Right to Life, Dignity and the Welfare-Related Rights of Homosexual Relationships in India: Notes on a Letter on Sexual Preference
By Sreenanti Banerjee
In the year 1994, the Indian lawyer and legal consultant, Madhu Mehra, published a letter entitled ‘Sexual Preference – A Fundamental Right’, from the city of New Delhi, addressing the continued criminalization of same-sex desire in India.[1] It is important to remember the significance of this document vis-à-vis the writing of feminist histories of welfare citizenship in India for two key reasons. First, the letter brought the question of the need to safeguard the welfare-related rights of homosexual relationships within the purview of Article 21 of the Indian Constitution which upholds the Right to Life and Personal Liberty of the people of India. Second, this coupling of the welfare-related rights to Right to Life and Personal Liberty was grounded upon safeguarding the dignity of individuals belonging to minoritised constituencies in India.
Consider, for example, the following observation: ‘Social and legal sanctions combine to deny dignity and respect to persons of homosexual orientation’ (p. 1). Or for that matter, the following argument: ‘The personal expression of intimacy in adult human relationships is essential to human dignity and therefore an integral component of the right to life’ (p. 4). Both these statements show how, for Ms Mehra, the question of protecting and upholding dignity lies at the heart of her interrogation of the legal and political cruelty unleashed towards homosexual relationships.
The document links this argument on dignity to a key aspect on ensuring the welfare of LGBTQ+ community who are also prisoners, notably their health. It pushes the lawmakers to ensure that birth control procedures and tools to curb sexually transmitted diseases (like condoms, for example) are made available to inmates in the Tihar jail, one of the largest complexes of prisons in India. This claim relates the questions of prisoners’ rights and public health concerns to the rights of the LGBTQ+ community in India.
Further, interrogating the unfounded assertion that homosexuality is a ‘western import’, the document argued that it was, in fact, the colonial legal apparatus that led to the criminalization of ‘the offence of sodomy’ in India. This, Ms. Mehra further argues, was done to perpetuate and consolidate Christian values and morals in the colonies. And while most western and Commonwealth countries eventually got rid of these draconian laws criminalising homosexuality, the Indian penal system continued to include this outmoded colonial legal provision in the Constitution.
The document also underscores the crucial point that the criminalization of sodomy is, in actuality, the criminalization of homosexuality itself. This is because although the criminalisation of sodomy would imply its prohibition even within heterosexual relationships, the latter are legally and socially validated and justified by social and legal sanctions such as marriage and family. Most crucially, the privacy of heterosexual relationships is protected by social sanctions. Under circumstances where these other social and legal validations are absent (as in the case of same-sex relationships), the criminalization of sodomy (by identifying it as ‘unnatural sex’) is, in turn, the criminalization of same-sex desire itself.
Another significant point made in this document is that the criminalisation of homosexuality has meant that the only viable option for those within the LGBTQ+ community has been to engage in short term relationships. This, among other things, have denied them the dignity of forging long term social, emotional and sexual relationships with individuals of their preference.
The other key point put forth in this letter is that what is monitored by Section 377 of the IPC is not always the actual act of sodomy but rather the imagined prospect of someone being a ‘sodomite’. Thus, the legal vigilantism of the imagined features of a sodomite is built into Section 377. This is precisely why, in order to justify the surveillance of communities engaging in same sex desire, laws related to vagrancy and public nuisance are evoked in conjunction with Section 377.
The document also highlighted how Section 377 ensures that the fear of being identified as a criminal prevents LGBTQ+ individuals from claiming basic welfare rights. For instance, even in the shadow of the AIDS pandemic, such individuals were denied access to condoms and education on safe sexual practices in the prisons.
After broaching these arguments, the document then makes the plea to make the criminalization of homosexuality an aspect of the violation of Article 21 (which safeguards the right to life and personal liberty) and Article 14 (which safeguards the right to equality) of the Indian Constitution. And a key aspect of this violation, as the letter highlights, is the fact that rights safeguard human dignity, and consequently, Section 377 is a direct violation of practices that entail the protection of dignity, the cornerstone of the spirit of democracy. Right to life guarantees, the letter reminds us, that ‘life is more than mere animal existence’ (p. 3). It also reminds us that it is the duty of the Constitution to defend the dignity of the minority.
