RIGHT TO BE AND ACT QUEER? - DIVA PORTAL
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Right to be and act Queer? A descriptive analysis of how Indian LGBTQI activists framed Section 377 of the Indian Penal Code in order to challenge it, preceding the 2018 Indian Supreme Court verdict to overrule the law Author: Linn Sjöde Supervisor: Suruchi Thapar-Björkert Uppsala University, Department of Government Bachelor Thesis, 15 hp Development Studies, Spring Semester of 2019 Pages: 38 Word Count: 13064
Abstract
This study aims to contribute to the under-researched area of LGBTQI activism in the
‘Global South’ by performing a case study of LGBTQI activism in India, a country that
provides an intriguing setting in which a wide range of sexual expressions has developed over
time with attitudes towards them varying alongside. Same-sex activities have since the 1860s
been considered a penal offence under Section 377 of the Indian Penal Code but in
September 2018, the Indian Supreme Court overruled the law and decriminalized same-sex
conduct. Within this context, frame analysis has been applied to six petitions by LGBTQI
activists, filed to the Indian Supreme Court between 2016 and 2018, to unveil how Section
377 was framed by these activists. Results from the study show that Section 377 of the Indian
Penal Code was framed as intrinsically discriminatory, being violative of constitutional as
well as human rights, together with an emphasis on how the law relegates the LGBTQI
community to second-class citizenship. Within the dominant framing of the law as
discriminatory, the activists engaged in highlighting the imposition of Victorian morals by
the British as the origin of the issue, along with factors that have enabled the perseverance of
the issue, including the phrasing of the law and court failure to adapt to societal and
international change. The subsequent consequences of the law were portrayed as
stigmatization and personal losses for members of the LGBTQI community, as well as a
negative impact on the state economy. By emphasising such aspects of the law, the activists
advocated for the Indian Supreme Court to the overrule Section 377.
Keywords: India, LGBTQI activism, Section 377, Indian Penal Code, Frame Analysis
Page 2 of 38Table of Contents
1. Introduction ....................................................................................................... 5
1.1. Purpose Statement and Research Question .................................................................................. 6
1.2. Terminology ................................................................................................................................. 7
1.3. Sexuality in India - A historical overview ................................................................................... 8
2. Theoretical Framework ................................................................................... 10
2.1. Previous Research ...................................................................................................................... 10
2.1.1. Identity and Sexuality ......................................................................................................... 10
2.1.2. Politics of Recognition ........................................................................................................ 11
2.1.3. Sexual Citizenship............................................................................................................... 12
2.1.4. Sexual Rights ...................................................................................................................... 13
2.1.5. LGBTQI Rights as Human Rights ...................................................................................... 14
3. Research Design and Methodology ................................................................ 15
3.1. Research Design and Case Selection ......................................................................................... 15
3.2. Material ...................................................................................................................................... 16
3.2.1. Actors behind the petitions ................................................................................................. 17
3.3. Methodology .............................................................................................................................. 18
3.3.1. Frame Analysis ................................................................................................................... 18
3.4. Analytical Framework ............................................................................................................... 19
3.5. Limitations ................................................................................................................................. 21
4. Results and Analysis ....................................................................................... 22
4.1. Section 377 as discriminatory .................................................................................................... 22
4.2. Citizens of India ......................................................................................................................... 26
4.3. The imposition of Victorian morals and enabling factors .......................................................... 28
4.4. Stigmatization and negative impact on state economy .............................................................. 29
4.5. Solution: declare Section 377 unconstitutional .......................................................................... 31
5. Summary and Conclusion ............................................................................... 32
6. List of References ........................................................................................... 34
6.1. Material ...................................................................................................................................... 38
Page 3 of 38“I am what I am, so take me as I am”
(Goethe, n.d.)
Page 4 of 381. Introduction
On September 6, 2018, the Chief Justice of India, Dipak Misra, quoted the German thinker
Johann Wolfgang von Goethe in the Indian Supreme Court’s verdict to overrule Section 377
of the Indian Penal Code (henceforth Section 377). The decision was widely celebrated by the
Indian LGBTQI community as a great step towards gender equality (Parthasarathy, 2018;
Sehra, 2018). Section 377 was introduced during the 1860s British Raj (Patra, 1961:364),
stating:
“Whoever voluntarily has carnal intercourse against the order of nature
with any man, woman or animal, shall be punished with [imprisonment for
life], or with imprisonment of either description for a term which may extend
to ten years, and shall also be liable to fine. Explanation.—Penetration is
sufficient to constitute the carnal intercourse necessary to the offence
described in this section.” (Indian Penal Code, 1860:88)
Section 377 remained in place after the partition of British India in 1947 and due to fear of
criminalization under the law, few dared to speak openly about homosexuality in the following
years (Puri, 2016:4). However, in the mid-1980s, increased attention was directed towards
same-sex conduct as the HIV/Aids epidemic had reached India. The first reports on people
affected by HIV/Aids came in 1986 and this new disease instilled a sense of fear into the Indian
population (Ramachandran, 2012:3; Solomon et al. 2016:15). As the spread of HIV/Aids
continued during the subsequent years, the Government of India initiated a national
surveillance program that targeted those who were framed as high-risk groups, such as female
sex workers and homosexual men (Ramachandran, 2012:3). Although HIV/Aids was most
often spread through intercourse between heterosexuals or through drug abuse, these groups
were not placed under the same level of surveillance. Due to this unequal intrusion of
governance into private life, the Naz Foundation India Trust (Naz Foundation), an NGO
working with sexual-health related issues, began to highlight the rights of people identifying
as LGBTQI. Subsequently, LGBTQI activism started to diffuse (Puri, 2016:8). In 2001, the
Naz Foundation filed a petition to the Delhi High Court (DHC) to challenge the
constitutionality of Section 377. The petition was dismissed in 2004 but the organisation then
appealed to the Indian Supreme Court (ISC) (ICJ:2018). The ISC acknowledged that the claims
should be heard but transferred the demand back to the DHC. After a few years with continued
Page 5 of 38LGBTQI activism, the DHC agreed to reconsider their previous dismissal of the petition by the
Naz Foundation. The verdict came in 2009 and was seen as a great victory for the LGBTQI
community as it declared that same-sex conduct would no longer be considered a criminal act
(Reuters, 2009). However, four years later, in 2013, activists faced a setback when the ISC set
aside the DHC verdict, ruling that ‘unnatural sex’ and homosexuality would again become a
penal offence (Venkatesan, 2016). It would take another five years before the issue would be
treated in court anew, but in early 2018, the ISC agreed to reconsider the decision taken in 2013
as the result of increased pressure to remove the sodomy law. In July 2018, hearings began and
on September 6, the five judges of the ISC unanimously ruled out Section 377 (Mahapatra and
Anand Choudhary, 2018). Within this context, frame analysis will be applied to the six petitions
put forth by Indian LGBTQI activists against Section 377, and heard by the ISC before the
September 6 verdict. This will contribute to the research field of LGBTQI politics and enhance
our understanding of the many ways in which LGBTQI activism can manifest itself.
