top of page

Beyond Sec. 377: Let’s March Away From ‘Privacy’!

A previous article in the Hindu College Gazette by Urvi Tripathi listed the struggles ahead for the queer community post-Section 377. It is a timely intervention which questions the role of the state in allowing ‘conversion therapies’ and in determining gender identity. With the decriminalization of Section 377 two years back there was a wave of joy and enthusiastic celebration within the LGBTQIA+ community and outside. The day was hailed as that of liberation for the community, a day when the dark shadows were bid adieu to in order to move towards a colourful path of ‘Pride’. Two years down the line, we see the situation improving but at what cost becomes an imperative question that requires answers.

This article is to carry forward that conversation, with a focus on the reasoning used by the courts to read down Section 377.

Can ‘Privacy’ Liberate Sexuality?

The case against Section 377 carried forward by the Naz Foundation relied heavily on the issue of ‘privacy’. Justice AP Shah while reading down Section 377 commented that post-Supreme Court’s judgement defending the Right to Privacy in the Aadhaar case, it was inevitable to make Section 377 void in the country. The recurring emphasis on privacy was made in the statements of judges and the judgment.

Decriminalization of homosexuality all over the world has been based on this very argument of privacy, which states that individuals are autonomous and the state or any other external body has a very limited role to play in what goes on in their private lives. The coincidence that the decriminalization of homosexuality across the globe was based on the argument of privacy and not on other well-established arguments, like that of equality, compels us to delve deeper and evaluate the privacy hypothesis. While the sphere of privacy is indispensable to develop oneself and to reach one's full potential, it is imperative to ask: who exactly can exercise this privacy? 

The initial appeal against Section 377 was made by AIDS Bhedbhav Virodhi Andolan (ABVA) and had asked for a complete repeal but not on the ground of privacy. The ABVA appeal has largely been erased from the common history of the queer movement in India. Most members of the LGBT community who have faced police harassment and intimidation have faced it in the public sphere, and often also under other sections of the Indian Penal Code apart from Section 377. This was why ABVA asked that while oppression and humiliation of sexual minorities happens mostly in the public sphere where they are morally policed by authorities or even other members of society, is it enough to defend privacy? 

What are the perils of privacy in the context of the larger, budding queer movement in the country? To answer this, one must take into account the existing socio-economic hierarchies in place. While the Right to Privacy works wonders for those who have the means to exercise it, that is for those who own private property, it leaves the vulnerable members of the very same community who lack access to innocuous private spots at the disposal of tyrannous patrolling. The majority of hijra, kinnar, and working lesbian, gay, and queer people do not have the protection of their ‘own bedroom’. Thus, to some extent, the eulogization of the private realm comes at the expense of the degradation of the public sphere. This systemic invisibilization of the queer community is in itself a form of oppression. A politics of ‘visibility’—making certain kinds of marginalized sexual identities more familiar—that works in congruence with the erasure of identity needs to be challenged.

Lessons from Pride History

Another blatant contradiction that appears is that of the lessons learnt by the feminist struggle that has been supported by the LGBTQIA+ community since its inception. Feminist movements all over the globe have been trying to pierce this ‘private sphere’—ghar ke andar jo hota hai use ghar mei hee rehne do—from that of the public to make their oppression visible, such as in the case of domestic violence or sexual abuse. In using the argument of privacy for the LGBTQIA+ community, are we not submitting to the same oppressive and exploitative dictates?

A phenomenal instance from which progressive insights can be drawn is that of the UK Mineworkers Strike of 1984-85, which was supported by a group named Lesbians and Gays Support the Miners (LGSM). At a time when the neoliberal Thatcher government sequestered funds to the National Union of Mineworkers in the move to destroy trade unions, the LGSM group came to the forefront building solidarity for the mineworkers’ strike and carrying the movement forward. What was remarkable in this struggle was the forthright assertion and reclaiming of public spaces that very much belongs to people irrespective of their sexual orientation, class or any other parameter. It was an awakening that queer people will not be liberated when forces of privatization demolish public spaces and democratic accountability. Building solidarity between the two oppressed communities, that is, the LGBTQIA+ community and the toiling sections of society challenged the monopoly over public spaces by the powerful elite. 

LSGM Group during one of the strike demonstrations. (Source: People’s History Museum)

Even the very origin of ‘Pride’ goes back to the Stonewall, a predominantly working-class gay bar in New York, which was attacked by the police on June 28, 1969. Militant protests against police brutality were led by Marsha P Johnson, Sylvia Rivera and other revolutionaries who were black, homeless and queer. They emphasized that sexual liberation would never be possible as long as queer people were kept without homes, illiterate and unemployed, without social welfare protections, and defenseless in front of police brutality. Organizations of that era such as the Gay Liberation Front, the Street Transvestites Action Revolutionaries (STAR) and others saw solidarity with movements against the imperialist war in Vietnam, anti-racist struggles, and struggles for socialism by labour, tenant and farmworkers’ unions as a part of the struggle against patriarchy, heteronormativity and homophobia.

Stonewall Riots that began as protest demonstration by homosexuals, ultimately encompassed the struggles of people at the margin, demanding innocuous public spaces for all. (Source: Diana Daves/New York Public Library)

Protesters took to the streets in the aftermath of Stonewall Riots. (Source: The Harvard Gazette)

Hence, it becomes clear that sexual liberation centred on privacy has emerged only recently and its limitations are in front of us all. The people’s movement against Transgender Persons’ (Protection of Rights) Bill, 2019 is an example of how the biggest section of the LGBTQIA+ community is demanding safer and more accommodating public spaces open for navigation by all, not private property for the few. A true recognition of oppressed sexual and gender identities requires more such broad-based anti-patriarchal struggles in relation to other struggles in society. 


Mandal, Saptarshi. “‘Right to Privacy’ in Naz Foundation: A Counter-Heteronormative Critique.” NUJS Law Review. July - September, 2009.</