Kamaal R Khan is a victim

You may call Kamaal R Khan all kinds of names for posting a video where he is supposed to have made derogatory comments targeting the LGBT community - I might join you in the name-calling if and when I do watch the video. But frankly, it matters little to me what he says. On any subject. What I do care about is that at least some of you join me in calling him a victim. A victim of our statism - a level of intolerance that asks for the State to intervene and shut down free speech.
A lot of you would say that Khan and others like him are not exercising their freedom of expression (#FoE) but abusing it through hate speech. Most of you would have dismissed the news with thoughts like: 'Serves him right' or 'he is just an attention seeker' or maybe even 'This Ujjawal Krishnam is an attention seeker'. The action against Khan is yet another in a long list of governments acting against individuals for mere speech but it is probably the first instance where an individual is sought to be punished by law for comments against the LGBT community. Yes, there are consequences to slander. As there should sometimes be. However, there could be broader, lasting consequences for LGBT individuals and their allies as well as for those on 'the other side of the fence'. So, here's a blog post after a long gap mainly to say that hate speech is also free speech. There is no freedom of expression if we do not allow what we may consider 'hate speech', allow expression of what some or even the majority might find offensive. We must at least not seek to punish someone through legal means for what we may consider to be offensive.
Without FoE, the church would still have us think that the earth is the centre of the universe. Without FoE, freedom fighters wouldn't have been able to advocate for India's independence (although some were still charged with 'sedition'). Sans FoE, whistle-blowers and the media would not be able to expose corruption, cronyism, nepotism in government and its policies. No FoE would probably mean one-party rule because there could be no opposition. If there were zero FoE, even #LGBT activists would not have been able to advocate for re-legalisation of same-sex love and reading down of Section 377 of the Indian Penal Code. Heck, without #FoE, I would not be able to blog this post. This much might be easy to agree if you are an LGBT rights activists or just a 'liberal' in popular understanding. Now comes the hard part. 
Who decides what is 'hate speech'? If you wish the government to discriminate between what you define as 'free speech' and 'hate speech', you are well down the path to death of #FoE (the bad news is that we have been on that path for sometime now). No one, absolutely no one is qualified to decide what is 'hate speech' and what is not, least of all a politician or a bureaucrat. Not even a lawyer or a judge qualifies, even though we have been stupid to allow elected representatives who have made laws for us that do exactly that.
There will always be differences in what one person sees as hate speech and the other as free speech. What makes one person more qualified than the other? Any law that tries to circumscribe #FoE (and we have multiple of those, enabled by the Constitution of India), gives scope for the subjectivity of a judge and the subjectivity of a cop to come into play. Although such public servants are paid to protect people while upholding the rule of law, by now you should know that people have opinions and egos, they get offended and they do let that influence their actions. The result is always: Might is Right. The innocent get crushed.
There's enough real crime to go around. The State should not be distracted from its job of handling crimes where there are victims. They must not be allowed to confuse their priorities. Khan's is a victim-less crime. Same-sex love was a victimless crime too until 5 September 2018. I'd like Krishnam to at the very least show how he is tangibly affected by Khan's video forget how one man's comments affect a population of millions?    
Condemn hateful comments. You must. That would be an exercise of FoE obviously. Counter abuse with valid criticism, and even abuse if you wish to fall to that level. But you have no right to muzzle someone. You are using the government as a proxy to do that literally, not figuratively. Restraining  someone, not just for speaking what they feel but also wrongfully confining them. Abuse ought to have no space in a civilised world. But let's face it, we are still evolving. We allowed that poster boy of liberal values, Nobel Peace Prize Laureate Barack Obama, who is responsible for the killing of many, to evolve his position on LGBT equality. Can we not allow the same courtesy to people who are only spewing hateful words?
They will show their hand. They might not evolve - we have seen evolution failures such as an otherwise intelligent Harvard professor (Subramaniam Swamy) - thus proving to be exception to the rule. However, they should be allowed to expose their own failures. FoE is a barometer of what a society is like. As a side note, it can help activists strategise their communication and advocacy. Who is equality-friendly; on whom not to waste your resources; which message works in which situation.
Both wings might be offended by this post. The Left and the Right. Even some self-proclaimed libertarians. The right choices would be to either ignore or criticise. The wrong choices would be to tell Blogger to take down this blog/this post or to file a police complaint. Do you really want to control what others are able to read , hear or watch? Do you want to decide what others should think and what they shouldn't? Sadly, for most people on either side, the answer is 'yes' even if they consider themselves to be free speech advocates. This may be especially true of LGBT activists. This is even more unfortunate because restricting speech can hurt the cause of LGBT equality disproportionately. Someone who takes offence to it even more than a Khan or a Swamy can put legal obstacles in advocacy efforts. You might think it impossible in the euphoric aftermath of the Supreme Court verdicts on Section 377 but that is a fallacy. Five people overruled what two of their peers thought about the validity of a law. Tomorrow nine people could overrule those five. Difficult but not impossible. Especially in a country like ours going through a churn, where the resulting poison is in the air that we breathe. There are already enough tools against FoE speech in the hands of the powerful. As an LGBT rights advocate, can you say with certainty that it will not be used against any one of us? By using such laws against the likes of Khan, we are validating them and strengthening the hands of the State. We are allowing it to define what it considers pornographic, obscene or a threat to public health and 'morality', Instead, we should be demanding more freedom from our rulers. Count me out, I do not wish to be part of that section of the amorphous LGBT community that feels offended enough by Khan to demand that the police be called in on him.

