Law Like Love: Queer Perspectives on Law

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Law Like Love

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SEXUALITIES General Editor: Gautam Bhan Other Books in the Series: Ruth Vanita Gandhi’s Tiger and Sita’s Smile: Essays on Gender, Sexuality and Culture Arvind Narrain and Gautam Bhan (eds) Because I Have a Voice: Queer PoliƟcs in India Maya Sharma Loving Women: Being Lesbian in Unprivileged India Gayatri Reddy With Respect to Sex: NegoƟaƟng Hijra IdenƟty in South India Rahul Roy A LiƩle Book on Men Sunil Gupta Wish You Were Here: Memories of a Gay Life A. Revathi Humaari Kahaniyaan, Humaari Baatein: Hijron ki Jeevaniyon ka ek Sankalan (Hindi) A. Revathi Our Lives, Our Words: Telling Aravani Lifestories (Forthcoming) Arvind Narrain and Vinay Chandran (eds) MedicalisaƟon of Sexual OrientaƟon and Gender IdenƟty: A Human Rights Resource Book (Forthcoming) Pramada Menon and Ponni Arasu (eds) Because I Have a Voice II (Forthcoming) John Burbidge The Boatman: A Memoir (Forthcoming)

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Law Like Love Queer Perspec ves on Law

EDITORS ARVIND NARRAIN ALOK GUPTA

YODAPRESS

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YODAPRESS

YODA PRESS 268 A/C, Vasant Kunj, New Delhi 110 070 www.yodapress.com

Published in India by YODA PRESS © Arvind Narrain and Alok Gupta 2011 The moral rights of the author have been asserted Database right YODA PRESS (maker) First Published 2011

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of YODA PRESS, or as expressly permitted by law, or under the terms agreed with the appropriate reprographics rights organisation. Enquiries concerning reproduction outside the scope of the above should be sent to YODA PRESS, at the address above. You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer.

ISBN 978-93-80403-14-4

Typeset in Minion 10/12.8 By Recto Graphics, Delhi 110 096 Printed at Kaizen Offset Pvt. Ltd., New Delhi 110 020 Published by Arpita Das for YODA PRESS

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No more than they can we suppress The universal wish to guess Or slip out of our own position Into an unconcerned condition. Although I can at least confine Your vanity and mine To stating timidly A timid similarity, We shall boast anyvay: Like love I say. Like love we don’t know where or why, Like love we can’t compel or fly, Like love we often weep, Like love we seldom keep. W. H. AUDEN (An excerpt from the poem ‘Law, Like Love’)

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Contents Series Editor’s Foreword Introduction Acknowledgements

x xi lvii

I. CONCEPTUALISING QUEER POLITICS OF LAW 1. QUEERING DEMOCRACY Arvind Narrain

1 3

2. ORDERING JUSTICE, FIXING DREAMS

25

3. QUEER IN THE TIME OF TERROR

43

4. RECOVERING THE ‘BODY’

67

5. THE RAZOR’S EDGE OF OPPOSITIONALITY

84

Naisargi N. Dave Rahul Rao

Shrimoyee Nandini Ghosh Padma Govindan and Aniruddhan Vasudevan

II. SECTION 377 AND ITS POLITICS 6. THE PRESUMPTION OF SODOMY Alok Gupta

113 115

7. SECTION 377 AND THE RETROACTIVE CONSOLIDATION OF ‘HOMOPHOBIA’

162

8. THE SOCIAL LIVES OF 377

174

9. GENDERQUEER PERSPECTIVES

203

Aniruddha Dutta Akshay Khanna Jyoti Puri

III. NAZ FOUNDATION V. NCR DELHI 10. DIGNITY IN AND WITH NAZ Upendra Baxi

11. A NEW LANGUAGE OF MORALITY Arvind Narrain

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229 231 253

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viii

Contents 12. READING SWARAJ INTO ARTICLE 15—A NEW DEAL FOR ALL MINORITIES

278

13. NAVIGATING THE NOTEWORTHY AND NEBULOUS IN NAZ

295

Tarunabh Khaitan Vikram Raghavan

IV. RE-THINKING FAMILY LAW 14. QUEER WOMEN AND THE LAW IN INDIA

Priyadarshini Thangarajah and Ponni Arasu

323 325

15. DEMOCRATISING MARRIAGE

338

16. LIBERATING MARRIAGE

355

17. POSSESSION IS 9/10THS OF THE BODY

378

Ruth Vanita

Thomas John Mayur Suresh

V. POLITICS OF PLEASURE 18. THE STATE OF DESIRE AND OTHER FLIGHTS OF FANTASY Namita Avriti Malhotra and Nitya Vasudevan

393 395

19. PULP FRICTIONS

430

20. ‘I’M ONLY HERE TO DO MASTI’

466

VI. QUEER EXPERIENCE OF THE LAW 21. THE MORAL ORDER OF BLACKMAIL

481 483

Maya Ganesh Mayur Suresh

Alok Gupta

22. SONG FOR PUSHKIN

510

23. PROPERTY AS SELFHOOD

530

24. PERSECUTING DIFFERENCE

535

25. CRISIS INTERVENTION BY LESBIT

554

Lawrence Cohen A. Revathi

Siddharth Narrain Sumati Murthy and Sunil Mohan

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Contents 26. ‘CELEBRATION OF PERVERSION’

563

27. ME, MY MOTHER AND MANY WAYS OF IMAGINING THIS ‘FUCKING LAW IN PLACE’

574

28. STRIVING FOR MAGIC IN THE ‘CITY OF WORDS’

581

NOTES ON EDITORS AND CONTRIBUTORS

587

Chayanika Shah

Akhil Katyal

Lawrence Liang and Siddharth Narrain

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Series Editor’s Foreword: Law like Life A year after the hailed Delhi High Court judgement on Section 377, the essays in this book are timely and critical. The judgement delivered by Justices Shah and Muralidhar on 2 July 2009 was not just about gay rights or about Section 377. It was, fundamentally, a judgement about democratic practice and citizenship; about a constitutional morality possessed, developed and exercised by citizens who sought to include rather than judge. It was a treatise on democratic disagreement and its lessons could not be more important for contemporary India. This book follows the tradition of that judgement. Its concern includes but extends far beyond Section 377, commonly understood notions of LGBT issues and concerns or bounds of the ‘community’. It speaks instead of sexuality understood broadly, expansively, provocatively, experientially, blissfully, erotically and certainly as an idea irreducible to identity. This is a volume that speaks of queerness to articulate sexuality as a politics that is built by, and impacts, all of us regardless of our sexual orientation at any given time. It is, very much, in the tradition of Yoda Press’s Sexualities series, a queer book. It also refuses to read Law with due deference to either its capital ‘L’ or its institutional power. Law here is not just text or canon or judge—it is everyday life. It is within our notions of ourselves as beings, peoples and citizens; it is within our understandings of what is true, fair and just; it is in the statutes, penal codes and sub-sections that both are used against us and that we reclaim and subvert in turn; it is within the images and aesthetics that are our daily visual landscape. Law is denied its blindfold in the texts of these essays and forced to lay itself bare. It is critiqued, it is undone, it is defended, but most of all, it is made relevant, alive, and open to our gaze. This volume is located at a time within queer movements, ideas and discourses when a critical expansion of ideas is possible. The demands of both real and strategic solidarity are less pressing and the weight of internal critiques can be borne and voiced both more loudly and with less hesitation. This is both a challenging and wonderful space to be in—it will push and test the limits of queerness and its ideas as it should, and indeed, as it must. New Delhi Gautam Bhan December 2010

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Introduction Arvind Narrain and Alok Gupta

This book finds itself at a defining moment for queer politics in India. On 2 July 2009, the Delhi High Court in Naz Foundation v. NCT, Delhi & Ors.,1 handed down a watershed verdict reading down Section 377 of the Indian Penal Code (IPC), 1860, decriminalising consensual sex between adults. The judgement was more than just a legal verdict as it marked the beginning of the process by which queer people became subjects of rights. The moment of the judgement is indeed the moment of queer people becoming citizens as the Court declared Section 377 to be violative of the rights of equality, privacy and dignity of queer people. The Court recognised that what was at stake was not only the decriminalisation of a particular sexual act but rather the decriminalisation of the intimate lives of queer people. It also recognised that sexuality was integrally linked to identity and that ‘[f]or every individual, whether homosexual or not, the sense of gender and sexual orientation of the person are so embedded in the individual that the individual carries this aspect of his or her identity wherever he or she goes’.2 The Court concluded that ‘[t] he expression of sexuality requires a partner, real or imagined. It is not for the state to choose or to arrange the choice of partner, but for the partners to choose themselves.’3 Thus even though the Naz decision effectively only decriminalises sodomy, at its heart it is about a positive recognition of the right to love. The emancipatory potential of the Naz decision is not confined to LGBT people alone, but has relevance for ‘all of us’. As Pratap Bhanu Mehta puts it, ‘this judgement is not about a minority, not about valorizing a lifestyle, it is about the values that made us who we are as a nation’.4 This recognition underscores that queer politics, like the Naz decision, is about all of us. What has been heartening about this positive recognition of queer people by the law is that it has been accompanied by a broader acceptance in public culture. So the change in the law has both been fed by and continues to feed into a culture of tolerance and inclusiveness which welcomes queer people as equal citizens. However, while the Naz verdict has met with immense enthusiasm and widespread support,5 it has also encountered some very determined opposition.

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The cultural and religious fringe have rallied with shrill hostility against the judgement, calling queer people diseased,6 unnatural, against Indian culture and reprehensible.7 Conservative critics are targeting the elitism of gay rights, as a battle for sexual pleasure and eternal fun with complete disregard to social priorities.8 Another response reluctantly admits that decriminalisation might be necessary, but argues that it must not be coupled with unnecessary positive rights.9 Though couched in different terms, what all three responses share is a deep-rooted aversion to granting any positive rights to the queer minority. The wider relevance of a decision like Naz is that it is not the end but the beginning of a nationwide conversation. Naz marked a certain high point in the way the nation’s attention was focussed on queer people. The judgement opened the doors for queer people to take the discussion to a national audience, to negate institutional homophobia and foster greater sensitivity towards the ‘variability of the human kind’.10 The Naz judgement thus marks a significant milestone in the struggle of queer people for recognition as citizens. The history which preceded this event can be marked in terms of the pre-colonial period when there was no official sanction against homosexuality, the long colonial period which stretched well into the post colonial era which criminalised sexual orientation and gender identity, and the relatively short period marked by a queer activism which grew from strength to strength, and of which the Naz judgement was a logical outcome.

A Queer Perspective on Law The Naz judgement, with its emphasis on the connections between sexuality, power and citizenship, is eminently queer in its approach. The word ‘queer’ itself inhabits a new political wisdom. For some it is a re-imagination of ideas of love and relationships; and for others a restructuring of the law, politics and society and a challenge to the way we inhabit the world. It represents those who fall out (and/or choose to stand out) of the contours of the hetero-normative social order. As Bhan and Narrain put it: The term ‘queer’ is, in some ways, both a deeply personal identity and a defiant political perspective. It embodies within itself a rejection of the primacy of the heterosexual, patriarchal family as the cornerstone of our society. In doing so, it rejects the assumption of compulsory heterosexuality—society’s firm yet unsaid belief that the world around us (and everyone in it) is heterosexual until proven otherwise. It captures and validates the identities and desires of gay, lesbian, bisexual and transgender people, but also represents, for many, an understanding of sexuality that goes beyond the categories of ‘homosexual’ and ‘heterosexual’.....