1.1. Purpose Statement and Research Question
LGBTQI communities face many complex and culturally specific issues. However, a shared
characteristic is that people identifying as LGBTQI are frequently faced with discrimination
based on their sexual orientation and/or gender identity (Samelius and Wågberg, 2005:5ff).
Discrimination can and tend to lead to unequal opportunities, lack of resources, and is both a
cause and an accelerator of poverty and hence, a major obstacle for sustainable development
(Samelius and Wågberg, 2005:16f; UN, n.d.). However, as seen in the Indian case, activists
have long been engaged in trying to challenge discriminatory policies like Section 377 (Kole,
2007:1). It is thus the nature and demands of this activism that will be highlighted in this thesis.
The aim of this study is to contribute with empirical knowledge on LGBTQI activism in the
‘Global South’, a fairly unexplored research area (Moreau, 2017:439). Research on LGBTQI
activism and social movements originated in the West, following the 1960s and 1970s gay
liberation movements in the US and Europe, and this has led to the prevalence of a mainly
Western-centric view on LGBTQI social movements and activism (Kollman and Waites,
2009:2; Richardson, 2017:209f). However, scholars are becoming increasingly interested in
different political outcomes as the results of struggles by LGBTQI activists in the ‘Global
South’ (Moreau, 2017:439). This thesis, therefore, strives to contribute to this body of work by
providing an in-depth analysis of LGBTQI activism in India targeting Section 377, guided by
the following research question:
Page 6 of 38How did Indian LGBTQI activists frame Section 377 of the Indian Penal Code in order to
challenge it, preceding the 2018 Indian Supreme Court verdict to overrule the law?
This thesis will not attempt to establish a causal relationship between the struggles of Indian
LGBTQI activists and the overruling of Section 377. However, the study rests on the
assumption that LGBTQI activists have played an important role in the process that led to the
decision and through a frame analysis, this thesis aspires to identify the salient features of this
activism.
1.2. Terminology
This section will clarify, as well as problematize, the term LGBTQI activism, that is used when
referring to activism that concerns the rights of sexual minorities within this study.
‘LGB’ stands for Lesbian, Gay, and Bisexual and concerns the sexual orientation of
individuals. Sexual orientation is commonly understood as a pattern of romantic, emotional
and/or sexual attractions, of women to women, men to men, or of men or women to both sexes.
It furthermore concerns the self-perception of personal and social identity based on those
attributes (Rozatkar and Gupta, 2018:95). ‘Q’ stands for queer and is a term that has become
increasingly used in Indian academia and politics in recent years. The term can be argued to
encompass a variety of sexualities and desires that fall outside the hetero/homosexual matrix
(Dutoya, 2016:241; Kole, 2007:3). ‘T’ refers to transgender and is oftentimes used as an
umbrella term for individuals whose gender identity does not conform to the identity typically
associated with their biological sex (Rozatkar and Gupta, 2018:95). ‘I’ stands for intersexuality
and includes individuals “[…] with a congenital condition whose sex chromosomes, gonads,
or internal or external sexual anatomy do not fit clearly into the binary male/female norm”
(Greenberg, 2012:1).
However, the merging of these different expressions of sexuality and identity into LGBTQI
needs to be problematized. LGBTQI cannot necessarily be viewed as a single entity and not all
LGBTQI activist groups can be said to represent and/or include the whole range of sexual
orientations and/or gender identities. Therefore, speaking of LGBTQI activism might be
somewhat misleading. In the analysis section, this problematization will again be addressed but
Page 7 of 38the term has been chosen as it captures the essence of activism concerning the rights of sexual
minorities.
Furthermore, homosexuality as a practice has been present in virtually every society since the
beginning of times and it is only recently sexual orientation and gender identity have been used
within political struggles. In India, among other societies, people have engaged in same-sex
conduct without identifying as gay or lesbian. For example, same-sex activities have among
many men been seen as a way to ‘have fun’, and not as an indicator that one is gay. There is
thus extensive criticism that LGBTQI identities are a Western construct and a form of sexual
neo-colonialism in which Western sexual ideologies have penetrated Indian discourses on
sexuality and identity, making indigenous cultures invisible (Khan, 2001:105; Kole, 2007:2).
This thesis is aware of these terminological limitations and acknowledges the complexity of
problems but these limitations have not been considered to interfere with the result, the validity
or the reliability of this study.
