K&($*BU2:BA+;U2:A*DU2:2K;B$A*;.html. Dhagam"ar, 7asudha, ?aw! Power and Bustice, ;age <u!lications, *e" Delhi, 9EE2.

:ibliography
Du!erman, 8artin, &tonewall, <lume, *e" +or#, 9EEH. Kllis,Bo!, Hispelling the Myth: + Composition &tudy= uide of Pastor Fen Coulter-s 'en 3ears of 9esearch, httpG??hc)sa.virtualave.net?dispell.html Ks#ridge /r., 4illiam, @A History 6f ;ame ;ex 8arriageA, IE 7a. 2. ev. 9H9E -9EE3.. 0ernande,, Bina -ed.., 2um#insi: + 9esource :oo" on ?esbian! ay and :ise7ual 9ights in India! $ndia &entre for Human ights And 2a", 8um!ai, 2::2. 0ord, &lelan ;. et al., Patterns 4f &e7ual :ehaviour, Harper o", *e" +or#, 9EN9. 0oucault, 8ichel, 'he 2istory 4f &e7uality Vol. C, <enguin, 8iddlesex, 9EIF. Beorge, Bi'u, ay Indian Christian 9eflections on &e7uality: +n ,thical Perspective , Bachelor of Divinity thesis, on file "ith the United (heological &ollege, Bangalore, 8arch 2::2. Brau, Bunter -ed.., 2idden 2olocaust), &assell, 2ondon, 9EEN. Bupta, Alo#, @;exuality 8inorities during 2::9A, 'he ?awyers- Collective, Decem!er 2::9. Bupta, Alo#, @(he History and (rends in the Application of the Anti%;odomy 2a" in the $ndian &ourtsA, 'he ?awyers Collective, 7ol.9F, *o. I, p. E. Ha#sar, *andita, @Human ights 2a"yeringG A 0eminist <erspectiveA in ,ngendering ?aw -Amita Dhanda et al., eds.., Kastern Boo# &ompany, 2uc#no", 9EEE. Halpert, ;tephen, @$f $t Ain>t Bro#e, Don>t 0ix $tG Kthical &onsiderations egarding &onversion (herapiesA, International Bournal of &e7uality and ender &tudies, 7ol N, *o. 9, 2:::. Helfer, 2a"rence . et al .! @;exual 6rientation And Human ightsG (o"ard A United ;tates And (ransnational /urisprudenceA, E Harv. Hum. ts. /. F9 -9EEF.. Hendri#s, Aart et al. -eds.., 'he 'hird Pin" :oo": + lobal View of ?esbian and ay ?iberation and 4ppression, <rometheus Boo#s, Buffalo, 9EE3. Herdt, Bil!ert -ed.., 'hird &e7! 'hird ender, Rone Boo#s, *e" +or#, 9EEF. /ohnson, 7oris, @8a#ing 4ords 6n A <age Become Kveryday 2ifeG A ;trategy (o Help Bay 8en And 2es!ians Achieve 0ull K)uality Under (he ;outh African &onstitution A, 99 Kmory $nt>l 2. ev.NQ3.-9EEI. Jhanna, ;hamona, @Decriminalisation of Homosexuality D A case for the repeal of ;ection 3II, $<&A -reproduced from [Bay ights[, 'he ?awyers, /une 9EE2., httpG??""".altindia.net?altsex?DecriminalisationU2:ofU2:Homosexuality.html. 8anohar, Klavarthi, @8any <eople, 8any ;exualitiesG A <ersonal /ourneyA, Voices, April 9EEE. 8iller, *eil, 4ut of the Past: ay and ?esbian 2istory from CILJ to the Present , 7intage, *e" +or#, 9EEN. *andy, Ashis, 'he Intimate ,nemy, 6xford University <ress, Delhi, 9EE2. *ardi, <eter et al -eds.., &ocial Perspectives In ?esbian +nd ay &tudies, outledge, 2ondon, 9EEQ. *arrain, Arvind, @Human ights and ;exual 8inoritiesG Blo!al and 2ocal &ontextsA, ?aw! &ocial Bustice and lobal Hevelopment $? H% , 2::9-2., httpG??el'."ar"ic#.ac.u#?glo!al?issue?2::9% 2?narrain.html. <eople>s Union of &ivil 2i!erties%Jarnata#a, 2uman 9ights Violations against &e7uality Minorities in IndiaG + PDC?=F Fact=Finding 9eport +bout :angalore, 2::9. <eople>s Union of &ivil 2i!erties%Jarnata#a, 2uman 9ights Violations against 'ransgender People: a Case &tudy of 2i#ras and Fothis in :angalore -forthcoming.. <lant, ichard, 'he Pin" 'riangle: 'he 8azi 0ar +gainst 2omose7uals , Henry Holt, *e" +or#, 9EQQ. adha#rishna, 8eena, Hishonoured by 2istory: 1Criminal 'ribes- and :ritish Colonial Policy , 6rient 2ongman, *e" Delhi, 2::9. ;antos, Boaventura De ;ousa, 'owards + 8ew Common &ense, outledge, *e" +or#, 9EEN. ;ehested, Jen, @Bi!lical 0idelity and ;exual 6rientationG 4hy (he 0irst 8atters, 4hy (he ;econd Doesn>tA, in 2omose7uality and the Christian Faith -4alter 4in#, ed.., 0ortress <ress, 8inneapolis, 9EEE ;ingha, adhi#a, + Hespotism of ?aw, 6xford University <ress, *e" Delhi, 9EEE. (hadani, Biti, &a"hiyani: ?esbian Hesire in +ncient and Modern India, &assell, 2ondon, 9EEF. (homas, 8ichael, [;outh Africa And Rim!a!"eG ("o Approaches (o ;exual 6rientation [, 9I B. &. (hird 4orld 2./.3FN. (homas, adha, @Bay in the Barden &ityA, :angalore Monthly, ;eptem!er 9EEQ, p. Q2.

:ibliography
7anita, uth et al. -eds.., &ame=&e7 ?ove in India: 9eadings from ?iterature and 2istory, <algrave, *e" +or#, 2::9. 4ee#s! /effrey, &e7uality! outledge, 9EQ9. 4ilets, /ames, @&onceptualising <rivate 7iolence Against Cueer <eople As Bendered 7iolenceG An $nternational And &omparative 2a" <erspectiveA, F: A!. 2. ev. EQE -9EEI.. 4ilets, /ames, @$nternational Human ights 2a" And ;exual 6rientationA, 9Q Hastings $nt>l \ &omp. 2. ev. 9 -9EEN..

+c"nowledgements

A $nowled-e+ents

+nne7ure I

Anne.#re I3 Letter to t,e N&RC Re-ardin- t,e Dis+issal of Co+%laint ABCDE on 5edi al Treat+ent of &o+ose.#alit"
H.:E.2::9 Dear -former. &./. 7erma, 4e genuinely appreciate the stand of the *H & that caste discrimination is e)uivalent to racial discrimination and there!y clearly esta!lishing that the *H & is a protector of human rights regardless of political concerns. 4hile congratulations are in order "ith respect to the a!ove decision "e are deeply shoc#ed and disheartened !y another decision arrived at !y the *H &. (his is "ith reference to the decision of the *H & to dismiss the complaint of the person "ho "as su!'ect to aversion therapy. egarding this matter "e did have a chance to have a short dialogue "ith you "hile you "ere visiting the *ational 2a" ;chool, Bangalore for the ;eminar on '&aste and acial Discrimination> held on the 9:thth of August, 2::9. 4e as#ed you a!out the decision in complaint-*o. 3E2:. , "hich "as a case regarding treatment of homosexuality as a disease "here a homosexual patient "as allegedly administered aversion therapy -"hich includes administration of electric shoc#s along "ith sho"ing a person homo%erotic pictures to =convert> him to heterosexuality.. (he patient then complained to an organi,ation *AR 0oundation "hich then !rought the matter !efore the *H &. (he complaint, though admitted !y the *H & "as later re'ected. 4e do #no" that the complaint received pu!lic attention and a num!er of concerned citi,ens including gay, les!ian, !isexual people "rote to you. Ho"ever, in its "isdom the *H & chose to re'ect the same. $n our conversation, the grounds you stated "hich 'ustified the re'ection "ere as follo"sG

(o tal# of homosexual rights is o#ay in other countries !ut there "as little you could do "hen the la" in $ndia, ;ec 3II "as against it. +ou advised that one should strive to get rid of the la" !ut nothing could !e done till it "as repealed. (his opinion seems to !e !uttressed !y other reported opinions "ithin the *H &. As one source "ithin the *H & put it, @homosexuality is an offence under $<&, isn>t it5 ;o, do you "ant us to ta#e cogni,ance of something that is an offence5A -(he <ioneer, (hursday, August 2, 2::9. +ou also mentioned that the entire campaign for the rights of sexual minorities is run and funded !y international organi,ations and that there is no grassroots support or demand for such rights.