The letter also makes a case for grounding the question of the welfare of people with homosexual orientation to the constitutional provision of personal liberty by stating that in the past, the phrase personal liberty has been defined by the Indian courts in the broadest way possible, for example to include acts such as the right of an individual to return to India, the right of an individual to be offered a speedy trial and so on. Given this history of the phrase’s innovative and generous mobilisation by the Indian courts, the letter draws our attention to the capacious nature of the conceptualization of the phrase itself and its inherent potential to include and uphold minoritised psychosexual practices and ways of life.
Finally, the letter makes a crucial case to foreground the fact that democratic norms underscore how the notion of the ‘minority’, according to normative standards, should not be identified as a numerical/ demographic category but rather as a political one. The term should be mobilised to indicate histories of victimization and oppression and struggle by social groups that are at the fringes of history, in this case, the social category comprising of individuals with homosexual orientation. Consequently, the document shows us how a postcolonial female legal expert, more than thirty years ago, made a case as to how a key way to safeguard welfare-related rights of the minority is by treating the latter as a political category, and not merely a demographic one. In the process, it teaches us how this shift from the politically neutral notion of the demographic to the political, in relation to the term, is one of the crucial ways to visibilise the legal and juridical processes via which homosexuals have been historically minoritised. The moot point here is that the dignity of the sexual preference of the historically victimized deserves to be upheld.
In the year 2018, homosexuality was finally decriminalized in India, and a key ground of this decriminalization was Right to Life. The historical significance of this letter lies in the fact that it was one of the earliest assertions of this crucial legal claim. Homosexuality, in this document, was identified not as a sexual act, but as a ‘way of life’.[2]
References
Mehra, Madhu (1994). Sexual Preference – A Fundamental Right. Available at https://feministlawarchives.pldindia.org/wp-content/uploads/24.pdf
[1] The name of the publisher of this letter is unknown. The Feminist Law Archives of India, from where this document is procured, does not mention the publisher’s name.
[2] See Michel, Foucault (1997). ‘Friendship as a way of life’ in Ethics, Subjectivity and Truth. Edited by Paul Rabinow. The New Press: New York: 135-140 for an elaboration on homosexuality as a way of life.
In the year 1994, the Indian lawyer and legal consultant, Madhu Mehra, published a letter entitled ‘Sexual Preference – A Fundamental Right’, from the city of New Delhi, addressing the continued criminalization of same-sex desire in India.[1] It is important to remember the significance of this document vis-à-vis the writing of feminist histories of welfare citizenship in India for two key reasons. First, the letter brought the question of the need to safeguard the welfare-related rights of homosexual relationships within the purview of Article 21 of the Indian Constitution which upholds the Right to Life and Personal Liberty of the people of India. Second, this coupling of the welfare-related rights to Right to Life and Personal Liberty was grounded upon safeguarding the dignity of individuals belonging to minoritised constituencies in India.
Consider, for example, the following observation: ‘Social and legal sanctions combine to deny dignity and respect to persons of homosexual orientation’ (p. 1). Or for that matter, the following argument: ‘The personal expression of intimacy in adult human relationships is essential to human dignity and therefore an integral component of the right to life’ (p. 4). Both these statements show how, for Ms Mehra, the question of protecting and upholding dignity lies at the heart of her interrogation of the legal and political cruelty unleashed towards homosexual relationships.
The document links this argument on dignity to a key aspect on ensuring the welfare of LGBTQ+ community who are also prisoners, notably their health. It pushes the lawmakers to ensure that birth control procedures and tools to curb sexually transmitted diseases (like condoms, for example) are made available to inmates in the Tihar jail, one of the largest complexes of prisons in India. This claim relates the questions of prisoners’ rights and public health concerns to the rights of the LGBTQ+ community in India.
Further, interrogating the unfounded assertion that homosexuality is a ‘western import’, the document argued that it was, in fact, the colonial legal apparatus that led to the criminalization of ‘the offence of sodomy’ in India. This, Ms. Mehra further argues, was done to perpetuate and consolidate Christian values and morals in the colonies. And while most western and Commonwealth countries eventually got rid of these draconian laws criminalising homosexuality, the Indian penal system continued to include this outmoded colonial legal provision in the Constitution.