1.3. Sexuality in India - A historical overview
As sexuality has been central for the discrimination of members of the LGBTQI community in
India, and because the views on sexuality have varied through times, a brief account of its
history is needed in order to understand the context in which activism has prevailed.
In precolonial India, attitudes towards sexuality were contingent on the specific social and
historical context (Vanita, 2002:10). Indian historians and queer scholars, Ruth Vanita and
Saleem Kidwai, have studied discourses on same-sex love spanning from ancient times to the
present. In their work Same-Sex Love in India: Readings in Indian Literature (2000) a
collection of texts in fifteen Indian languages have been translated and interpreted. Findings
show that same-sex love and romantic forms of friendship have been widely present in the area
that became India after partition, and there is little evidence of persecution for these types of
encounters. Historically, expressions of same-sex love could include everything from informal
partnerships to formal and institutionalized rituals such as the exchanging of vows. Vanita and
Kidwai also demonstrate the existence of male homoerotic subcultures in certain Indian cities
during medieval times. These findings suggest that a wide range of sexual behaviours were
known and practised in precolonial India (Vanita, 2002:10).
Page 8 of 38The accommodating nature of sexual subcultures in medieval India is also reflected when
examining the role of the hijras (Nanda, 1999:236). Hijra is an institutionalized third gender in
India that is neither a man, nor a woman, but instead holds elements of both. They have through
times held a well-respected position in the Indian society and been of importance in religious
ceremonies and Hindu religious texts such as Mahabharata. The hijras also figure in sexual
manuals of which the most known is the Kama Sutra (Gandikota, 2018; Nambiar, 2017; Nanda,
1999:226ff).
These examples from ancient India suggest the prevalence of a predominantly tolerant attitude
towards what has become viewed as ‘differing’ sexualities but during the colonial era, more
intolerant attitudes started to spread. In mid-1800, Victorian ideals of chastity and
heterosexuality were dominant in England. Sexual opportunities were thus initially reduced
domestically and those who did not conform to the ideals, like the homosexuals, were labelled
‘the dangerous others’ (Hyam, 1990:1; McClintock, 1995:5; Scheu, 2011:119). These views
were then exported to the British colonies, including India (Gupta, 2011:13; Hyam, 1990:1).
The result was that the colonizers instilled a feeling of sexual guilt among the imperial subjects
which had previously held more tolerant attitudes towards sexuality than most of the West
(Hyam, 1990:3). However, it was not only British officials that engaged in suppressing
sexuality, but Indian reformers also tried to control same-sex conduct, arguing that it was
foreign to domestic culture, emphasizing heterosexual marriage as the basis for modern India.
This made homosexuality and other ‘deviant’ sexualities taboo (Gupta, 2011:14ff). The British
thus engaged in trying to control differing sexualities together with the Indian elite and what
had previously been a minority homophobic voice in precolonial India became mainstream
during this period (Vanita, 2002:11). Sexuality, power, and knowledge were interlinked but the
relationship between them was contested and sexuality was constantly negotiated between the
dominants and the subordinates. However, the sexuality of the marginalized, including the
homosexuals, was never completely suppressed (Gupta, 2011:16).
Page 9 of 382. Theoretical Framework
2.1. Previous Research
This study builds on previous research on activism by marginalized groups and LGBTQI
politics, which has highlighted the interlinked spheres of identity, sexuality, recognition and,
citizenship. These spheres will thus be presented in this thesis as they can be understood as
important components within the struggles of marginalized groups towards equality. This
thesis does acknowledge that these areas of research have been predominantly Euro-centric and
heavily influenced by Western scholars. The literature has therefore been approached critically
but findings from previous research can serve as an important basis for this particular study as
there are indications that activist practices and frames from the ‘Global North’ have been
picked up by activists in the ‘Global South’, either replicated or rearticulated (Seckinelgin,
2009:111).
2.1.1. Identity and Sexuality
Central in the discussion on LGBTQI issues is the concept of identity which refers to the idea
of who one is and who one is not (Plummer, 2003:50). The identities we hold are important for
many aspects of our lives, such as our sexuality and the space we are granted in the public
sphere. In the case of Indian LGBTQI activism, sexual identity is a highly relevant concept as
it has served as the basis for discrimination against the LGBTQI community.
Moreover, sexuality which is a universal characteristic of most humans is today commonly
thought of as culturally specific, consisting of separate but interlinked elements of concepts,
practices, desires, identities and institutional forms. Sexuality is gendered but at the same time
formative and it includes elements of both inclusion and exclusion. It is shaped by age, class,
nationality, and geography and for most of history, sexuality has been located in the personal
sphere, separated from public life (Sheill, 2009:55; Weeks, 1998:35f). The sexual identity of
an individual is thus composed of two fundamental aspects, gender identity and sexual
orientation. Gender identity is constituted of a person’s self-perception of male, female or other
and can be the same as or something different from one’s biological sex. Sexual orientation, as
already briefly mentioned, concerns the pattern of sexual and/or romantic attraction to women,
men or both (Roselli, 2018:1).
Page 10 of 382.1.2 Politics of Recognition
‘Identity’ is something that can be invoked by activists during struggles for social justice,
sometimes referred to as identity politics (Mohanty et al. 2006:2). Identity is seen as crucial in
such struggles as the state in which the actors operate is institutionally organized in such a way
so to grant recognition to some identities but not to others (Bernstein, 2002:536). This relates
to the discussion on sexual citizenship which will be highlighted in the next section.