$t is su!mitted that none of the a!ove grounds are sound 'ustifications for the re'ection of the complaint. (he reasons are mentioned hereunderG

+nne7ure I 0irstly, s. 3II of the $<& does not criminali,e homosexuality. $t only criminali,es 'carnal intercourse against the order of nature', "hich has !een interpreted to include oral sex, anal sex and some other forms of sex. (hese sexual practices are neither exclusive to the homosexual community nor definitive of "hat it means to !e a homosexual. $t is !eyond our comprehension ho" a legislation "hich particularly targets certain #inds of sexual acts can !e used as a 'ustification for not loo#ing into the human rights violations against a gay person. $s it your understanding that !eing gay is a!out engaging in those forms of sex alone or !eing heterosexual means you do not engage in oral?anal sex5 4hat is clear from the a!ove comments is that there is significant lac# of understanding of gay people as human !eings "hose lives encompass a complexity "hich goes !eyond the mere fact of a certain #ind of sexual act. ;econdly, the statute from "hich the *H & derives its mandate, i.e. the <rotection of Human ights Act, defines a 'human right' as 'rights guaranteed under the &onstitution of $ndia or $nternational &ovenants, vi,. the $&&< and the $&;K '. (he *H & mandate is therefore not limited !y mere statutory la". Hence the existence of an offensive colonial la" ,;ec 3II of the $<& - "hich the colonial po"er has finally removed. , cannot trump the right to life - including privacy. under Art 29 , the right to freedom of expression under Art 9E and the right to e)uality under Art 9H. (hus the argument that a statute criminali,es a particular conduct need not necessarily ta#e it out from the purvie" of human rights. Apart from !eing legally unsound, the argument that since la" for!ids something, it cannot !e a human right does not hold "aters even logically. $f "e go !y it, then nothing that "as done in *a,i Bermany shall !e a human right violation since it had the sanction of the la"S -As a matter of fact, homosexuals "ere one of the social groups along "ith /e"s, communists and other #inds of dissenters "ho "ere targeted in *a,i Bermany for persecution.. 0urther since the t"o covenants are explicitly invo#ed !y the a!ove mentioned Act, it is appropriate to mention that in 'oonen v. +ustralia! *icholas (oonen a gay rights activist resident in the Australian state of (asmania challenged the anti sodomy la" as violative of Art 2 -9. Art 9I and Art 2F of the $&&< , !efore the Human ights &ommittee after exhausting all local remedies. (he Human ights &ommittee in its interpretation of the $&&< has held that the anti sodomy statute did violate (oonen>s right to privacy guaranteed under Art 9I. (he &ommittee also held that the reference to the "ord sex in Art 2-9. and Art 2F is to !e ta#en as including sexual orientation .$t held that Art 2-9. "as also violated !ut refused to rule on if Art 2F , the non discrimination clause "as violated. ;ince $ndia is a party to the $&&< and human rights as defined in the <rotection of Human ights Act includes the covenant-$&&< ., the interpretation of the rights of those discriminated against on the !asis of their sexual orientation needs to !e recogni,ed !y the *H & "hich should if it feels that the !arrier to admitting the rights of sexuality minorities is ;ec 3II , suo moto challenge the la" in the ;upreme &ourt itself , rather than use the existence of the la" as an excuse for denying gay les!ian people their rights. (o !uttress this point further, even the 2I2 nd report of the 2a" &ommission of $ndia has recommended that such an archaic provision !e deleted. (hirdly it comes as a shoc# to those of us "ho sa" the *H & as guardian of the human rights of all people in $ndia to understand that the *H & feels that it can do

+nne7ure I nothing in the case of a patient at the All $ndia $nstitute of 8edical ;ciences -A$$8;. "ho received almost four years of treatment aimed at the conversion of his homosexuality and "as seriously psychiatrically a!used. (he treatment reportedly involved t"o componentsG counseling therapy and drugs. During counseling therapy sessions, the doctor explicitly told the patient that he needed to cur! his homosexual fantasies, as "ell as start ma#ing "omen rather than men the o!'ects of his desire. (he doctor also administered drugs intended to change the sexual orientation of the patient, providing loose drugs from his stoc# rather than disclosing the identity of the drug through formal prescription. (he patient reports experiencing serious emotional and psychological trauma and damage, as "ell as a feeling of personal violation, due to these actions. (his complaint 3E2: illustrates the necessity for formal standards to prevent discrimination and a!use on the !asis of sexual orientation in medical and psychiatric care. (here is no dou!t that in the a!sence of these standards, physicians cannot !e held accounta!le for such human rights violations against les!ian, gay, !isexual, and transgender individuals occurring in psychiatric and medical contexts throughout $ndia. (his case also underscores the urgent need for explicit la"s preventing discrimination on the !asis of sexual orientation to address a!use and ine)ualities in all sectors of society including the medical esta!lishment. Ho"ever this opportunity to address the very real sense of a!use that gay, les!ian !isexual people in $ndia face , "as passed !y and the medical profession has !een allo"ed to continue its outdated practices of prescri!ing drugs and trying to change the sexual orientation of a person. 0ourthly it is disheartening to see the star# dissimilarity in the stand ta#en !y the *H & and the ;outh African Human ights &ommission on the issue of homosexuality. (he ;outh African Human ights &ommission acting in coordination "ith the *ational &oalition for Bay and 2es!ian K)uality moved to the highest &onstitutional &ourt in ;outh Africa and got the provision of a similar nature to s. 3II of the $<& struc# do"n as violative of !asic human rights of e)uality, privacy and dignity guaranteed !y the ;outh African &onstitution.cciii By contrast the *H & even refuses to ac#no"ledge that the right to choose one's sexual orientation is a !asic human right. 0inally "e "ould li#e to ma#e the point that the #ey to the decision of the *H & really lies in "hat you referred to in your second point ie that =the entire campaign for the rights of sexual minorities is run and funded !y international organi,ations and that there is no grassroots support or demand for such rights.> (his in a sense is a dou!le failure , the failure of the sexuality movement to communicate its strong indigenous roots and presence, as "ell as the failure of the esta!lishment to notice the increasingly articulate though marginal voice of people "ho identify as gay ,les!ian and !isexual. $t is important to understand that today the sexuality minority community comprises a diversity of identities including hi'ras, gays, les!ians, !isexuals #othis and a multiplicity of other identities !oth modern and traditional. (he lives of individual people "ho identify as gay or les!ian or hi'ra or any other sexuality minority deserve a protection "hich is guaranteed to all other citi,ens of $ndia.cciv

+nne7ure I 4e do hope that the *H & "ould consider the rights of gay, les!ian, !isexual and hi'ra people as human rights in future complaints "hich "ould inevita!ly come !efore it. (han#ing you, ;d?%

+nne7ure II - ;ome of the students, faculty and researchers of *2;$U, Bangalore.Anne.#re

II3

Dennis S,e%ard*s State+ent to t,e Co#rt at t,e &enderson>5 ;inne" Trial

4n +pril CC! CJJJ!during the trial of his son-s "illers! Matthew &hepard-s father Hennis made a moving statement to the court in which he spo"e about his son-s death in ?aramie! 0yoming! D&+! and addressed his son-s "illers! 9ussell 2enderson and +aron Bames McFinney. 0ith the consent of Matthew-s parents! 2enderson and McFinney were convicted for life but escaped the death penalty. 2is statement ran as follows: @+our honor, mem!ers of the /ury, 8r. eruchaccvG $ "ould li#e to !egin my statement !y addressing the 'ury. 2adies and gentlemen, a terri!le crime "as committed in 2aramie thirteen months ago. Because of that crime, the reputation of the city of 2aramie, the University of 4yoming, and the ;tate of 4yoming !ecame synonymous "ith gay !ashing, hate crimes, and !rutality. 4hile some of this reputation may !e deserved, it "as !lo"n out of proportion !y our friends in the media. +esterday you, the 'ury, sho"ed the "orld that 4yoming and the city of 2aramie "ill not tolerate hate crimes. +es, this "as a hate crime, pure and simple, "ith the added ingredient of ro!!ery. 8y son 8atthe" paid a terri!le price to open the eyes of all of us "ho live in 4yoming, the United ;tates, and the "orld to the un'ust and unnecessary fears, discrimination, and intolerance that mem!ers of the gay community face every day. +esterday>s decision !y you sho"ed true courage and made a statement. (hat statement is that 4yoming is the K)uality ;tate3 that 4yoming "ill not tolerate discrimination !ased on sexual orientation3 that violence is not the solution. 2adies and gentlemen, you have the respect and admiration of 8atthe">s family and friends and of countless strangers around the "orld. Be proud of "hat you have accomplished. +ou may have prevented another family from losing a son or daughter. +our honor, $ "ould also li#e to than# you for the dignity and grace "ith "hich this trial "as conducted. epeated attempts to distract the court from the true purpose of this trial failed !ecause of your attentiveness, #no"ledge, and "illingness to ta#e a stand and ma#e ne" la" in the area of sexual orientation and the @Bay <anicA defense. By doing so you have emphasi,ed that 8atthe" "as a human !eing "ith all the rights and responsi!ilities and protections of any citi,en of 4yoming. 8r. erucha too# the oath of office as prosecuting attorney to protect the rights of the citi,ens of Al!any &ounty as mandated !y the la"s of the state of 4yoming, regardless of his personal feelings and !eliefs. At no time did 8r. erucha ma#e any decision on the outcome of this case "ithout the permission of /udy and me. $t "as our decision to ta#e this case to trial, 'ust as it "as our decision to accept the plea !argain today and the earlier plea !argain of 8r. Henderson. A trial "as necessary to sho" that this "as a hate crime and not 'ust a ro!!ery gone !ad. $f "e had sought a plea !argain earlier, the facts of this case "ould not have !een #no"n and the )uestion "ould al"ays !e present that "e had something to hide. $n addition, this trial "as necessary to help provide some closure to

