The Delhi High Court’s path-breaking ruling on ‘Section 377’ accepts sexual orientation as a clear criterion for classifying people. There are, however, stakes involved in this victory.
On 1 August 2009, in the aftermath of the Delhi High Court judgment on Section 377 of the Indian Penal Code that criminalises ‘unnatural sex’, a public-interest litigation (PIL) case was filed in the city of Ajmer demanding a separate living space away from the city for homosexuals. The petitioners, Subash Bhadoria and Shivdutt Parashar, are asking for a separate colony based on their belief that same-sex relations transmits diseases and corrupts the morals of youth. The first assumption in going about achieving such a separation would be, of course, that homosexuals can be identified and counted. One wonders what they would call this colony.
There is another side to this issue of ‘identification’ of sexuality, as well. As of February 2009, a group calling itself the Self Identified Gay Men’s Association (SIGMA) has been working out of the premises of the Humsafar Trust, an AIDS-focused NGO in Vakola, Bombay. For the most part, SIGMA has organised events such as movie screenings, discussions and parties. An event poster on the Humsafar notice board caught the attention of this writer a few months back: “The admission for this event will be reserved only for Gay & Bisexual Men.” In this, the SIGMA poster is making an assumption similar to that inherent in the Ajmer PIL: that it is possible to ascertain a person’s sexuality. The difference is that, with SIGMA, the protocol for this checking is outlined. As this specific truth can be extracted from the individuals themselves, self-identification is treated as the ultimate marker of sexual identity. Then again, if the whole matter is framed as a truth, it can always be faked. One can claim anything at the door, so what exactly will the bouncer look for while giving or withholding access to a SIGMA party?
The idiom of the margin has always been capable of two meanings, functioning both as the threshold or the border. The margin, for instance, constitutes the threshold of access to government benefits, to societal acceptance, to acquiring basic human rights. In this sense, the dream of those who use the idea of the margin is that it should be an ever-receding line – like a hurdle sprint, the point is to always keep getting ahead of the self-appointed markers. It is for this very reason that the hurdle race is theoretically invincible; and so is the receding horizon of this political margin. The cultural anthropologist Gayle Rubin understood this brilliantly in her 1984 essay Thinking Sex, when talking about “the need to draw and maintain an imaginary line between good and bad sex … Arguments are then conducted over ‘where to draw the line,’ and to determine what other activities, if any, may be permitted to cross over into acceptability.” It is a game that is destined to continue – always some cross, some wait to cross, and some are left behind.
Sexuality politics learned this language of margins from the gender- and race-based civil-rights struggles of the 1960s and 1970s. In her famous essay Marginality as a Site of Resistance, the writer bell hooks maintains that the margin gave her a keener perception of her world. To be marginalised was to be able to look at the world both from the outside-in and the inside-out. In this sense, marginality becomes a metaphor for various systemic problems faced by people. In sexuality politics, however, the margin-as-threshold always comes in the company of the margin-as-border. But at that point, the metaphor becomes a little less of a metaphor: this imaginary line does not simply mark people who have state benefits from those who do not, or mark those who are considered criminal from those who are not. Instead, it is that which considers people to be fundamentally different – the most abiding function of the act of marking, the collateral for the drawing of the margin. It is not surprising that the margin and marking share their root sense.
To count or weigh
A P Shah and S Muralidhar, the bench that presided over the Section 377 Naz Foundation case (see Himal August 2009, “Magic in the city of words”), made a remark that has been quoted to the point of exhaustion in public responses to the judgment. “It cannot be forgotten that discrimination is an antithesis of equality,” they wrote, “and that it is the recognition of equality which will foster the dignity of every individual.” This is a remarkably powerful line, and perhaps constitutes liberal democracy at its best. Still, it gets the main point wrong. Discrimination, per se, is not the antithesis of equality; rather, it is its corollary. In some senses, each is a condition for the other. The principle of difference – more so of finding difference – in enshrined within the principle of equality. To discriminate comes from Latin discriminat which means ‘to divide’; discrimin implies division, applying separate rules to those understood in this way. That is the way Shah and Murlidhar discern the objects of their judgment, those to whom they think it shall apply. To discern is literally to separate off. The Ajmer PIL, asking for a separate colony for homosexuals, is not an aberration in the theme of equality; in some sense, it is its process. If the metaphor of the margin is crudely and completely literalised, you get the ghetto dreamed of by the Ajmer petitioners. In the words of the poet Iqbal, “Jamahuriyat ek tarz-e-hukumat hai jisme, bando ko gina kartein hain, tola naheen karte” (Democracy is a form of government in which heads are counted, but never weighed).
One of the major slogans at the first Delhi Pride Parade in 2008 was “Hindu, Muslim, Sikh, Isaai, Hetero-Homo Bhai-Bhai”. It is a tribute to the song of equality. A friend’s mother held that slogans must be direct and simple; they should hit you hard, not make you ponder. “Slogans”, she said, “do not have footnotes.” They might not have footnotes, but they always have implications. An episode in the early life of the author Ismat Chughtai might help us to get to the implications of this slogan. At her neighbour’s house during a festival, the young Chughtai once held an idol of Krishna in her arms with a love which only children are capable of. She writes of this experience when she tells the story of her life in Kaghazi Hai Pairahan, roughly translating to:
On silk pillows lay the beautiful child, swinging lightly. And his face with an incredible innocence, and his eyes like lit lamps. Gradually, I touched the soft cheeks of the child. He is beckoning to me, insisting that I pick him up in my lap. Each part of me smiled at this. Without any hesitation, I picked him up and held him close to my chest.