Under State control

A piece I wrote for The Hindu's Mumbai edition... it was published the day after the Supreme Court held an open court hearing on whether to consider the curative petitions against its own verdict that had upheld Section 377 of the Indian Penal Code.

http://www.thehindu.com/news/cities/mumbai/news/nitin-karani-when-the-state-makes-choices-on-our-behalf/article8187623.ece

There were three sets of people with a very keen eye on the proceedings in Supreme Court in the matter of the curative: thousands of LGBT people and their allies; some legal eagles and the press; and a miniscule minority of opponents, mostly ‘religious’. This last group feels that not only must it oppose homosexuality within its own private sphere but also impose its world view on everyone else through the might of the State, even to the extent of punishing consenting adults with up to 10 years of time in jail. Compare this with maximum punishment of a ritual bath for a homosexual act (that too only for the priestly class) prescribed by the Manu Smriti.

We can debate the authenticity of the Manu Smriti and its importance, but it contrasts with the extreme position that the opponents, including the State, have taken by wanting to retain Section 377 in the Indian Penal Code (IPC). By now it has been argued often enough that Sec 377 is a law based on Victorian morality, which was itself rooted in the Bible, and that much of the IPC is a relic of the British Raj days.

The larger point here is illustrated in the fable of the Arab traveller and the camel, who first begged to insert its nose into the tent and then other parts of his body, with the Arab finally thrown out of his own tent. The State entered into our bedrooms with the IPC and now it refuses to get out. It has been decades since the State’s right to interfere in our choice of partners — sexual and marital — is being contested but it refuses to yield. The Arab traveller remains at the mercy of the camel when it should be the other way round. We, the people, have allowed the State to take control of our lives increasingly, to the extent that we have forgotten the liberties that were ours naturally. In every sphere of our life, the State limits and regulates both our economic, social and personal choices.

This did not happen overnight. It happened gradually, like in the fable, but it now seems pretty irreversible. In fact, we, the people, give the State more power every day over ourselves, even to make choices on our behalf each time we demand that the State perform a function other than the minimum required for us to exercise our choices freely, without fear to our life and property.

Most of us, wherever we may place ourselves on the political spectrum, only pay lip service to liberty, equality and freedom of expression; we do not know what we ask for when we demand that the State enact new statutes and more stringent laws (when it does not even execute existing laws fairly and efficiently, allowing scope for misuse), instead of reducing them to the minimum and simplifying the rest. This can be seen in every area of our life, from ‘net neutrality’ and use of social media to fiscal and monetary policies, and the selling and buying of our own assets. Governments, meanwhile, are only interested in increasing their power over the people. So there will be some noises about liberalisation and minimum government, but every government’s actions are quite the opposite in the guise of maximum governance and ‘social justice.’

