Since ‘straight’ is linguistic harakiri for 377-talk, perhaps we first need to get this crooked: if we say ‘we are all queer’, we cannot make a ‘they’ out of the LGBT community, and more importantly out of all that which 377 targets, ‘carnal intercourse against the order of nature’. We must first understand what ‘nature’ means in the context of carnal intercourse, of course, but most crucially we must believe that being queer is a philosophy and a politics and a sensibility of desiring outside the pale of proscription. And it is also today a politics and a philosophy of protest and dissent: an assertion of our sexual selves that are denied existence by others, but in tandem, always, a celebration of those very selves – continued, secret or outed, extravagant or quiet – despite such denials and exclusions.
Queer Desire: Raging, Carnivalesque
‘We are all queer’ as a movement is in league with (and not opposed to or lesser than) other battles against discrimination, like that of dalits or Kashmiri Muslims or transgenders or working class labourers. Anyone who dismisses the fight against 377 as lower on the rungs of political significance is astonishingly classist and casteist in such an argument, surely? And to say that, since only 200 ‘offenders’ have been booked in 150 years of the existence of section 377 of the IPC, this makes it any less critical to understandings of identitarian politics is to be the worst kind of offender in hierarchizing identities, it seems to me. So here then is a ‘gay’ – and we can all be gay as much as queer – that must necessarily be both a blithe spirit and an angered, avenging one. It must fight for spaces as much as mark its presence outside of legitimately-granted territories, because its very definition is to be outside of the prescribed, and to be in combat for a place that it does not really wish to seek under its contrarian sun.
And so this queering must be raging and carnivalesque at once, a gay that protests, resists, rebels, chooses, loves, desires, kisses, caresses, copulates, orgasms – in whatever way it ‘wants’ the other, simply and yet complicatedly being propelled to bodily pleasure and passion by sexual urges, oblivious to what the law allows or does not. And let us be clear on this, the fight against Section 377 is not about a sloppy sentimental ‘love’ that de-fuses hate all over the world: it is about searing passionate romance, and the right to sexual practices impelled by raucous lusty desires that are seen as dangerous to the moral fabric of the nation-state – those that are legally disallowed, but not privately disavowed. It is about love all right, but it is a risky, risqué love that dares and bares and gives and takes with everything it’s got.
Why is it crucial to make distinctions between loves when all are difficult enough, Calvino might ask. Then consider this: surely the BJP too thinks that love is not a crime when indulged in glorious saas-bahu technicolor, even while it renounces homosexuality in the morning’s headlines? It is imperative, therefore, to distinguish between a love that decimates romance and passion and makes of it a duty and a sacrifice and an aspiration to a higher, saintlier plane of being and living, and one that is passionate in giving and much as taking, an erotics of pleasure-soaked romantic love. Desire – the kind we are fighting for – is an overreacher, always wanting something beyond what we are allowed to possess; Lauren Berlant’s ‘cruel optimism’ and Jacques Ranciere’s ‘cruel radiance’ (though neither used it in exactly this context), where the oxymoronic nature of any exercise of will and wish is emphasized, may work well to focus both the sharpness and the ambiguity of desiring processes, sexuality being no exception to this melding of potentially-contradictory impulses.
Desire is a choice one makes, individual liberty may guarantee the exercising of that choice – but desire also exists beyond all guarantees, it goes where liberty – or liberality – fears to tread. This is one critical aspect of the battle against 377 we cannot afford to lose sight of, that the battle itself is contradictory, it is looking to legitimize a space that is by its very ethics (and I use the term advisedly) against the ‘order of nature’ and all that is legitimized by such ‘nature’ in the way the Court has read it. That is the real reason for it being a fraught battle even within so many of us who wish to identify as queer – whether LGBT or H(etero) – and we must begin by acknowledging and dealing with this fraughtness – or this queerness, if we will.