The document also underscores the crucial point that the criminalization of sodomy is, in actuality, the criminalization of homosexuality itself. This is because although the criminalisation of sodomy would imply its prohibition even within heterosexual relationships, the latter are legally and socially validated and justified by social and legal sanctions such as marriage and family. Most crucially, the privacy of heterosexual relationships is protected by social sanctions. Under circumstances where these other social and legal validations are absent (as in the case of same-sex relationships), the criminalization of sodomy (by identifying it as ‘unnatural sex’) is, in turn, the criminalization of same-sex desire itself.
Another significant point made in this document is that the criminalisation of homosexuality has meant that the only viable option for those within the LGBTQ+ community has been to engage in short term relationships. This, among other things, have denied them the dignity of forging long term social, emotional and sexual relationships with individuals of their preference.
The other key point put forth in this letter is that what is monitored by Section 377 of the IPC is not always the actual act of sodomy but rather the imagined prospect of someone being a ‘sodomite’. Thus, the legal vigilantism of the imagined features of a sodomite is built into Section 377. This is precisely why, in order to justify the surveillance of communities engaging in same sex desire, laws related to vagrancy and public nuisance are evoked in conjunction with Section 377.
The document also highlighted how Section 377 ensures that the fear of being identified as a criminal prevents LGBTQ+ individuals from claiming basic welfare rights. For instance, even in the shadow of the AIDS pandemic, such individuals were denied access to condoms and education on safe sexual practices in the prisons.
After broaching these arguments, the document then makes the plea to make the criminalization of homosexuality an aspect of the violation of Article 21 (which safeguards the right to life and personal liberty) and Article 14 (which safeguards the right to equality) of the Indian Constitution. And a key aspect of this violation, as the letter highlights, is the fact that rights safeguard human dignity, and consequently, Section 377 is a direct violation of practices that entail the protection of dignity, the cornerstone of the spirit of democracy. Right to life guarantees, the letter reminds us, that ‘life is more than mere animal existence’ (p. 3). It also reminds us that it is the duty of the Constitution to defend the dignity of the minority.
The letter also makes a case for grounding the question of the welfare of people with homosexual orientation to the constitutional provision of personal liberty by stating that in the past, the phrase personal liberty has been defined by the Indian courts in the broadest way possible, for example to include acts such as the right of an individual to return to India, the right of an individual to be offered a speedy trial and so on. Given this history of the phrase’s innovative and generous mobilisation by the Indian courts, the letter draws our attention to the capacious nature of the conceptualization of the phrase itself and its inherent potential to include and uphold minoritised psychosexual practices and ways of life.
Finally, the letter makes a crucial case to foreground the fact that democratic norms underscore how the notion of the ‘minority’, according to normative standards, should not be identified as a numerical/ demographic category but rather as a political one. The term should be mobilised to indicate histories of victimization and oppression and struggle by social groups that are at the fringes of history, in this case, the social category comprising of individuals with homosexual orientation. Consequently, the document shows us how a postcolonial female legal expert, more than thirty years ago, made a case as to how a key way to safeguard welfare-related rights of the minority is by treating the latter as a political category, and not merely a demographic one. In the process, it teaches us how this shift from the politically neutral notion of the demographic to the political, in relation to the term, is one of the crucial ways to visibilise the legal and juridical processes via which homosexuals have been historically minoritised. The moot point here is that the dignity of the sexual preference of the historically victimized deserves to be upheld.
In the year 2018, homosexuality was finally decriminalized in India, and a key ground of this decriminalization was Right to Life. The historical significance of this letter lies in the fact that it was one of the earliest assertions of this crucial legal claim. Homosexuality, in this document, was identified not as a sexual act, but as a ‘way of life’.[2]
Footnotes
[1] The name of the publisher of this letter is unknown. The Feminist Law Archives of India, from where this document is procured, does not mention the publisher’s name.
[2] See Michel, Foucault (1997). ‘Friendship as a way of life’ in Ethics, Subjectivity and Truth. Edited by Paul Rabinow. The New Press: New York: 135-140 for an elaboration on homosexuality as a way of life.
References
Mehra, Madhu (1994). Sexual Preference – A Fundamental Right. Available at https://feministlawarchives.pldindia.org/wp-content/uploads/24.pdf