What social justice is served by keeping Section 377 in the IPC? What does the State achieve by either punishing or the threat of punishing adults for a ‘crime’ without victims? Did social order and public morality breakdown when the Delhi High Court re-legalised ‘gay sex’ (given it was never a crime pre-IPC)? Did homosexuality spread across the nation like a newly-discovered virus and threaten nationhood in addition to heterosexual ‘manhood’?

The answers to all of these questions are staring at us but, no, the courts and the government will take their time to exercise their wisdom and decide what is good or bad for we, the people. Until then, far from enjoying the liberties and benefits available to heterosexual couples, we lesbian, gay and bisexual and even transgender people must pretend we do not break the law. Or else resign ourselves to the possibility that some individual or a cop may take it upon themselves to use Section 377 for harassment or extortion, if not for legal prosecution.

Of course, LGBT people will continue to watch the SC very closely, to see if it does take this last opportunity to correct its error of judgement.

333 under 377

About a month ago, India's crime records bureau released stats for 2014 (very efficient, considering the year had ended only some six months ago). The stats made news this time because, among other things, the numbers for Section 377 of the Indian Penal Code were tabulated and released for the first time  -- we don't know what was behind this - was the bureau driven by a desire simply to deter crime or to highlight how India still discriminates against gay people.

Maybe it was just part of the new efficiency under a tough taskmaster who is scaring the bureaucracy into doing some work for a change. (Stats on environment-related crime were also released for the first time, so I am ruling out any motivation to support equal rights for gay men). In fact, the Deccan Herald noted a new keenness to prosecute LGBT individuals, but gave no basis for that claim - maybe that was just the handiwork of an enthusiastic reporter or sub.

The media reports of these numbers agitated the people who are against Section 377, especially LGBT activists. Not! That non-reaction was understandable at the time, as most people, relying on anecdotal evidence, may have assumed that almost all of these cases were filed against men abusing children rather than adults in a consensual relationship.

Now a Hindustan Times reporter has apparently done some digging around and broken down the numbers some more for us. It seems one-third of the total 1,148 cases of Section 377, that is 383 cases were not of child abuse. My gratitude to the reporter and HT for this detail, although some of the statements and conclusions in the same report are maddening.

The same report implies that trial courts acquitted the accused in 50 of these 383 cases while the rest of the cases are still pending in courts across the country. If activists in the metros and Tier-2 cities are unaware of these 383 cases, this could mean that gay men in relatively remote places away from the attention and capabilities of activists, the media and organisations like Lawyers' Collective are being prosecuted.

This story will be repeated this year and year after year, and these men will remain just statistics in a government bureau's report and, at best, mentions in news reports and blog posts like this one. A lot of people still live with the fond hope that the Supreme Court will reverse the judgement of its own two-bench court in favour of that by the lower-rung Delhi High Court, so that we will be free of Section 377 and start the long march towards equality for LGBT people backed by the law. But even if that miracle does happen, it looks like the SC will continue to take its own sweet time to hear the curative petition against the injustice of its two-member bench in a process as transparent as vantablack -- even lawyers don't seem to know how it prioritises its work and when it will deign to consider the petition.

@queerindia #IPC377 will be a while I think. Or it could be next month! There's no way of knowing until SC decides it wants to hear.

— Court Witness (@CourtWitness1) July 22, 2015

That's very convenient for the legislators we elect as they can always hide behind the legal system and refuse to evolve from politicians into lawmakers who also remove obsolete laws. They will come to our community events, even invite us to their events, indulge in some rhetoric to raise our hopes, pose for pictures with some vain LGBT people, and fail to deliver. The voices of exceptions like Tathagata Satpathy will be drowned out in the din of the empty vessels in Parliament.

