​​​​​​​Homosexuality and criminalisation in India: The arts fight back

By J. Daniel Luther and Jennifer Ung Loh (SOAS, University of London)

Same-sex sexuality remains criminal in India to this day. However visual culture, legal activism, forms of art, and performance play an important role in challenging the social and legal status of LGBTQ individuals.

On 8th February 2010 two men broke into the house of Dr. Ramchandra Siras on the campus of the Aligarh Muslim University in India. These men filmed Dr. Siras having consensual sex with another man. Subsequently the university suspended Dr. Siras for "gross misconduct" and evicted him from his residence on campus. Dr. Siras won a protracted legal struggle against the university over his wrongful suspension and eviction. However, Dr. Siras was found dead a few days after his victory. The 2015 Hindi film Aligarh by Hansal Mehta brilliantly renders the struggles and triumphs of Dr. Siras.

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  1. Actor Manoj Bajpayee portrays the worry and anguish of Dr. Siras in a still from the film Aligarh)

Dr. Siras' trials occurred at a crucial juncture, a few months after the historic Delhi High Court ruling in 2009 which read down the anti-sodomy law in the Indian Penal Code (IPC). Known as Section 377 IPC, passed in 1861 in British colonies, this law punishes "carnal intercourse against the order of nature". While applicable universally, historically this law has been used to persecute same-sex conduct and is foundational to harassment, blackmail and social stigmatisation of LGBTQ (lesbian, gay, bisexual, transgender, queer) people. In 2009 when the Delhi High Court read down Section 377 to exclude sex between consenting adults in private: the issue of illegality of same-sex sexuality was temporarily disrupted. However, Dr. Siras' situation in 2010, coupled with the fact that the intrusion into the privacy of his home went unpunished if not uninvestigated, reveals the inadequacy of legal reforms in LGBTQ acceptance. It demonstrates the necessity for an overhaul of the values and morality underlying criminal laws. This inadequacy was bitterly hammered home in 2013 when the Supreme Court of India undid the earlier 2009 ruling and upheld the law to the letter, sparking protests across India. It is in this context that this article will focus on the spaces from which inherited anti-sodomy laws in India are challenged: forms of activism based on decriminalisation, on performance and art, and through visual culture.
 

Colonial Law: The History of IPC Sec 377

“At the stroke of the midnight hour as the world sleeps, India will awake to light and freedom” Pandit Nehru, the first Prime Minister of independent India, was to announce on the eve of independence. Freedom brought with it the brutal and horrific process of partition and the bloody redrawing of lines that saw unprecedented migration and massacre. However alongside this bloody transition, another silent transformation took place. This was the continuation of colonial law into the legal codes of a newly minted secular and democratic Indian state. Exemplary amongst the practices the new nation dragged along from the colonial past were British anti-sodomy laws, first treated as felonies under Henry VIII’s parliament in the sixteenth century and deriving from ecclesiastical courts.

Henry VIII’s Buggery Act of 1533, as it later came to be known, was repealed and replaced in England by the Offences Against the Person Act of 1828 and later 1861. The nineteenth century acts retained the sixteenth century terminology but dispensed with the sanctimonious piety, although the law retained a few terms (‘abominable’, ‘buggery’, ‘mankind or with any animal’) that hint at its religious origins. Buggery, like bestiality, fell on a spectrum of sexual acts deemed abominable by European and English ecclesiastical courts, revealing how Christian beliefs governed society’s world views.

Irrespective of the absence of a substantial definition of Buggery, given the range of sexual practices that could be incriminated under it, and the fact that this criminalisation stemmed from Christian moral codes, Lord Macaulay, head of the first Law Commission tasked with drafting a criminal code for India, instituted an ‘unnatural offences’ clause into the colonial government’s criminal code, termed the Indian Penal Code. Known as Section 377 of the Indian Penal Code, this law draws on the terminology and precedent of the English legal system. Section 377 of the IPC states:
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While this law in itself has seen several recent challenges since the 1990s in the Indian legal system (and similarly in other countries that contain the same criminal code, such as Singapore), its fundamental religious bias has not been sufficiently discussed. The wording of the law, under “unnatural offences” and with terminology such as “against the order of nature,” points to the necessity of the historical record in understanding what Macaulay and the Law Commission took as implicit in its four-lined condemnation of alternative sexualities on the sub-continent.