The concept of recognition is of great importance as the lack of recognition can lead to
prejudices and discrimination against certain groups, limiting the possibility for these groups
to obtain full democratic citizenship (Conover, 2009:193). Within the political sphere,
recognition is most often understood as the respect and/or the acknowledgement of another
person’s status, achievements or rights (McQueen, 2015:19). There are different theories on
recognition and in this thesis, the work of Charles Taylor will be presented and used as his
work remains highly influential within modern political theory (Thompson, 2006:10). Taylor
emphasised that our identity is shaped through our relationships with other people (McQueen,
2015:19). Therefore, feelings of self-worth and self-esteem can only be acquired if we are
positively recognized for who we are by others (ibid:18). If such recognition is denied, so is
our dignity as human beings. For those who are a part of the society’s advantaged groups,
recognition usually follows automatically but for those belonging to less advantaged groups,
or those excluded from a society based on sexual orientation and/or identity, recognition must
be demanded (Conover, 2009:178).
Taylor has argued that there are two main components within the demand for recognition: that
our universal dignity as human beings is recognised, regardless of race, class or gender, and
that our unique dignity as individuals, or in other words our differences, are recognised
(ibid:177). When marginalized groups turn to politics to demand equal respect on the basis of
being a member of humanity, a ‘politics of universalism’ is produced. This means that citizens
demand respect by eradicating group-based discrimination in favour of equal rights (ibid:178).
Within politics of universalism, group identities are emphasised, not in order to protect them
but to remove any discrimination associated with them. Instead, in a context where a
disadvantaged group involuntary has to assimilate to the ideals and practices of the majority,
an individual or group can invoke claims for recognition where the aim is to protect the specific
identities and a ‘politics of difference’ is then produced (ibid:181).
Page 11 of 382.1.3. Sexual Citizenship
Identity, sexuality, and recognition are furthermore closely related to discourses on citizenship
which can be observed through looking at history. As citizenship evolved along with the
Western nation-state, it was characterized not only by ideas on gender, race, and class but also
by normative assumptions about heterosexuality. Those who did not conform to this ideal were
often excluded from the full range of citizenship rights, positioning sexual minorities as
second-class citizens (Richardson, 2017:211; Volpp, 2017:155). The core idea of citizenship is
thus that by being active in the public sphere, the citizen is granted certain rights but is at the
same time subjected to responsibilities towards other citizens, as well as towards the
community responsible for deciding upon the conditions of that particular citizenship (Weeks,
1998:36). Citizenship, just like sexuality, holds elements of both inclusion and exclusion, as it
is those who are granted citizenship that determines the conditions for future acquisition of that
particular citizenship (Volpp, 2017:154). The traditional discourse on citizenship was
dominated by T.H. Marshall’s three dimensions: the civil, the political and the social. Civil and
political citizenship concern equality under the law and the right to equal political participation,
whilst the social aspect emphasizes the ending of exclusion based on class and poverty (Weeks,
1998:38).
These discourses around citizenship did not incorporate reasoning on sexuality but in the
beginning of the 1990s, a new form of sexual politics developed as social movements began to
fight for equality and justice through the language of citizenship. Previously marginalized
groups, like the LGBTQI community, used public space to define their identities by their sexual
attributes in order to claim recognition, rights, and respect, struggling to increase their scope
of citizenship. Since then, sexuality has become an important theme in the citizenship
discourse, resulting in the concept of sexual citizenship (Richardson, 2017:208).
The term sexual citizenship was first coined by David Evans in 1993, referring to how the
interlinking between the state and the market would only grant limited citizenship to sexual
minorities in the sphere of leisure. Since then, scholars from different disciplines have become
engaged in the debate on sexual citizenship and the concept has come to include different
meanings (Richardson, 2017:210; Volpp, 2017:165). There are those who continue in line with
Evans, framing sexual citizenship mainly in terms of rights to participate in the consumer
society. Others have used sexual citizenship as a way of theorising unequal access to a variety
Page 12 of 38of sexual rights (Richardson, 2017:211ff). In this thesis, sexual citizenship will be understood
in accordance with the latter of these strands as the main focus of the study is the struggle of
LGBTQI activists towards equal rights.
Furthermore, sexual citizenship has been seen as an attempt to make the concept of citizenship
more comprehensive, expanding the common analytical categories from gender and race to
include the impact of the heterosexual/homosexual binarism, the institutionalization of
heterosexualism and the questions of equality and justice (Weeks, 1998:39). The discourse on
sexual citizenship has also been viewed as an attempt to reframe parts of the discussion on
social justice and sexuality building on a set of diverse paradigms, including sexual politics in
which sexual rights holds an important role (Mackie, 2017:143).
2.1.4. Sexual Rights
Sexual rights thus constitute an important part of sexual citizenship and the term has also
become increasingly used in for example advocacy campaigns by groups of individuals who
do not conform to the sexual ideals of the society (Lottes, 2013:367). The concept was first
discussed during the 1994 International Conference on Population and Development in Cairo,
although activist groups promoted rights in relation to sexuality in other terms long before that
(ibid:370f). As with sexual citizenship, there is no universal definition of sexual rights but
according to the World Health Organization, sexual rights “[...] protect all people's rights to
fulfil and express their sexuality and enjoy sexual health, with due regard for the rights of others
and within a framework of protection against discrimination." (WHO, 2010).
