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Session #8: Thursday, 30 December, 11.00 - 1.00 pm (*)
Panel coordinator(s): Ashwini Sukthankar (*)
Chair/discussant: Alok Gupta (*)
Panel description
Panelists, paper titles, and abstracts
This panel draws on both meanings of the word “wake,” as elaborated by Barbara Johnson in The Wake of Deconstruction: not only the churning and turmoil that follow the passing of something, but the sense of mourning that “wake” evokes in the Christian tradition. It might seem odd to mourn the historic judgment that led to the decriminalization of “sodomy” between consenting adults in India, but here, it is the coalitions and moral certainties of the campaign against Section 377 that we miss. Through this panel, we identify and discuss some of the issues that present themselves, in the “post-377” imagination, as questions on which positions must now be taken: same-sex marriage, gender-neutrality in rape laws, and the age of consent. It is already apparent that there are sharp divisions on each of these, among the same groups who found common ground in opposition to Section 377. We also point to a potential area of agreement – the need for more expansive thinking on anti-discrimination protections – which may anchor our joint thinking in the fraught times ahead.
One of the most remarkable aspects of the judgment of the Delhi High Court in the Naz Foundation case was its use of the anti-discrimination principle to find that the criminalisation of adult consensual sexual acts between persons of the same sex is unconstitutional. The Court recognised that the constitutional protection against discrimination is available to all groups disadvantaged on the basis of an autonomy denying characteristic (such of race, sex, caste, sexual orientation, disability etc ). This protection is available not only against discrimination by the state but also against discrimination by private individuals. These and other aspects of the judgment have important lessons for how we should conceptualise progressive politics-the connection between law and politics is not, after all, a one-way street. The judgment emphasises that discrimination is not just a queer concern. By identifying the wrong of discrimination in the denial of autonomy, the judgment transcends the pitfalls of identity politics. It presents a normotive vocabulary for articulating queer concerns without the need to pigeonhole lives into essentialised categories. It does not, for example, force a disabled dalit lesbian woman to fit her experiences into unidimensional boxes. Instead it paves the way for the recognition of intersectional discrimination.It also notices the connection between different facets of disadvantage. As such, it calls for a coalition between all those who find their ability to lead autonomous lives threatened, whether by the actions of the state or societal forces.
Post the reading down of Section 377 by the Delhi High Court, the struggle has moved to how can one get Section 377 off the statute books? One of the ways in which this could be done is through the reform of the rape law. This paper will explore the emerging differences between a feminist position occupied by some groups and a queer perspective on the need for a gender neutral rape law. In the context of rape law reform in India the latest fault line between a feminist and a queer perspective has been the question of whether the law of sexual assault should be gender neutral. Women’s groups have contended that since sexual assault is a crime specific to women, sexual assault should be specific to women, while queer groups have argued that the offence of sexual assault in its very essence is meant to protect not just women but people of different gender identities and sexual orientations. This paper will map out the different perspectives before arguing that we need to move towards a gender neutral definition of rape.
Some of the most difficult engagements in shaping a challenge to Section 377 were those between queer groups and child rights activists, since the law served as the only provision criminalizing the sexual abuse of children. With the “reading down” of Section 377, the law now applies only to situations where there is no consent, or consent is vitiated by the age of one or both of the sexual partners. There have been some calls for a thoughtful reexamination of the age of consent in India, based on an understanding of the evolving capacities and desires of children between the age of puberty and 18, and the opposition to criminalizing relationships based on meaningful consent. This paper will assess positions on the age of consent, locating these within broader approaches to children's capacity, including child labour and juvenile justice. In particular, it will look ahead and chart activists' thinking on debates looming on the horizon, including:
The last decade has seen enormous changes around sexual orientation and gender identity rights claims and legal recognition in countries across Asia. A region that lagged behind when it came to Lesbian Gay Bisexual and Transgender (LGBT) rights has now seen a range of incredibly progressive legal changes, mostly through court decisions, in this area. While there are still a large number of countries in Asia, which lag behind when it comes to LGBT rights, the changes that have taken place have had an impact across the region. We argue in this paper, that what we are witnessing today is an emerging ‘Asian’ jurisprudence in Asia, as a counterpoint to conservative notions of ‘Asian values’. This emerging jurisprudence has given an Asian twist to notions of gender identity and sexual orientation, producing a distinctive legal discourse. This paper will examine recent legal developments in Nepal, India, The Philippines, Indonesia, Thailand, South Korea, Mongolia, Pakistan, Fiji and Hong Kong including judicial and administrative decisions and measures taken by National Human Rights Institutions.