+nne7ure II the citi,ens of 2aramie, Al!any &ounty, and the state. $ find it intolera!le that the priests of the &atholic &hurch and the *e"man &enter "ould attempt to influence the 'ury, the prosecution, and the outcome of this trial !y their castigation and persecution of 8r. erucha and his family in his private life, !y their ne"spaper advertisements, and !y their presence in the courtroom. $ find it difficult to !elieve that they spea# for all &atholics. $f the leaders of churches "ant to comment as private citi,ens, that is one thing. $f they say that they represent the !eliefs of their church, that is another. (his country "as founded on separation of church and state. (he &atholic &hurch has stepped over the line and has !ecome a political group "ith its o"n agenda. $f that !e the case, treat them as a political group and eliminate their privileges as a religious organi,ation. 8y son 8atthe" did not loo# li#e a "inner. After all, he "as small for his ageW "eighing, at the most, 99: pounds, and standing only N>2A tall. He "as rather uncoordinated and "ore !races from the age of 93 until the day he died. Ho"ever, in his all too !rief life, he proved that he "as a "inner. 8y sonWa gentle, caring soulWproved that he "as as tough as, if not tougher than, anyone $ have ever heard of or #no"n. 6n 6cto!er F, 9EEQ, my son tried to sho" the "orld that he could "in again. 6n 6cto!er 92, 9EEQ, my first%!orn sonWand my heroWlost. 6n 6cto!er 92, my first%!orn sonWand my heroW died N: days !efore his 22nd !irthday. He died )uietly, surrounded !y family and friends, "ith his mother and !rother holding his hand. All that $ have left no" are the memories. $t>s hard to put into "ords ho" much 8att meant to family and friends and ho" much they meant to him. Kveryone "anted him to succeed !ecause he tried so hard. (he spar# that he provided to people had to !e experienced. He simply made everyone feel !etter a!out themselves. 0amily and friends "ere his focus. He #ne" that he al"ays had their support for anything that he "anted to try. 8att>s gift "as people. He loved !eing "ith people, helping people, and ma#ing others feel good. (he hope of a !etter "orld free of harassment and discrimination !ecause a person "as different #ept him motivated. All his life he felt the sta!s of discrimination. Because of that he "as sensitive to other people>s feelings. He "as naive to the extent that, regardless of the "rongs people did to him, he still had faith that they "ould change and !ecome @nice.A 8att trusted people, perhaps too much. 7iolence "as not a part of his life until his senior year in high school. He "ould "al# into a fight and try to !rea# it up. He "as the perfect negotiator. He could get t"o people tal#ing to each other again as no one else could. 8att loved people and he trusted them. He could never understand ho" one person could hurt another, physically or ver!ally. (hey "ould hurt him, and he "ould give them another chance. (his )uality of seeing only good gave him friends around the "orld. He didn>t see si,e, race, intelligence, sex, religion, or the hundred other things that people use to ma#e choices a!out people. All he sa" "as the person. All he "anted "as to ma#e another person his friend. All he "anted "as to ma#e another person feel good. All he "anted "as to !e accepted as an e)ual.

+nne7ure II 4hat did 8att>s friends thin# of him5 0ifteen of his friends from high school in ;"it,erland, as "ell as his high school adviser, 'oined hundreds of others at his memorial services. (hey left college, fought a !li,,ard, and came together one more time to say good%!ye to 8att. 8en and "omen coming from different countries, cultures, and religions thought enough of my son to drop everything and come to 4yomingWmost of them for the first time. (hat>s "hy this 4yoming country !oy "anted to ma'or in foreign relations and languages. He "anted to continue ma#ing friends and at the same time help others. He "anted to ma#e a difference. Did he5 +ou tell me. $ loved my son and, as can !e seen throughout this statement, "as proud of him. He "as not my gay son. He "as my son "ho happened to !e gay. He "as a good%loo#ing, intelligent, caring person. (here "ere the usual arguments, and at times he "as a real pain in the !utt. $ felt the regrets of a father "hen he reali,es that his son is not a star athlete. But it "as replaced "ith a greater pride "hen $ sa" him on the stage. (he hours that he spent learning his parts, "or#ing !ehind the scenes, and helping others made me reali,e that he "as actually an excellent athleteWin a more dynamic "ayW!ecause of the different types of physical and mental conditioning re)uired !y actors. (o this day $ have never figured out ho" he "as a!le to spend all those hours at the theater, during the school year, and still have good grades. Because my 'o! involved lots of travel, $ never had the same give%and%ta#e "ith 8att that /udy had. 6ur relationship at times "as strained. But, "henever he had pro!lems "e tal#ed. 0or example, he "as unsure a!out revealing to me that he "as gay. He "as afraid that $ "ould re'ect him immediately, so it too# him a "hile to tell me. By that time, his mother and !rother had already !een told. 6ne day he said that he had something to say. $ could see that he "as nervous, so $ as#ed him if everything "as all right. 8att too# a deep !reath and told me that he "as gay. (hen he "aited for my reaction. $ still remem!er his surprise "hen $ said, @+eah5 6J, !ut "hat>s the point of this conversation5A (hen everything "as 6J. 4e "ent !ac# to a father and son "ho loved each other and respected the !eliefs of the other. 4e "ere father and son, !ut "e "ere also friends. Ho" do $ tal# a!out the loss that $ feel every time $ thin# a!out 8att5 Ho" can $ descri!e the empty pit in my heart and mind "hen $ thin# a!out all the pro!lems that "ere put in 8att>s "ay that he overcame5 *o one can understand the sense of pride and accomplishment that $ felt every time he reached the mountain top of another o!stacle. *o one, including myself, "ill ever #no" the frustration and agony that others put him through !ecause he "as different. Ho" many people could !e given the pro!lems that 8att "as presented "ith and still succeed as he did5 Ho" many "ould continue to smile Wat least on the outsideW"hile crying on the inside to #eep other people from feeling !ad5 $ no" feel very fortunate that $ "as a!le to spend some private time "ith 8att last summer during my vacation from ;audi Ara!ia. 4e sat and tal#ed. $ told 8att that he "as my hero and that he "as the toughest man that $ had ever #no"n. 4hen $ said that, $ !o"ed do"n to him out of respect for his a!ility to continue to smile and #eep a positive attitude during all the trials and tri!ulations that he had gone through. He 'ust laughed. $