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Queer politics, does not speak only of the issues of these communities (Lesbian, gay, bisexual, trasngender) as ‘minority issues’, but instead it speaks of larger understandings of gender and sexuality in our society that affect all of us, regardless of our sexual orientation. It speaks of sexuality as a politics intrinsically and inevitably connected with the politics of class, gender, caste, religion and so on, thereby acknowledging other movements and also demanding inclusion within them.11

This book is an attempt to draw these queer margins into the centre of the political debate. In the public perception, the notion of queer rights had become identified with the movement against Section 377 of the Indian Penal Code. However, queer rights are not confined to the question of Section 377 alone, but are about wider notions of autonomy and personhood. A queer perspective on law is something which can inform not only political engagement and the process of legal change but also the way legal history is perceived. A queer perspective thus encompasses both a different form of political engagement as well as a different way of reading the history of laws controlling desire and sexuality. It is a call to recover lost voices through a rereading of the law from the viewpoint of the queer subaltern and paying attention to new voices that have emerged in the process of political engagement. The rest of the Introduction will attempt to systematically develop a queer perspective on law. The first part of the Introduction will focus on the long colonial period with its seamless spillover into the post-independence era. This was a period when there were no vocal and visible queer voices and when the colonial power introduced into India laws which defined the queer as ‘unnatural’ and as being ‘systematically addicted to the commission of non bailable offences.’ Key to these processes was the introduction of Section 377 of the IPC and the Criminal Tribes Act respectively. However, in spite of the enforced silence of queer people, as this section will argue, we need to unearth the voices of queer people even as they attempted to resist the law. The second part focusses on the contemporary era of queer struggle. This is the time period when queer voices emerged initially as isolated voices which gathered momentum as groups, and then began to challenge the socio-political as well as legal basis of their subordination. This is a period marked by rich internal debates on the differences between gender identity and sexual orientation, and the understanding of how class, gender and sexuality intersect in the lives of hijras, kothis and other transgender people. This is also the period when the understanding of sexuality broadened from the initial gay and lesbian to include a whole range of identities right from kothis, hijras and jogappas, to other traditional identities. This period can roughly be dated from the dismissal of two hitherto unknown policewomen, Leela and Urmila, from their jobs in 1988,

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based on the perception of their being lesbians, and culminates in the decision of the Delhi High Court in Naz Foundation v. NCT Delhi and others in 2009. The final part will make an argument for the future directions of the queer struggle in India. It is pegged on answering the question of what direction the queer movement might take, if we assume that Section 377 has become a part of history.12 This section locates the history of the queer struggle within a larger history of the struggle against forms of social subordination in India. In particular it argues that the order of nature that Section 377 speaks of is not just about non-procreative sex, but is about forms of intimacy which the social order finds disturbing. Thus the queer struggle is naturally also about other forms of transgression such as inter-caste and inter-community relationships which are sought to be curbed by society. What links queer people to couples who love across caste and community lines is the fact that both are exercising their right to love at enormous personal risk and in the process disrupting existing lines of social authority.

Towards a history of the queer subject of law The historical existence of queer people is rendered invisible through silence, by a dismissal of same-sex tradition as completely irrelevant, and by a willful attempt to heterosexualise existing queer traditions.13 To focus on these stories of samesex love in Indian history against the dominant trend of Indian historiography is a task which has been undertaken by queer historians. One of the pioneering works in this regard is Ruth Vanita and Saleem Kidwai’s Same-Sex Love in India in which the authors look at mythology, literature and history with a view to questioning the silences, misinformation and the bowdlerisation of the queer part of our past.14 In their history of same-sex love they point to an array of texts in which the closest relationships are between men and men, or women and women. One startling example of the kind of literature unearthed by Kidwai and Vanita is the unexpurgated version of the seventeenth century poem, ‘Haqiqat alFuqura’, which describes the love of two men, one Hindu and the other Muslim, namely Hussayn and Madho.15 Similarly the work of Ruth Vanita in her excellent introduction as well as translation of the early twentieth century ‘Chocolate’ stories of Ugra, captures the way homosexuality continues to be written about in an age which is quite hostile to any public expression of it. Vanita’s point is that Ugra, under the guise of condemning homosexuality, manages to provide a remarkably sympathetic account of homosexuals. By doing so, Ugra incited the first public debate on homosexuality in India in the 1920s in which a range of people participated, including Mahatma Gandhi and Munshi Premchand.16 While the work of understanding queer history both in the pre-colonial as well as colonial era has begun, there is, in contrast, very little work which attempts to understand more specifically the interface between queer people

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and the law in the pre-colonial and colonial eras.17 In short, there has been no opening out of a field of queer legal history focussing on both the history of laws impacting queer people as well as the responses of queer people to legal controls. This is a major gap, particularly if we understand that the major laws which impacted queer people were all introduced in the colonial period. The further question as to how queer people responded to the law’s persecution gets even fewer answers. This section will attempt to locate the roots of homophobia in law as well as try to hazard some guesses as to what a response to the law might have been like. It is impossible to contextualise the roots of homophobia in law without reference to colonial law. The great colonial experiment with codified law in India both introduced novel and alien crimes of ‘unnatural intercourse’, as well as discontinued the organic growth of customary, religious and tribal law. Dr Upendra Baxi in his classic analysis on the cultural embeddedness of Indian Law18 argues that colonial intervention created a new form of law, variously described as ‘Anglo-Hindu Law’ or ‘cosmopolitan, high culture law’. The deliberative growth of customary and communitarian law was abolished. The British famously commissioned Maulvis and Hindu Priests to put down their version of scriptural law. The question to be pondered over is: did the creation of this form of ‘high culture law’ impact the existing ways of socially recognising same-sex intimacy? Ruth Vanita for example, forcefully argues that irrespective of the historical course taken by mainstream, codified law, same-sex marriages would be one such continuing customary practice which survives in customary Indian law.19 While homosexuality was subject to some strictures in pre-colonial texts such as the Manusmriti, it is unclear whether it was homosexuality per se that was sought to be punished or more general sexual transgression or the violation of caste norms.20 It was only colonial law which introduced clear strictures against homosexuality. This is enforced by laws like the notorious Section 377 of the Indian Penal Code, Criminal Tribes Act, 1871, and numerous prohibitions under the broad guise of nuisance, obscenity and public morality, all colonial codifications, which seek to enforce a conservative hetero-normative sexual order.

Section 377 of the IPC It was through Section 377 that for the first time, homosexuality was criminalised explicitly as ‘unnatural sex’, with a serious punishment leading up to life imprisonment. The Indian Penal Code was drafted by Lord Macaulay in 1837, but came into force only in 1860.21 Section 377 of the Indian Penal Code, the dreaded source of homophobia throughout the former British colonies, read as follows:

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Introduc on Section 377: Unnatural offences – 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 10 years, and shall be liable to fine. Explanation – Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

The core problem with Section 377 has been its blanket coverage of both coercive as well as consensual sex within its prohibition. The wording of ‘carnal intercourse’ remains vague enough to encompass all sexual acts which are nonprocreative in nature. The broad wording of the provision itself gives the police enough power to target queer people arbitrarily. The social stigma around homosexuality, combined with the vague and general nature of Section 377, makes the provision akin to a blackmailers charter. Section 377 also acted as a significant marker of second class citizenship for queer people during both the colonial period and significant parts of the post independence era when the queer voice was entirely absent.

The Criminal Tribes Act, 1871 While Section 377 has attracted a fair share of notoriety, what has remained relatively unnoticed is the Criminal Tribes Act, 1871, which specifically targeted hijras. The Criminal Tribes Act, 1871, is a product of repugnance of the British administration towards certain tribes and communities who were in the words of the statute, ‘addicted to the systematic commission of non-bailable offences’.22 These communities and tribes were perceived to be criminals by birth, with criminality being passed on from generation to generation. It fitted in well with the hierarchical Indian social order, in which some communities were perceived as unclean and polluted since birth. The idea of criminal tribes was based on the notion that ‘crime as a profession passed on from one generation of criminal caste to another: like a carpenter would pass on his trade to the next generation, hereditary criminal caste members would pass on this profession to their offspring.’23 The link between sexual non-conformity and criminality was made more explicit in the 1897 amendment to the Criminal Tribes Act of 1871, which was sub-titled ‘An Act for the Registration of Criminal Tribes and Eunuchs’. Under the provisions of this statute, a eunuch was ‘deemed to include all members of the male sex who admit themselves, or on medical inspection clearly appear, to be impotent.’24 The local government was required to keep a register of the names and residences of all eunuchs who are ‘reasonably suspected of kidnapping or castrating children or of committing offences under Section 377 of the Indian Penal Code.’25 Any eunuch so registered who appeared ‘dressed or ornamented

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like a woman in a public street….or who dances or plays music or takes part in any public exhibition, in a public street….[could] be arrested without warrant and punished with imprisonment of up to two years or with a fine or both.’26 If the eunuch so registered had a boy under the age of 16 years within his control or residing in his house, he could be punished with imprisonment of up to two years or fine or both. A eunuch was considered incapable of acting as guardian, making a gift, drawing up a will or adopting a son.27 A phrase used by a British officer for the criminal tribes is equally appropriate to describe the colonial perception of the eunuchs: ‘they are absolutely the scum, the flotsam and the jetsam of Indian life, of no more regard than the beasts of the field.’28 The sexual non-conformity of the eunuch thus earned severe strictures and penalties from the colonial administration. Narrain writes: Being a eunuch was a criminal enterprise, with surveillance being the everyday reality. The surveillance mechanism criminalised their existence as the quotidian reality of a eunuch’s existence, namely cross-dressing, was a criminal offence. Further the ways in which eunuchs made their livelihood, i.e. singing and dancing, were criminalised. Thus, every aspect of the eunuch’s existence was subject to surveillance, with the surveillance itself being premised on the threat of criminal action. The police were thus an everyday reality in the lives of eunuchs. Further, the very concept of personhood of eunuchs was done away with through disentitling them from basic rights such as making a gift or adopting a son.29

Jawaharlal Nehru, in strong criticism of the Criminal Tribes Act stated: I am aware of the monstrous provisions of the Criminal Tribes Act which constitute a negation of civil liberty… An attempt should be made to have the Act removed from the statute book. No tribe can be classed as criminal as such and the whole principle is out of consonance with all civilized principles of criminal justice and treatment of offenders.30

However, the eunuchs did not merit a single voice from the nationalist movement in their support and were completely marginalised. Their despised (a)sexuality rendered them unworthy of any sympathy, far less any rights. The Criminal Tribes Act was repealed by the government of independent India, but the law continued in the statute books of various states. Illustrative is the Andhra Pradesh (Telangana) Eunuchs Act 1329 F. which continues to be in force in Andhra Pradesh even post independence. The Act reproduced the provisions of the 1897 amendment to the Criminal Tribes Act. Even in states which had no such law, repeal had no positive impact. This is illustrated by the continuity in law enforcement with officials treating hijras as thieves and hence as a criminal tribe. As the Peoples’ Union for Civil Liberties-Karnataka (PUCL-K) noted:

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Introduc on What is important about this historical background is that the contemporary perception of hijras as thieves as well as the brutal violence which is inflicted against them can be traced back to this colonial legislation which stands repealed today in theory but continues to exist as part of the living culture of Indian law.31

The invidious role played by the Criminal Tribes Act was also recognised by the Naz judgement when the judges noted that, ‘[w]hile this Act has been repealed, the attachment of criminality to the hijra community still continues.’32

The role of the samaj While a surface reading might easily pin the emergence of legal homophobia on the array of laws introduced by the colonial powers, the question which still needs to be answered is whether British law was only putting a judicial imprimatur on already existing prejudice and strictures against the queer community. Will such a reading of societal complicity in the law’s prohibitions provide an answer as to why, so many years after the coming into force of the Indian Constitution, these laws continue to exist on the statute books or continue to be a part of the ‘living culture of Indian law’? Is that the reason why the radical constitutionally mandated transformation of caste and social-hierarchies has completely missed the queer community? Does homegrown homophobia and the perception of homosexuals as deviants, manifest itself through the ‘samaj’?

Vanita and Kidwai argue: [Ancient texts] tend to take a somewhat derogatory view of those who are homoerotically inclined. The range of terms used for such persons suggests a groping for words rather than complete social integration. Many of these terms spring from heterosexual assumptions ascribing effeminacy, impotence, or some sort of inadequacy to non-heterosexual persons.33

Dutta takes this analysis forward and, in an essay in this book, argues that colonial laws like Section 377 of the IPC become ‘part of the process of the re-mapping and re-figuration of extant categories of gender/sexual difference vis-a-vis a modern taxonomy of sexual acts and subjects, and allows for the retroactive consolidation of tendencies phobic or resistant to such difference into a loose yet powerful assemblage of something like modern homophobia.’ The contemporary salience of these age-old debates around the role of the samaj in regulating sexuality is best illustrated by the statement of RSS ideologue S. Gurumurthy on the Naz judgement: The king or the state in India had refrained from handling most issues which the society or families could handle. It is the colonial state, with its laws and courts, that began to intrude the sovereign domain of the family and society. The Indian discipline was always built around unenforced social and family norms; not state

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laws. Self-restraint and shyness were the tools to regulate the deviants from the norms, not the police or courts. Even today, it is this non-formal moral order – read dharma – not the laws of Parliament or State assemblies, that largely govern this society…. In the Indian tradition, homosexuals, as elsewhere, were thus regarded as deviants. But, here, unlike in the Abrahamic religions, the right of these deviants to exist without being punished was never denied; and will never be. Yet no one can argue here or elsewhere that homosexuality is a virtue. No law or court of law can declare it as a virtue.34

Coming from a completely different perspective, yet agreeing with some part of what Gurumurthy says, Ranajit Guha makes a powerful argument that the domain of sexuality is policed not so much by the state in India but by the samaj.35 Guha notes that the control on sexuality is not exercised by law alone, but a larger notion of the ‘samaj’—a term in which the institutional aspects of society and their moral and political attributes are happily collapsed. Thus the control of sexuality devolved on those authorities and instruments—panchayats, prescriptions, prohibitions, etc., which governed the system of alliance.36 In any discussion regarding the control of sexuality, the role of the samaj is far from benign. This is as true for the Bengal of 1849 which Guha describes, as it is for the India of the twenty-first century, where couples marrying across caste and religious lines are killed for violating the rules of the samaj. In fact in contemporary India the challenge posed by the norms of the samaj to the right of individuals to lead autonomous lives will be discussed in the final section. Suffice it to say that one cannot discuss regulation of sexuality in colonial India by an exclusive reference to the law alone.