Agha ᗅᗺᗷᗅ - Thank you for the music

I just watched an interview of Salma Agha promoting the upcoming 'Dunno Y 2' and her song in the film. (Watch the interview here if you are fan/curious about her/the film - it's a bit irritating how she attempts to be non-committal about her views on same-sex love).

Most people probably remember her as the 'Nikaah' actress and playback singer though she acted/sung in a few more forgettable films - of these, I can't forget her 'Mera naam Salma' number though.

More than all of these, even 'Nikaah', I will always remember Agha for an album of songs with her sister as co-singer, with lyrics by Amit Khanna (and 'music' by Bappi Lahiri) that came out even before 'Nikaah'. I was probably in my early teens then, and had discovered Rhythm House store thanks to my mom and her brother's love for music and a new LP player.

I already had a tape of ABBA hits (my first), gifted to me by the uncle (no, I wasn't out to him - I came out many years later). By sheer chance, I spotted the LP of the Agha album and bought it. I am sure it wasn't a hit album - most people my age haven't heard about it and it's not even listed in Agha's discography on Wikipedia. So I am sure not many here will share my enthusiasm for it. Watch one of the songs from the album below. Maybe it will inspire someone to produce a stage musical, in this season of ABBA copycats and musicals!

 

How we define 'rape'

I won't go into the question of what sexual acts should or should not be termed 'rape'. In this note, I just want to remind ourselves that Indian law and society only see it as a violent act against a woman by a man. I believe that it should include such acts against any person, by any person, man, woman, transgender....

We live in a time where gender lines are blurring and people are asserting the rights to change parts of their physical sex and to present themselves free of the limitations of birth, culture, orthodox ideas of gender identity and sexual orientation. In such a time, shouldn't our rape/sexual assault laws become fair and representative of our evolving notions of selfhood? Even the widely acclaimed Nalsa judgement on recognition of transgenders does not expand the definition of rape although it expresses concern that they are vulnerable to sexual assault.
Friends and acquaintances have told me about men who approached them claiming that they were forced to have sex by other men and even women. Such incidents may be fewer in number than rapes in the traditionally or legally understood sense, but does it mean there should not be laws against such acts? 

I acknowledge this is not the first time this question is being raised. In fact there was a proposal to amend the law in India after the well-known gang rape of a woman in Delhi in December 2012, but I believe the Congress-led government developed cold feet, ironically under pressure from women's groups. 

What prompted me to bring up this question again today were two recent news items. One was a report of an incident of groping of a woman by a hijra in Bombay. And the other was a report about Pinki Pramanik's exoneration of charges including rape. 

Some LGBT activists are unsurprisingly thrilled at the second piece of news. I am not in a position to discuss the merits of the cases against Ms Pramanik but note that as per the news report, the defence claimed that the charge of rape cannot be made because the law doesn't apply to rape by a woman. My sympathies are with Ms Pramanik with regards to the way she was treated by the media, the police, the medical establishment and many other people as a fallout of the cases against her. And I am glad the cases have now concluded. 

More importantly for the rest of us, especially lawmakers, it is time to reflect on the questions I have asked here and consider amending the law. I admit the rape of a man by another man is already within the ambit of Section 377 of the Indian Penal Code. In fact, there seem to be some Indians who think sex between men can only be an act of violence and not an expression of love. The example of such a person that immediately comes to mind is Meenakshi Lekhi, although she is a lawyer and a lawmaker, and she ought to know better. Some people will find the example of Ms Lekhi extreme and refuse to see her as someone with a belief system beyond one that is articulated by the BJP to which she belongs. But I believe she represents the tip of the metaphorical iceberg of ignorance in Indian society.

The battle against such ignorance will continue. As queer individuals, I hope we are more aware and proactive about fixing much that is wrong with our laws, not just Section 377.

PS. I am not sure why activists who have taken up this case of rape of a hijra   (http://timesofindia.indiatimes.com/city/jaipur/Transgender-alleges-gang-rape-by-cops-in-Ajmer/articleshow/36365899.cms) aren't insisting on application of Section 377. They seem to be relying on the rape law instead.