Arvind Narrain’s talk on Section 377 attempted to explore the complexity of the dynamic between the social and the legal spheres in Indian society. Narrain pointed out that the law is significant in that it was a penetration into the private by the legislature. What does it mean to decriminalize something that is seen as inherently private, sexuality being situated in what most would call the personal? The private, in the legal, then, is as less associated to the notion of space as it is closely tied to the individual. Sexuality is recognized as belonging to a notion of the self, the quasi-sacrosanct individual of beliefs, thoughts and ideas. Section 377, attacking this privacy, can then be seen as a species of persecution. The decriminalization was aimed precisely at this, and is not to be seen as a law that reversed a mechanism of prosecution as such. The small number of people who have actually been prosecuted by law for homosexual behavior strengthens this argument.
This notion of persecution leaves open the question of social sanctions. A democratic setting has been run down by countless critiques of majoritarian rule. As can be deduced from the 2009 anti-persecution law, the law can be seen as a counter-majoritarian mechanism. Narrain thus recalled how Vikram Seth aptly described the 2013 repeal and consequent recriminalization as a ‘bad day’ for law.
The law is also the mechanism through which the constitutive framework is upheld. In this, it functions as a check against the tyranny of majority. It is in this aspect that Narrain sees discourse trickling down into the social. Narrain asserted that legal discourses around alternative sexualities were structured, and thus aimed, primarily at cultural discourses and not at individuals. Thus, when phrases like “his anus was flared like a trumpet” are employed in dealing with homosexual activity through the law reflects an attitude of reducing sexuality and the complexity of a sexual identity to a mere physicality, which might the biggest impediment to the possibility of a dignified love.
Report by: Faustina Johnson Photography: Sissi Hamann