The voice of the queer subaltern While S. Gurumurthy discovered a benign role for the samaj, the perception might be greatly altered if one looks at it from the point of view of the person who is being censured or controlled. The task of discovering the voice of this latter individual remains one for queer legal scholarship. What is of tremendous relevance is the work of the subaltern school and in particular the work of Ranajit Guha. In a moving piece titled ‘Chandra’s Death’, Guha poetically reconstructs the life and thoughts of a woman who gets pregnant out of wedlock. By directing our attention to persons whose lives are not normally deemed worthy of any attention, Guha makes us listen to the ‘small voice of history’.37 Guha, in this classic work of subaltern studies, looks at the records of a case in 1849 which involves the trial for murder of the relatives of a hitherto unknown person called Chandra. The reason Chandra dies is because she is administered a herb which is supposed to abort her foetus, but instead, Chandra herself is killed by what she imbibes. The judicial fragment which Guha unearths documents the

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trial of Chandra’s relatives who, in the process of trying to protect her from the social consequences of an illicit relationship, perform an abortion on Chandra and inadvertently end up killing her. Through a close reading of the judicial record, Guha builds a picture of a society that is harshly intolerant of a relationship outside the social framework of marriage. Alluding to the patriarchal biases in society, Guha notes that once Chandra gets pregnant she is unequivocally abandoned by the man, and her family embarks on the ill-fated abortion which results in Chandra’s death. Guha notes that Mangaram, the man who got Chandra pregnant and abandoned her, callously admits to the illicit relationship and tells her family to abort the foetus or face expulsion from the samaj. This is in line with the dominant patriarchal morality which dictates that women who have children out of wedlock must be punished. In the judicial fragment, Mangaram exhibits nothing of a ‘lover’s sentiment’ and does not acknowledge the sharing of ‘sexual pleasure’ with Chandra. Instead Mangaram only voices the concerns of ‘a custodian of patriarchal ethics.’ Much in the nature of Chandra’s absent voice, the queer person remains absent in the telling of history in the colonial period. Since the queer person as a subject of history is still largely invisible, the task of recovering her voice remains an open-ended project. Similar to Guha’s attention to the ‘subaltern life in its passage through time’, the focus of a queer legal history could be to discover the voice of the queer subaltern in existing legal records. To indicate the nature of the task for queer legal history, we attempt to reread the decision of Queen v. Khairati in 1884, the first reported case of the use of Section 377 against a hijra. The ironically named Justice Straight was called upon to adjudicate whether a person who habitually wore women’s clothes, had been diagnosed with syphilis, and exhibited signs of a habitual sodomite, had indeed committed the offence of sodomy. The Sessions Court judge noted: The man is not a eunuch in the literal sense, but he was called for by the police when on a visit to his village, and was found singing dressed as a woman among the women of a certain family. Having been subjected to examination by the Civil Surgeon... he is shown to have the characteristic mark of a habitual catamite – the distortion of the orifice of the anus into the shape of a trumpet and also to be affected with syphilis in the same region in a manner which distinctly points to unnatural intercourse within the last few months.38

Justice Straight decided that while he ‘appreciate[d] the desire of the authorities at Moradabad to check these disgusting practices’, he was unable to convict Khairati, as ‘neither the individual with whom the offence was committed, nor the time of committal nor the place is ascertainable’.39 The judgement only records the voice of various figures of authority. The Civil Surgeon conducts an anal examination and finds that the shape of the anus

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indicates that sodomy was committed. The district authorities of Moradabad find the practice of singing while dressed as a woman sufficient to arrest Khairati and Justice Straight appreciates the desire of the authorities to ‘check these disgusting practices.’ The silence in the judgement is of the voice of Khairati herself. We can infer that Khairati, though born a man, identified as a woman and lived her life as one. The fact that she never denies or defends the fact that she ‘dressed and ornamentated [sic] as a woman’, can be read as an indication of how important her chosen gender was for Khairati. In spite of the fact that she is arrested, subjected to an anal examination, is found to be not a eunuch but possessing male genitals, her chosen gender survives all efforts by her tormenters to criminalise what to her must have appeared ‘natural’. What implicates Khairati as a potential criminal under Section 377 is her gender transgression, a reality which Khairati never denies but instead continues to stubbornly own. The insistence on the gender of her choice, gives Khairati a dignity which is difficult to obliterate. Tracing a queer legal history is thus not only about studying the colonial roots of homophobia; it is equally about recovering the voices of its victims. More often than not, the victims have been rendered voiceless and a queer legal history has to read into what has not been said, and ‘dignify [the silence]...as the textual site of a struggle to reclaim for history an experience buried in the forgotten crevice of our past.’40

Creating a queer legal consciousness: Activism as praxis There are many ways in which the consciousness of a community might be formed. Social interactions between people who begin to share their thoughts and feelings are the initial steps towards the formation of a sense of commonality. The sense of community emerges once there is a space where experience can be shared. With respect to the queer community, the sense of sharing common experiences was forged through a gamut of socio-political spaces. The women’s movement nurtured spaces for lesbian and bisexual women, thereby helping to bring about a sense of community among lesbian and bisexual women. Similarly the rise of gay, lesbian and bisexual support groups in the major Indian cities was another such space which nurtured a feeling of community. One should of course mention the original site of the public park which itself became a space where communities of gay, bisexual and hijra people began to form. The beginning of interventions to prevent the spread of HIV/AIDS such as drop-in centres among vulnerable communities such as the MSM (men who have sex with men) and transgender communities also enabled the formation of a sense of community. While various communities began to be formed around these spaces of interaction, we will focus our attention on what accounted for the formation of a politicised community, i.e., a community which understood its marginalisation to be the result of the exercise of a certain form of power, and not as a part

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of the natural order of things. This political consciousness of queer people as a community has been formed particularly around the law, involving both a history of opposition to unjust laws and practices as well as a claim for rights. In short, a queer legal consciousness is both a deep political awareness of the role of law in marginalising queer people as well as an emerging claim for equal citizenship. One of the first sparks for the emergence of the political consciousness of queer people in India was Section 377 of the Indian Penal Code, 1860, which conceptualised ‘queer’ as unnatural. It should be noted that a supposedly alien law has managed to survive for over 158 years, impervious to both the anticolonial struggle as well as the formation of a democratic India, which guaranteed Fundamental Rights to its citizens.41 It was only a good four decades after independence, that India saw the beginning of an indigenous opposition to an alien law through the emergence of a queer community which was politicised by virtue of the sheer injustice of the law.42 What Section 377 did was to bring together a range of communities that were held together by a commonality. This commonality is a ‘state of injury’, and a condition of marginality made evident by Section 377. The opposition to this state of marginality gave birth to a queer political consciousness forged in the crucible of struggles around the law. This emergence of a queer political consciousness is signposted by activist publications like the ‘Less than Gay Report’ (1991), ‘Campaign for Lesbian Rights’ (CALERI Report) (1997), ‘Humjinsi’ (1999), and the PUCL-Karnataka reports on Human rights violations against sexuality minorities and the transgender community in 2001 and 2003 respectively. These documents, as they articulated a greater vision for queer rights, were significant milestones for change and created a foundation for a demand for rights. This section will outline some of the key processes and milestones that resulted in the formation of a queer political consciousness, which begins to claim full citizenship in the Indian nation and also, the process of the becoming of the queer citizen.

Protesting injustice: Emergence of queer activism The first collective and public reaction to the various injustices perpetrated on queer people was when the AIDS Bedhbhav Virodhi Andolan (ABVA) organised a public demonstration in 1992 against police harassment of gay people. This is the first documented protest for gay rights in India. Suddenly furtive and silent same-sex interaction became visible, the subject of both opposition and a demand for rights. ABVA in a memorandum submitted to the police asked: When will the police get rid of its homophobia? Is it a crime for two consenting adults (of the same sex) to meet in a public place, become friendly and have a healthy

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discussion on sexuality or any other matter—which may or may not end up in sexual activity at a place other than a public place?43

Through a pathbreaking report on queer rights called Less than Gay, ABVA created a prophetic vision of queer rights. It placed the violence faced by gays and lesbians within a wider culture of intolerance by the medical establishment, activist groupings and even intellectual circles. The Report spoke of subversive queer desire and the ‘intimate experiences, fears and longings of gay men and lesbians’. What it succeeded in doing as early as 1991, was to provide an explanatory framework which was then picked up and elaborated by queer activism in the coming years.44 The 1992 ABVA protest against police harassment was not the last and the next two decades would be followed by numerous other such protests. Queer activism was now defined by the willingness to respond to violations, which began to capture national and even international attention. There were several campaigns of a local nature (much on the lines of the ABVA protest in 1992) against police harassment and violence.45 Slowly these campaigns began to reverberate nationally and even internationally. Ten years later, when a case under Section 377 was filed against staff of an organisation working with HIV/AIDS, it resulted in widespread protests. The case popularly known as the ‘Lucknow four’, refers to the arrest of four HIV/ AIDS activists and the sealing of two organisations working with HIV/AIDS on grounds of conspiracy to promote homosexuality.46 At the end of a sustained campaign which witnessed support in major cities across India, the four activists were finally released after having spent over a month in jail. The Lucknow case also demonstrated that the very presence of Section 377 on the statute books meant that the potential for its use was always there. As long as it continued to exist on the statute books, Section 377 could never be a dead letter of the law. The campaign against the arrests in Lucknow represented a new activist zeal. It resulted in the formation of People for the Rights of Indian Sexual Minorities (PRISM), one of the first political groups focussing on queer rights in Delhi, which later played a crucial role in the formation of a coalition called Voices Against 377. As an intervenor in the Delhi High Court, Voices was instrumental in highlighting the abuse of human rights implicit in Section 377.47

Asserting the right to love: The struggles of queer women While the first public demonstration was the 1992 ABVA protest, it was as early as 1988 that two policewomen called Leela and Urmila decided that they wanted social recognition for their relationship and proceeded to get married. Though both women were dismissed from service on the specious grounds of ‘long leave of absence’, their courageous act served as an inspiration for emerging queer

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activism.48 ABVA appositely referred to Leela and Urmila as ‘frontier women in the country’s social landscape with their courageous and unusual marriage.’49 The much publicised marriage of Leela and Urmila was followed by a Fact Finding Report by ABVA in 1999, called, ‘Like People Like Us’ on the joint suicide attempt by Mamta and Monalisa. The Report showed how lesbian and bisexual women often find themselves trapped in a prison whose walls are made up of the normative notions of gender and sexuality. It demonstrated how lesbian women’s expressions of personhood are so hemmed in by patriarchal constraints that suicide seems to be the only option left.50 While the report inaugurated a discussion around some of the core issues faced by queer women in India, what really brought a national spotlight on queer women was the controversy over the film Fire. Directed by Deepa Mehta, the film depicted a relationship between two women with great sensitivity.51 The Hindu Right called for the film to be banned. The controversy rocked the Indian Parliament, and the Supreme Court intervened against the attempts to ban the movie.52 What converted an academic discussion into a raging street battle was the decision of the Shiv Sena to attack theatres where Fire was being screened. Such blatant attacks on the very screening of Fire mobilised civil society in India to support the core democratic value of ‘freedom of speech and expression’. These extremist groups worked tirelessly against the screening of Fire, and then reacted similarly during the release, almost 10 years later, of another controversial movie called Girlfriend.53 The struggle to protect the release and screening of Fire was framed as a free speech issue, perhaps almost consciously overshadowing its depiction of lesbianism. This omission resulted in the formation of CALERI (Campaign for Lesbian Rights), which sought to put lesbian rights at the center of the debate. However, the articulation of lesbian rights was done with much trepidation. As one of the protagonists put it: Even as organizers prepared for the demonstration…there was conflict among us… some [protested] the use of the word ‘lesbian’ in the press statement. There was pressure to speak instead of ‘women-women relationships.’ There were problems with the word ‘sexuality’....There was an assertion that the person on the street was not ready to hear these words.54

What CALERI’s work did, in the words of another protagonist, was to challenge the assumption that lesbianism was a ‘question of personal choice—therefore not a legitimate area of concern when the broader framework is democratic [or] human rights.’55 Due to the work of CALERI, the mainstream human rights movement had to contend with the issue of the ban on Fire not just as a freedom of speech issue but also as a lesbian rights issue.