Everyone who has ever indulged in any sex outside the penile-vaginal straitjacket (and that includes masturbation) can, within the legalese of the Indian Penal Code, be incarcerated for a criminal offense under 377. This IPC section in the news now may have been framed in British colonial times but was accepted and legitimized by Nehru and Ambedkar when power transferred back to native hands, and we cannot afford to forget that. And the Supreme Court may well say today that it is merely upholding the spirit of the founding fathers of our nation who in their wisdom did not think it necessary to throw out what the British had imposed on the subcontinent. And so the Supreme Court of India’s failure to uphold Delhi High Court’s 2009 landmark reading-down of the offending sections of Section 377 about ‘carnal intercourse against the order of nature’ damns not just the LGBT community which we belong to or support, but just about each and every one of us in our politics, philosophies, agentic actions, dreams and fantasies, as it also damns our first nation-builders whom we invoke in all our incantations of freedom and glory.
‘Reading Down’ Liberty and Progressive Divisiveness
One of the astute ways that the judicial bench, comprising Justices Singhvi and Mukhopadhyay, have dealt with the case in the Supreme Court is to redefine liberty, and hence the question of rights vis–à–vis the right to believe in and practice homosexuality. This they have done by reading down or reading into the provision of Section 377 in order to make it ‘effective and workable’. The argument and special definition of rights offered by the bench is based on liberalism, or so it claims: ‘It is well settled that courts will be justified in giving a liberal interpretation to the section in order to avoid constitutional invalidity.’ Clearly such a form of liberalism is based on a belief in the validity and presumption of constitutionality as is, not on innovation and severance; a liberty predicated not on inalienable or autonomous rights nor on mutuality of the partners but on the validity of constitutionality which in turn is based on time-tested and rational classifications of groups and communities that are not small or arbitrary. Homosexuals, it is implied here, are first of all anthropologically or legally a minority (‘a miniscule fraction of the country’s population’) and their classification is non-rational. Equal protection of law does not apply to them and in fact, if 377 is amended or annulled, equal protection rights of other rationally classified groups will be harmed. We have already moved away from classical liberal inalienable rights of personhood: first to ‘law’s empire’ and then to ‘groups’ (rationally and non-rationally classified). What the court is playing upon is the transference of the individual right to choose one’s sexual orientation to group rights of homosexuals, and annulling their collective right on the grounds of their being non-rationally classified and having a miniscule impact on the polity.
Liberty/freedom then, naturally, is no more about privacy, dignity or autonomy (as per Article 21). It is about constitutionality and group rights. The Bench refers to its own verdict in the Maneka Gandhi versus Union of India case in this context: ‘Freedom (not only of thought, expression, belief, faith and worship, but also of association, movement, vocation or occupation as well as of acquisition and possession of reasonable property), of Equality (of status and of opportunity, which imply absence of unreasonable or unfair discrimination between individuals, groups and classes), and of Fraternity (assuring dignity of the individual and the unity of the nation), which our Constitution visualises.’
This is extremely significant since ‘freedom’ is defined is terms of association and community—indeed the word ‘nation’ is used here as the ultimate form of collectivity. Freedom cannot contravene group dynamics. It is an astute, non-democratic definition of freedom, by which a certain fraternal associative kind of equality is highlighted. This is not only a severe strike at a democratic, rights-based idea of liberty but also on progressive ideas of equality and fraternity.
This seems to me to be also at the heart of those who, although apparently not agreeing with the Supreme Court, are arguing that the question of liberty and freedom as inalienable rights is a limiting concept, and that identitarian politics must complicate the gay rights issue. But if they insist on this, they must clearly pit themselves against ‘Equality’ as defined by the bench in the SC judgement of December 11, for it would otherwise be a particularly reactionary definition of equality where group rights take on a highly moral position. In the name of opposing and sneering at democratic liberty as bourgeois and privileged, what such progressive groups must distinguish themselves from is the idea that they are the vanguard keepers of the morality of our ‘nation’, bestowing judgment on how gay rights movements are elitist and dispensable while other ‘grassroot’, ‘working class’, ‘dalit’, ‘ethnic’, ‘religious’ and geopolitical minority groups are not. They must recognize that ironically they are leading us down the same garden path that the SC bench of Singhvi and Mukhopadhyay have marked for us, the one that leads to liberties for no minorities in the final analysis. And let us be clear on this point: If equality and identitarian politics are highlighted at the cost of a democratic and rights-based variety of liberty, then such groups are worse offenders than the much-more-straightforwardly-reactionary judges of the Supreme Court this December. For instead of looking at the intersecting and overlapping nature and concerns of queer politics, liberty and equality, such groups and individuals, with an ever-ready hermeneutic of suspicion in their armory, are trying to be divisive at an hour when we all need to be united.
