Dr. Nikhil Govind’s talk on the role of the legal and the judicial in regulating sexual diversity, was especially topical in light of the recent Supreme Court Judgement’s criminalization of homosexuality. In doing so, the Supreme Court overturned the earlier landmark Naz Foundation judgement by the High Court in 2009, which had decriminalized homosexuality by amending Section 377 of the Indian Penal Code. The original wording of Section 377, which criminalized same-sex sexual behaviour, was amended to consider ‘consensual sex between adults in private’ which was well within the purview of the Articles 21, 14, and 15 of the Constitution regarding the ‘right to life and personal liberty’ and equality before law.
Dr. Govind pointed out how the legalese of the judgements could not be easily transcended, since there is no clear and shared understanding of words like ‘unnatural’, ‘obscene’, or even ‘consensual’. This would mean that the interpretation of laws depends on how conservative or liberal the judge is. For instance, under Section 377 (introduced during the British Rule in India) it was decreed that anything outside heterosexual penile sex would be deemed as ‘unnatural’.
Nikhil Govind also complicated the discourse from which arguments had been made in favour of homosexuality. The Naz Foundation had argued that same-sex sexual acts should be decriminalized, when conducted on the basis of ‘consent’. But how could we realistically determine the level of consent between two adult parters, in what is essentially a multidimensional private act? Meanwhile, defenders of consent-based regulations mention the lacunae in rape laws, and the actual inefficacy in terms of prosecuting people who indulge in child-sex cases.
Dr. Govind also drew attention to the space from which the Naz Foundation had fought for this amendment: the discourse of public health. The argument made by the Naz Foundation was that in criminalizing same sex sexual behaviour ‘irrespective of the consent of the people involved’ there was a ‘significant barrier in effective HIV/AIDS interventions with sexual minorities’. However, building the argument for homosexuality from the backdrop of public health space, had created a lot of debate and dissatisfaction. A pertinent question in this direction is: why wasn’t an argument made, instead, from a civil rights perspective? Dr. Govind argued that this choice has had implications, since it made decriminalization take place only at the level of public health, pushing the debate on the ‘unnaturalness’ of homosexuality underground. Instead, taking the civil rights route could had led to valuable conversations about sexuality .
Other key elements must be acknowledged for a healthy pubic debate on homosexuality: family and religion. Dr. Govind highlighted how at present, homosexuality is being fought in a legalistic environment, with mainly the judiciary as the site of struggle since there is no health public dialogue on sexuality. Moreover, the petitions for legalizing same-sex sex also do not address the cultural implications of people saying ‘no’ to homosexuality, which is at the core of an individual’s right to freedom. For Dr. Govind one central question remained: how can a new ethics evolve to make sense of new sexual minorities and their participation in the public space?
Perhaps the recent protests following the Supreme Court Judgement, in India and around the world, may be an important beginning in making visible these questions of ‘choice’, ‘body’ and ‘freedom of sexuality’ in the public space.