Opposing Law, Contesting Governance
Pivoting toward the State: Phase One of the Struggle against Section 377
The chapter documents and analyzes the first phase of the legal campaign (2001–6) to decriminalize homosexuality. Framed against the complex relationship between the antisodomy law and governance practices and discourses, this chapter begins with a discussion of how Naz Foundation (India) Trust’s writ filed in 2001 was constrained by its pivot to the state and a reductive understanding of the antisodomy law. Drawing on fieldwork at Naz Foundation as well as interviews with sexuality rights activists and visits to organizations across five major metropoles—Bengaluru, Chennai, Kolkata, Mumbai, and New Delhi—the discussion accounts for early criticisms of the writ and its evolution into a national-level campaign focused on the antisodomy law and the generic gay subject. Building on fieldwork conducted at state agencies, especially the Ministry of Home Affairs, the chapter underscores the subjectivities of the government’s legal response opposing decriminalization, exposing its appeal to the perils and excesses of sexuality in order to preserve the integrity of state institutions and justify state intervention. Leading to the writ’s initial dismissal by the Delhi High Court in 2004 on a mere technicality, the chapter concludes by chronicling Naz Foundation’s plea to the Supreme Court and the subsequent directive instructing the high court to decide the case on its merits, thereby making Section 377 the flashpoint for a national legal and political campaign for justice.
State versus Sexuality: Decriminalizing and Recriminalizing Homosexuality in the Postliberalized Context
Delving into the second phase of the struggle against the antisodomy law (2006–13), the chapter juxtaposes the 2009 Delhi High Court ruling decriminalizing homosexuality and the 2013 Supreme Court decision recriminalizing it. The chapter begins with the decisive impact of Voices against Section 377, a coalition of Delhi-based groups, on the historic Delhi High Court ruling. Reading this decision alongside the apex court’s overruling, the chapter makes the case that the two judgments represent diverging views of the relationship between state and sexuality in postliberalized India. Thus the lower court seeks to reduce the reach of the state, except that it does so by deploying an individualized, assimilationist, and transnational rights regime. Turning to the Supreme Court 2013 pronouncement, the analysis comes to grips with the ways it too is shaped by the imperatives of postliberalization. In contrast to the lower court’s vision, the apex court seeks to reaffirm the state and prolong governance through legislative intrusions into the realm of sexuality.