The two powerful words in the Left’s vocabulary – equality and fraternity – are being hijacked by self-appointed grandstanding moral guardians from many angles at this difficult hour. We need to be forewarned and forearmed against these Judases instead of paying them obeisance simply because vile pessimism and black humour appear to be more mature than occupying public spaces together and shouting heartfelt slogans. And yes, we need to invoke the Karnataka Police Act and every such atrocity but thinking about those 200 homosexuals who have been prosecuted over 150 years and millions of other unruly illegal lovers who cannot be what their passion impels them to be because of 377 looming over their various body parts, does not necessarily mean we are less attentive to others’ loves and longings and pain and suffering. We cannot be everywhere and speak for everyone at once, but we can share the shouting, surely. It is time to consolidate our rage and our aggression and fight from common platforms instead of spewing bile on behalf of some minorities at others.
However, one suspects that the virulent form of moral attacks that one is witnessing against queer activists from other rights-based or progressive groups owes its bile to something far more complicated, which votaries of such politics must square up: there is a monastic variety of activism that fits perfectly with progressive activities, and its practitioners are troubled by the idea of freedom of mind and body in this case. Such activist anarchist commune-dwellers (the vanguard legal or professional rights-based activist, let us say) might seem to be starting afresh from a monastic fundamental base, while residents of monasteries cling to tradition (this bench of the Supreme Court or conservative religious bodies like the Darul Uloom Deobandh, a leading Muslim seminary in Muzaffarnagar, or the Bharatiya Janata Party, for example), yet both mean to live outside the reach of desire and collective, if momentary, happiness/pleasure; both hold things in common, attempt to produce no more than what is needed, and envisage a world to come where the issue of sexualities remains unresolved and ought to be brushed under the carpet. It is in this way that they miss the democratic potential of liberty and actually make equality and fraternity – the other two core ideals of progressivism – sadly into disciplinary norms. They will continue to shun and despise the gay movement and its impulses because the movement challenges, at its hedonist core, the very idea of monastic varieties of living in communes and fraternities. Queer rights activists, as some are already realizing, must therefore be cautious of their supposed comrades in a common fight. They must realize the divisive nature of such politics from who they have thought are likeminded fire-fighters in this political long-haul.
Elemental, Binary, Consensual, Inter-subjective: Love-Laws are Made of These
What is also being overlooked in the midst of all this rationalizing and legalizing and civilizing of love’s arbitrarinesses, of course, is the binary, consensual and inter-subjective rights of two individuals and their mutual desiring. While we think of sex as ‘natural’ and valorize, in extension, love/lust/passion as ‘primitive’ and ‘elemental’, ‘nature’ as used by the law (in the context of ‘carnal intercourse against the order of nature’) in fact appears to ignore dictionary definitions of ‘nature’ as the essence of something; that which is pure and true as distinguished from everything artificial and contrived. Constitutionality is impure and artificial and man-made, imposed on the vagrancies of nature to control waywardness: the moral connotations of ‘pure and true’ imply, in fact, a fundamental lack of maturity in tackling natural human impulses toward complexity and greyness by strait-lacing base instincts and building a safe and civil society. The Court has forgotten, and we are tending to forget, that that which is natural to passionate sexual loving – essential, timeless, unchanging – is that which is beyond the reach of man or law when they wish to impose constraints and rules upon them. The only leashes and chains permitted in the fantastic worlds of queerness must be flexible and rainbow-coloured.
Brinda Bose teaches English in Delhi University. She is the co-founder of MargHumanities.