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Broadening queer concerns: Emergence of struggles based on gender identity Queer activism of the late 1980s and early 1990s focussed on the concerns of the lesbian, gay and bisexual community. However, as the 90s progressed, more and more articulate transgender women joined the queer struggle. The first public recognition of the concerns of the transgender community was the publication of the PUCL Report on ‘Human rights violations against the transgender community’. By focussing on the stories of hijras and kothis, the 2003 report foregrounded the issues and concerns of the transgender community, and by doing so, broadened the very understanding of who is queer beyond lesbian, bisexual and gay identities. This was significant as previously, the concerns of queer activism had been largely confined to lesbian, gay and bisexual people. The 2003 report also highlighted the need to incorporate gender-based demands into queer activism like the right to define and express one’s gender identity.56 Sexual orientation could no more be the sole basis of queer politics, as the source of ‘extraordinary’ violence was evidently the ‘everyday’ transgression of gender norms.57 The 2003 report, by focussing on the rights of hijras and kothis, also opens queer politics to the issue of class and economic disparities that form a central axis of division in Indian society.58 The demands for gender identity documents, ration cards and voting rights for hijras, and access to free healthcare and education are a product of an inclusive queer politics that goes beyond the lens of sexuality and perceives the hijra community through multiple frameworks of gender, sexuality, religion, caste and class.

The struggle against the violence of ‘normal times’ The first gay protest by ABVA, the protests around Fire and those around the Lucknow arrests were inaugural moments of queer activism. The ‘extraordinariness’ of the activist response in these cases disguised the ‘ordinariness’ of the everyday violence which the queer community are subjected to. Kalpana Kannabiran in the context of gender based violence refers to this as ‘the violence of normal times’.59 This violence faced by the queer community has been documented by the PUCL-K in two separate reports in 2001 and 2003. The 2001 report demonstrated that the impact of Section 377 had to be understood not merely in terms of decided cases but also in terms of the filing of an FIR or the mere threat to file an FIR, as well as the practices of sexual violence, extortion, abuse, outing and illegal detentions by the police, all of which leave no legal trace. The 2001 report also outlined the various structures which are responsible for queer oppression apart from the law including the police, the family, medical establishment and popular culture.60

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The everydayness of violence also relies for its structural underpinnings not only on legal structures which criminalise the queer person, but also on laws which invisibilise him/her. Thus queer people are hypervisible in criminal law, but in Judith Butler’s phrase, remain ‘unviable unsubjects’61 in civil law. The everydayness of violence faced by them extends to their inability to access civil rights. Queer people, as a priori criminals, are absent from the records of who the state treats as a citizen, deserving of rights and benefits. They are neither named nor prohibited in civil law, and queer desire and its potential to form meaningful relationships is silenced except when referred to as ‘unnatural intercourse’. Mihir Desai writing in Humjinsi, provides a vantage point on the heterosexual underpinnings of the entire legal system. By a detailed analysis of the laws relating to marriage, divorce, inheritance, labour and insurance, he concludes that to benefit under any of these laws, we must be related either by blood or marriage. A gay or lesbian partner would not be entitled to inherit property on his partner’s death or to any labour law benefits or benefits from insurance policies, as all such benefits only accrue to members of the ‘deserving’ heterosexual family.62 To address the wider gamut of issues which define the ‘ordinariness of everyday violence’, the essential legal roadblock—Section 377—remained. Though at various points in time, queer activists have tried to focus on issues beyond 377, attention has invariably returned to the infamous section as the law remained a serious impediment to other legal reform.

All that is wrong with our sexual universe: Symbolism of Section 377 When ABVA organised the first public protest against Section 377 in 1992, not too many people knew what was being protested. However by 2006, Shefalee Vasudev could write in the Outlook magazine that Section 377 of the IPC no longer needs a qualifying line. In conversation and writing, it is now a metaphor— straight out of the imaginary thesaurus that lists new meanings in the New India. The more time we take to kill it, the longer it will live as a reference to talk about sexual minorities, human rights and HIV/AIDS issues.63 What marked a significant turning of the tide in terms of public opinion was the open letter in 2006 by Vikram Seth and Amartya Sen arguing for decriminalising an expression of romantic love. The open letter was built upon over a decade of work by LGBT activists in the form of Fact Finding Reports, activist interventions, conferences and writing in the media on the pernicious effects of the law. Vikram Seth, condemned Section 377 as a law which ‘punitively criminalises romantic love’.64 Amartya Sen, in a letter written in support of this, argued:

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[G]ay behaviour is, of course, much more widespread than the cases that are brought to trial. It is some times argued that this indicates that Section 377 does not do as much harm as we, the protesters, tend to think. What has to be borne in mind is that whenever any behaviour is identified as a penalizable crime, it gives the police and other law enforcement officers huge power to harass and victimize some people. The harm done by an unjust law like this can, therefore, be far larger than would be indicated by cases of actual prosecution.64

Together these two letters signalled a significant mobilisation of public opinion against Section 377. In 1991, Less than Gay had lamented that only 19 out of the 80 prominent intellectuals in India had responded to a survey on homosexuality, out of which only a handful had anything positive to say. The letter by Vikram Seth got over 100 signatures of prominent persons belonging to the fields of education, law, theatre, film, arts, academia, journalism, social movements, bureaucracy and medicine, thereby signalling a major shift in understanding among what ABVA called ‘opinion makers’.65 The letter itself was reported widely in both the national and international media and played a role in consolidating a certain level of public opinion as unequivocally in favour of gay and lesbian rights.66

Queer Pride: Out of the closets and onto the streets Protests have been integral to the recognition of queer people as human beings entitled to rights. Protests have often been organised around local issues of police harassment in Bangalore, Delhi and Bombay. With the arrests in Lucknow in 2004 eliciting protests in Delhi, Bangalore and Bombay, they took on a more national character. While the protests were clearly about unacceptable levels of police violence, the large queer presence at the World Social Forum, 2004, in Mumbai, had a more celebratory air. The Pride marches which began in 2003 in Kolkata on 29 June (Stonewall Day) before spreading to the other major Indian cities, have taken forward the spirit of celebration which characterised the queer presence at the World Social Forum (Mumbai). The symbolism of 29 June was that it commemorates one of the most significant days in global queer history as it is the date when the homosexual community in New York began to spontaneously protest against the police raid of a bar called Stonewall in Greenwich Village. It marked the beginning of the queer movement in the west. The character of the Pride marches is such that unlike the other protests, these marches were not focussed on the issue of violations alone, but rather became a way of celebrating queer lives in all their diversity. On 29 June 2008, Kolkata was joined by Delhi and Bangalore as the Pride march focussed national attention on the demands of the queer community. It

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was organised simultaneously in Delhi, Bangalore and Kolkata (it was the sixth Pride march in the city of Kolkata). The Pride marches were unique because, for a change, queer people were mobilised around issues of their choosing and at a time of their choice. Later that year, the queer community in Mumbai marched on 16 August, a day after the Independence Day celebrations, specifically to highlight how the queer community still lacked its freedom. Symbolically the march started from August Kranti Maidan where Gandhi had issued his ‘Quit India’ call, to further reinforce the continued alien legacy of Section 377.67 Queer pride marches provide a platform for lesbians, gays, bisexuals, hijras and kothis to come together. In a very public sense it fostered a sense of a diverse and vibrant community which cuts across boundaries of class and gender. The placards in the Pride ranged from ‘I am the pink sheep of the family’ and ‘Hindu Muslim Sikh Isai Hetero Homo Bhai Bhai’, to demands such as ‘Repeal 377’ and ‘Provide us with ration cards’. The Pride thus provided a valuable corrective to the notion that sexuality was an elitist preoccupation. The Pride marches had equal numbers of heterosexual friends, family members and general supporters who came out to march. The marches were celebrated with increased fervour and enthusiasm in 2009 as well for the second year running, with more cities such as Bhubaneshwar and Chennai joining in.

Naz Foundation v. Government of NCT of Delhi and others: The culmination of a battle? In 2001, the Lawyers Collective HIV/AIDS Unit, on behalf of Naz Foundation, filed a constitutional challenge to Section 377 in the Delhi High Court on the grounds of equality, privacy and freedom of expression.68 Right from the beginning this Public Interest Litigation was unique in the consultative mode adopted by Lawyers Collective who, by organising consultations, kept the community involved and informed about the various decisions to be taken during the various stages of the litigation process. In 2004 however, before any substantive arguments could be addressed, the petition was dismissed by the Delhi High Court on grounds of locus standi.69 It was only when the petitioners filed a review petition before the Supreme Court that the matter was remanded back to the Delhi High Court which was directed to hear the matter on account of the seriousness of the issue raised in 2006.70 In the course of the litigation, others joined in to oppose the demand for reading down the law, namely Joint Action Kannur (JACK) and B. P. Singhal who argued that HIV does not cause AIDS and that Section 377 was essential to protect Indian society. The interventions opposing the petition of Naz Foundation sparked a vigorous discussion in one of the consultation meetings called by Lawyers Collective about how the petitioner could be further supported. This discussion resulted in the decision to file an intervention in the name of a Delhi-based coalition of sexuality, gender and child rights groups called ‘Voices against 377’.

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As the petition wound its way through the Delhi High Court, it became more visible in the public eye. The proceedings in the case were widely reported and keenly followed by national and local newspapers. The fact that after seven years of filing, the final arguments actually began in September 2008, made the possibility of change more imminent. The seven years served as an important gestation period garnering more supportive public opinion and seeing the emergence of a more articulate queer political voice. For example, before the arguments began in September 2008, the first Pride marches across the country were still fresh in memory. The fact that the judgement in 2009 was preceded by a second year of Pride marches, although coincidental, points to the uniqueness of the struggle against Section 377, in that it was simultaneously a political demand and a legal battle. The judgement came at a fortuitous moment of convergence between legal and political thinking and social attitudes: • Homosexuality and homosexuals were a lot more visible in 2009 than in 2001. More queer people spanning multiple professions ‘came out’ as gay, bisexual, transgender or lesbian.71 Homophobia which feeds on the invisibility around discussions on sexuality was increasingly being countered by more and more people ‘coming out’. The larger political ramifications of the personal act of coming out cannot be underestimated. The most fitting illustration of the role that coming out plays in changing social attitudes is the fact that in 1986, when the US Supreme Court voted to retain the anti-sodomy law in Bower’s v. Hardwick,72 not a single judge knew anyone who was gay or lesbian.73 However by 2003 in Lawrence v. Texas,74 when the US Supreme Court voted to strike down the anti-sodomy law every judge knew someone who was gay or lesbian. By 2009, due to the nature of media publicity and the interaction with gay and lesbian judges from other jurisdictions, it was likely that judges in India too knew people who were queer. • The judgement has come at a time when mainstream culture is increasingly being queered. Literature,75 plays,76 movies,77 dance performances78 and other forms of entertainment increasingly have queer themes and openly queer characters. Mainstream Bollywood cinema is perhaps the best symbol of how queerness has found representation in mass culture. The hit film of 2008, Dostana, which depicted a love triangle between two leading male stars of Bollywood and a female star, was perhaps the first instance in Bollywood cinema where the word ‘gay’ was used in an almost casual everyday sense.79 This was in stark contrast to the first official mainstream gay film called My Brother Nikhil, which is about a gay athlete who succumbs to AIDS, and did not use the terms ‘gay’ or ‘homosexual’ even once.80 Dostana introduced queerness to the Indian public and initiated

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Introduc on conversations around sexuality in homes and offices. This was not confined to writings in English or cinema in Hindi alone, as seen by the work of the noted Marathi playright, Chetan Datar who repeatedly dealt with queer themes in his productions.81 • Combined with this change in public culture was a growing sense of entitlement in the queer community. In 1996, there was a visible sense of fear in the community; fear when it came to publishing gay news letters, with those involved worrying about what the printer would say and whether the publication itself might be considered obscene and even lead to arrests. By 2008, in a little over a decade, much had changed. The community itself was much more visible and vocal. The sense of an ever present, subterranean fear had considerably diminished to be replaced by a tentative new confidence. One could describe this as a process whereby queer people increasingly felt that they have rights.

