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Mediating the Optics of Privacy : LGBTQ Rights, Public Subjecthood and the Law in India

  • Author(s): Singh, Pawan Deep
  • et al.
Abstract

Section 377 of the Indian Penal Code has criminalized homosexuality in India since 1861 when it was first instituted by the British government as a tool of governing the personal relations among native Indian populations. The law was retained in the Indian Constitution when it was drafted in 1948 after India gained Independence from the British. The law became the subject of reform during the early 1990s when it was seen to hamper HIV/AIDS outreach for vulnerable groups that were engaging in same-sex behavior that was criminalized under the law. The Indian LGBTQ movement emerged partly in response to the public health crisis and also as a challenge to the law's criminalization of various identities such as gay, lesbian and transgender. In 2009, the Delhi High Court amended Section 377 to decriminalize homosexuality by according a right to privacy, equality, dignity and non-discrimination to consenting adults. However, the Supreme Court of India overruled the Delhi High Court decriminalization decision in 2013 with the view that the law only criminalized certain "unnatural" acts, which could by committed by anyone. The Court ruled that the law did not target any identity or group in particular. This dissertation undertakes a critical examination of the right to privacy as the basis of homosexuality's provisional decriminalization in India during 2009-2013. Through an analysis of case law, human rights violation reports and film and media representations of privacy violations of LGBTQ subjects in India, the dissertation interrogates the material stakes in making privacy the central basis of homosexuality's legalization. Using archival analysis, textual interpretation, discourse analysis and interviews with lawyers and LGBTQ activists, the dissertation demonstrates how the exercise of the right to privacy by a violated figure entails greater visibility for the subject. The various forms of mediation of privacy violations produce greater visibility for the subject bringing them empowerment with potential vulnerability in the postcolonial Indian context in which homosexuality continues to be pathologized and criminalized. The dissertation draws upon media studies, queer theory and postcolonial studies in its analysis of the relationship among privacy, visibility and sexuality

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