+nne7ure II also told him ho" proud $ "as !ecause of "hat he had accomplished and "hat he "as trying to accomplish. (he last thing $ said to 8att "as that $ loved him, and he said he loved me. (hat "as the last private conversation that $ ever had "ith him. $mpact on my life5 8y life "ill never !e the same. $ miss 8att terri!ly. $ thin# a!out him all the timeWat odd moments "hen some little thing reminds me of him3 "hen $ "al# !y the refrigerator and see the pictures of him and his !rother that "e>ve al"ays #ept on the door3 at special times of the year, li#e the first day of classes at U4 or opening day of sage chic#en hunting. $ #eep "ondering almost the same thing that $ did "hen $ first sa" him in the hospital. 4hat "ould "e have !ecome5 Ho" "ould he have changed his piece of the "orld to ma#e it !etter5 $mpact on my life5 $ feel a tremendous sense of guilt. 4hy "asn>t $ there "hen he needed me most5 4hy didn>t $ spend more time "ith him5 4hy didn>t $ try to find another type of profession so that $ could have !een availa!le to spend more time "ith him as he gre" up5 4hat could $ have done to !e a !etter father and friend5 Ho" do $ get an ans"er to those )uestions no"5 (he only one "ho can ans"er them is 8att. (hese )uestions "ill !e "ith me for the rest of my life. 4hat ma#es it "orse for me is #no"ing that his mother and !rother "ill have similar unans"ered )uestions. $mpact on my life5 $n addition to losing my son, $ lost my father on *ovem!er H, 9EEQ. (he stress of the entire affair "as too much for him. Dad "atched 8att gro" up. He taught him ho" to hunt, fish, camp, ride horses, and love the state of 4yoming. 8att, 2ogan, dad, and $ "ould spend t"o to three "ee#s camping in the mountains at different times of the yearWto hunt, to fish, and to goof off. 8att learned to coo# over an open fire, tell fishing stories a!out the one that got a"ay, and to drive a truc# from my father. (hree "ee#s !efore 8att "ent to the 0ireside Bar for the last time, my parents sa" 8att in 2aramie. $n addition, my father tried calling 8att the night that he "as !eaten !ut received no ans"er. He never got over the guilt of not trying earlier. (he additional strain of the hospital vigil, !eing in the hospital room "ith 8att "hen he died, the funeral services "ith all the media attention and the protesters, LandM helping /udy and me clean out 8att>s apartment in 2aramie a fe" days later "as too much. (hree "ee#s after 8att>s death, dad died. Dad told me after the funeral that he never expected to outlive 8att. (he stress and the grief "ere 'ust too much for him. $mpact on my life5 Ho" can my life ever !e the same again5 4hen 8att "as little, $ used to ta#e sho"ers "ith him, 'ust to teach him not to !e scared of the "ater. 2ater, 8att helped me do the same thing "ith 2ogan. Any"ay, 8att and $ "ould !e in the sho"er spitting mouthfuls of "ater at each other or at his mother, if he could convince her to come into the !athroom. (hen he "ould laugh and laugh. 4e "ould also sing in the sho"ers. $ taught him the songs @ o", o", o" +our BoatA3 !oth @Brother /ohnA and its 0rench version, @0r]re /ac)uesA3 and @("in#le, ("in#le, 2ittle ;tar.A 8att "ould sing loud and clear. *o", that voice is silent, the !oat has sun#, /ac)ues is no longer fr]re, and the little star no longer t"in#les.

+nne7ure II

8att officially died at 92GN3 a.m. on 8onday, 6cto!er 92, 9EEQ, in a hospital in 0ort &ollins, &olorado. He actually died on the outs#irts of 2aramie tied to a fence that 4ednesday !efore, "hen you !eat him. +ou, 8r. 8cJinney, "ith your friend 8r. Henderson, #illed my son. By the end of the !eating, his !ody "as 'ust trying to survive. +ou left him out there !y himself, !ut he "asn>t alone. (here "ere his lifelong friends "ith himWfriends that he had gro"n up "ith. +ou>re pro!a!ly "ondering "ho these friends "ere. 0irst, he had the !eautiful night s#y "ith the same stars and moon that "e used to loo# at through a telescope. (hen, he had the daylight and the sun to shine on him one more timeWone more cool, "onderful autumn day in 4yoming. His last day alive in 4yoming. His last day alive in the state that he al"ays proudly called home. And through it all he "as !reathing in for the last time the smell of 4yoming sage!rush and the scent of pine trees from the sno"y range. He heard the "indWthe ever%present 4yoming "indWfor the last time. He had one more friend "ith him. 6ne he gre" to #no" through his time in ;unday school and as an acolyte at ;t. 8ar#>s in &asper as "ell as through his visits to ;t. 8atthe">s in 2aramie. He had Bod. $ feel !etter #no"ing he "asn>t alone. 8att !ecame a sym!olWsome say a martyr, putting a !oy%next%door face on hate crimes. (hat>s fine "ith me. 8att "ould !e thrilled if his death "ould help others. 6n the other hand, your agreement to life "ithout parole has ta#en yourself out of the spotlight and out of the pu!lic eye. $t means no dra"n%out appeals process, LnoM chance of "al#ing a"ay free due to a technicality, and no chance of lighter sentence due to a @mercifulA 'ury. Best of all, you "on>t !e a sym!ol. *o years of pu!licity, no chance of communication, no nothingW'ust a misera!le future and a more misera!le end. $t "or#s for me. 8y son "as taught to loo# at all sides of an issue !efore ma#ing a decision or ta#ing a stand. He learned this early "hen he helped campaign for various political candidates "hile in grade school and 'unior high. 4hen he did ta#e a stand, it "as !ased on his !est 'udgment. ;uch a stand cost him his life "hen he )uietly let it !e #no"n that he "as gay. He didn>t advertise it, !ut he didn>t !ac# a"ay from the issue either. 0or that $>ll al"ays !e proud of him. He sho"ed me that he "as a lot more courageous than most people, including myself. 8att #ne" that there "ere dangers to !eing gay, !ut he accepted that and "anted to 'ust get on "ith his life and his am!ition of helping others. 8att>s !eating, hospitali,ation, and funeral focused "orld"ide attention on hate. Bood is coming out of evil. <eople have said @Knough is enough.A +ou scre"ed up, 8r. 8cJinney. +ou made the "orld reali,e that a person>s lifestyle is not a reason for discrimination, intolerance, persecution, and violence. (his is not the 9E2:s, 3:s, and H:s of *a,i Bermany. 8y son died !ecause of your ignorance and intolerance. $ can>t !ring him !ac#. But $ can do my !est to see that this never, ever happens to another person or another family again. As $ mentioned earlier, my son has !ecome a sym!olWa sym!ol against hate and people li#e you3 a sym!ol for encouraging respect for individuality3 for

+nne7ure II appreciating that someone is different3 for tolerance. $ miss my son, !ut $>m proud to !e a!le to say that he is my son. 8r. 8cJinney, one final comment !efore $ sit, and this is the reason that $ stand !efore you no". At no time since 8att "as found at the fence and ta#en to the hospital have /udy and $ made any statements a!out our !eliefs concerning the death penalty. 4e felt that that "ould !e an undue influence on any prospective 'uror. /udy has !een )uoted !y some right%"ing groups as !eing against the death penalty. $t has !een stated that 8att "as against the death penalty. Both of these statements are "rong. 4e have held family discussions and tal#ed a!out the death penalty. 8att !elieved that there "ere incidents and crimes that 'ustified the death penalty. 0or example, he and $ discussed the horri!le death of /ames Byrd, /r. in /asper, (exas. $t "as his opinion that the death penalty should !e sought and that no expense should !e spared to !ring those responsi!le for this murder to 'ustice. 2ittle did "e #no" that the same response "ould come a!out involving 8att. $, too, !elieve in the death penalty. $ "ould li#e nothing !etter than to see you die, 8r. 8cJinney. Ho"ever, this is the time to !egin the healing process. (o sho" mercy to someone "ho refused to sho" any mercy. (o use this as the first step in my o"n closure a!out losing 8att. 8r. 8cJinney, $ am not doing this !ecause of your family. $ am definitely not doing this !ecause of the crass and un"arranted pressures put on !y the religious community. $f anything, that hardens my resolve to see you die. 8r. 8cJinney, $>m going to grant you life, as hard as that is for me to do, !ecause of 8atthe". Kvery time you cele!rate &hristmas, a !irthday, or the 0ourth of /uly, remem!er that 8att isn>t. Kvery time that you "a#e up in that prison cell, remem!er that you had the opportunity and the a!ility to stop your actions that night. Kvery time that you see your cell mate, remem!er that you had a choice, and no" you are living that choice. +ou ro!!ed me of something very precious, and $ "ill never forgive you for that. 8r. 8cJinney, $ give you life in the memory of one "ho no longer lives. 8ay you have a long life, and may you than# 8atthe" every day for it. +our honor, mem!ers of the 'ury, 8r. erucha, than# you.A -httpG??""".matthe"splace.org?dennis2.htm3 httpG??"""."iredstrategies.com?mrshep.htm. 'he criminal complaints filed in connection with Matthew-s death are available at http:MMwww.thesmo"inggun.comMarchiveMshepardC.shtml.