The 105-page judgement has inaugurated a new discourse on queer people moving away from the terms of ‘carnal intercourse’ and inhabiting the new language of dignity, privacy, equality and inclusiveness. The Judges have literally overturned a 149-year old discourse which only saw homosexuality within the frame of unnatural sexual intercourse. The Court held that criminalisation of consensual sex between adults in private violates the Constitution’s guarantees of dignity, equality, and freedom from discrimination based on sexual orientation (Articles 21, 14 and 15). In technical terms, the Judges ‘read down’ or interpreted Section 377 in such a way that it no longer criminalises consensual sex between adults in private. It was a unique example of a judgement which drew closely from the experiences of the queer community and was able to reflect the lived and existential realities of being queer, both in its very structure and in its reasoning. In a direct sense, the judgement quoted instances of violence faced by the queer community. To take an instance of a hijra from Bangalore: The person was subjected to gang rape, forced to have oral and anal sex by a group of hooligans. He was later taken to police station where he was stripped naked, handcuffed to the window, grossly abused and tortured merely because of his sexual identity (Para 22).

Thus the judgement was firmly anchored in the experiences of the queer community and this ability to empathise with the pain of the queer community ran through the legal reasoning of the judgement. The judgement begins by adopting a view of human dignity that privileges the ability to freely make choices about how to live one’s life.82

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At its least, it is clear that the constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society. It recognizes a person as a free being who develops his or her body and mind as he or she sees fit. At the root of the dignity is the autonomy of the private will and a person’s freedom of choice and of action. Human dignity rests on recognition of the physical and spiritual integrity of the human being, his or her humanity, and his value as a person, irrespective of the utility he can provide to others (Para 26).

From this notion of dignity, the court derives a concept of privacy that ‘...deals with persons and not places’ (para 47). That is, the right to privacy is not merely the right to do what one wants in ‘private spaces’ like the home, but also a right to make choices about how to live one’s own life. Privacy protects personal autonomy, both zonal and decisional. This includes the right to sexual expression, which necessarily entails being able to choose sexual partners without unjustified interference by the state. As the Court eloquently put it, ‘[t]he expression of sexuality requires a partner, real or imagined. It is not for the state to choose or to arrange the choice of partner, but for the partners to choose themselves’ (Para 47). The judgement emphatically recognises that even without actual enforcement, laws like Section 377 serve to stigmatise an entire section of society, thereby violating their dignity as citizens. By making a specific reference to the colonial-era Criminal Tribes Act, the judgement notes the horrendous instance of the criminalisation of sexual minorities. The judges also note how Section 377 has the effect of viewing all gay men as criminals. The fact is that these sexual acts which are criminalised are associated more closely with one class of persons, namely, the homosexuals as a class…‘When everything associated with homosexuality is treated as bent, queer, repugnant, the whole gay and lesbian community is marked with deviance and perversity. They are subject to extensive prejudice because (of) what they are or what they are perceived to be, not because of what they do. The result is that a significant group of the population is, because of its sexual nonconformity, persecuted, marginalized and turned in on itself (Para 94).

In furtherance of the equality argument, in a radical step, the Court finds that ‘sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Art. 15’ (para 104).83 The Justices thus construe the meaning of ‘sex’ in Article 15 to include not merely biological or physical sex, but also sexual orientation. The Court says: The purpose underlying the fundamental right against sex discrimination is to prevent behaviour that treats people differently for reason of not being in conformity with generalization concerning ‘normal’ or ‘natural’ gender roles. Discrimination

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The Justices note that the Supreme Court has read the right to life in Article 21 of the Constitution to include a right to health. This right to health includes various entitlements, such as an equal opportunity to access a functioning healthcare system. The Justices concluded that Section 377 infringed on the right to health of LGBT persons because it hampered HIV/AIDS prevention efforts. The Court held that the public’s moral opinions cannot be used as a justification for limiting LGBT persons’ fundamental rights. The Court says: Popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjective notions of right and wrong. If there is any type of ‘morality’ that can pass the test of compelling state interest, it must be ‘constitutional’ morality and not public morality (Para 79).

This ‘constitutional morality’ that the Court identifies is based on the liberal democratic ideals that underlie the Indian Constitution, and not on any particular religious or cultural tradition. They derive the concept from Dr. Ambedkar, who in the Constituent Assembly noted, ‘[c]onstitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic’ (para 79). The Judges conclude that to stigmatise or to criminalise homosexuals only on account of their sexual orientation would be against constitutional morality. Reinforcing their commitment to constitutional morality, the Judges highlight the role of the judiciary in a constitutional framework as being ‘to protect the fundamental rights of those who may dissent or deviate from the majoritarian view’. The Judges thereby assert the responsibility of the judiciary in protecting fundamental rights regardless of the opinion of the legislative majority. Thus the judiciary as an institution has a responsibility in ensuring that ‘legislative majorities in tantrum against a minority’ did not ‘sterilize the grandiloquent mandate’ (para 125). In conclusion, the Court draws upon the notion of equality, which underlies the Indian Constitution and makes an organic connection between the intentions of the founding fathers and the need to ensure that LGBT persons are not discriminated against today: The notion of equality in the Indian Constitution flows from the ‘Objective Resolution’ moved by Pandit Jawaharlal Nehru on December 13, 1946. Nehru, in his speech, moving this Resolution wished that the House should consider the

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Resolution not in a spirit of narrow legal wording, but rather look at the spirit behind that Resolution. He said, ‘Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion.... (The Resolution) seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near future (Para 129).

The Court goes on to say: If there is one constitutional tenet that can be said to be (the) underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that (the) Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognizing a role in society for everyone. Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracised (Para 130).

The implications of many of these strands of argument are far reaching. By asserting that Section 377 runs contra to Art. 15 prohibition of discrimination, it opens the door for queer people to claim further constitutional protection. By bringing in a notion of morality which must be ‘constitutional’, the Court extends its protection to ‘unpopular minorites’. By reading Indian society as embodying the very value of inclusiveness, the Court tries to set itself up as only elucidating the best values of Indian tradition. The judgement asserts that queer people are indeed a part of the Indian nation and also states that the judiciary remains an institution committed to the protection of those who might be despised by a majoritarian logic. It has initiated a fundamental debate on notions of choice, personal autonomy and our fundamental right to love.

Being Queer: The Right to Love The Counsels appearing for one of the 16 (so far) different Special Leave Petitions (SLP),84 in their vehement opposition against the Delhi High Court decision, sought the Supremes Court’s intervention, not because consensual sex between adults is legal, but because they feared that gays and lesbians will now marry.85 There is a certain positive recognition in their repugnance—of the right to love, which is at the heart of the queer struggle. At the same time it is the ‘imagined’ fear that homosexuality poses a threat to the institution of marriage and what Adrienne Rich would call the law of ‘compulsory heterosexuality’, which is at the heart of the strong opposition against the Naz decision.86 Queer people may not be criminal, but they cannot be allowed to marry and form alternate families. Decriminalising homosexuality is seen as a conspiracy to destroy the nuclear Indian family. A one-line poster campaign led by the Vishwa Hindu

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Parishad (VHP) to gather support against the Naz judgement, says: ‘Agar tera baap samlaingik hota, to tu paida nahin hota’ (If your father was homosexual, you would not have been born).87 Thus, the root of repugnance is not the sheer ‘unnaturalness’ of the act but that homosexuality will take over, spreading like a disease, turning everyone into impotent gay men, portending the dark end of human civilisation. Thus, at one level, decriminalisation of homosexuality creates a strong emancipatory potential, with a demand for equal rights. At another level, it is this very emancipatory potential that is sought to be curbed by retaining Section 377. The sexual order that Section 377 speaks of is historically only meant to apply to procreative sex. However when Macaulay’s phrase, the ‘order of nature’ takes root in the soil of India, its very form mutates to accommodate a more complex Indian reality. The ‘order of nature’ in India governs sexual relations through the institution of marriage. The social institution of marriage itself has many complex rules which define what Indian society determines to be ‘natural’. Thus the Indian avatar of the ‘order of nature’ is defined by the limits imposed by the intersecting structures of caste, community, religion and sexuality. Questioning the ‘naturalness’ or indeed the ‘rightness’ of these structures is something that young people who are moved by the emotion called love often do. They question these structures which keep in place notions of caste and community, only because their desire to live with someone of their choice leaves them with no other option. The feeling called love cuts through the rigid boundaries imposed by the samaj and renders the identities of caste, religion and sexuality vulnerable to difference. By succumbing to this strange emotion and choosing to live with those of their choice, beloved children become hated strangers and hence fit targets for unthinkable violence. In India, lovers who have dared to transgress these boundaries by putting love before their community have been killed by orders of the samaj.88 These killings are meant to avenge the ‘loss’ of ‘honour’, an idea that extends beyond family and is integral to the social institutions of caste and community. It is thus the fierce contests over the boundaries and limits imposed by these intersecting structures which embody the heart of the question of the right to love. On a regular basis, courts in India, when approached by parents of aggrieved adult children, are forced to intervene to determine whether two adults have consensually decided to run away together. Parental opposition comes from the fact that their children want to marry outside the boundaries of what the samaj determines to be natural. The bride’s parents as a practice file charges of kidnapping against the groom, and if the groom is Muslim, then the vigilante organisations of the Hindu Right in the form of the Bajrang Dal, Shri Rama Sene and the Shiv Sena take it upon themselves to prevent the inter-religious union, at any cost.89 The complicity of state institutions is often evident from the willingness of the police authorities to investigate and often arrest and return run

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away couples to their parents, despite their obviously adult status.90 Despite the opposition, sometimes ideas of ‘adulthood’ and ‘free will’ come to the rescue of couples.91 In spite of these incredible odds, lovers remain undeterred and continue to defy social structures.92 Their sometimes tragic stories inaugurate a brave new world of queer possibilities. The story of Leela and Urmila, who way back in 1988 decided to get married is particularly apposite. Leela and Urmila, two police women from small town India decided that being together was not enough; they instead wanted society to recognise and legitimise their relationship. So they got married and their marriage provided the first spark to the queer struggle. Leela and Urmila remained emblematic of many women, often from small towns who decide that the only way they can live with each other is by getting married.93 However not all these run-away couples succeed. A shocking number of lesbian suicides (mostly of couples in love) have been documented across the country, especially in Kerala.94 These suicides represent both a deep desire to love and live together, and also the sheer inability to do so. Menon agues that ‘the stories of violence against inter-caste/religious marriage and lesbian suicides’ are not part of separate histories of inter-caste marriage and lesbianism in India, but a common ‘history of compulsory heterosexuality and [with] marriage as the institution that best represents it.’95 While the stories described above are of a struggle against the strictures of the samaj, what makes the law of the samaj permeable and contestable is the law of the state. The law of the state has made some successful inroads into the norms of the samaj. The first incursion into the norms of the samaj was the 1872 Act to ‘provide marriage in certain cases’. This Act allowed for a girl above 14 to marry a boy over 18, across religion and caste, subject to limitations. For example, the two parties were required to repudiate the religion they were born into before they could get married under this law. Further, boys and girls below 21 had to obtain the consent of their father or guardian before they could be married. Even though the Act conferred only very limited rights, it still incited vociferous opposition. As Perveez Mody notes, ‘the greatest fear…[was] that the Act would introduce and encourage marriages based on “lust”, [leading] to profligacy and immorality.’96 This mirrors the debates which Indian society was to witness both during the passing of the Hindu Marriage Act of 1956 and Special Marriage Act, 1954.97 It is no surprise that similar arguments are made against the Naz decision.98 The nature of opposition conversely was a pointer to the commonality of the struggle for freedom from the ‘order of nature’. The Special Marriage Act, 1954, was the first challenge in independent India to the structure of ‘the order of nature’ by permitting secular marriages across caste and communities. Still within the bounds of heterosexual unions, the

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Special Marriage Act has redefined the possibility of marriage and sexual union in India. For the first time, men and women over the age of 21 and 18 respectively could marry across lines of caste, religion and class, regardless of the norms of the samaj. Equally important was the Hindu Marriage Act which again allowed for marriage across caste and across some religions such as Jainism, Buddhism, Sikhism and Hinduism.99 These Acts enable lovers to resist and oppose the incursions of the samaj into their right to form unions out of love. However, even in terms of law the victory was never complete. The law was procedurally flawed as well as impossible to implement fully. The fact of the difficulties in using the Special Marriage Act also highlights the limitations of legal reform in a hostile social space that rejects the progressive possibilities of law. Perveez Mody, in her remarkable study, documents the trials and tribulations of inter-caste and inter-communal lovers seeking to marry under the Special Marriage Act in the lower courts of Delhi. Mody shows how the state machinery, though meant to facilitate marriages under the Special Marriage Act, does not actually do so. In fact the state machinery actively creates impediments to discourage a union which, though permitted by law, is frowned upon by society.100 A queer struggle thus, is one that equally engages with the law of the samaj as well as the law of the state. It is as much about the inter-caste couple who want to get married, as it is about the persecution of same sex love. What ties the two together is that both are subversive of the ‘order of nature’ as imagined and laid down in India. Thus, a re-imagination of the order of nature as being not only about the prohibition of non-procreative sex but instead about the limits imposed by the structures of caste, class, religion and community, takes the idea of the queer struggle to a much wider platform. The right to love is not a separate battle for queer people, but is a battle for us all. The impact of law reform in terms of the Special Marriage Act or the Naz decision must not be limited to heterosexual inter-caste couples and homosexuals, respectively. It necessarily speaks to the campaign of the ‘Consortium of Loose, Forward and Pub Going Women’ that protested against the fascist campaign of the Sri Ram Sene to ban celebrations of Valentine’s day by sending the chief of the Sri Rama Sene, Pramod Muthalik, a pink chaddi.101 It is in empathy with the campaign against what the PUCL-K called social apartheid, which is the systematic attempt by the Hindu Right to police all social interactions between boys and girls of different religions, be it sharing an ice cream or a Ramzan lunch.102 It also speaks to the importance of resisting attempts to police any expression of love between couples such as the infamous Operation Majnu launched by the Uttar Pradesh police against couples in public parks in Meerut.103 Thus a queer politics is centered around a form of playful and subversive love which challenges dominant structures of religion, caste, class, gender and sexuality.