Scholar Diane Richardson has developed an approach that can be used to categorize sexual
rights claims that relate to the citizenship discourse and these categories are composed of
practice-based rights claims, identity-based rights claims, and claims based on relationships
(Richardson, 2000:107). These distinctions can be used to highlight boundaries between
tolerance and rejection as well as to highlight the fact that in addition to being gendered and
racialized, citizenship has also been highly sexualized (Plummer, 2003:63; Richardson,
2000:107). The first category thus centres around the right to sexual practice and it can be
divided into three main subcategories of rights claims: the ones that concern social rules about
accepted and non-accepted practices, the ones that stress the right to sexual pleasure and those
concerned with the right to self-control of the body (Richardson, 2000:108ff). The second
Page 13 of 38category of rights claims centres around rights related to identity, and also encompasses three
subcategories: the right to self-definition of sexual identity, the right to develop an individual
sexual identity and the right to self-expression. i.e. public and/or social recognition of one’s
sexual identity (ibid:117ff). Although rights are often articulated around individual freedoms,
certain citizenship rights concern our relations with others. Traditionally, heterosexual
marriage has served as the form of relationship that has been socially accepted which has placed
those seeking a different type of relationship at a disadvantage (ibid:123). Therefore, the final
category concerns claims around rights to relationships, including the right of consent to sexual
practice in personal relationships, the right to freely choose one’s sexual partners, and the right
for our sexual relationships to be publicly recognised (ibid: 123ff).
2.1.5. LGBTQI Rights as Human Rights
‘Rights’, whether civil, political, social or sexual, are thus a crucial focus when looking at the
relationship between LGBTQI activism and the state they are subjected to as well as within the
discourse on sexual citizenship (Moreau, 2017:443). As highlighted by the previous discussion,
rights can be framed as well as claimed in a variety of ways, of which one is human rights.
The Universal Declaration of Human Rights was proclaimed by the United Nations General
Assembly in 1948 and states that human rights are rights inherent to all humans and include,
but are not limited to, the right to liberty, freedom of opinion, freedom of expression as well as
the right to education and work among other things (UN:1, n.d.). However, the discourse of
human rights did not become important in the debates over gender and sexuality until the early
1990s but a shift towards the use of a human rights frame by international LGBTQI movements
could thenceforth be observed (Kollman and Waites, 2009:2ff). The human rights shift and the
discourse on sexual citizenship thus emerged simultaneously, and the relationship between the
citizenship discourse and human rights has since become an important issue within politics and
academia (Owen, 2017:248).
Since the 1990s, some studies have been made (see Kollman and Waites, 2009) showing that
in the ‘Global South’, LGBTQI rights have been increasingly framed as human rights, with
references to international human rights conventions (Moreau, 2017:443). Two important
human rights conventions in relation to LGBTQI issues are The Declaration of Montreal and
the Yogyakarta Principles on the Application of International Human Rights Law in Relation
Page 14 of 38to Sexual Orientation and Gender Identity, signed in 2006 (Kollman and Waites, 2009:1).
These can be viewed as frameworks for how international human rights law applies to
individuals with diverse gender identities and/or sexual orientations (Lottes, 2013:374). By
framing LGBTQI rights as human rights, the emphasis is placed on how people identifying as
LGBTQI are deprived of rights, rights supposedly inherent to all humans. There is, however,
extensive criticism of the usefulness of framing LGBTQI rights as human rights as this implies
that people identifying as LGBTQI have previously been absent from earlier conceptions of
the human (Butler, 2004:30).
This study will not engage much further with this criticism but shall instead focus on mapping
the different forms of sexual politics used within Indian LGBTQI activism and explore how
these can be placed in relation to findings from earlier research on activism by marginalized
groups and LGBTQI politics presented in this theoretical framework.
3. Research Design and Methodology
3.1. Research Design and Case Selection
This thesis is a descriptive case study. The primary aim is to contribute with contemporary
empirical knowledge on how Indian LGBTQI activists framed Section 377 in order to
challenge it, preceding the 2018 ISC decision to overrule the law. Descriptive studies hold
intrinsic value as they make important contributions to research and especially in the field of
LGBTQI activism in the ‘Global South’ as it is fairly under-researched. Descriptive studies
also serve as important pillars for explanatory studies (Teorell and Svensson, 2007:23).
By applying a case study design, it is important to consider what a case study signifies as it can
imply different things and make use of both quantitative and qualitative techniques (Gerring,
2006:17:33). In this thesis, case study is understood as an approach to research that “[...] is
most usefully defined as an intensive study of a single unit or a small number of units (the
cases), for the purpose of understanding a larger class of similar units (a population of cases)”
(Gerring, 2006:37). In-depth knowledge of a single case can in many instances be crucial in
order to gain a deeper understanding of the whole, being LGBTQI activism in this case,
although the limited possibility of generalizations will be discussed in the limitations section
(ibid:1).
Page 15 of 38When looking at activism regarding sexuality and sexual identities in the ‘Global South’, there
appears to be a dual trend. Some countries like India, South Africa, and Brazil have been able
to meet some claims made by LGBTQI activist groups while the governments of other
countries, such as Uganda and Brunei, have imposed stricter laws upon their LGBTQI
populations (Moreau, 2017:439; Westcott, 2019). The case of LGBTQI activism in India has
therefore been strategically selected due to its contemporary relevance with the overruling of
Section 377 and it can, therefore, be seen as a ‘most important’ case within the field of LGBTQI
activism and policy outcome (Friedrichs and Kratochwil, 2009:718). Although this study will
not engage in establishing any causal relationship between the LGBTQI activism in India and
the overruling of Section 377, LGBTQI activism and policy outcome can still be seen as the
overarching research field and the results obtained in this analysis can serve as an important
basis for future studies with explanatory ambitions within this field. Furthermore, the
qualitative method of frame analysis will be used in this study which is a methodological
approach that often entails a strategic selection of cases (Lindekilde, 2014:212).
Concludingly, India provides a compelling case for studying LGBTQI activism due to the
interlinkages between its precolonial history of tolerance towards homosexuality and the
colonial era restrictions, together with the contemporary struggles for equal rights regardless
of gender identity or sexual orientation.