Given that same-sex sexual activity had not previously been penalised, precedent for this was only established on importing it from a religious and aristocratic sixteenth century English context. Thus it is imperative to ask after the origins of such precedent. Investigating Henry VIII’s laws reveal that neither sodomy nor buggery were clearly defined. Renaissance scholars note that ‘sodomy’ “include[d] copulation between Satan and humans and between Christians and infidels . . .” (Warnicke, 1987; also see Foucault, 1980; Bray, 1982; Robbins, 1959). However ‘buggery’ emerges from Christian doctrine of aestheticism which condemned all non-procreative sex. The term derives from the French word ‘bougre’, referencing the Cathars sect, who condemned procreation and were thus accused of promoting non-procreative sexual acts. While the ‘Buggery Act’ relies clearly on ‘spiritual’ authority to condemn a whole range of unnamed practices in the sixteenth century, the ‘Offences Against the Person Act’ passed nearly three hundred years later in 1828 and 1861 retains the sixteenth century terminology, without the religious undertones. In the 1861 Act, the earlier Buggery Act was codified under 'unnatural offences' (Section 15 of the 1828 Act and Section 61 of the 1861 Act). It is this that Macaulay ported over under the guise of precedent essential to a supposedly modern legal system.

This brief history highlights the religious nature of sections of the criminal code of not just the secular and democratic country of India, but also the commonwealth countries of Pakistan, Malaysia, Singapore, Bangladesh, Myanmar, Maldives, and Jamaica, as well as the thirty odd other countries for which the Indian Penal Code provides a model for anti-sodomy laws. Not only does the systemic presence of Christian law underwrite the criminal code of a democratic secular nation which does not presume to swear by the religion, it also forms fundamental aspects of declared religious states such as Pakistan where the state religion certainly is not Christianity.
 

Legal Struggles: Decriminalisation and Rights


queerasiaCredit: Indiatimes.com

Legal activism has focused on the issue of decriminalisation, seeking to remove Section 377. In 1994 and 2001, ABVA and the Naz Foundation (India) Trust respectively filed petitions in the Delhi High Court. While the ABVA petition was dismissed, the Naz petition  argued that the section infringed constitutional rights to equality, non-discrimination, freedom of speech, and protection of life and personal liberty. In 2009, the Delhi High Court declared the section constitutionally invalid as it related to private sexual acts between consenting adults. The court argued that the role of the judiciary was to protect ‘the fundamental right of those who may dissent or deviate from the majoritarian view’, providing protections and rights for LGBT communities despite mainstream opposition to this reading-down of the law (Naz Foundation v. Govt. of NCT of Delhi Verdict, 2009, p.100). However, in December 2013, the Supreme Court of India overturned the Delhi verdict, arguing that LGBT communities were not targeted as a group by the section, which instead punished offences, and moreover that LGBT communities only constituted a ‘miniscule’ fraction of India’s population (Koushal, S. K. & another vs Naz Foundation and others, 2014, pp. 79, 83). This reversal on rights was condemned universally by national and international LGBT and human rights groups.
queerasiaCredit: dnaindia.com

In contrast, legal activism on transgender issues has followed a different path, with varying rights and recognitions awarded to transgender communities over LGB communities. In 2012, a government organisation, the National Legal Services Authority (NALSA) filed a writ petition seeking rights for transgender people. The Supreme Court issued a ruling in April 2014, distinguishing transgender individuals from other ‘LGB’ individuals (although this division fails to take into account the ways in which gender and sexual identity may overlap). The Supreme Court ruled that transgender people should enjoy the constitutional rights ensured in the Constitition of India, such as the right to equality, non-discrimination, and personal liberty.

The Government of India has been slow to implement legislation which might benefit transgender people, although two bills have been passed in both the upper and lower houses of Parliament (in 2014 and 2016 respectively). There is a discrepancy in giving rights to trans communities, while retaining legislation that criminalises lesbian, gay, and bisexual identities. Indeed, the grant of constitutional rights to trans people while simultaneously criminalising same-sex relations equates to a paradoxical situation for those who might be members of both trans and LGB communities. Thus the situation for the legal status of LGBT people remains uncertain at this critical juncture.
 

