There are many lines you can read again and again from the 2009 Delhi High Court judgment—commonly known as the Naz case—that decriminalized same-sex sexual relations in India. Let me give you one that has stayed with me since that day in the courtroom:
For every individual, whether homosexual or not, the sense of gender and sexual orientation of the person are so embedded…that the individual carries this aspect of his or her identity wherever he or she goes. While recognizing the unique worth of each person, the Constitution does not presuppose that the holder of rights is an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times.
Bodies, communities, cultures, places and times. In one sentence, the judges reminded us of what we talk about when we talk about sexuality. Not just sexual orientation or gender identity, meant to be only about some people who are lesbian, gay, bisexual or transgender. Not just something called “gay rights,” somehow separated from other intrinsic rights and freedoms.
As a gay man, this is what I read and heard in Naz: the possibility of, and insistence on, dignity. Sexuality as dignity becomes something else in our hands.
Moving, perhaps forward
In 2015, a student at the Indian Institute of Science (IISc) in Bengaluru was blackmailed and threatened with being publicly exposed for being gay. When he refused to pay extortion money, the private letters turned into notices pinned on noticeboards on campus. The words were sharp, relentless and inhumane: “I think it’s completely shameful, bad, immoral and disgusting. You should go kill yourself. Why do you think it’s illegal to be gay in India?”
For many queer people, this moment is familiar. It is one that many of us have faced or live in constant fear of facing. In some ways, it is the latter that is worse. We live our lives anticipating prejudice. Even before it comes, we are constantly censoring, moving and shaping our lives to evade it or, if we can’t, survive it. Those of us who have the privilege of privacy, scan rooms to find allies, weigh what to tell our doctors, measure out information in our offices and seek safe spaces. Those without this privilege face a much more direct battle to be who they are: an unrelenting and legitimized public violence that falls on working-class bodies in our streets, police stations and public spaces.
The law is not the only force behind this violence, but it is an important one. “Why do you think,” the blackmailer asks, “it’s illegal to be gay in India?” When petitioners in the Naz argued that Section 377 of the Indian Penal Code (which criminalises “voluntary carnal intercourse against the order of nature”) played an important part in shrouding our lives in criminality and legitimizing violence, this letter was one of many that we wrote against in our heads. In 2009, Naz gave many of us—not all, never all, for the law does not have such power by itself—a feeling of complete personhood.
In December 2013, a two-judge bench of the Supreme Court overturned Naz. On that day, I remember, it had simply felt difficult to breathe. Naz had seemed to mark a threshold of some kind. Queer struggles had always been much more than the law and more than just one law in particular. Yet, as the battles that had led up to 2009 spilled outward as the judgment’s words travelled outside and beyond the courtroom, it felt impossible to believe that after this one could move— even though hesitantly—anyway but forward. That morning, no other verdict seemed possible. It was. Only one summary sentence was read out and a two-judge Supreme Court bench overturned Naz.
So what does it look like from within our fears? What has happened since the Supreme Court reversal of Naz? In one sense, it has been extraordinary. The reversal drew widespread condemnation in different forms and sites, from an extraordinary range of voices. The then-ruling government, led by the Indian National Congress, came out for the first time in strong and public support of queer rights as did several other parties including the Communist Party of India (Marxist), the Janata Dal (S) and the Aam Aadmi Party.
Several parties endorsed sexuality rights in their election manifestos for the 2014 general election, making queer rights a part of every election debate. At the time of the judgment, the attorney general wrote an unprecedented opinion piece in a leading newspaper against the judgment and filed a review petition immediately. Suddenly, politics of the party kind became a new battleground for queer rights—something the movement had evaded until now, certain that there was little support to be found. However, another powerful national party—the Bharatiya Janata Party (BJP)— remained steadfast in opposition, and many significant regional parties remained silent.
Yet, it was the support in everyday life that began to show many of us that something had shifted between 2001 when the Naz Foundation filed the petition, 2005 when Voices Against 377 intervened in the case, 2009 when the Delhi High Court ruled and 11 December 2013. The sense in the days post the judgment has been one where a sea of voices has risen against the Supreme Court. One set comes from a generation of urban young people who have come of age in a post-2009 world, a set of political subjects in one sense created by the queer movement of the past decade. What’s important and a reflection of the movement itself is that the support has come not just from queer people, but across a range of actors, movements and institutions, many of whom had been hesitant friends in the early days of the movement.
Progressive groups, state bodies like the National Human Rights Commission, teachers’ associations, professional associations including the medical and mental health establishments, women’s groups, student groups, trade unionists and private companies came out publicly against the judgment. Thousands across the country stood together, repeating the chant that brought together our resistance: “No Going Back.” A week after the judgment, “No Going Back” protests to mark a “Global Day of Rage” took place across thirty-six cities in the world, including seventeen in India. That resistance remains amidst the uncertainty and the fear, unwavering, unafraid.
In February 2016, the Supreme Court once again churned, agreeing in an extraordinary move to reopen Naz. A constitutional bench will now hear a curative petition to decide on the way forward. The legal battle stands reinstated. Yet, regardless of what happens in court, what remains just as true is this: with or without the law, the IISc student wrote back. He pinned a reply on the same noticeboard and spoke about not being ashamed of his sexuality. He reminded us that slowly, even if still incompletely, queer people have begun to win the greatest battle of our lives.
Excerpted with Penguin India’s permission from the chapter The (In)Dignitites of Our Sexuality by Gautam Bhan in the book Left, Right And Centre edited by Nidhi Razdan. We welcome your comments at firstname.lastname@example.org.