3.2. Material
The logic behind the selection of material in this thesis has been borrowed from the rationale
behind strategic case selection. For this study, material that can be viewed as ‘typical’ has been
chosen. Typical material refers to the idea that there is little reason to believe that the results
obtained from analysing the material would differ greatly if looking at other material
concerning the same issue. Furthermore, a rather limited selection of written texts has been
chosen for this study in order to be able to analyse them thoroughly (Esaiasson et al. 2017:226).
In this thesis, six petitions filed to the ISC between 2016 and 2018 by different LGBTQI activist
groups to challenge Section 377 will be used. There is a large number of petitions that have
been filed to the ISC and to other Indian High Courts regarding Section 377 but these six
petitions have been chosen as they were the ones heard by the ISC before the September 6
verdict to decriminalize same-sex activities and has for that reason been considered important
(Ameen, 2018). Four of the texts have been downloaded from the Supreme Court Observer, an
Page 16 of 38online database reporting on the activities of the ISC (Supreme Court Observer, 2019). By
typing Constitutionality of Section 377 IPC in the search field on the homepage of the Supreme
Court Observer, one will be directed to the correct site. Under the heading 2018 Case
Documents, it is possible to download the following petitions: ‘Writ Petition by Ashok Rao
Kavi’ and ‘Writ Petition filed by Arif Jafar’. Under the heading 2016 Case Documents, the
following texts can be downloaded: ‘Writ petition filed by Jayna Kothari on behalf of Akkai
Padmashali’ and ‘Writ Petition by Navtej Singh Johar’. The petition by representatives from
the Indian Institute of Technology Delhi (IIT Delhi) was not submitted on this database but can
be read at the website of Orinam (2018), an online-based support forum for people that identify
as LGBTQI. The final petition has been accessed through the website of Citizens for Justice
and Peace (2018). The different petitions have also been cross-checked so to ensure their
authenticity. The material used in this study is thus contemporary, primary sources and as the
aim is to analyse the strategic use of frames by actors, issues of tendency and interdependence
that can be encountered when conducting other qualitative text analysis, will not be an issue in
this case (Esaiasson et al. 2017:292ff).
3.2.1. Actors behind the petitions
A brief presentation of the activists behind the petitions will hereafter be given as they are
acknowledged as important actors in the construction of meaning around Section 377 in
accordance with the chosen methodological approach. The presentation will furthermore ease
the read of the analysis as the petitions will be referred to according to the last name of the first
petitioner.
Navtej Singh Johar, who is working as a classical dancer initiated a petition together with his
partner Sunil Mehra, a well-known journalist, to challenge Section 377. The couple received
support from the famous chef Ritu Dalmia, hotelier Aman Nath, and businesswoman Ayesha
Kapur and the petition was filed by the group in April 2016 (Ameen, 2018; Dhillon, 2018).
Akkai Padmashali, together with Uma Umesh and Suma M represented a Bangalore-based
transgender group who filed a petition to challenge Section 377 in July 2016.
Arif Jafar, is an LGBTQI activist that was jailed in 2001 for conspiring to promote
homosexuality. Jafar was beaten in prison and his family was harassed. After having processed
the experience, Jafar filed a plea to the ISC in April 2018.
Page 17 of 38Anwesh Pokkuluri, is an alumnus from the IIT Delhi who represented an LGBTQI group
named Pravritti, consisting of students and alumnus from the IIT Delhi campus. The group
filed a petition to the ISC in 2018.
Ashok Row Kavi, is an activist with a long history of gay-rights activism. In this case, Kavi
represented the Humsafar Trust and their petition was filed in May 2018.
Keshav Suri, is the executive director of The Lalit Suri Hospitality Group and he filed a
petition to ISC in April 2018 (Ameen, 2018; Sengupta, 2018).
3.3. Methodology
In this thesis, qualitative frame analysis has been applied to the material. Frame analysis has
been chosen in preference to other qualitative research methods, such as content analysis, as it
is useful when studying how a given phenomenon is framed, which is the purpose of this study
(Esaiasson et al. 2017:218).
3.3.1. Frame Analysis
Frame analysis originated from sociology, inspired by the work of Erving Goffman
(Lindekilde, 2014:200). The approach is socially constructivist in nature and has an interest in
how ideas, cultures, and ideologies are used, interpreted and joint together by actors within
certain situations, aiming to invent a lens through which the world is understood (ibid:197:204).
The core idea is that actors frame or assign meaning to conditions with the aim to gain support
from others. Therefore, attention should be given to actors as ‘signifying agents’ as they play
an important role in interpreting grievances and framing goals (Snow and Benford, 1988:198).
Frame analysis is often used when studying how social movements, political actors or the
media, frame a problem or a political question, often with the aim to establish their particular
view of the issue as the dominant (Erikson, 2011:42; Esaiasson et al. 2017:218). How the issue
is framed matters for how other actors, such as authorities, approach it. Therefore, within
framing theory, both the producers and the consumers of the relevant frames are important
(Esaiasson et al. 2017:218). As briefly mentioned, different strands of frame analysis have
developed and for this study, four different framing strategies used by social movement actors
from the framework presented by Snow et al. (1986), will be incorporated. The first strategy,
labelled frame bridging refers to “[...] the linkage of two or more ideologically congruent but
structurally unconnected frames regarding a particular issue or problem.” (ibid:467). The
Page 18 of 38second strategy, frame amplification, involves “[...] the clarification and invigoration of an
interpretive frame that bears on a particular issue, problem or set of events.” (ibid:469). By
reinvigorating a frame, new potential supporters can be attracted. Within frame amplification,
value amplification may be observed and it concerns “[…] the identification, idealization, and
elevation of one or more values […]” (ibid:469). The term implies that values are constructed
in such a way so that they are considered worthy of protection and promotion. However, as
people adopt a wide range of values, these values are hierarchically organised so that some
values are thought to be more important than others, something that can be utilized by actors
(ibid:469). Actors can also engage in frame extension, which relates to when movements or
activist groups enlarge the boundaries of their existing framework so it comes to encompass a
wider range of interests or ideas, aiming to attract new supporters (ibid:472). Lastly, frame
transformation may be required when the suggested frames do “[...] not resonate with, and on
occasion may even appear antithetical to, conventional lifestyles or rituals and extant
interpretive” (ibid:473). These strategies are thus mainly used within social movement
research, looking at the relationship between social movement participation and mobilization
(Lindekilde, 2014:201). However, they have been incorporated into this study as they may
enhance the understanding of how Indian LGBTQI activists make strategic use of frames.
