King's Student Law Review

I: Introduction

In 2009 the High Court of Delhi, in the case of Naz Foundation v. NCT Delhi (hereinafter Naz), decriminalized consensual acts of homosexuality in private, therefore, legalizing homosexual intercourse in a private realm.ⁱThe Supreme Court of India, however, re-criminalized consensual homosexual intercourse in private in December 2013ⁱⁱ. The Supreme Court decision has led to a review petition that is pending before the Supreme Court of India.ⁱⁱⁱ The Supreme Court’s decision and the review that is currently pending forces us as a society to think about what was gained and lost through the 2009 Naz Foundation decision. Hence, it is essential that we scrutinize the 2009 decision to reconsider whether it benefited the gay rights movement.^iv This will help us understand better what we want from the review process that is currently going on in the Supreme Court.

Furthermore, a series of arrests made on the 13^th of November 2013 show that even prior to the Supreme Court’s verdict, the persecution of sexual difference by the executive wing continued to plague the LGBT community.^v The 2009 decision for all its merits was largely based on privacy. Though, it did touch on matters of equality. This privacy angle adopted by the case is particularly problematic, as I will attempt to show in this paper. In light of the inability of the 2009 Delhi High Court decision to effectively prevent the persecution of sexual minorities through its use of the private as a shield, we are forced to ask whether we must adopt the same principles that the 2009 decision. In order to answer one must revisit and reconsider the ‘progressive’ Delhi High Court decision of 2009.

This essay invites the reader to reconsider the victory that was Naz and ask what must be done next? The central theme of this paper is that the Naz decision forms a partial victory against the persecution of sexual difference and is a challenge to the normative order. This essay will first situate the debate of homosexuality within post-colonial India. Second, it will look at what is gained by the “liberal” decision in Naz. Finally, the paper will highlight some of the shortcomings of the decision.

II: The Identity of Dissent: A short journey through the colonial experience

The experience of homosexuality in India must be situated in the post-colonial setting that India is very much a part of. The need to appreciate the profound impact the colonial experience had on the country is vital. The systems of knowledge that were created and founded on principles of law, through the colonial experience, solidified the narratives that continue to exist.^vi The narrative created though the imposition of public morality on the Indian familial structure and the regulation of sex, through section 377 of the Indian Penal Code, were pivotal to the construction of both a heteronormative private and public.^vii The aforementioned narrative is critical as it is the point at which the homosexual and queer subjects locate their struggle, in a post-colonial context, inasmuch as the colonial experience turned the diverse sexual subject into a voice of dissent, constantly trying to use counter hegemonic discourse to destabilize the normative.^viii Section 377 did not merely criminalize homosexuals, but also heterosexuals. This clearly underscores an ideal of procreative sex which is at the heart of the provision in question. As mentioned by Prof. Ratna Kapur, protest on the grounds of sexual difference (the description of a sexual subaltern in the specific article)

“[I]s not simply a member of a minority group. While they are minorities in so far as they seek to claim formal equal rights, at a more radical level, this subject also brings about a conscious challenge to the dominant normative assumptions about the subject on which law is based. By virtue of her subaltern location and performance in a postcolonial space, the subaltern subject resists the assimilative gestures of the imperial and liberal project.”^ix

The colonial experience therefore largely regulated sexuality, by persecuting sexual difference in and through the binary of hetero v. homo, which was created through the systems of knowledge that were imposed on India during the colonial experience. However, it is important to note that the site for resistance was not purely on the lines of hetero v. homo; the colonial law simply reduced and simplified complex experiences into this binary.^x Therefore, the regulation of homosexuality was in light of prevalent heterosexual norms, the binary defined the relationship. The nature of sexual difference, like homosexuality, draws meaning and an identity of inferiority to the standards defined by the essential heterosexual relationship.^xi

It is in this colonial backdrop of construction and struggle that Naz situates itself as a liberating agent. The project of liberation that Naz has undertaken also necessarily engages with the liberation of the colonial subject.

III: Gaining security: challenging the normative ideals of sex

The 1980’s and 1990’s was the start of a more mainstream discourse on sexuality that was far less removed from the eye of the public. The international community had much to say about homosexuality, as cases like Toonen^xii in 1994 demonstrate. The Indian experience was very similar; there were numerous sex talks and homosexual talks, adding to an increasing wealth of public discourse on the subject. Debates on sexuality were in many ways carrying forward the colonial subject of sexual difference, there was a clear challenge to sexual regulation, through visible tools of dissent in the course of the 1980s, 1990s, and early and late 2000s^xiii.

The persecution of difference that was prevalent in the colonial period was widespread and largely sanctioned by law, in the form of article 377 of the Indian Penal Code.^xivThe persecution of sexual minorities on the grounds of difference still persists in the current regime.^xvArticle 377 was, therefore, symbolic of the ‘illiberal past’ and dictatorial colonial legacy that had to be challenged.

