When the Law misbehaves

Important questions arise from the aftermaths of legal decision-making on the Naz Judgment.

7187228861_c9155a5721_bSection 377 of the Indian Penal Code drafted in British India in 1860 was amended on 2 July, 2009 by the Delhi High Court to exclude homosexuality from the list of sexual offences deemed unnatural. The decision by the Delhi High Court in Naz versus the Union of India was a culmination of a decade and half long LGBT activism in India and unsuccessful attempts by civil society actors to effect change in the legal status of homosexuality. The Naz Judgment as it came to be known is a landmark legal artifact that has enabled in constitutional terms, a language of empowerment for sexual minorities, which is unprecedented.

In responding to the immediate call for the decriminalisation of homosexuality by the Indian Health Ministry along with the Naz Foundation, the judgment exceeded its task by grounding its reasoning to amend the law within a rights-based framework. The Delhi High Court jury referred to a range of international legal material such as judgments on similar sodomy laws in other countries, UN documents, and other international instruments of human rights and protections. Further, by employing constitutional morality as a basis of equality of all Indian citizens whether gay or straight, the Naz jury repudiated public morality that has historically been evoked to pathologise homosexuality.

When the decision was challenged by various religious and conservative groups across India in the Supreme Court, the language of Naz was not reflected in the proceedings of the case as it was heard over three weeks in March 2012. The Supreme Court did not follow the rights-based logic of the Delhi High Court jury and persisted with the question by producing their own imagery of conjectures on what might constitute unnatural penetration. Lawyers and activists interviewed stated that the three-week long Supreme Court proceedings were a significant departure from the line of reasoning followed in the Naz decision and could lead to its possible revocation. In their view, based on the judges’ focus on sexual behavior to the exclusion of identity-based claims, it was difficult to infer whether their response was merely prurient or intellectual, trading in tenets of critical queer theory.

A final verdict from the Supreme Court of India is expected in 2013. In the case of likely scenario of total revocation, (which would re-criminalise homosexuality in India) the queer movement would suffer a damaging legal setback. It would make it difficult to challenge the Law again considering the 15-year long process that culminated in the Naz decision. If the Supreme Court of India curbs the Naz decision’s ambition of using legal decriminalisation of homosexuality as a springboard for recognising the rights to privacy, equality, dignity and non-discrimination to mere decriminalisation, it would amount to a partial victory. The activists and lawyers imagined legal decriminalisation without rights to be a more likely conclusion in the impending Supreme Court verdict. The focus on the question of “unnatural sex” in the Supreme Court proceedings of the Naz case makes a total affirmation of decriminalisation with rights counter-intuitive.

Some important questions arise from the aftermaths of legal decision-making in the Delhi High Court and the Supreme Court of India. How do we understand the rights-based chords struck by the Delhi High Court on the legal decriminalisation of homosexuality in comparison with the Supreme Court jury’s almost prurient interest in defining “unnatural sex” over three weeks, producing something akin to an erotic legal theater? What can be said about the sexual imagination of the Law as an institution whose authority resides in proper procedures and juridical embodiment that orders the legal space by distancing the judge from the lawyers and those present in the audience? What does the Law’s encounter with sexuality produce when the judges as representatives of law have to consider a range of claims based on the experience of violence, subjugation and marginalisation suffered by non-normative identities in Indian society? These questions are critical for our consideration of the Law that seeks to fix human behavior but whose own behavior remains exempt from a scrutiny of its idiosyncrasies.

These are both exciting as well as dangerous times of change where the discourse on sex and sexuality in India has assumed an unprecedented public urgency. While the unfortunate gang-rape and murder of a girl in Delhi did give us a renewed Anti Rape Bill in 2013, reports of the proceedings in the Parliament signal the danger of re-inscribing certain gendered and sexualised ways of dealing with sexual violence into the legal imagination. The misleading culpability ascribed to the “problem of modernity” as the root cause of sexual violence by certain politicians and lawmakers is yet another demonstration of Law seeking to fix behavior without casting a critical glance towards its own ideological whims. The diagnoses by political and legal quacks of sexual desire and its deviant manifestations (whether it is Haryanvi Khaps’ logic of consumption of certain foods or Lalu Prasad Yadav’s brand of heterosexual physical contact) as the root cause, continue to find their way into public debates.

Whether it is the repression of non-normative bodies and their sexual desires or victims of sexual violence, without an effective critique and transformation of the legal imagination, policy-related change perhaps will remain beholden to the dangers of misrecognition of what causes such repression and violence. While the age-old cynical truism that law takes time to change may circumscribe certain legal outcomes within its temporal logic of procedure-bound access to justice, the Naz judgment as a legal text offers reason to remain optimistic as well as demonstrates the political imperative to continually engage with the Law.

Photo: Radoslaw Grabowski