3.4. Analytical Framework
When using a frame analysis, there is a need to create specific analytical questions that are to
be posed to the material. Esaiasson et al. (2017:218f) suggest examples of such questions
which centre around how the nature and the origin of, as well as the solutions to the issue, are
portrayed. These questions have served as an inspiration for the analytical questions used in
this study, as Section 377 is viewed as an issue by Indian LGBTQI activists. Most often,
analytical questions are created by engaging with the relevant theoretical framework
(ibid:219). However, as this study mainly builds on previous findings from LGBTQI activism
in the West, whilst concurrently attempting to provide a nuanced analysis of a non-western
case, these aspects have not been incorporated into the questions on beforehand and this logic
also applies to the framing strategies, presented in the section above. The results obtained
from the analytical questions will, however, engage with previous findings from the research
on LGBTQI activism and activist strategies if proven relevant.
Page 19 of 38The first question thus relates to the nature of the issue. As it is already known that Section
377 is considered an issue by the LGBTQI community, the interesting aspect is to see in what
ways it is portrayed as an issue. This question is important as the nature of the issue affects
perceptions towards it and potential solutions. It is also important to clarify for whom it is
seen as an issue. The second question focuses on the relation between the actors involved in
the framing process. The actors are acknowledged as important agents within the framing
process as they are engaged in the meaning-making around the issue. A subquestion has been
added in order to highlight how the actors involved are presented. Through highlighting the
relations between the actors and the capacities to act they are represented with, it is possible
to provide a more dynamic analysis. The third question relates to the origin of the issue and a
subquestion has been added regarding potential enabling factors that have contributed to the
perseverance of the issue. The framings of the origin of the issue are important to enhance the
understanding of what solutions are made possible, and have for this reason been
incorporated into the framework. The fourth question aims to reveal how the consequences of
the implementation of Section 377 are framed, as it can be argued that the law is seen as an
issue primarily because of the consequences that follow. Therefore, the emphasis on the
consequences adds value to the framing of Section 377 as an issue. The final question focuses
on how the solution to the issue is portrayed as suggesting solutions are an important framing
task by the activists. Below, the final questions are presented.
1. In what ways is Section 377 represented as an issue? For whom can it be seen as an
issue?
2. Which actors are represented and what is the relation between them? With what
kinds of features and capacities to act are they represented?
3. How is the origin of the issue framed? Are any enabling factors discussed?
4. How are the consequences of Section 377 portrayed? Who has been affected by the
law?
5. In what ways can the issue be solved? What alternatives of action are made possible,
given how the issue is represented?
All of these questions will furthermore be analysed through a perspective of gender and power
as this can be viewed as a central element within the struggle of the Indian LGBTQI activists.
By building the analysis on the aspects that the questions highlight, other potentially interesting
areas are inevitably left out of the discussion. However, for practical reasons there is a need to
Page 20 of 38make limitations and the above-stated questions have thus been selected as indicators to the
framing of Section 377 by the LGBTQI activists and they have been formulated so to capture
the essence of what they intend to measure in order to achieve a high validity (Teorell and
Svensson, 2007:55ff). Moreover, this study has adopted an inductive approach to research and
the responses to these questions will be dictated by what is found in the material and not placed
into pre-defined response categories. This approach has been selected to increase the likelihood
of discovering all relevant frames within the written material (Esaiasson et al. 2017:223f;
Lindekilde, 2014:212).
3.5. Limitations
This section will commence with a remark on the case study design used in this thesis together
with a few comments regarding the material used. Case study as research design has received
criticism as the unit or units that are researched cannot be seen as fully representative of the
population in whole in a strict statistical meaning which results in a limited possibility to make
generalisations (Esaiasson et al. 2017:159; Gerring, 2006:20:43). However, as the aim within
research should always be to generalise the results, a possible solution is to generalise the
results to more abstract phenomenon such as categories of thoughts or possible interpretations
of the world instead of generalising to other individuals or the population. The problem of
generalisations can thereby be partly circumvented (Esaiasson et al. 2017:159:166).
The lack of representativeness is thus also a limitation when making a strategic selection of
material as well as when focusing on fewer texts, which has been done in this thesis.
Furthermore, when focusing on a small selection of material the uncertainty of the results will
also increase as all potential frames around Section 377 by LGBTQI activists will most likely
not be accounted for but the delimitation was necessary to make due to the given time frame
of this study (ibid:226).
Concludingly, a comment on the methodological choice will be made. A challenge when using
frame analysis, or other in-depth analysis of qualitative material, is to adequately document
and validate the interpretations made. There is a need to convince others that the interpretations
made are both reliable and valid. The criteria of replicability also need to be fulfilled, referring
to the possibility of others to control and replicate the analysis (Lindekilde, 2014:22). As argued
earlier, this thesis has strived to achieve a high validity and the preconditions for replicability
Page 21 of 38are arguably good. However, the issue of reliability remains as the individual engaging in
interpreting the frames, will always be contingent on previous knowledge and personal
experiences which can lead to different interpretations. This thesis is aware of these limitations
but has strived to make the argumentation around the interpretations made as transparent as
possible, in order to strengthen the reliability of this study (Esaiasson et al. 2017:226ff).