i $n $ndia this form of political assertion started "ith the la!els les!ian and gay and !roadened to include !isexuals -2BB. and transgenders -2BB(.. (hen there "as the reali,ation that the identities of #othis and hi'ras "ere left out, leading to the coinage 2BB(JH. (he identity of =)ueer> has the potential of stopping this endless process of adding alpha!ets to the acronym. ii Darren osen!lum, @Cueer $ntersectionality and the 0ailure of ecent 2es!ian and Bay 7ictoriesA, ?aw and &e7uality, 9EEH. iii ;ee &ame=&e7 ?ove in India: 9eadings from ?iterature and 2istory - uth 7anita et al., eds.. <algrave, *e" +or#, 2::9. (he authors loo# at texts right from the 8aha!harata in ancient $ndia to the poems of /agannath Das in 6riya in medieval $ndia and the literature of 7i'ay (endul#ar and 7. (. *anda#umar in 8arathi and 8alayalam in modern $ndia to identify a continuing history of same sex love in $ndia. iv ;erena *anda, @Hi'ras As *either 8an *or 4omanA ! in 'he ?esbian +nd ay &tudies 9eader -Henry A!elove et al, eds..! outledge, *e" +or#, 9EE3. v Barry Adam identifies the specific features of this ne" "orld in the 4est as follo"sG Homosexual relationships are released from the strictures of the dominant, heterosexual #inship system Kxclusive homosexuality !ecomes possi!le for !oth partners ;ex%role definitions fade from interpersonal !onding <eople discover each other and form large%scale social net"or#s !ecause of their homosexual interests and not only as a result of already existing social relationships. ;ee Barry D. Adam, @;tructural 0oundations of the Bay 4orldA, in &ocial Perspectives In ?esbian +nd ay &tudies -<eter *ardi et al., eds.., outledge, 2ondon, 9EEQ, p. 22:. (his process is under"ay in ur!an $ndia. Ho"ever the )uestion remains as to ho" different the path ta#en !y these identities "ould !e as compared to the 4est in their struggle against the heteronormative social and political order. (here are complex )uestions of caste, class and gender "hich "ill have to !e negotiated to emerge as a social force "hich transcends its o"n origins. 2um#insi: + 9esource :oo" on ?esbian! ay and :ise7ual 9ights in India -Bina 0ernande,, ed..! $ndia &entre for Human ights And 2a", 8um!ai, 9EEE, p. 9H9%9HE. vi A series of reports in the Jerala press indicates that at least 29 girls "ho "anted to live together have committed suicide. (he ;ahayatri#a <ro'ect -sahayatri#aXrediffmail.com., "hich has !een "or#ing for 2BB( rights in Jerala "ith a special emphasis on support for les!ian and !isexual "omen, has !een crucial in documenting the cases. vii <eople>s Union of &ivil 2i!erties%Jarnata#a, 2uman 9ights Violations +gainst &e7uality Minorities In India G + PDC?=F Fact=Finding 9eport +bout :angalore, 2::9, p. 39. viii adha (homas, @Bay in the Barden &ityA, :angalore Monthly, ;eptem!er 9EEQ, p. Q2. ix Hina 'hanthi -Bangalore edition., 6cto!er H, 2::2, p. 9:. x <eople>s Union of &ivil 2i!erties%Jarnata#a, 2uman 9ights Violations against 'ransgender People: a Case &tudy of 2i#ras and Fothis in :angalore -forthcoming.. xi ;ec 3II of the $ndian <enal &ode readsG Unnatural sexual offencesG % 4hoever voluntarily has carnal intercourse against the order of nature "ith any man, "oman or animal, shall !e punished "ith imprisonment .."hich may extend to ten years, and shall also !e lia!le to fine. Kxplanation.% <enetration is sufficient to constitute the carnal intercourse necessary to the offence descri!ed in this section. xii $&D%9: -$nternational &lassification of Diseases. adopted !y 4H6 in 9EE2 defines ego dystonic homosexuality, !isexuality and heterosexuality. xiii Klavarthi 8anohar, @8any <eople, 8any ;exualitiesG A <ersonal /ourneyA, Voices, April 9EEE. xiv &upra note viii. xv Ibid., p. 9Q. xvi(he PDC? $F% invited the +lternative ?aw Forum -+?F%! a la"yer>s collective, Manasa, a "oman>s group, and PeopleAs Hemocratic Forum $PHF%! another human rights group, to 'oin in the investigation. A team "as formed for the purpose comprising Arvind *arrain -+?F%, ;harada -Manasa., amdas ao $PDC?=F%, 2axminarayana -PDC?=F. and 7en#atesh -PHF.. xvii 'he Dniversal Heclaration of 2uman 9ights , 'he International Covenant on Civil and Political 9ights and 'he International Covenant on &ocial and ,conomic 9ights ma#e up the $nternational Bill of ights. xviii Upendra Baxi, 'he Future of 2uman 9ights, 6xford University <ress, *e" Delhi, 2::2, p. 9. xix 'he ,uropean Convention of 2uman 9ights, 'he +frican Charter on 2uman and People-s 9ights and 'he +merican Convention on 2uman 9ights do not mention sexual orientation explicitly any"here. xx ichard <lant, 'he Pin" 'riangle: 'he 8azi 0ar against 2omose7uals! Henry Holt! *e" +or#, 9EQQ3 2idden 2olocaust) -Bunter Brau, ed.. &assell, 2ondon, 9EEN. As Brau puts it, @the declared aim of the *a,i regime "as to eradicate homosexuality. (o this end homosexual "ere "atched, arrested, registered, prosecuted and segregated3 they "ere to !e re%educated, castrated and L%M if this "as unsuccessful % exterminated.A xxi 0e +re ,verywhere: + 2istorical &ourceboo" of ay and ?esbian Politics -8ar# Blasius et al., eds.., outledge, *e" +or#, 9EEI, p. 29H. xxii 7eena Das, @&ultural ights and the Definition of &ommunityA in 'he 9ights of &ubordinated People -6liver 8endelsohn et al., eds.., 6xford University <ress, Delhi, 9EEF.

xxiii &lelan ;. 0ord et al., Patterns of &e7ual :ehaviour, Harper o", *e" +or#, 9EN9. xxiv 4illiam Ks#ridge, /r., @A History of ;ame%;ex 8arriageA, IE 7a. 2. ev. 9H9E at 9N9: -9EE3.. xxv 'hird &e7, 'hird ender -Bil!ert Herdt, ed.., Rone Boo#s, *e" +or#, 9EEF. xxvi /ames 4ilets, @$nternational Human ights 2a" and ;exual 6rientationA, 9Q Hastings $nt>l \ &omp. 2. ev. 9 -9EEN.. xxvii Kvery British colony has had at some time or still has a legal provision similar to ;ection 3II of the $ndian <enal &ode. 'he 'hird Pin" :oo": + lobal View of ?esbian and ay ?iberation and 4ppression -Aart Hendri#s et al., eds.., <rometheus Boo#s, Buffalo, 9EE3. xxviii Art. 3 of the UDH states that @everyone has the right to life, li!erty and the security of person. Art. F of the $&&< states, @Kvery human !eing has the inherent right to life. (his right shall !e protected !y la". *o one shall !e ar!itrarily deprived of his life.A xxix ay 'imes, 8arch 9EEE. xxx(he "ell #no"n gay novelist David 2eavitt, "riting in the context of 8atthe" ;hepard>s death, said of himself and his lover, @Kven though "e share a house, a !ed, a car and a !an# account "hen "e "al# together in any city, "e never hold hands and not !ecause "e flinch at pu!lic display of affection, !ut !ecause "e are afraid of !eing #illed.A - ay 'imes, Decem!er 9EEQ. xxxi (he &atholic &hurch still refuses to a!andon its anti%)ueer stance. An example is the Hth 4orld 8eeting of 0amilies called !y <ope /ohn <aul $$, "hich "as held in 8anila from /anuary 22 to 2F, 2::3. (he five%day religious conference "as held @in defence of family values against divorce and same%sex marriagesA. 'he 'imes of India, /anuary 23, 2::3. xxxii 0ortunately, this "as countered !y pastors in other churches. 0or example, ev. <aul H. ;herry of the United &hurch of &hrist "rote a pastoral letter addressed to pastors all over the country supporting the full acceptance of gay men, les!ians and !isexuals into the life and leadership of the church. @United &hurch of &hrist 2eader Urges Bay $nclusionA, 'he Hata ?ounge! httpG??""".datalounge.com?datalounge?ne"s?record.html5record^3FI9. xxxiii Bay%!ashing is itself seen as a hate crime motivated !y the actual or perceived sexual orientation of the person attac#ed. $t is intended to intimidate not only individuals per se !ut also the entire group to "hich the individual is thought to !elong. (his particularly vicious form of hatred is on the rise. A report of the U; 8inistry of /ustice noted that @mem!ers of the gay community are more li#ely than are mem!ers of ethnic or religious minorities to !e attac#ed !ecause of their minority statusA. &ocial Perspectives In ?esbian +nd ay &tudies -<eter *ardi et al., eds.., outledge, 2ondon, 9EEQ, p. H92. xxxiv 'oonen v. +ustralia, &omm. *o. HQQ?9EE2, U*BA6 Hum. ts. &omm., HE ;ess., ;upp. *o H:, 7ol. 2 at 22F, U* Doc. A?HE?H: -9EEH.3 9 $nt. Hum. ts. eports EI -*o. 3, 9EEH.. xxxv 8ichel 0oucault, 'he 2istory of &e7uality Vol. C, <enguin, 8iddlesex, 9EIF, p. H3. xxxvi Ibid., p. 9:9. xxxvii Ibid., p. EF. xxxviii (he counter%discourse is em!edded in its o"n pro!lematics, as "ill !e demonstrated. Human rights discourse is hegemonic, silencing and li!erating at the same time. $n 0oucault>s "ords, there is a @tactical polyvalence of discoursesA. Ibid., p. 9::. xxxix ;ee 8anuel &astells, 'he Power of Identity, Blac#"ell, 2ondon, 9EEI. $n his analysis he sho"s ho" the Rapatistas net"or#ed their resistance using the $nternet to great effect, there!y creating a glo!al resistance movement out of a local struggle. xl (he $nternational 2es!ian and Bay Association -$2BA. and the $nternational Bay and 2es!ian Human ights &ommission -$B2H &. are the t"o main international organisations "hich "or# in this area. xli Amnesty $nternational and Human ights 4atch have ta#en on !oard discrimination on the !asis of sexual orientation as part of their mandate. xlii 0or an individual to access the complaint procedure to the Human ights &ommittee, the state party complained against must !e a signatory to the 6ptional <rotocol to the $&&< . xliii &upra note xvii. xliv Art 2-9. provides that each state party "ill ensure to all individuals the @rights recognised in the present &ovenant, "ithout distinction of any #ind, such asPsexPpolitical or other opinionPor other statusA. Art. 9I provides that no one shall !e su!'ected to @ar!itrary or unla"ful interference "ith his privacyPA Art. 2F provides that all parties are @e)ual !efore the la" and are entitled "ithout any discrimination to the e)ual protection of the la"A. xlv (he court in 8orris v. Ireland, 93 Kur. &t.H. . 9HE -9EQ9., Hudgeon v. reat :ritain, H Kur. &t. H. . 9HE -9EQ9., and Modinos v. Cyprus, 9F Kur. &t. H. . -9EE3., held that the anti%sodomy la"s of $reland, Breat Britain and &yprus respectively violated Art. Q -right to privacy. of the K&H . xlvi 2a"rence . Helfer et al.! @;exual 6rientation and Human ightsG (o"ard a United ;tates and (ransnational /urisprudenceA, E Harv. Hum. ts. /. F9 -9EEF.. ;ee also &hristopher . 2eslie, @&reating &riminalsG (he $n'uries $nflicted !y =Unenforced> ;odomy 2a"sA, 3N-9. 2arvard Civil 9ights=Civil ?iberties 9eview 9:3 -4inter 2:::.. xlvii (he interesting "ay that rights language has !een used to !rea# silences in societies is illustrated !y various lectures given !y /ustice 8ichael Jir!y from Australia in 9EEF at the *ational 2a" ;chool of $ndia University. /. Jir!y used the language of rights to elo)uently put forth the suffering imposed !y society upon gay and les!ian people. *o other language "ould have !een accepta!le in tal#ing a!out same%sex desire in a non%pathological sense. He particularly focused on the path%!rea#ing decision in 'oonen v. +ustralia and, given the central role that the