From Activism to Artivism

Activism has also found response outside of the courts. Performance and art have provided important spaces through which activism has flourished. Two such projects, Rainbow Voices, Mumbai and India’s first Drag King project, photographed by Indu Antony, are examples of ways in which activism has become artivism, where places for LGBTQ subjects are challenged through art and performance.

Given that many LGBTQ individuals face discrimination in their daily lives, a community space like Rainbow Voices, an LGBT choir based in Mumbai, can provide a support network that accepts individuals and allows them to share their experiences and identities through music. Vinodh Philip, the Founder of Rainbow Voices, started the choir given the need for a LGBT friendly choir in Mumbai, but the choir also aims to challenge heteronormativity through the choice of songs, performances, and costumes.queerasia(Pink Singers and Rainbow Voices in concert, July 2017, London. Credit: Jessica Rowbottom)

Vinodh claims this is ‘our fight for freedom to be ourselves and express ourselves freely’ (Pink Singers, 2017). Collaborative, cross-cultural work is also crucial in building solidarities and communities. In January 2017, 42 members of the Pink Singers, a London based LGBT choir and the longest running in Europe, performed in Mumbai with Rainbow Voices and marched in Mumbai’s Queer Azaadi Pride; in turn, members of Rainbow Voices visited London for London Pride and the Pink Singers’ summer concert in July 2017.

queerasia(Rainbow Voices at Pride in London, 2017. Credit: Michele Ghidoni, Pride in London)

Visibility for LGBTQ communities, such as taking part in pride events, can also be challenged through artistic endeavours and creating images that foreground and celebrate LGBT bodies and behaviours. The number of cities hosting their own prides has burgeoned remarkably since the earliest prides in the capital and the metropolitan cities of Delhi, Mumbai, Calcutta and Chennai. Futhermore, groups have stressed their intersectional identities at these prides, such as the queer and Muslim South Asian identity in Lucknow.

queerasia(From the first Awadh Queer Pride Parade held in Lucknow. Credit: Huffington Post India, April 2017)

Meanwhile photographers such as Indu Antony have documented one of the ways in which lesbian women have taken to art to challenge the social order of gender binaries. In the Drag King India project, photographed in her album ‘ManiFest’, Indu Antony features highly stylised and posed portrayals of thirteen queer women as they ‘try on’ the attire of popular music characters and vocations that are ubiquitous in India (Queer Asia 2017). The power of the project lies in dismantling the assumed gender roles through which women are regulated outside the home, and furthermore, complicates these roles with the presence of queer women. This project was initially undertaken for the first-of-its-kind drag king calendar. It emerged from a meeting of the Bangalore based queer social group for the city’s Pride Festival in 2012 and was reversal of an earlier drag queen project titled ‘Bitch Please!.

queerasia(From Manifest, this picture is a retake of the popularly identifiable macho character of Quick-Gun Murugun. Image Credit: Indu Antony, Manifest)
 

Challenging society through Visual Culture

For most of its existence, Bollywood, one of the major film industries in India has treated characters of non-normative sexuality as objects of ridicule, comic relief, or with sociopathic tendencies. The comedy of Johnny Lever are examples of this. His characters are frequently campy or don female drag for comic relief. Below in Anjaam (1994), Lever plays the role of the hijra (a South Asian term loosely referring to a trans or 'third' gender individual) character of Champa Chameli locked up in prison and who lightens the intense murder plot, yet raises crucial questions about the incarceration of a third gender person and their social ostracism

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(From Anjaam, 1994 as Lever's character Champa Chameli, a third gender person, negotiates her incarciration)

While in films like Tilak (1992) Lever performs a parody while cross dressed in the song ‘Inhe Logon Ne Le Liya’ (image 10). In other movies, Johnny Lever’s characters are made to stand in for women, as in Saawan (2006) where the hero romances the character of lever thinking the latter is his beloved contributing to homophobic hilarity (image 11).

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One of the most well remembered camp mock arch villains on the silver screen has been portrayed by the actor and theatre practitioner Anupam Kher playing the character of Pinkoo in Mast Kalandar (1989). Pinkoo blatantly flirts with other men, is flamboyantly unrepentant even when behind bars and indicates to the audience his carnal desire for his unsuspecting cell mate. Sporting a blond hipster hairstyle, not out of place in contemporary London, Pinkoo flirts with the lead character played by the actor Dharmendra and displays an audacious, but as yet unlabelled queerness.