4. Results and Analysis
In this section, the results from the study will be presented and analysed, divided into
subheadings. Each subheading refers to the answers obtained from posing one of the analytical
questions to the material, commencing with question number one, and the combined findings
from all the petitions1 will be presented within each section. Results obtained from the first two
analytical questions will receive somewhat more attention than the findings from the other
questions in this analysis as much emphasis is given to these two dimensions in the petitions.
4.1. Section 377 as discriminatory
Across all of the petitions, Section 377 is predominantly manifested as an issue because of its
intrinsically discriminatory nature against individuals defining as LGBTQI. Within this
framing, interrelated but slightly different ways of portraying the issue can be distinguished.
Firstly, in all petitions, Section 377 is viewed as an issue because it prevents LGBTQI persons
from enjoying rights granted to all Indian citizens under the Constitution of India, primarily
those stated under Article 14, 15, 19 and 21. Below, some key arguments used to portray the
issue as such will be presented, categorized by the constitutional article they relate to. Starting
with claims relating to Article 14, which guarantees equality before the law and equal
protection under the law (Constitution of India, 1949:14), the petitioners often express views
like the following:
1 Most of the petitions lacked page numbers but to be able to provide precise references in this analysis, the
pages were numbered with the first page given number one. The petition by Pokkuluri is however only one page
long and have for that reason not be numbered.
Page 22 of 38“The Petitioners have no legal status or protections. The law recognizes
them only as criminals and reduces their love to a crime.” (Singh Johar,
2016:20)
This view is also elaborated by arguing that Section 377 prevents LGBTQI citizens from
approaching the police or judicial authorities out of fear to be punished because of their gender
identity or sexual orientation, which thus denies them equal protection under the law (ibid:26).
In the petition by Row Kavi (2018:68), it is argued the homosexual men and transgender
persons are denied equal protection under the law in regards to sexual harassment and sexual
assault in contrast to any woman or child: girl, boy or transgender alike. Homosexual men and
transgender persons do not receive legal protection against non-penile sexual assault, whereas
penetrative assault would be covered under Section 377. Regarding Article 15, which affirms
that the state shall not discriminate against any citizen (Constitution of India, 1949:7), Section
377 is presented as discriminatory through highlighting that sexual acts between heterosexuals,
such as penile-oral or penile-anal, are only a criminal offence if they are conducted against the
will of the woman. However, the very same practices among homosexual men is a penal
offence regardless of consent (Jafar, 2018:15). The interpretation can thus be made that Section
377 is framed as discriminatory in regards to consensual as well as non-consensual sexual
conduct for homosexual men and transgender persons. Continuing with Article 19, which
guarantees various freedoms (Constitution of India, 1949:9), Section 377 is presented as an
impediment that prevents LGBTQI persons from enjoying these freedoms, including freedom
of speech and freedom of expression of one’s self-identified gender (Padmashali, 2016:5).
Section 377 furthermore limits the freedom of LGBTQI persons to form professional or social
associations due to fear of criminalization (Singh Johar, 2016:40).
Within all petitions, the main emphasis on Section 377 as violative of constitutional rights is
expressed through its violation of Article 21, which states that no individual should be deprived
of his life or personal liberty (Constitution of India, 1949:10). Because Section 377 is portrayed
as an obstacle for LGBTQI persons to enjoy the rights granted under Article 21, the petitioners
use a wide range of sexual rights claims to accentuate the legal freedoms they are entitled to
under Article 21. The claims can be categorized into practises, identities and relationships, as
suggested by Richardson (2000:107), and these claims could be argued as equally distributed
Page 23 of 38among these three categories. In regards to sexual practices, claims found in the petitions
primarily concern the right to sexuality, sexual autonomy, and sexual health (see for example
Singh Johar, 2016:24 and Row Kavi, 2018:30). The rights claims that are identity-based
primarily concern the right to self-determination and self-expression of one’s gender identity
(see for example Row Kavi, 2018:31 and Padmashali, 2016:40). Claims that centre around
relationships and the right to choose sexual partners are also commonly presented (see for
example Jafar, 2018:13 and Singh Johar, 2016:7f). Through categorizing sexual rights claims
in accordance with the framework, the observation could be made that no specific claims
regarding the right to sexual pleasure could be found in any of the petitions. There are no rights
to sexual pleasure per se granted by states, yet claims around sexual pleasure have previously
been used in struggles for equality, such as in the 1970s feminist movement (Richardson,
2000:113). Potential reasons behind this lack of emphasis on rights may involve that the right
to sexual pleasure is thought to be included within the right to sexuality and is therefore not
emphasised in itself, that contextual factors make the use of rights claims based on sexual
pleasure unfeasible, or that the right to sexual pleasure is considered less important than other
sexual rights and are therefore not emphasised.
Secondly, in addition to portraying Section 377 as discriminatory due to its violation of
constitutional rights, two interrelated but different formulations of the issue can be
distinguished. The first kind of formulation, appearing in all the petitions, but the one from
Pokkuluri, portrays Section 377 as discriminatory because it violates fundamental human
rights. This is illustrated by a quote from the petition by Jafar which is referring to the
Yogyakarta principles, stating:
“All human beings are born free and equal in dignity and rights. Human
beings of all sexual orientation and gender identities are entitled to the full
enjoyment of human rights” (Jafar, 2018:18)
This finding contributes with empirical knowledge that appears consistent with previous
research that has shown that LGBTQI demands in the ‘Global South’ are often framed in terms
of human rights. The emphasis on LGBTQI rights as human rights can furthermore be
interpreted as an attempt to frame amplification, and more specifically value amplification, as
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