international !ill of rights and its interpretation plays, one can safely predict that sexual orientation is an issue that the human rights community "ill have to continue to grapple "ith. $n discourse terms, the a!ove example is 'ust one of the many spaces opened up, in human rights communities around the "orld. 7isi!ili,ing the invisi!le is part of the "ay that human rights discourse functions as an emancipatory language. xlviii (his !ecomes particularly useful in countries in "hich international la" to "hich the country is signatory automatically !ecomes a part of municipal la". omania is a good example of this. &upra note x. xlix Boaventura de ;ousa ;antos, 'owards a 8ew Common &ense, outledge, *e" +or#, 9EEN, p. 33E. l Ibid. li&upra note x at E9. lii Ibid., p. NQ. liii Ibid., p F. liv 923 ;. &t. 2HI2. lv &hapter 3, ;ec Q-2. provides that @no person shall !e unfairly discriminated against, directly or indirectlyPon one or more of the follo"ing grounds in particularG race, gender, sexP sexual orientationP or languageA. lvi &hapter 3, ;ec 3-a. states, Athis section shall not preclude measures designed to achieve the ade)uate protection and advancement of person or groups or categories of persons disadvantaged !y unfair discrimination in order to ena!le the full and e)ual en'oyment of all rights and freedomsA. lvii 7oris /ohnson, @8a#ing 4ords on a <age Become Kveryday 2ifeG A ;trategy to Help Bay 8en and 2es!ians Achieve 0ull K)uality under the ;outh African &onstitutionA, 99 Kmory $nt>l 2. ev. NQ3 -9EEI.. lviii &hapter 3, ;ec 3N-9. provides, @in interpreting the provisions of this chapter, a court of la" shall promote the values "hich underlie an open and democratic society !ased on freedom and e)uality and shall "here applica!le have regard to pu!lic international la", applica!le to the protection of the rights entrenched in this chapter and may have regard to comparative foreign case la".A lix &upra note xvii. lx &upra note xxviii. lxi N9I U; F2: -9EEF.. $n this case the ;upreme &ourt struc# do"n a &olorado voter%approved amendment "hich prohi!ited any la"s, ordinances or policies entitling people of homosexual orientation or conduct to minority status, )uota preference, protected status or claims of discrimination. lxii QN2 <2d at HH, (he Ha"aiian ;upreme &ourt in this case held that prohi!itions on same sex marriage violated the right to non%discrimination on the !asis of sex. lxiii (he ;upreme &ourt held that spousal !enefits "ere applica!le to gay and les!ian couples as "ell and so the la" of the state of 6ntario "hich defined spouses as heterosexual only "as unconstitutional. - 'he uardian, 8ay 22, 9EEE. lxiv (he clause on sexual orientation did occasion disagreement from the African &hristian Democratic <arty in parliament "hich claimed that it "as un%African and from 4innie 8andela, "ho protested vehemently against homosexual rights. /ohnson argues that the ma'ority of ;outh Africans "ould !e against e)ual protection. Ho"ever, it "as due to the contri!ution of gay?les!ian people to the anti%apartheid struggle that this clause has !ecame a part of the constitution, lxv o!ert 8uga!e, the president of Rim!a!"e, says, @$ find such immoral and repulsive organisations li#e those of homosexuals "ho offend !oth the la"s of nature and of morals or religious !eliefs espoused !y our society outrageous and repugnant to my conscience Lmy emphasisM.A 8ichael (homas, [;outh Africa and Rim!a!"eG ("o Approaches to ;exual 6rientation[, 9I B. &. (hird 4orld 2. /. 3FN. Ho"ever, "hat is never )uestioned is "hy @ our societyA is al"ays defined in heterosexist terms. lxvi ay 'imes, /anuary 9EEE. lxvii 8ichel 0oucault, 'he 2istory of &e7uality Vol. C, <enguin, *e" +or#, 9EIF, p. 2I. lxviii A. 2. Basham, 'he 0onder 'hat 0as India, upa, *e" Delhi, 9EQ9, p. 9I3. lxix &ame=&e7 ?ove in India: 9eadings from ?iterature and 2istory - uth 7anita et al., eds.. <algrave, *e" +or#, 2::9. lxx Biti (hadani, &a"hiyani: ?esbian Hesire in +ncient and Modern India, &assell, 2ondon, 9EEF. lxxi &upra note iii. lxxii Ibid., p. xiii. lxxiii Ibid., p. 2F. lxxiv Ibid.! p.9:. lxxv &upra note vii. lxxvi Ho"ever, the 8anusmrithi says, @$f a man has shed his semen inPa manPhe should carry out the =<ainful Heating> vo"A, -99.9IH. "hich traditionally consists of co">s urine, co"dung, mil#, yogurt, melted !utter, "ater infused "ith sacrificial grass, and a fast of one night -99.293.. lxxvii /. D. 8. Derret, 9eligion! ?aw and the &tate in India! 6xford University <ress, *e" Delhi, 9EEE, p. EF. lxxviii &upra note iii at p. 9:Q. lxxix Ibid. lxxx Ibid., p. 99N. lxxxi Ibid., p 932. lxxxii httpG??""".al%fatiha.net. lxxxiii ;upra note iii at p. 999.

