Right to be and act Queer?

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

Table 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

“I am what I am, so take me as I am”

1. Introduction

On September 6, 2018, the Chief Justice of India, Dipak Misra, quoted the German thinker Johann Wolfgang vonGoethe 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

LGBTQI 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:

How 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

the 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).

The 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).

2. 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).

2.1.2 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).

2.1.3. 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

of 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

category 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

to 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).

When 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

online 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.

Anwesh 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

second 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.

The 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

make 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

are 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.

“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

among 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

discussed by Snow et al. (1986). A possible interpretation of speaking of LGBTQI rights in terms of human rights is thus that the original values have been amplified and elevated. By emphasising values and rights that are intrinsic to all humans, claims may have a stronger discursive power as human rights are oftentimes considered very important to uphold, especially for state institutions that aim to adhere to international human rights conventions within a context of increased international scrutiny. It is also worth noting that the meaning of value amplification has here been slightly modified as it has been used on one of the issue formulations and not the dominant frame. However, the core idea can thus be seen as applicable also to activist groups fighting a state institution, as illustrated by this example.

Lastly, in the petitions by Pokkuluri and Row Kavi (2018:25), Section 377 is portrayed as discriminatory as it has relegated the LGBTQI community to second-class citizenship. This formulation of Section 377 as an issue highlights the relevance of sexuality within the citizenship discourse and the role of the citizenship discourse within LGBTQI activism. It is, furthermore, an example of how activists use the language of citizenship to fight for equality and justice. As the core idea of citizenship is that citizens are entitled to certain rights by being active in the public sphere, Section 377 is portrayed as a hinder for LGBTQI citizens to enjoy these rights, exemplified by the following quote:

“Despite their [the petitioners] formidable achievements and contribution to India, they are denied the right to sexuality, the most basic and inherent of fundamental rights.” (Singh Johar, 2016:18)

Therefore, despite being a citizen that contributes to the development of India, the possession of a certain gender identity or sexual orientation, obstructs LGBTQI citizens from enjoying certain citizenship rights, such as rights to sexuality, granted to heterosexual citizens. The existence of Section 377 thus highlights the institutionalization of heterosexualism and the ways in which citizenship in India can be viewed as sexualized.

4.2. Citizens of India

The focus of this section is the core figures within the framing process, namely the activists behind the petitions and the people they represent. As these actors are acknowledged as important in the process of making meaning around Section 377, it is important to underline how they portray themselves, as well as what the relations between them look like. It is only the petition by Row Kavi (2018:5) that claims to represent the whole range of LGBTQI persons.

The other petitions use the acronym LGBT with the petition by Pokkuluri mainly focusing on the transgender community. The lack of emphasis on queer could potentially be explained by its rather recent entry into Indian discourse or that it is considered redundant as LGBT already encompasses a wide range of sexual orientations and gender identities. Furthermore, within the Indian discourse, the hijras are oftentimes considered intersexed (Gandikota, 2018). As hijras are considered a third gender, and figure as a special group within the petitions, intersexuality in more general terms might therefore not be emphasised.

A shared characteristic, found in all petitions, is the way in which the LGBTQI activists are portrayed, illustrated by the following quote:

“The Petitioner is an ordinary Indian citizen […]” (Jafar, 2018:4)

The petitioners are also often presented as educated and competent citizens who contribute to the development of the country (Singh Johar, 2016:6). This way of portraying oneself can be interpreted as an attempt to challenge the view of LGBTQI persons as different or deviant.

Moreover, by emphasising the attributes of the petitioners not related to sexuality, highlighted in the statement below, the petitioners’ direct focus towards some of the features that makes them ordinary citizens of India.

“We, the petitioners, come from diverse backgrounds [...]. We belong to different parts of India – from Kakinada in Andhra Pradesh to Sambalpur in Odisha to Korba in Chhattisgarh and across the metropolitan cities of Mumbai, Delhi, Bangalore to name a few. We are scientists, entrepreneurs, teachers, researchers, business owners and employees in companies [...]”

(Pokkuluri, 2018)

The universal aspects of being a citizen of India is thus emphasised which implies that the LGBTQI community demand to not only be seen in terms of their gender identity or sexual orientation as they cannot exclusively be defined by these features. Gender identity and sexual orientation should therefore not determine whether one is treated with dignity and respect but instead the fact that one is contributing to the development of the country. This example thus illustrates the emphasis on universalism, present in most of the petitions, and how citizens can demand respect by eradicating group-based discrimination.

By exploring the relations between the actors, an example from the petition by Padmashali (2016:20) worth highlighting was found. The petition emphasises that the transgender community faces specific types of discrimination which makes them more vulnerable than other LGB members. References are also made to previous judgements on LGBTQI issues, in which the petitioners argue that the main focus has been on rights of homosexual men and not specific rights of transgender persons (ibid:30f). This example thus accentuates the complexity of discrimination and the ways in which it works. Although Section 377 can be argued a problem for the whole LGBTQI community, it can affect certain groups differently. Within this discussion, it is also relevant to highlight that no petition makes specific references to the rights of lesbian women whilst attention is given to specific rights of homosexual men and transgender persons (see for example Row Kavi, 2018:68). The lack of attention to female to female sexual behaviour is not only a trend observed in this study but in Indian academia in general. Very little research has been done on lesbianism in India which has previously been explained by the attention given to penetrative sexual acts as well as by the focus on the spread of HIV/Aids among men who have sex with men (Khan, 2001:100). The lack of emphasis on lesbianism, both in academic literature and in the petitions, can thus be viewed as an example of how gender and sexuality intersect, indicating that marginalization can be amplified by a certain combination of gender identity and sexual orientation, particularly noticeable when looking at female to female sexual behaviour. This discussion also highlights the difficulty of speaking of the LGBTQI community as a single entity, portrayed as having collective demands and being subjected to the same level of discrimination.