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Thematics of the book The idea of this book was born after a panel organised at the Critical Legal Studies Conference in Hyderabad in 2006. For the first time in a law conference in India, there was a stream on ‘Queer perspectives on the law’, with eight papers being presented. The panels themselves were very successful, eliciting much audience participation. At the end of the conference, we suddenly realised that we had enough material to actually conceptualise an entire book engaging with queer perspectives on the law. Through a process of discussion we decided to form a collective which could take editorial charge of bringing out this volume. An Editorial Collective, by its very nature, would be able to tap into a far wider network in the search for potential authors. The other exciting prospective would be the process of deliberation which could enrich the content of the book by ensuring that every essay was commented upon by six different perspectives. The process of mutual comments could itself feed into the introduction. Thus was born the idea of the Editorial Collective comprised of Alok Gupta, Akshay Khanna, Mayur Suresh, Siddharth Narrain, Ponni Arasu, Priyadarshini Thangarajah and Arvind Narrain. At a certain stage of the process, Priyadarshini Thangarajah decided to drop out due to other pressing commitments. It was decided that two members of the Collective, Arvind Narrain and Alok Gupta would take the overall responsibility to ensure that the project was completed. The process itself was every bit as exciting as originally promised though our deadlines kept extending themselves and it was only a good three years after the original idea was conceived that we were able to finish the project. It was remarkable that the Google group, ‘queerlawbook’ managed to foster an engaged conversation relating to a wide range of queer issues presented by the diverse papers, over a sustained period of time. The process of putting the book together involved a public call for papers on various email lists, personal conversations with people and encouragement to submit abstracts and later, first drafts of their essays. These were circulated among the Editorial Collective for comments, which were collated and then sent back to the author. Often the comments themselves would be diverse and, in some cases, even conflicting. It was communicated to the authors, therefore, that these were more in the nature of suggestions. It was this process of intense back and forth which resulted in most of the essays in this volume. The book is divided into six different sections which conceptualise a queer politics of law, engage with the politics around Section 377, analyse the Naz judgement, re-think notions of the law of the family, examine what the politics of pleasure might be like, and finally narrate experiences of queer people with the law.

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I. Conceptualising queer politics of law In the first section, as the sub-heading suggests, five different papers try and create a notion of a queer politics that is self-reflexive and ethical, and place queer rights within the framework of regional and cultural identities, especially given the hierarchies of caste, gender, class, religion and nationalities. The papers by Narrain and Dave try to highlight what a queer politics of law would aspire to, and the three other papers by Rao, Ghosh and Vasudevan & Govindan point out the dilemmas that any queer politics of law must contend with. Arvind Narrain argues that a queer critique is incomplete if it does not consider the hierarchies of class or gender. From the vantage point of what Narrain calls ‘the politics of location’, he sees the potential of queer politics to challenge existing social hierarchies and democratise existing social structures through a form of ‘subversive love’ which ‘privileges love over convention, pleasure over obligation and self fulfillment over social expectation’. Naisargi Dave, in her ethnographic account of queer legal activism, engages centrally with the question of what she terms the ‘ethical problematic’. The key tension which Dave identifies is the gap between the radical vision of justice and the language of the law which remains in her terms unable to quite accommodate this radical vision. Queer legal activism, in Dave’s perspective, ends up producing exclusions and hierarchies, which are a direct consequence of the nature and limits of the law. Rahul Rao demonstrates the difficulty of articulating a queer rights perspective in an ‘ongoing clash of civilisations’. Rao’s concerns are about how the articulation of queer rights positions itself, between contesting claims of ‘malevolent enemies and condescending friends’. The well meaning international (but mostly western) human rights groups end up being at most ‘condescending friends’ who are unable to understand that south-based activists have to contend with both the legacies of imperialism and with being ‘queer’. Rao’s paper speaks to the dilemma of south-based queer activists who want to be seen as ‘not just queer, but [also as] Muslim, Arab, Palestinian’, and that queer liberation that does not respect those other identities is no liberation at all. Shrimoyee Nandini Ghosh shows how approaching the law might get you rights, provided you are less queer and more ‘respectable’. By taking the example of the Constitutional Court of South Africa, she demonstrates that the celebrated jurisprudence on rights of gay and lesbians, despite its novel and progressive notions of dignity and personal autonomy, failed to apply equally to the demand for equality by women in sex work. The notion of equality in Ghosh’s analysis seems to be limited by judicial attitudes to those deemed ‘respectable’. As Ghosh argues, ‘the promise of citizenship is not for the promiscuous.’ The essay by Aniruddhan Vasudevan and Padma Govindan highlights the double-edged nature of legal claims. Much in the tenor of Ghosh, Vasudevan and

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Govindan analyse how the equality demands of the aravani community in Tamil Nadu are framed by the language of pity and disgust. Whether in the form of cases filed in court, or advocacy measures with the state, the danger in asking for rights is that it could lead to essentialising queer identities and visibilising more ‘palatable’ aspects of queer lives. Vasudevan and Govindan call this ‘the slippages inherent in any movement’s attempt to pursue social justice through the law’. They remind us of the consequences of such attempts for those who are deemed to be outside ‘the shade of constitutional family life’.

II. Section 377 and its politics The next section takes forward a more in-depth engagement with the history and politics of Section 377. The first two essays by Gupta and Dutta engage with the colonial history of Section 377, albeit from very different standpoints. The next two essays by Khanna and Puri are contemporary ethnographies of the struggle against Section 377 and ask searching questions about the way the struggle around Section 377 is structured. Alok Gupta in his essay locates Section 377 within the history of colonial law making. By reference to a variety of colonial criminal codes from Lord Macaulay, James Fitzjames Stephen, to the code drafted by R. S. Wright, Gupta demonstrates how sodomy laws travelled across the world on the back of the British empire. Gupta shows that anti-sodomy laws did not emerge through any democratic process or in the various diverse regions of the world that they can now be found. He argues that they were in fact ‘monolithic, certain, non-negotiable penal impositions, based on a colonial assumption of a shared biblical morality and important means for policing the sexuality of the colonial subjects.’ Aniruddha Dutta in his essay makes the argument that the endurance and persistence of Section 377 for over 150 years cannot be explained away merely with reference to it being a colonial imposition; nor can its persistence be solely attributed to the fact that India has a supposedly repressive ‘tradition’ or ‘culture’. In Dutta’s argument: Section 377, though externally imposed without consultation, becomes part of the process of the re-mapping and re-figuration of extant categories of gender/sexual difference vis-a-vis a modern taxonomy of sexual acts and subjects, and allows for the retroactive consolidation of tendencies phobic or resistant to such difference into a loose yet powerful assemblage of something like modern homophobia.

Akshay Khanna in his essay asks some very deep and troubling questions about the nature of activist engagement with Section 377 and whether activism has given Section 377 a ‘social life’. We get a sense through Khanna’s essay about the way multiple constituencies relate to or construct their relationship to Section 377. Right from the kothis of Kolkata to articulate urban Indians such as Vikram Seth

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and sexuality rights activists, all relate to this law differently. Khanna’s detailed ethnography raises the question as to why Section 377 has even become an issue of concern and what this ‘concern’ centred around Section 377 means. Jyoti Puri in her ethnographic account of the early days of the struggle against Section 377, argues for a ’GenderQueer’ perspective on law reform efforts centred around the rape law (Section 375/6) and the anti sodomy law (Section 377). According to Puri, it is wrong to view the struggle for reform of sexual offences, which is largely confined to the women’s movement, and the challenge to Section 377, which has been the pre-occupation of the queer movement, as separate struggles. In Puri’s view, an ‘inclusionary process’ through coalitions and participation would result in a ‘more nuanced and sustained challenge’ to the law.

III. Naz Foundation v. NCT Delhi and others This section provides a more detailed engagement with one of the significant moments in Indian queer history by analysing the germinal judgement in Naz Foundation v. NCT Delhi and others. Prof. Upendra Baxi provides the larger philosophical and legal context within which we need to read Naz by arguing that the core of the judgement is the interpretation it gives to the notion of dignity. He suggests that we ‘read the Naz decision as dignity plus’. Prof. Baxi argues that Naz ‘inaugurates a new jurisprudence against the practices of stigmatisation with a promise of multiplier effects in other arenas.’ He also goes on to demonstrate the limitations of a doctrinal critique of Naz and argues that the critics have failed to ‘appreciate the distinction between the “everyday” (the quotidian) and the “exceptional” adjudicative moment’, with Naz being one such exceptional moment. Arvind Narrain pegs his article on the meaning of the term ‘constitutional morality’ used in the Naz judgement. Narrain analyses the shift from societal morality, which held the field in terms of interpreting Section 377, to ‘constitutional morality’ in the Naz judgement. He takes the example of the prosecution in 1935 of Nowshirwan in the province of Sind, for having a consenting relationship with Ratansi. He sees Nowshirwan as standing in for a subaltern Oscar Wilde; as an exemplar of the needless suffering caused by Section 377. Narrain explores the shift in the judicial discourse from the language of carnal intercourse to a discourse on the right to intimacy and from the tribulations of Nowshirwan to the celebrations which greeted the Naz Foundation judgement. Tarunabh Khaitan argues that the ‘magic’ of the Naz judgement lies not so much in its result but rather in the reasoning the judges used to arrive at the result. Khaitan argues that what was particularly ‘magical’ was the interpretation of Article 15 of the Constitution which unleashed its wider potential for protecting minorities from discrimination. Khaitan invokes the founding principle of Swaraj

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that formed the basis of the freedom struggle and sees its connections to the notion of personal autonomy upheld in Naz. He argues that by widening the scope of protection guaranteed by Article 15, it is set to become one of the key ‘constitutional guarantors of personal autonomy (Swaraj) for vulnerable minorities’. Vikram Raghavan gives an overview of the Naz judgement, outlining the core legal issues and key innovations introduced by the Judges in coming to their decision. While celebrating what he calls the majestic ramparts of the Naz judgement, he also points out to the bewildering confusions which are inherent in the argumentation of the Naz judgement.

