Ridiculous that police are pretending that the 377 judgment hasn’t come: Arvind Narrain

A year after the Supreme Court, in a landmark judgment, read down section 377 of the Indian Penal Code, advocate Arvind Narrain, who was part of the legal challenge, in an interview tells Hindustan Times that the hard part of using the judgment to transform society still remains. Edited excerpts:

Q. What has been the experience of the queer community over this past year?

A. The important point is what the judgment says, and how we understand its implications. I think this judgment is unlike any other in the sense that it provides a partial answer. The judges are not saying that they’re giving a final answer in terms of addressing violence and discrimination against the LGBTQI community. The judgment acknowledges that part of the work is for the state and part for civil society. What have the state and civil society done? If you look at the state, the answer is a resounding zero. The key issue as far as the state is concerned is the role of the police, which has not been sensitised at all.

The police are functioning literally as the arm of social morality. We have two very important suggestions on this. One is it’s very important that the Director General of Police of every state put in place guidelines that would publicise the judgment as well as what the obligations and responsibilities of police officers are, which is to say that they will not file a case under section 377 against any consenting adults. It is ridiculous that the police and parents, some not all, are still pretending that the judgment hasn’t come at all.

And the government, particularly the central government, has done nothing. They were silent in the Supreme Court. What is the central government’s opinion on this point? What is Prime Minister Narendra Modi’s response? And it’s sad to say that we can see nothing positive where the state government are concerned either.

Q. Is this the shortcoming of a legal approach?

A. Our argument has always been that law and social activism are equally vital. How do you ensure that the judgment transforms social institutions from the family, to educational institutions, to the public sphere? This is the bigger challenge. What we got in 2018 was a norm. Now the difficult task is ensuring that the norm transforms society as widely as possible.

Q. Many rights are yet to be conferred on the community. Is it is it too early to think about these?

A. We should look at the context in which the judgment came. When we’re complaining that the judgment has not been taken forward it’s in line with the fact that it’s a hostile environment for human rights in the country. What is it that we can achieve in the context of advocacy or activism today? One part of the struggle is how we get the political establishment to recognise that these rights are important.

People have already filed petitions asking for marriage, etc, that the Supreme Court hasn’t entertained. I think the understanding we get is the court is not ready to take another step forward yet. The impetus is on us to take it forward. So I would argue that legally we have take up specific cases of discrimination and violence, but this might not be the time to put forth a broader challenge to the law. It’s time for the LGBTQI community to think closely when asking for marriage and adoption about what kind of legal framework you want. The argument might be to make the Special Marriage Act neutral with respect to sex or gender. But the Act has inherent within it a specific understanding that women are subordinated to men. It has a range of provisions that could be deeply problematic, including the restitution of conjugal rights. Adultery is a ground for divorce, how does that fit in?

The second option is that you say what is required is something we could call a law on civil partnership, neutral with respect to gender, and sex. I feel we have not had these debates yet. But we need to see how it can broaden the notion of what marriage or partnership might mean. I would argue that the best way forward is a law on civil partnership, which is neutral with respect to sexual orientation, gender identity.

Q. You’ve spoken about the silence of the central government, but what has the response been of other parties been?

A. We’ve had positive response from across the political sphere other than the central government. The Congress has indicated support, the left parties have indicated support. The regional parties have been a mixed bag. But again, if the Congress is so supportive what is it doing when it is running the administration.

Q. Has there been a change in cases of extortion or hate crimes against queer people?

A. We believe that the judgment has truly seeped through the community. It’s given greater confidence to large sections and helps deal with blackmail cases for instance. We don’t have figures on this…I don’t know if you can answer that.

Q. What can be done in terms of diversity in the activism of the community?

A. Obviously concerns are very different. Looking at the trangender community, one of the key concerns has really been that Transgender Bill, which has strong opposition and hopefully will not become an act in its current form. We’re looking at the question of reservation to trans community. So How do we take forward demands which are not the demands that are not the concerns of a middle-class constituency.

In terms of solidarity, I think it’s very much a work in progress. I think this time the pride march was less diverse as compared to previous ones. So, what we have to figure out is why there are fewer trans people participating in the pride now. I think the previously the call of repealing 377 was powerful. What is the demand going to be going forward? I think relationship recognition is a demand that has purchase across the spectrum, people from the lower socio-economic strata to the elite. People want some aspect of that.