An interesting article in today's Magazine <http://bit.ly/QdhKB> by Ashley Tellis. While I don't agree with all of what she says, it provides some food for thought.
Cheers, Pranesh [-------------] Why I can’t join the party… ASHLEY TELLIS The case for sexual minorities should have been built on analogous reasoning with various other minorities like Dalits, adivasis and religious minorities feels. As a same-sex rights activist, I am expected to be thrilled about the recent Delhi High Court judgement that read down Section 377. But I was, and am, unable to share the euphoria, accept the congratulatory messages. There are many reasons for this. Let’s begin with the specific. Among the names that formed Respondent 8, advocates that represented “Voices Against 377” was a Mr. S. Divan, who, not so long ago, represented the Gujarat government in justifying the use of draconian laws like POTA against the Godhra accused. I wonder why there was silence on this from the great progressive organisations than constitute “Voices Against 377”. I feel tainted to be represented, let alone vindicated, by such a man. **Why is it still there?** Every protest we have had over a decade has called for the repeal of Section 377. When did this turn to just a reading down of it? The Section, in its entirety, according to the judgement itself, is “Judeo-Christian”, Victorian, presumes a model of sex based solely on heterosexual procreation, a conception that is “outdated and has no place in modern society”. Why then, is it okay to retain it once adult, consensual, private acts are removed from it? What function will Section 377 serve now? It will, we are told “govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.” Apart from the clumsy and illiterate formulation of these categories, why doesn’t the former come under definitions of rape, which feminists have been fighting to change and have changed in significant ways over decades and why doesn’t the latter necessitate a separate law? Apart from the lack of engagement with feminists and the history of their engagement with the law, let alone a discussion on what constitutes child sexual abuse and how such a section would not address it at all, if the basis of the fight was inclusivism and the Indian Constitution, do other people deserve to suffer under Section 377 as long as we do not? As long as our stigma is vindicated, other stigmas can stay and be punished under the same untenable law? How was the embrace with Respondent 4, the National AIDS Control Organisation (NACO) so easy, or, for that matter, the one with Respondent 3, the Delhi State AIDS Control Society? These organisations have no understanding of, or interest in, same-sex identities. They see one section of men (known in NGO lingo as “MSM,” a term adopted unquestioningly not just by this judgement but by the State, in the form of NACO) as a “high risk group”, an epidemiological sample. Both categories (“MSM” and “high risk group”) need examination and yet remain unquestioned in the judgement, not least because the main petitioner is an NGO. NACO’s mandate is outlined in the judgement quite clearly and includes “motivating safer sexual practices by reducing sexual partners, being faithful to a single partner, abstaining from casual sex and the correct and consistent use of condoms” (George Bush, anyone?) and “reinforcing the traditional Indian moral values (sic) of abstinence, delayed sexual debut till marriage and fidelity among youth and other impressionable groups of population” (the Sri Ram Sene anyone?). All of this sticks in the throat, runs completely counter to all the arguments (such as they are) made by Anand Grover and the Voices advocates (like the one where they counter morality being used as a ground for restricting fundamental rights) and yet these are our allies. **Misconceptions persist** Even more criminally, “MSM”, who constitute, according to the judgement, all of 25 lakhs, are seen as reason enough to make “homosexuality” a dangerous category in relation to HIV/AIDS. Never mind that economically poor mothers, female sex workers, children and injectable drug users constitute the bulk of HIV/AIDS-vulnerable and affected populations, and they amount to millions. In India, like in the rest of the global South, HIV/AIDS is not a gay disease at all. None of these groups are even mentioned (apart from a half-hearted reference to the wives of MSM), though they are intimately tied to the “MSM”. Indeed, “MSM” slides into “homosexuals” which, in turn, slides into “gay community”. Hijras are brought in when one needs violated victims; gay sex is all that’s in search of legitimacy, nothing else. One section of the judgement has as its title the targeting of homosexuals “as a class” but there’s the other sense of class at work. This is a middle-class judgement for middle class gay boys who run NGOs and fancy alternative law outfits, all funded and ready to party. Hence, all the talk about privacy and individuality, not community and the publicness of lives. The judgement is a messy document abounding with such sleights of hand and contradictions. For example, Section 377 is singled out as an alien law (the Solicitor General of India is quoted at length making, at the UN, the nativist and historically ill-informed case that we had no taboo on homosexuality, that it is a purely Western thing), and yet most of the judgement is full of legal precedents from the West (the US, the UK and white-dominated countries like Australia and South Africa) to justify the need for the law to go in India and it leans heavily on international humanrightsspeak to make its case for sexuality as identity, among other things. Which brings me to my general point, and I have only one. Why was this entire case, based as it is on Constitutional provisions, not built on analogous reasoning with various other minorities like Dalits, adivasis and religious minorities, through the histories of progressive legislation with these groups, rather than on international cases to make theoretical arguments about equal treatment and reasonableness? Why was it not seeking to build bridges, like the proposed Equal Opportunity Commission, to show the common cause of minorities, to build a stronger collective politics? **A common platform** That would have achieved many things. It would have set the platform for the coming together of minorities of different kinds to turn the Constitutional words into action; it would have stymied the responses of, and offered a dialogic future to, religious minorities whose protests the media are now communally parading; it would have offered a model of homosexuality and sexual minoritarianism that is truly inclusive, in keeping not with the Nehruvian nonsense about the spirit of the Objective Resolution but with the Ambedkarian point (also quoted in the judgement but not read closely at all) that we are a sham democracy and have to learn to build democracy into the fabric of the social and the political, one step at a time. Such a judgement does not amount to that kind of step at all. I can’t join the party. Ashley Tellis is a gay rights activist based in Delhi. © Copyright 2000 - 2009 The Hindu