IV. Re-thinking family law As has been argued by Nivedita Menon, the family as a site of oppressive practices remains an undertheorised area of feminist practice. In the context of being queer, the family looms large as a social institution which is responsible for ‘unthinkable’ violence against its own members. That being said, the discourse of family law remains permeable and capable of accommodating formations alternative to the heterosexual monogamous family unit. Ponni Arasu and Priyadarshini Thangarajah bring to light some of the violences inflicted by the institution of family on those who are outside its normative framework. The remaining three papers by Ruth Vanita, Thomas John and Mayur Suresh explore the possibilities of the law of the family to accommodate its more recalcitrant queer members. Ponni Arasu and Priyadarshini Thangarajah begin this process by presenting a series of cases of queer women in love, who are made regular targets of criminal law, through the offences of kidnapping and abduction, or the constitutional writ remedy of habeas corpus. The authors talk about such events—not too uncommon in the lives of queer women—to reflect upon how ‘they shake the very basis of heteronormativity, which is the need for a man in an intimate, interdependent or sometimes just compulsorily dependant relationship’. Secondly, the structure of family is challenged significantly as these women then engage in sexual activity which does not and cannot result in procreation. Third, and most significantly, lesbian women engage in activities that give them sexual pleasure. Arasu and Thangarajah argue that sexual pleasure is viewed as a luxury, thus making it a serious threat to heteronormative structures. It is generally assumed that unless expressly recognised by state law, same sex marriages are impossible. However, Ruth Vanita and Thomas John, in two separate papers, argue in favour of the possibilities of same sex marriage in India from different standpoints. Vanita questions the premise that the state has a monopoly over defining marriage. In her analysis, custom emerges as inherently flexible and a hospitable terrain for eventually recognising same sex marriage. She points out that same sex marriages have existed and continue to be performed

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through different customs independent of state recognition. Vanita goes on to argue that ‘if several same-sex weddings take place in a Hindu community or, alternatively, if gay people who are Hindus conduct several same-sex weddings over a period of time in a particular region, same-sex marriage could come to be legally defined as customary there.’ John similarly focusses on same sex marriage but in his case, pins the hope on the incomplete project of secularisation and eventually liberating marriage from the institutions of religion and caste. He then goes on to make a more strategic argument on how to read the existing legal framework and push it to try and accommodate a limited version of same-sex marriage. Mayur Suresh uses two reported cases involving hijras—one that involves a claim of succession and the other a disqualification from an election, to examine the relationship of identity to the idea of property. Suresh points out that lineage and succession in the hijra community is established not through blood or marriage, but through bonds of caring and ritual practices. He further argues that the notion of property is not about the Lockean notion of possession but rather about property itself becoming like blood, a marker of identity which is passed down from generation to generation.

V. Politics of pleasure The question of pleasure is central to queer politics. The experience of pleasure evokes sentiments of happiness and enjoyment, and plays a role in the nurturing of the self. It also has the subversive ability to destabilise the normative expectations of heterosexuality in the most unexpected ways. Pleasure remains a significant trope for analysis as many people’s understanding of sexuality comes from their experience of pleasure. Pleasure is the natural concomitant of acts of intimacy with others and also results from the experience of visual pornography and pulp fiction. The first two articles by Namita Malhotra & Nitya Vasudevan and Maya Ganesh focus on the world of pornography and pulp fiction and the importance of these genres in any attempt to understand sexuality. The final piece by Mayur Suresh hints at what the practice of pleasure might mean to the constitution of one’s sexual identity. Namita Malhotra and Nitya Vasudevan approach a discussion on sexuality through the popular medium of pornography. Pornography from a radical feminist perspective is seen as an act of violence against women. However, a queer perspective acknowledges its ability to enable conversations around sexuality. Malhotra and Vasudevan explore pornography in relation to sexuality and law, but ‘with a lightness of touch that doesn’t unduly interfere with the visual, masturbatory and orgasmic thrill of pornography.’ Maya Ganesh takes us into the world of pulp fiction, which she rightly recreates as ‘pulp friction’. Ganesh provides a vantage point into the desires and fantasies of many Indians, which will not be easily acknowledged by the

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‘custodians’ of Indian culture. Accounts of sexual desire per se, become pornographic and thus fall within the zone of censorship of the samaj. But the narration of sex as crime, which retains the moral opprobrium against sexual transgression, provides a legitimacy to otherwise subversive accounts of sexual desire and sexual activity. Mayur Suresh provides an altogether fresh perspective on understanding sexuality and identity by critiquing the idea that criminal law is central to constituting queer identity. Suresh argues that our focus on the anti-sodomy law and its impact overstates the role of criminal law in how we perceive ourselves. Through an ethnographic account of cruising and the pleasures associated with it, he opens up our inquiry to ‘the possibility of the law’s failure to matter.’

VI. Queer experience of the law In our last and final section, we finally turn to queer people’s lived experience with the law. The reason for the very emergence of the queer struggle is the experience queer people have had with the law. The law, seen in this light, remains a source of enormous violence, both direct and indirect. However queer people have learnt to negotiate the power of the law using multiple strategies of resistance. Thus the violence of the law is met by the resistance of the queer. The narratives of Alok Gupta, Lawrence Cohen and A. Revathi describe the violence of the law and how it not only flows from the language of the law but also begins to permeate wider societal discourses. The essay by Siddharth Narrain, the interview with Sunil and Sumathi, and the pieces by Chayanika Shah and Akhil Katyal describe how queer people cope with the law’s violence by using counterlaw, popular mobilisation and even humour. Finally the piece by Lawrence Liang and Siddharth Narrain explore the possibilities of what could happen when the fount of the violence, Section 377, goes. Alok Gupta, through interviews of gay, bisexual men and transgender individuals demonstrates how sexual blackmail operates as a parallel order of morality. Gupta shows us that sexual blackmail is a common experience of queer men in India irrespective of age, class, monetary status, culture, caste or religion. He highlights how the ‘widely publicised and vehemently defended’ homophobic views of the samaj lend credence to the actions of a blackmailer, who not only functions with impunity, but also has a sense of moral vigour and purpose. Lawrence Cohen’s elegiac piece is offered as a form of mourning to two gay men, Pushkin Chandra and Kuldeep, who were murdered at Pushkin’s home in Delhi. He explores how ‘homosex in Delhi has been the vehicle of social mobility, understanding, pleasure, and love across a deep sense of a status divide’. In Cohen’s understanding, while love across the status divide offers the possibility for undoing status exclusion, it also remains a site for both commerce and exploitation. In this essay, Cohen offers a complex account of both the potentialities as well as the limits of what he calls ‘homosex’.

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A. Revathi through her poignant narrative shows the way property and the desire for property, are complicit in a deep heterosexism. Revathi’s family had never supported her gender identity and her decision to join the hijra community. Her hijra identity, in the opinion of her brothers, disqualified her from inheritance. They cited her lack of a family or children as disqualifying criteria, thereby completely disregarding her hijra family. Thus a normative sexuality becomes in Revathi’s story something one must own, if one is to be fit to inherit property. Siddharth Narrain details the twenty two hours of drama at the Banashankari and Girinagar Police Stations in Bangalore on 20 October 2008, where five hijras and over 40 activists and lawyers who came in their support, were all arrested/ detained on false charges of extortion, assault on a police officer etc. Narrain attributes this assault to a larger police drive against the hijra community and the broader hostility in the State of Karnataka against all minorities. This he argues has been a feature of the BJP government, which came to power in 2008. But as Narrain argues, the most notable lesson from the Bangalore episode ‘is that the fate of Section 377 may have little do to with the most vulnerable sections of the sexual minority community.’ Sumathi and Sunil talk about their experiences and work at LesBIT both as members and activists. The work of LesBIT, a community space for lesbian, bisexual and transsexual men, stands at the intersections of issues that confront queer politics and activism in India. LesBIT, through crisis interventions in aid of queer women and trans men who approach them from rural areas, raise issues of family, class, urban-rural divide and the persecution of queer people on the basis of ‘gender identity’. Chayanika Shah takes us behind the curtains of the organising of the first Queer Azaadi March in Bombay in 2008. Shah documents how the entire supposedly routine process of getting police permission to exercise your fundamental right of assembly gets more most complicated when it is the ‘invisible margins of society’ who want to march. Akhil Katyal in a light-humoured piece writes about his intense relationship to Section 377 as a young college student who is constantly ‘talking about the law, challenging it in department seminars and signing petitions against it.’ As much as Section 377 remains a looming presence in his life, Katyal asks whether it can actually ‘change his poetry or alter his orgasm’. He wonders whether he is more afraid of his mother than he is of the police or the law. The final essay by Lawrence Liang and Siddharth Narrain examines both what the Naz judgement meant within the realm of the constitutional imagination as well as what its immediate impact was, in terms of the everyday life of the queer community. Liang and Narrain show the link between a change in law at the level of the judiciary, and the tears of joy and celebration, the explosion of

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conversations nationwide and the reemergence of hope in the judiciary as one of the outcomes of the Naz judgement.

Towards a Conclusion? This volume sees itself as pulling together a contemporary history of the queer struggle as it grapples with the promise of sexual freedom. Many of the contributors, being active participants in the queer struggle, bring a contemporary perspective to this volume. The volume also tries to give a history to queerness beyond the contemporary moment and argues for the importance of queering the judicial archive. Writing about the queerness of the law, of narrating oneself into the legal archive is itself a radical act of inserting ourselves into the often dry, terse and unloving language of the law. The essays in this volume attempt to distill a vision of what the promise of the queer struggle might be and narrate how it is embedded in any account of contemporary activism. The essays often take divergent positions on various points—from the centrality of the law to constructing identities, and the possibility of freedom in a post-377 world. We look at these differences and divergences as a strength, as it is these that have contributed to the vibrancy and diversity of the queer movement in India.

Notes 1. Naz Foundation v. Government of New Capital Territory of Delhi and Others, Delhi Law Times Vol. 160 (2009) 277. 2. Ibid, p. 277, para 47. 3. Ibid. 4. Mehta, Pratap Bhanu. 2009, ‘Its about all of us’, Indian Express, 3 July 2009. 5. The English media was generally very supportive with the response from the regional press being more mixed. However there were very supportive pieces in the regional press as well. A notable example of support is a fairly positive cover story in the largest circulating Hindi magazine in India called Saras Salil, titled ‘Rishta: ladki ka ladki se; ladke ka ladke se?’ (Relationship: between two girls and two boys?), August 2009. 6. ‘Yogi says it’s a disease, astrologer brings in animals: 377 goes to SC’, Indian Express, 9 July 2009. 7. ‘Religious groups oppose Delhi HC’s 377 verdict’, Times of India, 10 July 2009; Press Trust of India. 2009, ‘Mizo Churches pray for retention of section 377 IPC’, August 16 2009; ‘Baba Ramdev set to challenge HC verdict legalising gay sex’, Indian Express, 7 July 2009; Bharadwaj, Ajay. 2009, ‘Akal

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Takht says won’t tolerate gay relations’, DNA (Chandigarh edition), 10 July 2009; ‘India is a country of many religious beliefs and none of the religions are in favour of homosexual relationships’ (Paramjit Singh Sarna, President, Delhi Sikh Gurudwara Management Committee); ‘Unnatural Sex, which is totally against the law of nature, is never acceptable’ (Yuva Acharya Dr. Lokesh Muni, Founder, Ahimsa Vishwa Bharti); ‘Imagine tomorrow they may want to seek permission to have sex with animals…I think all dharma gurus should be united and do a rally in Ramlila grounds in Delhi and announce that whichever party agrees on this amendment, we won’t vote for it in the future’ (Dr. Kalbe Sadiq, Vice President, All India Muslim Personal Law Board). For a detailed account of religious opposition, see: Verma, Viresh. 2009, ‘Combating the Closeted’, Sahara Time, 25 July 2009. 8. ‘This is a non-issue. This is a country of poor people and this issue is being raked up by the elite’, Vayalar Ravi, Minister of Overseas Affairs, said this to a television channel at the parliament premises, in a widely publicised interview, published in the Indian Express, 10 July 2009. 9. Dasgupta, Swapan. 2009, ‘Aggressive Gay Evangelism’, Sunday Pioneer, 5 July 2009: ‘Unfortunately, the High Court judgement has opened the floodgates of what may best be called aggressive gay evangelism. If the experience of the West is anything to go by, it is a matter of time before there are demands— backed by the usual clutch of NGOs and international agencies—to lower the age of consent, accommodate gay marriages within a legal framework and allow the right of adoption to gay couples…Equally insidious, militant gay campaigners have made life impossible for those gays who want to lead private lives without ‘coming out’ and flaunting their sexuality.... What may begin as an innocent gesture of accommodation and tolerance has the potential to spin out of control. The gesture of de-criminalising homosexuality—which is different from endorsing it—has to be accompanied by a robust assertion of the state and society’s commitment to family values.’ Also, see (Former) Chief Justice J. S. Verma who notes that ‘[i]t is a misreading of the Delhi High Court judgement to contend that it approves or legalizes, much less glorify [sic] the practice of homosexuality, practiced [sic] in privacy. It merely decriminalizes consensual homosexuality or unnatural sex practiced in privacy between consenting adults. This was the limited point at issue and the scope of this decision. To read anything more in it is not justified.’, available at http://lawandotherthings.blogspot.com/2009/07/ justice-jsvermas-comment-on-naz.html, accessed on 16.09.2009. Justice Verma wrote this comment exclusively for the Law and Other Things blog,