lxxxiv Henri &or!in, Creative Imagination in the &ufism of Ibn -+rabi , <rinceton University <ress, <rinceton, 9EFE, p. 2I23 and Annemarie ;chimmel, +s 'hrough + Veil: Mystical Poetry in Islam , &olum!ia University <ress, *e" +or#, 9EQ2, p. FI%FQ, 6f6 ibid. p. 999. lxxxv &upra note iii at p. 9EI. lxxxvi Ashis *andy, 'he Intimate ,nemy, 6xford University <ress, Delhi, 9EE2, p. 2. lxxxvii Ibid., p. Q. lxxxviii Ibid., p. 23. lxxxix 8uhammad Rafiruddin, 8asl Fushi, 8ustafa%$ Jutu! Jhana, Deo!and, 9EFN, p. 2H%2E, 6f6 supra note iii at p. 2:9. xc ;ee supra note iii, p. 2HF%2N2. xci Ibid., p. 2N9. xcii &upra note xx. xciii <artha &hatter'i, 'he 8ation and its Fragments, 6xford University <ress, *e" Delhi, 9EEE, p.99Q. xciv 0lavia Agnes, ?aw and ender ,>uality, 6xford University <ress, *e" Delhi, 9EEE. xcv adhi#a ;ingha, + Hespotism of ?aw, 6xford University <ress, *e" Delhi, 9EEE, p. 92. Derret ma#es a similar point a!out Hindu la". ;ee Derret, op. cit. xcvi eport on the $ndian <enal &ode, 6f6 7asudha Dhagam"ar, ?aw! Power and Bustice, ;age <u!lications, *e" Delhi, 9EE2, p.99I. xcvii /eremy Bentham, 4ffences +gainst 4ne-s &elf: Paederasty, 6f6 0e +re ,verywhere: + 2istorical &ourceboo" of ay and ?esbian Politics -8ar# Blasius et al., eds.., outledge, *e" +or#, 9EEI, p. 9N%32. xcviii A$ 9E2N ;ind 2QF. xcix As per Jincaid, /. &. and Jennedy, A. /. &., ibid. c Ibid. (he 'udges "ent on to say, ho"ever, that the @sin of 2es!os or e!oim is clearly not such intercourse, and $ dou!t if mutual cheirourgia "ould !e such.A ci Ibid., p. 2QF%2QI. cii ;ee Fazal 9ab Choudhary v. &tate of :ihar, A$ 9EQ3 ;& 323. (his too "as a case of child anal rape in "hich the &ourt o!served that an offence under ;ec 3II of the $<& implies sexual perversity and @LnMeither the notions of permissive society nor the fact that in some countries homosexuality has ceased to !e an offence has influenced Lthe &ourt>sM thin#ing.A ;imilarly, in Mihir alias :hi"ari Charan &ahu v. &tate of 4rissa, 9EE2 &ri 2 / HQQ, a case of anal rape of a girl, the court sidestepped the issue of rape and instead noted that @anal intercourse is an unnatural offence a!horred !y societyA, there!y collapsing consent and coercion into a moral prohi!ition against anal sex. ciii A$ 9EIH ;& 23N2. civ A$ 9EFQ Bu' 2N2. cv Despite the appellant>s arguments that @fellatio cannot !e regarded as unnatural for Lit has itsM prototypic LformM among animals, andP among various savage racesA, /. ;heth held that @the orifice of mouth is not, according to nature, meant for sexual or carnal intercourse.A Ibid., p. 2N3%2NH. cvi A$ 9EQ2 Jar HF. cvii Ibid.! p. HQ. cviii ev. Bo! Kllis, Hispelling the Myth: + Composition &tudy= uide of Pastor Fen Coulter-s 'en 3ears of 9esearch, httpG??hc)sa.virtualave.net?dispell.html. cix /ohn Bos"ell, Christianity! &ocial 'olerance! and 2omose7uality: ay People in 0estern ,urope from the :eginning of the Christian ,ra to the Fourteenth Century, University of &hicago <ress, &hicago, 9EQ9. cx Jen ;ehested, @Bi!lical 0idelity and ;exual 6rientationG 4hy (he 0irst 8atters, 4hy (he ;econd Doesn>tA, in 2omose7uality and the Christian Faith -4alter 4in#, ed.., 0ortress <ress, 8inneapolis, 9EEE, p. F:. cxi $2 F All 2:N. cxii A$ 9E3N ;ind IQ. cxiii Alo# Bupta, @(he History and (rends in the Application of the Anti%;odomy 2a" in the $ndian &ourtsA, 'he ?awyers Collective, 7ol.9F, *o. I, p. E. cxiv A.$. . 9E3H ;ind 2:F. cxv A.$. . 9EHI All EI. cxvi 9EEF-2. &rimes 2QN. cxvii ;ec 2. of the &riminal (ri!es Act, 9QI9. cxviii 8eena adha#rishna, Hishonoured by 2istory: 1Criminal 'ribes- and :ritish Colonial Policy , 6rient 2ongman, *e" Delhi, 2::9, p.N. cxix ;ec E of the &riminal (ri!es Act. cxx ;ec 9E-!.. cxxi ;ec 2:. cxxii ;ec 9E. cxxiii &upra note lii at p. E. cxxiv Ibid., p. 9:. cxxv ;ec 2H. cxxvi ;ec 2H-A.. cxxvii ;ec 2F.

cxxviii ;ec 2E. cxxix 2ieutenant Beneral ;ir Beorge 8ac8unn, 'he Dnderworld of India , /arrolds, 2ondon, 9E32, 6f6 infra note lxiv, p. 9. cxxx Dilip D>;ou,a, :randed by ?aw: ?oo"ing +t India-s Henotified 'ribes, <enguin, *e" Delhi, 2::9, p. NI. cxxxi Upendra Baxi, Mar7! ?aw and Bustice, *. 8. (ripathi <vt. 2td, Bom!ay, 9EE3, p. QN. cxxxii /udith Butler, @$mitation and Bender $nsu!ordinationA in 'he ?esbian and ay &tudies 9eader -Henry A!elove et al., eds.., outledge, *e" +or#, 9EE3, p.392. cxxxiii + v. :, A$ 9EN2 Bom HQF. cxxxiv Ibid. cxxxv /ohn D>Kmilio, @&apitalism and the Bay $dentityA, in 'he ?esbian and ay &tudies 9eader -Henry A!elove et al., eds.., outledge, *e" +or#, 9EE3. cxxxvi A$ 9E3N ;ind IQ. cxxxvii A$ 9E2N ;ind 2QF. cxxxviii 8;8 is a term used in H$7?A$D; related interventions "ith high ris# groups to mean men "ho have sex "ith men. cxxxix httpG??sifyspecials.sify.com. cxl 'he 'imes of India, /uly 9:, 2::9. cxli 'he 2industan 'imes, /uly Q, 2::9. cxlii 'he 'imes of India, /uly E, 2::9. cxliii Ibid. cxliv &riminal 8isc. &ase *o. 2:NH?2::9. cxlv (.J. a'ala#shmi, @(argeting *B6sA, Frontline, ;eptem!er 9%9H, 2::9, httpG??""".flonnet.com?fl9Q9Q?9Q9Q993:.htm. cxlvi (he la" divides offences into !aila!le offences -;ec 2E2, 9:I and 92:B of the $<&., for "hich !ail has to !e granted as a matter of right, and non%!aila!le offences -such as ;ec 3II., in "hich case the discretion to release on !ail is fettered if there are reasona!le grounds for !elieving that an offence punisha!le !y death or imprisonment for life has !een committed as "ell as if the offence is a cognisa!le offence and the accused has !een previously convicted of an offence punisha!le for death, imprisonment for life or imprisonment for seven years or more. cxlvii An elementary analysis of ;ec H3I of the &riminal <rocedure &ode as applied to this case "ould have left the 8agistrate "ith no option !ut to release the accused on !ail "ith or "ithout conditions. (he accused did not commit an offence punisha!le !y death or life imprisonment, nor did they commit a cognisa!le offence and !een previous convicted as mandated !y ;ec H3I-9. -i. and -ii.. cxlviii httpG??groups.yahoo.com?group?#hush%list?. cxlix Alo# Bupta, @;exuality 8inorities during 2::9A, 'he ?awyers- Collective, Decem!er 2::9. cl a'esh Dhir, @8en 4ho Have ;ex 4ith 8en \ (he 2a"A, httpG??""".hri.ca?partners?lc?unit?homosexuality.shtml. cli Jiran Bedi, the $B -<risons., maintained that there "ere no H$7 positive prisoners in (ihar /ail and that @L"Mhenever any such case is !rought to the notice of the concerned authorities, the prisoners are separated.A ;he further held that homosexual activity in (ihar "as @not a pro!lemA - i.e. did not exist. and that @there is no 'ustification and legality for the supply of condoms in the prison. ;upply of condoms "ill promote homosexuality.A (he AB7A>s plea "as ta#en !y Bedi as an attempt to force ="estern solutions> on =(ihar Ashram>. A similar position "as ta#en !y Dr. /ana# a' ai in his "rit filed at the same time as the AB7A>s, claiming that the supply of condoms "ould !e tantamount to legalising sodomy. India 'oday, 8ay 99, 9EEH3 'he 2industan 'imes, ;eptem!er 93, 9EEH. clii @$ndian Bay ;uit ;ee#s to Decriminali,e Bay ;exA, httpG??""".sodomyla"s.org?"orld?india?inne"s:H.htm. cliii 'he Indian ,7press, /anuary 9N, 2::3. cliv 8az Foundation vs ovt of Helhi and others nd 9I2 eport of the 2a" &ommission of $ndia. $t has !een suggested that intercourse "ith animals !e included under the <revention of &ruelty to Animals Act, 9EF:, hence depriving ;ec 3II completely of any relevance. 8ihir Desai, @&ivil 2a"s Affecting Bays And 2es!iansA, httpG??""".altindia.net?altsex?&$7$2U2:2A4;U2:A00K&($*BU2:BA+;U2:A*DU2:2K;B$A*;.html. clv$n &udesh Baphu v. F. C. B., 9EEQ &ri. 2. /. 2H2Q, for example the 'udge refused to expand the definition of rape from the common la" definition of insertion of the penis into the vagina to include the insertion of any other o!'ect or !ody part into the anus and vagina. clvi ;ee 8aharu# Aden"alla, @;exual Assault and the 2&$>s 9I2 eportA in 2um#insi -Bina 0ernande,, ed.., $ndia &entre for Human ights and la", 8um!ai, 2::2. clvii 0lavia Agnes, @2a", $deology and 0emale ;exualityA, ,conomic and Political 0ee"ly, 8arch 2, 2::2. clviii <eople>s Union for &ivil 2i!erties%Jarnata#a, 2uman 9ights Violations +gainst 'he 'ransgender Community: + &tudy 4f Fothi +nd 2i#ra &e7 0or"ers In :angalore -forthcoming.. clix 8eeting in 8um!ai on 8ay I%E, 2::9, attended !y "omen>s rights, child rights and sexuality minority rights groups. clx &upra note xxiv. clxi 2um#insi: + 9esource :oo" on ?esbian! ay and :ise7ual 9ights in India -Bina 0ernande,, ed..! $ndia &entre for Human ights and 2a", 8um!ai, 2::2, p.9EN%292.