Regarding the scope of the actors’ capacity to act, it is portrayed as rather limited due to their vulnerability under Section 377. In all petitions, emphasis is placed on how submitting petitions

to the ISC serves as a last resort for the LGBTQI activists to reach gender equality. This is commonly phrased as:

“That the Petitioners have no other alternate efficacious remedy but to approach this Hon’ble Court for the relief prayed for herein.” (Row Kavi, 2018:75)

This statement highlights how the actors are confined within their institutional context with limited scope to affect the jurisdiction of the issue as the ISC is the only institution holding the power to decide upon the validity of the law. However, the jurisdiction does not exist in isolation from the people, and the frames used by the activist interact with other existing ideas which provides a dynamic context which creates scope for previously neglected frames to amplify.

4.3. The imposition of Victorian morals and enabling factors

In all but one petition, the one by Pokkuluri, the origin of the issue is portrayed as the imposition of Victorian morals by the British. The petition by Suri also makes specific references to India’s precolonial history, reading:

“Section 377 IPC is undoubtedly archaic is a relic of the colonial era. Infact, Section 377 IPC is contrary to aspects of Indian History which since the pre- colonial era in its scriptures such as Kamasutra and Khajuraho temples depicted and in a way accepted homosexuality.” (Suri, 2018:37)

This statement thus also portrays the origin of the issue as foreign to Indian culture by emphasising the accommodating precolonial culture to those with arguably differing sexualities, suggesting that the situation for LGBTQI persons in India would have looked different today if the law had never been imposed. Furthermore, two additional aspects related to the origin of the issue can be found in the petitions. Firstly, in some of the petitions, emphasis is given to the issue of how the law is formulated. The petition by Jafar (2018:12) discusses that by labelling certain expressions of human intimacy as ‘unnatural’, Section 377 has imposed ideals of heteronormativity in the society which has resulted in the spread of

homophobia. The formulation of the law can thus be seen as a contributing factor towards the issue of discrimination towards LGBTQI persons, presented in the petitions. Secondly, the law is portrayed as incorporating an element of vagueness:

“Because section 377 IPC does not define or explain what constitutes

‘carnal intercourse against the order of nature’, for which a person may suffer imprisonment upto 10 years or life.” (Jafar, 2018:15)

Because of this element of vagueness, it is not clear what form of sexual activity that is prohibited, neither for persons engaging in the activities nor for the police who are supposed to enforce the law, although it has often been interpreted as same-sex conduct (Singh Johar, 2016:31). By highlighting that a law based on a vague formulation is used to discriminate against a certain group, value is added to the portrayal of Section 377 as an issue which constitutes a base upon which it can be challenged.

In addition to views on the origin of the issue, enabling factors related to the persistence of the law and, hence, the continued discrimination can be distinguished. In the petition by Singh Johar (2016:27), it is emphasised that although attitudes towards same-sex sexuality have become increasingly tolerant in the Indian society in the recent decade, the ISC has failed to adapt to these changes and allowed for Section 377 to remain in place, which has legitimized social stigma against LGBTQI persons. Another view, most strongly expressed in the petition by Jafar (2018:17), is that in addition to the court’s failure to adapt to societal changes, it has also failed to adapt to changes in international law which grant a wide range of protections to LGBTQI persons. These statements add value to the portrayal of the ISC as the most important actor to solve the issue and can also be seen as enabling factors for the perseverance of the issue.

4.4. Stigmatization and negative impact on state economy

A view expressed in all petitions is how Section 377 has led to stigmatization and other negative consequences for the LGBTQI community. In the petition by Pokkuluri, this is expressed as follows:

“The criminalisation of the sexual orientation and very identity of the Petitioners has resulted in a sense of shame, loss of self-esteem and self- worth, and stigma being associated with their very identities as LGBT persons.” (Pokkuluri, 2018)

This statement suggests that Section 377 has prevented the LGBTQI community from being recognized by others, highlighting the relevance of the discussion on recognition laid out by Charles Taylor. The stigmatization of the LGBTQI community that Section 377 has induced illustrates the importance of our relations with others for our potential to self-realization. As the petitioners have not been positively recognized by the rest of the Indian community, they are deprived of feelings of self-worth and self-esteem. This finding, therefore, suggests the continued relevance and importance of recognition within activist struggles towards equality, showing that for some groups, recognition must be demanded.

Moreover, additional ideas on the consequences of Section 377 can be distinguished in the petition by Suri (2018:34f), claiming that Section 377 does not only affect the LGBTQI community in a negative way but also their families. However, the scope of the consequences is expanded further and Section 377 is portrayed as having negative consequences also for the national economy.

“[...] The LGBTQ community, as can be gathered from jurisdictions which have decriminalised homosexuality, contributes to the GDP of an economy in numerous ways, which includes [though is not limited to] tourism, fashion, culture, and so on. Unquestionably it can be said, denial of rights of the LGBTQ community, in other words, denial of right to choose sexual orientation comes with economic costs as well.” (Suri, 2018:25)

This way of framing the consequences could be interpreted as an attempt to frame extension.

By emphasising the economic consequences of Section 377, the boundaries of the original framework which encompassed personal consequences for members of the LGBTQI community can be seen as extended. As the economy is something that concerns every Indian citizen and not only the LGBTQI community, it may become easier for the petitioner to gain support for their claims. However, immediate support for LGBTQI rights is unlikely to follow only by emphasising economic consequences the exclusion of the LGBTQI community has