The Naz Foundation case, in many ways, situated itself as a liberating agent in the turbulent political background of dissent. Naz did create a narrative that challenged the normative conceptions on sex as an act restricted to a ‘matrimonial bedroom’, for the purposes of procreation. Its expansive take on privacy had a more profound impact on the rights of homosexuals; it went as far as to create a right to a homosexual identity in private.^xviNaz, like other privacy based decisions, tries to reclaim a private space and, an understanding of sex that are more tolerant towards homosexual intercourse. By legitimising the concept of intercourse, which is not in synchronisation with the formerly singular naturalized urge to procreate; the case of Naz took a view that sexual difference in private warranted the protection of the law from criminal sanction.^xvii

Naz Foundation predominantly situates itself as a liberating entity and used a liberal approach to achieve the protection of homosexuals, by adhering to a strict division of the private sphere.^xviii Private autonomy as a concept was separated from public morality in Naz.^xix The strict division of the two spheres has been followed in cases in the United States^xx and in supra national human rights bodies^xxi.

The approach clearly does challenge the norms and destabilize the standard conception of sex by opening up the possibility of having non-procreative sex and therefore, non – heterosexual couples having sex in private.

But the approach adopted by Naz does also much more than just destabilize the norm. It prevents the law from constructing sexual difference as a form of deviance in the public sphere, as it had done previously.^xxii The standard approach taken to cases under s. 377 in an era before the Naz judgment was to construct the sexual history of the accused using the modality of forensics.^xxiii Through the historical and forensic excavation the courts often persecuted sexual difference through the blanket presumption of sexual deviance.

Therefore, the colonial approach not only persecuted the act of sodomy but the law, and its procedural inquests into truth, persecuted the queer and homosexual identity.^xxiv The case of Naz limits the law’s ability to persecute on the basis of stereotypes that exist around homosexual mannerisms, limiting its scope through the concept of privacy, to give full personhood to homosexuals.^xxv Therefore, Naz, through its expansive interpretation of privacy, does afford some protection in the public sphere and challenges the normative conceptions of what we think to be natural, forcing us to ‘de-stigmatise the disgusting’.^xxvi

To illustrate the aforementioned discursive effect, take the example of the essentialised homosexual man, the ‘femine man’; he can now in theory, dress in a gown and walk down the street. In the period following the Naz decision, the fear of being persecuted through a presumption of sodomy is no longer something he must have. The criminal aspect of law no longer endorses such a persecution. The private sexual identity and sexual activities performed by the subject in private can’t be investigated or constructed by the law using other forensic disciplines. Whether the sex this person has is procreative, and therefore, in extension of a productive purpose, is not a legal matter anymore.

IV: Losing the plot: A Critique of Naz

In light of the recent police-based persecution that took place in November^xxvii, we must reconsider this false sense of propriety that we have after the Naz decision. It is important to note that protection from the formal persecution of the law is not the end of critique and desire.

The unfortunate pitfall of the liberal, right to privacy based approach that was used by Naz, was that it simply focused on an immediate problem, and invalidated the law’s capability to act. It did not in any way force on society the need to accept homosexuals.^xxviii

In many ways, the privacy-based approach in Naz leads to the binary of hetro v. homo, continuing to be the backdrop for the homosexual subjects struggle for equality and liberty against the repression of non-heterosexual practices in the private sphere.^xxixThe decision simply served to shift the binary of homo v. hetro into the bedroom, it did not break it, the homosexual is still not equal to the heterosexual, and the privacy based approach simply re-establishes the inferiority of the homosexual to some extent by keeping him/her in the bedroom. Hence, the homosexual exists in the bedroom, absent from the public spaces that are largely still majoritarian and heterosexual in their sexual orientation. Furthermore, liberation when viewed through the prism of privacy has an emphasis of protection against hate; it doesn’t break the narrative that causes hate. As noted in the dissent in the case of Toonen^xxx, privacy as a right is more a protection against persecution than an empowerment to break discrimination and acceptance that sexual minorities both crave and require.

It is also important not to look at the banishing into the private as a purely destructive and protectionist force; the rights based liberation and the creating of a private sphere is very much part of the larger goal of the liberal state to regulate the homosexual subject.^xxxi The decision clearly created a space where the homosexual was now being regulated, albeit through a more tolerant lens.^xxxii The liberal State continues to regulate homosexuality away from the mainstream public by keeping it locked up in the bedroom, giving the homosexual the right to exist there and nowhere else.

In short, do the ripples created by the reclamation of the private result in the breaking of the campaign of hate? We certainly see how it protects the homosexual subjects from the persecution of the law. But, does it protect them from the mocking laughter of a vengeful crowd or the vile gazes of the homophobe? If November the 13^th was any indication of what the limits of Naz are, the simple answer to the questions is not quite clear yet. All we have is the protection from the horrors of persecution, not the destruction of homophobia that we all so desire.

V: Conclusion

Through the course of the paper I have attempted to deepen the debate that surrounds homosexual liberation. I challenged the popular notion that Naz was a victory with no loss in the bargain. While the paper illustrated some of the positives of the privacy-based approach, it also challenged the notion that the victory was complete due to the creation of ‘a right to homosexuality’, routed through concepts of privacy and dignity.^xxxiii This paper attempted to illustrate how the victory in Naz was very much a first step and while it continued to challenge the normal and produce a disruptive effect on the notion of acceptable sex; a lot remains to be done to break homosexuality out of the regulatory closet in India.

By Darshan Datar, B.A. LL.B. Programme at Jindal Global Law School

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