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(Pinkoo negotiates with a very vocal and homophilic police officer over the release of a criminal. Pinkoo uses his charms to convince the officer who doesn't seem to need much convincing)

These actors are not the only ones who have depicted queer characters on screen in the 90s, even if only to comic effect. Well known actor Paresh Rawal portrays the hijra character of Tikoo who plays surrogate mother to the female lead in Tamanna (1996). Sadashiv Amrapukar enacts the villain hijra pimp in Sadak (1996). Similarly in the award winning film Razia Sultan (1983), actress Hema Malini (playing the titular role) is shown being romanced by her slave woman in her palace in the song ‘Khwab Ban Kar Koi Aayega’ sung by the renown Lata Mangeshkar.

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(Parveen Babi plays the role of Khakun, Razia Sultan's attendant who gently sings and caresses, and even kisses her to sleep on the boat)

A majority of these films have tended to use queer characters as arch villains, comic relief, mother figures, or even pathologized Lesbian characters, such as in Karan Razdan’s Girlfriend (2004) and Shrey Shrivastava’s Men Not Allowed (2006). These films form the precursors on which more positive visibility is predicated.

Karan Johar’s Student of the Year (2012), one of the highest grossing films of the year, has the Hindi cinema super star Rishi Kapoor play the role of gay principal in love with the school’s football coach. The film draws on the earlier tradition of camp male characters as comic relief even as it humanises the character. Highlighting his loneliness, demonstrating how well loved he is - the entire film is set around the students gathering in the hospital nursing the dying Principal – this film departs from the earlier tradition of flat characters solely for comic relief.

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(Dean Yogi Vashist imagines himself in the role of the Coach's wife during the dance sequence in the song 'Radha' from Student of the Year)

Similarly other films such as Chameli (2004) presents in stark urgency and poignant love the ephemeral life of a hijra sex worker and her straight acting lover even though they are purely incidental to the main protagonist. While short films like Riyad Wadia’s BomGay, based on Prof. R. Raj Rao’s collection of poetry, presents short stories from queer lives in urban metropolises in India. Films such as Onir’s My Brother Nikhil (2005), Amol Palekar’s Quest (2006) and Sridhar Rangayan’s 68 Pages (2007) portray alternative sexualities with sensitivity and depth. Films such as the well known Fire (1996) by Canadian director Deepa Mehta, Dedh Ishqiya (2014) by Abhishek Chaubey which contains the poetic recreation of Urdu writer Ismat Chugtai’s controversial short story ‘Lihaaf’ (1942), dramatize with sympathy the marginal lives of women who love women in India.

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(Dedh Ishquiya pays tribute to Chugtai's short story with a romance between the two women depicted only in glances, lingering touches, and finally shadows making love on a wall, emblematic of the Chugtai short story.)

While Hindi cinema is a well known film Industry in India, other regional cinema too challenges societal perceptions of alternative sexualities, as well as critiques their homophobia. Bengali director Debalina’s films on the joint suicides of women lovers in rural West Bengal in …Ebang Bewarish (2013) and If you dare desire (2016) tackle the plight of rural women who desire the same sex. Ligy Pullappally’s Malayali film Sancharram (2004) delicately traces the love of two lesbian women in the South Indian state of Kerala as they struggle against religious mandates and social stigma, even as another queer Malayali film Ka Bodyscapes (Cherian, 2016) struggles against a highly regressive censor board enacting all the morality clauses in its Victorian arsenal.

Visual culture, alongside legal activism and divergent types of art and performance, thus has a strong role to play in challenging the social and legal status of LGBTQ individuals in contemporary India. By making LGBTQ individuals visible within mainstream social spaces, whether through films, art, or culture, non-heterosexual identities are normalised. The lasting impact of these representations is that they may have the power to change wider social mindsets, which in turn, have the capacity to push for social and legal acceptance of all citizens, regardless of their gender or sexual identities. The delays in political and legal equality for sexual and gender minorities implies that the onus for societal transformation and the struggle against discrimination must lie with civil society. Bollywood, the regional film industries, art and culture movements, and, regional and national activism have taken the lead across the sub-continent to challenge the leftover colonial nostalgia that permeates the judiciary, legislature and executive.
 

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