Visibility versus privacy
There are two specific strategies at work in India's queer-rights movement. On the one hand is an attempt to create and increase the social and cultural visibility of queer people; on the other is the legal challenge to the Indian Penal Code's archaic Section 377, which criminalises all forms of non-procreative sex. This latter campaign is being promoted on the grounds of the right to privacy. While these two strategies have closely interconnected objectives, each has also been fraught with tension.
The need for creating visibility for queer people arises from an 'invisibility' that has been imposed on these communities by the larger society, which contributes to their exclusion from a whole range of human-rights guarantees. The demand for privacy, in turn, is meant to emphasise that what people do in private spaces – for instance, with whom they have sex – is not the business of the state, and cannot be the basis of discrimination. As such, it cannot be grounds for criminalising either the private acts or the persons engaging in them. It was on the basis of the right to privacy that the United Nations Human Rights Committee, in the historic 1994 case of Toonen v Australia, declared that anti-sodomy laws infringe upon human rights. Privacy was also the basis for challenging the controversial 1993 'Don't ask, don't tell' policy utilised by the armed forces in the United States, as well as for demanding the repeal of Sec 377 in the Indian courts.