[ Millenium Post, 12 Dec 2013 ; Shillong Times, 12 Dec 2013 ; Daily Excelsior, 13 Dec 2013 ]
Many had assembled in New Delhi to hear the Supreme Court judgement on the case of Suresh Kumar Koushal & Ors. v. Naz Foundation & Ors.(SLP (c) 15436/2009), in popular terms the constitutionality of Section 377 case. Indian Penal Code’s Section 377 is a colonial era production that criminalizes what it terms ‘unnatural sex’. This has typically been one of the legal excuses behind the routine police harassment and extortion against homosexuals – not that the police needs legal excuses most of the times it abuses queer/trans people. It also means that certain sexual practices, even when indulged in without coercion, are illegal and the practitioners are criminals. This effectively makes being gay a criminal offence in the Indian Union. Many of the assembled had expected to party. The Supreme Court judgement set aside the earlier Delhi High court judgement that had effectively nullified Section 377. The court has referred this to the parliament, which alone has the authority to make and change law.
The court that has been of late accused of ‘judicial activism’ has skillfully evaded the case at hand. By doing that, it has dealt a huge blow to the lived reality of queer people in the Indian Union. Make no mistake – in a society where increasingly legal defines right and transgression of law defines wrong, this is bad news. It is not as if the scrapping of Section 377 will overnight change what it means to be queer in the subcontinent, but its continued criminal content will make it even harder, given the amount of attention the case has received. Why is the enlightened judiciary so selective in its activism?
The judiciary does not exist in a vacuum. Well meaning elite can talk to the judicial elite via the code language of articulately argued details of Common Law. While this tactic can yield good results (the Delhi High Court judgement decriminalizing Section 377), a perception of such initiatives being elite can do serious disservice to the cause. No right can be won or defended by only employing high fangled lawyers with donor money and lobbying, bypassing the majority of the very people one is supposedly fighting for. There is no replacement to organizing among the people, including those who oppose you for whatever reason. The Supreme Court has pushed the onus of 377 to the parliament, in a shamefully smart way. The way the ‘queer movement’ of the subcontinent has mostly steered clear of the queer who are poor, who are not from the upper castes, who are non-urban, who dont speak English, who are illiterate, who dont use the word ‘queer’ to describe themselves, who do not describe their life, identity and experience in big neologisms, and has instead created a ‘movement’ that moves without those who they claim to move for. But then this is to be expected of those thriving in the Delhi-Mumbai bubble urbania.
While the Supreme Court should not be let off lightly on this, the connectedness of all assaults on human rights needs to be appreciated. We also need to appreciate, how those rights were won. If habeas corpus, banning child labour and many other things that are considered inalienable elements of human rights, were effected by movements pressuring power and not by court adjudication, why would one think this would be any different? It is also important that one appreciates the associations and dissociations of the court and the state, as well as the statist context of the court. The supreme court of India has previously upheld the suspension of habeas corpus during the Panditain’s brief dictatorship. Only recently, it has found the Armed Forces Special Powers Act to be perfectly in line with the fundamental rights of a citizen as per the constitution. Given this record, should this order on Section 377 come as a shocker? It will be infantile to suggest that people’s pressure that goes against the grain of state interest and ideology will force the courts to give rulings. But it certainly can help. And for that, one needs to start with the people. People who have direct stake in this. People who are potential allies of the direct stakeholders. There is no judicial shortcut to politics for the underdog.
To live in a state that denies the right to not be shot dead on mere suspicion or whim of state agencies needs a constant working around the state and its apparatus. Life has not stopped in AFSPA areas. Neither has people’s resistance, inspite of the court ruling it as perfectly legal. Hence, life will go on. So will ‘unnatural sex’. Given its acute sensitivity to what White people think of them, the elite of the Indian Union and their representatives in the parliament might suddenly discover that ‘unnatural sex’ is not unnatural after all.