But Chughtai is immediately caught by one of the elders. Her Muslim family is outraged. Her Hindu neighbours panic. The result of Ismat’s blasphemy was that now she began to be schooled in Islam to an even greater degree than before. Differences, after all, need ways to aggrandise themselves. Chughtai understands this, saying:
Due to this event, people took it upon themselves to improve my prospects in the world after. All the teachings of Islam were piled upon me (bartari koot-kootkar bhari gayi)– Islam, that which is above and superior to all other religions of the world. This slogan of bhai-bhai is one matter, that the Muslim is after all Muslim is not denied by it
The fraternal bond between the Hindu or the Muslim, the ‘hetero’ or the ‘homo’, does not deny the faculty to discriminate. Rather, it intensifies it. Note the phrase bartari koot-kootkar bhari gayi. Just as an attempt was made to make the young Chughtai ‘more of a Muslim’ after she experienced the other side, there come to be ways to be ‘more’ homosexual or heterosexual. We call that the stereotype, which is the precondition for intelligibility and the method of discrimination.
Article 14 of the Indian Constitution guarantees equality to all citizens. In so doing, it splits these citizens according to what it terms “reasonable classification”. Additionally, it advises a test for judging the reasonability of any classification. To pass this test, it says, “the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group.” It is foregone that equality proceeds only with an intelligible differentia. So what exactly is this intelligible differentia between the homosexual and the heterosexual? How does it become ‘reasonable’? And what is the history of such discernment, of the margins that were drawn and the people that were grouped on its either side? In sexuality politics, to be marginalised is also to be relegated to a particular kind of difference, one that first makes place for and then adjudicates one’s inner truth. For instance the right to employment says nothing about one’s self or personhood, unlike the right to one’s own sexuality, which is hooked directly onto a definition of the self.
The idiom of human rights makes strange demands on its objects. It considers them to have certain inalienable attributes, sexuality or sexual orientation now being one of them. The recent Delhi High Court judgment thus does something peculiar. Suddenly, every Indian citizen – as rendered intelligible within this legal document – has a sexual orientation. A historical idea becomes a universalism. What was in 2005, in the words of two young editors of a volume on queer politics in India, Gautam Bhan and Arvind Narrain, only “beginning to enter the consciousness of the nation” is now firmly ensconced, with its hook into the highest document of the nation state. The basis of sexual orientation becomes an unquestioned one. A body of people becomes quantifiable on the basis of their ‘sexuality’ – hetero or homo. All the manoeuvres of the margin-as-border find a perfect playground. Yet we need to ask when such a process began to make sense, and how. When did sexual orientation become a ‘thing’ everyone has? When did it become as obvious as breathing?
Late 19th-century sexologists in Europe were perversely interested in tabulating difference and elaborating sexual ‘types’, the sexual acts and behaviours as well as body types of people. The then-newly exploding science of sex was extremely interested in finding patterns. Its practitioners had an eye for the ‘perverted’, seeking to define the normality of their gaze through exhaustive descriptions of the abnormal and the unusual. It was here that the homosexual was first described and typed with certain inalienable characteristics – including, for instance, the effeminate homosexual man. The types were marketed as the only accurate information about these kinds of people. But what sexology only described, psychoanalysis made into a category of people’s inner truths. Whereas sexology was still the science of sex, psychoanalysis was a science of the self. The Freudian process made sexuality into something that could be excavated from conversations that the psychologist had with his patients. Each instance of desire was linked with another to arrive at a consistent narrative explanation for the person’s behaviour. The assumption was that the person’s real sexuality lay at the end of all this talk.
Freud spun stories of the subconscious and the interior. Whatever was hidden he thought of as ‘repressed’ truth, and so sexuality was thus only destined to be expressed. Sexuality became a category of self, a definition of personhood. In the pool of such a theory, the ‘coming-out’ story became possible, and gay- and lesbian-rights activism thus picks this as its founding basis. What should have been thought of as one of the strategies of the activist intervention came to be framed as the inner truth of the people on behalf of whom the intervention was being made. Systemic problems were framed as problems of extracting personal expression. Forums of conversations became sites of polar debates between different ‘kinds’ of people. Today, Baba Ramdev quotes Spanish psychiatrist Enrique Rojas to give evidence that homosexuality is a disease. Indeed, all instances of desire were explained as being caused by sexual orientation, instead of being seen merely as one of the ways in which we can interpret and make sense of our desires. Desire, that which is always between two people, a relational thing, was suddenly made to bolster sexuality, that which is always a matter of self-definition.
This newly isolated sexuality was very amenable to the concept of the margin. On its grounds, people could be easily allocated a place on this or that side of the margin, now both threshold and border. According to Shyam Divan, the lawyer for the Naz Foundation, global jurisprudence has come to accept that five to seven percent of the members of any given society are homosexual. This is a favourable statistic, as it makes sense in the way liberal democracy piles up communities for representation. The media often links the community with a particular lifestyle, a set of rules of conduct, a way of being; it knows where to find the gay community and how to represent it. In other words, “Bartari koot-kootkar bhari gayi.” The experience is the same as the young Ismat Chughtai’s. As readily countable, and discernible, the homosexuals are softly led to this side of the line. The margin recedes. The state has bestowed its gift.