clxii Ash"ani ;harma, @*urse>s 2ove for 2ady Doc Drives ;ister to ;uicideA, 'he Indian ,7press, ;eptem!er 29,
2::2, httpG??""".indian%express.com?fullYstory.php5contentYid^EQNI. clxiii &upra note xxvii at p.9I3. clxiv Under (he Kmployees <rovident 0und ;cheme, 9EN2, nomination @shall !e in favour of one or more persons !elonging to the family. Any nomination made !y such mem!er in favour of a person not !elonging to his family shall !e invalid.A egulation F9-3. 0amily under egulation 2-g. exhaustively lists all the mem!ers of a heterosexual family. (he <ayment of Bratuity Act 9EI2 similarly constructs heterosexuality through controlling and regulating the process of nomination. clxv A dependent under (he 4or#men>s &ompensation Act, 9E23 and (he Kmployees ;tate $nsurance Act, 9EHQ, is defined in a very narro" sense to only include relations !y !lood and marriage. clxvi 'he 2indu, 0e!ruary H, 2::3. clxvii /udith Butler, @$mitation and Bender $nsu!ordinationA, in 'he ?esbian and ay &tudies 9eader -Henry A!elove et al., eds.., outledge, *e" +or#, 9EE3, p. 392. clxviii *andita Ha#sar, @Human ights 2a"yeringG A 0eminist <erspectiveA in ,ngendering ?aw -Anita Dhanda et al., eds.., Kastern Boo# &ompany, 2uc#no", 9EEE, p.QI. clxix Upendra Baxi, 'he Crisis of the Indian ?egal &ystem, 7i#as <u!lishing House, 9EQ2, *e" Delhi, p. 2HN. nd 8ichel 0oucault, 'he 2istory of &e7uality Vol. C, <enguin, 9EIQ, Harmonds"orth, p H3 clxx Alfred Jinsey, &e7ual :ehaviour in the 2uman Male, 6f6 /effrey 4ee#s! &e7uality! outledge, 9EQ9, p. IF. clxxi 4ee#s ma#es the point that medicali,ation resulted in the classification of these deviations from the norm as =perversions> rather than as diverse forms of human sexuality. /effrey 4ee#s! &e7uality! outledge, 9EQ9, p. IF. clxxii Ibid., p I9. clxxiii Ibid. clxxiv ;tephen Halpert, @$f $t Ain>t Bro#e, Don>t 0ix $tG Kthical &onsiderations egarding &onversion (herapiesA, International Bournal of &e7uality and ender &tudies, 7ol N, *o. 9, 2:::. clxxv <eople>s Union of &ivil 2i!erties%Jarnata#a, 2uman 9ights Violations against &e7uality Minorities in India G + PDC?=F Fact=Finding 9eport +bout :angalore, 2::9, p. 39. clxxvi &upra note xli. clxxvii Ibid. clxxviii Ibid. clxxix&upra note xlii clxxx 'he Indian ,7press, 8ay 2:, 2::9. clxxxi ;ee Action Alert !y $B2H & "ith respect to medical treatment of homosexuality in $ndia, 2::9, httpG??""".iglhrc.org. clxxxii ;ee Annexure $. clxxxiii 'he Pioneer, August 2, 2::9. clxxxiv &upra note xlii. clxxxv Upendra Baxi, 'he Future of 2uman 9ights, 6xford University <ress, *e" Delhi, 2::2, p.2. clxxxvi AB7A, ?ess 'han ay = + Citizens- 9eport 4n 'he &tatus 4f 2omose7uality In India, *e" Delhi, 9EE9. clxxxvii &upra note xxxiv at p. Q3. clxxxviii httpG??""".iglhrc.org?. clxxxix (he Declaration on &ommitment adopted !y U*BA;; on /une 2I, 2::9. cxc A letter the from the office of the High &ommission of Human ights !landly !ut importantly notes that @a num!er of $ndependent Kxperts of the U* &ommission on Human ights are interested in receiving information on sexual minority issues falling "ithin their respective mandates. (he U* ;pecial apporteur on extra 'udicial, summary or ar!itrary executions, 8s Asma /ahangir3 U* ;pecial apporteur on violence against "omen, its causes and conse)uences, 8s adhi#a &oomaras"amy3 the U* ;pecial apporteur on (orture, ;ir *igel odley3 the U* ;pecial apporteur on the $ndependence of /udges and 2a"yers, Dato'<aram &umaras"amy, the U* ;pecial apporteur on 0reedom of Kxpression, 8r A!id Hussain and the ;pecial epresentative of the ;ecretary%Beneral on Human ights Defenders, 8s Hina /ilani.A (his signals a shift in U* discourses "herein the violations against sexual minorities is increasingly seen as a human rights issue. httpG??""".iglhrc.org?. cxci Bay partnership la"s have !een enacted in 0rance, ;"eden, *or"ay and Bermany, "ith the *etherlands !eing the first country in the "orld to recogni,e same%sex marriages -in 2::2.. Belgium has recently follo"ed suit, although it has not yet allo"ed adoption !y same%sex couples. *or"ay also for!ids adoption and church "eddings for same%sex partnerships. cxcii 9EEQ -F. B&2 I2F-4.. cxciii Ibid. at para 929. cxciv (he &harter in Art 9a reads, @the imprisonmentPof any person !y reason of his or herP sex, colour or language, provided that he or she has not used or advocated the use of violenceA is a prisoner of conscience. (his "as an A$ interpretation of its mandate and not an amendment to include sexual orientation. cxcv <eter Baehr, @Amnesty $nternational and its ;elf $mposed 2imited 8andateA, 92 *eth. C. H. . N -9EEH., 6f6 International 2uman 9ights in Conte7t -Henry ;teiner et al., eds.., &larendon <ress, 6xford, 9EEF.

cxcvi Arvind *arrain, @Human ights and ;exual 8inoritiesG Blo!al and 2ocal &ontextsA, ?aw! &ocial Bustice and lobal Hevelopment $? H%, 2::9-2., httpG??el'."ar"ic#.ac.u#?glo!al?issue?2::9%2?narrain.html.

cxcviiCrimes 4f 2ate! Conspiracy 4f &ilence: 'orture +nd Ill='reatment :ased 4n &e7ual Identity ,
httpG??""".amnesty.org. cxcviii httpG??""".amnesty.org. cxcix httpG??""".iglhrc.org. cc Ibid. cci 0lavia Agnes, @<rotecting 4omen against 7iolence5G evie" of a Decade of 2egislation, 9EQ:%9EQEA, in &tate and Politics in India -<artha &hatter'ee, ed.., 6xford University <ress, *e" Delhi, 9EEI, p. N2:. ccii Upendra Baxi, 'he Future of 2uman 9ights, 6xford University <ress, *e" Delhi, 2::2, p. 932. cciii 8ational Coalition For ay and ?esbian ,>uality and 'he &outh +frican 2uman 9ights Commission v. 'he Ministry of Bustice and others , 9EEQ -F. B&2 I2F-4. cciv 4e are enclosing a copy of the <U&2 eport on Human rights violations against sexuality minorities, 2:::. ccv &al erucha, the &ounty and <rosecuting Attorney.