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on the basis of his impromptu speech at a seminar on ‘Homosexuality, Sociology & Law: A Critical Evaluation’, organised by the Supreme Court Bar Association at the Indian Law Institute, New Delhi, on 22 July 2009. 10. National Coalition For Gay and Lesbian Equality v. Minister of Justice, [1998] {12} BCLR 1517 at para 138 (Sachs J.). 11. Bhan, Gautam and Arvind Narrain (eds) 2005, Because I Have a Voice: Queer Politics in India. New Delhi: Yoda Press, p. 3. 12. Of course, it should be noted that the Supreme Court is yet to pronounce its opinion and the Naz judgement is currently being appealed in the Supreme Court by sixteen parties spanning the religious and secular spectrum. 13. Narrain, Arvind. 2005, Queer: Despised Sexuality, Law and Social Change. Bangalore: Books for Change, p. 33. 14. Vanita, Ruth and Saleem Kidwai. 2000, Same Sex Love in India: Readings from Literature and History. New Delhi: Macmillan. 15. Ibid., p. 146: ‘O God, our friend Hussayn doesn’t even know who this boy is who is playing with his heart. I know insisted Hussayn, that my heart’s curse is a young infidel, who will raze the house of my faith to the ground. With the graceful curls of his hair, this bare-chested idol has tied up my heart, hung it from the sacred thread on his shoulder.’ 16. Pandey Bechan Sharma ‘Ugra’. 2006, Chocolate, and other Writings on MaleMale Desire (Translated from Hindi and with an Introduction by Ruth Vanita). New Delhi: Oxford University Press. 17. Narrain, Arvind. 2005, Queer: Despised Sexuality, Law and Social Change. Bangalore: Books for Change. This is one such attempt. 18. Baxi, Upendra. 1986, Towards a Sociology of Indian Law. New Delhi: Satvahan Publications, pp. 11–20. 19. Vanita, Ruth. 2005, Love’s Rite: Same-Sex Marriage in India and the West. New Delhi: Penguin. 20. Ibid., p. 210. Ruth Vanita argues: The Manusmriti’s concern is for the loss of virginity and the consequent unmarriageable status of the girl, thus a virgin who manually penetrates another virgin is supposed to be punished with a fine and a whipping, and also the payment of double the penetrated girl’s bride price, while a mature woman who does it to a virgin is supposed to have her head shaved and two of her fingers cut off. This is the most severe punishment prescribed for any form of same sex intercourse in the Hindu law books. But exactly the same punishment, having two fingers cut off, is also prescribed for a man who

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manually penetrates a virgin. This punishment, then, is not for same sex intercourse, but for the act of taking a girl’s virginity, thus imperiling her chance of marriage. 21. See: ‘This Alien Legacy: The Origins of Sodomy Laws in British Colonialism’, Human Rights Watch, December 2008. 22. Section 2 of the Criminal Tribes Act. 23. Radhakrishna, Meena. 2001, Dishonoured by History: Criminal Tribes and British Colonial Policy. New Delhi: Orient Longman, p. 5. 24. Section 24 of the Criminal Tribes Act. 25. Section 24A of the Criminal Tribes Act. 26. Section 26 of the Criminal Tribes Act. 27. Section 27 of the Criminal Tribes Act. 28. MacMunn, Lieutant General Sir George. 1933, The Underworld of India. London: Jarrolds, c.f. Radhakrishna, Meena. 2001, Dishonoured by History: Criminal Tribes and British Colonial Policy. New Delhi: Orient Longman, p.1. 29. Narrain, see note 17. 30. D’Souza, Dilip. 2001, Branded by Law: India’s Denotified Tribes. New Delhi: Penguin, p. 57. 31. PUCL-K. 2003, Human Rights Violations against the Transgender Community, p. 48. 32. Naz Foundation v. Government of New Capital Territory of Delhi and Others, Delhi Law Times Vol. 160 (2009) 277 at para 50. 33. Vanita, Kidwai, see note 14, p. 26. 34. Gurumurthy, S. 2009, ‘Shy society. Shameless debate’, Organiser, 12–19 July 2009. Organiser is the official publication of the Rashtriya Swayamsevak Sangh (RSS). 35. Guha, Ranajit. 1987, ‘Chandra’s Death’, Ranajit Guha (ed.), Subaltern Studies V. Delhi: Oxford University Press. 36. Ibid., p. 150. 37. Ibid., p. 138. Speaking about the practice of historiography Guha notes: [It] is designed for big events and institutions, it is most at ease when made to operate on those larger phenomena which visibly stick out of the debris of the past. As a result, historical scholarship has developed through recursive practice, a tradition that tends to ignore the small drama and fine detail of social existence, especially at its lower depths. A critical historiography can make up for this lacuna by bending closer to the ground in order to pick up the traces of a subaltern life in its passage through time. 38. Queen Empress v. Khairati I.L.R. 6 All 205. 39. Ibid. 40. Guha, see note 35, p. 142.

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41. It might not be out of place to note that the British Government, through the implementation of the Wolfenden Recommendations, decriminalised consenting homosexual sex between adults in private in 1967. In the colonies however, the colonial powers, confined themselves to the codification of homophobic laws and not to their repeal. The colonial origins of anti-sodomy laws have long been forgotten and they have now acquired legitimacy through a nationalist rhetoric. See: Petersen, Carole J. 1997, ‘Hong Kong and the Unprecedented Transfer of Sovereignty: Values in Transition: The Development of the Gay and Lesbian Rights Movement in Hong Kong’, Loyola Los Angeles International Comparative Law Review, Vol. 19, pp. 337, 340. Peterson argues that fear of conservative attitudes prevailing against homosexuality in Hong Kong prevented a follow up of Wolfendenlike reform. 42. It has been forcefully argued that the emergence of the queer struggle coincided with a period of dramatic changes in India wrought by globalisation which unleashed a ‘new economy of desire’. Thus what accounts for the 1990s being the period which begins to change traditional Indian attitudes to desire and pleasure, is the emergence of new technologies right from the cassette player to the video parlour, cable television and the internet. See: Menon, Nivedita and Aditya Nigam. 2008, Power and Contestation: India since 1989, Hyderabad: Orient Longman, pp. 83–102. 43. ABVA Memorandum to the Commissioner of Police, New Delhi, 11.08.92 on file with the Alternative Law Forum. 44. AIDS Bedhbhav Virodhi Andolan (ABVA). 1991, Less Than Gay: A Citizen’s Report on the Status of Homosexuality in India, Nov-Dec 1991. New Delhi: ABVA. 45. For example, on 16 August 2006, the queer community in Bombay gathered at Flora Fountain in joint protest against Section 377, which was widely reported across the media. See: ‘Gay Community seek reforms in archaic sexuality law’, Times of India, 17 August 2005. Similarly there were protests in Bangalore, Delhi and Kolkata against police harassment. 46. Aditya Bandopadhyay, 2002, ‘Where saving lives is a crime: The Lucknow story’, in Fernandez Bina (ed.), Humjinsi: A Resource Book on Lesbian, Gay and Bisexual Rights in India. Mumbai: India Centre for Human Rights and Law. 47. In 2006, in another incident four gay men were arrested in Lucknow by an entrapment laid by the Police, with false alarms of ‘public sex’ and an ‘online gay group’. There were protests across the Country against the arrests in what came to be known as Lucknow II. See: ‘Rights Groups Protest Gay Arrests’, Indian Express, 13 January 2006. See also the preliminary report of the Fact Finding Team on the arrest of four men in Lucknow under IPC 377,

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available at http://www.yawningbread.org/apdx_2006/imp-249.htm, accessed on 29.12.08. 48. Jaisingh, Indira. 1999, ‘Gay Rights’, in Bina Fernandez (ed.), Humjinsi. Mumbai: Combat Law Publications, p. 92. 49. ABVA. 1991, Less than Gay: A Citizens Report on the Status of Homosexuality in India, p. 50. 50. ABVA. 1999, For People Like Us. New Delhi: ABVA. Mamta and Monalisa were not the last women in relationships with each other to attempt suicide with the next two decades witnessing a continuing epidemic of lesbian suicides. See: V. N., Deepa. ‘Queering Kerala’, in Gautam Bhan and Arvind Narrain (eds), Because I Have a Voice. New Delhi: Yoda Press, 2005, pp. 175–196. 51. Fire (1996) directed by Deepa Mehta, more details can be found at http:// www.imdb.com/title/tt0116308/; Fire has had a far reaching impact beyond the short term controversy it created in opening up a discussion on lesbian women in India. See: ‘Understanding the Lesbian’, FEMINA, 1 September 2002. 52. See: Yusuf Khan Alias Dilip Kumar and Ors. v. Manohar Joshi and Ors. (2000) 2 SCC 696. Eight petitioners, including the producer of Fire filed a Writ Petition under Article 32, seeking the intervention of the Supreme Court to prevent the Shiv Sena led attacks against cinemas screening Fire. However, somewhat serendipitously, during the hearing the Shiv Sena lost its majority in the State assembly elections thus taking away the heat from the protests. The Supreme Court found an easy way out and disposed of the matter with a sworn undertaking from the Home Secretary for the State of Maharashtra that steps were being taken to prevent any attacks. Thus, free speech clouded the issue of lesbianism—which was never mentioned or referred to in the decision. 53. See http://www.imdb.com/title/tt0414714 (accessed on 19.09.2009). Girlfriend was a controversial lesbian movie, as it portrayed lesbians as manhating, mentally disturbed, abused in childhood, psychopaths and serial killers. However that did not stop the Sena from protesting against the very portrayal of lesbianism. See: ‘Sena turns the heat on Girlfriend’, Times of India, 15 June 2004. 54. Lesbian Emergence: A Citizen’s Report, CALERI, August 1999 (New Delhi) p.19. 55. Ibid. 56. The term gender identity itself made its belated way into international law with the Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity (2007). It

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can be argued that the reason gender identity became an important concern was itself due to the reporting of violations from the global south, where it became increasingly apparent that gender identity was the core axis of human rights violations. For a record of violations based on gender identity, see www.iglhrc.org, accessed on 10.9.09. 57. However, even the perspective which privileges the lens of gender identity alone might be inadequate to communicate the reality of queer lives. Gayatri Reddy, in her recent work argues that hijras cannot be perceived through the lens of a sexuality politics alone. The hijra community needs to be understood through the multiple frameworks of religion, class, kinship as well as sexuality. See generally: Reddy, Gayatri. 2006, With Respect to Sex. New Delhi: Yoda Press. 58. Gupta, Alok. 2005, ‘Englishpur ki Kothi’, in Gautam Bhan and Arvind Narrain (eds) Because I Have a Voice. New Delhi: Yoda Press. 59. ‘It is within the realm of the normal, the routine, that violence against women is deeply embedded, and it is because the greatest part of violence against women is the violence of normal times that it carries with it the guarantee of impunity irrespective of penal, punitive or constitutional safeguards.’ Kannabiran, Kalpana. 2005, The Violence of Normal Times. New Delhi: Women Unlimited, p. 3. 60. PUCL-K. 2001, Human Rights Violations Against Sexuality Minorities In India: A Case Study of Bangalore, available at www. Pucl.org (accessed on 16.09.09). 61. Butler, Judith. 1993, ‘Imitation and Gender Insubordination’ in Henry Abelove et al. (eds), The Lesbian and Gay Studies Reader. New York: Routledge, p. 312. She notes: ‘oppression works not merely through acts of overt prohibition, but covertly, through the constitution of… a domain of unviable (un)subjects—abjects we might call them—who are neither named nor prohibited within the economy of the law.’ 62. Desai, Mihir. 1999, ‘Gay Rights’, in Bina Fernandez (ed.), Humjinsi, Mumbai: Combat Law Publications, p. 92. 63. http://www.outlookindia.com/article.aspx?232697 (accessed on 20.02.10). 64. http://mrzine.monthlyreview.org/india160906.html (accessed on 29.12.08). 65. Ibid. 66. AIDS Bedhbhav Virodhi Andolan, see note 44. 67. Outlook published both the letters in its 16 September 2006 issue; ‘Backing gay rights’, Times of India, 17 September 2006; ‘Vikram Seth Leads fight against anti-gay law’, DNA, 16 September 2006; Sengupta, Somini. ‘Notables Urge India to End 145 Year Ban on Gay Sex’, New York Times, 16 September

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2006. However, it is important to note that while the open letter did mark a significant advance there were many troubling questions as well. It was not able to carry forward some of the lessons of the queer struggle. What was significant by its absence was a mention of the lesbian and the fact that the particular circumstances of her oppression. Similarly, the figures of the hijra and kothi who might very well constitute the group most directly affected by Section 377, were completely absent as subjects in the open letter. 68. Taylor, Jerome. 2008, ‘Gay Activists in India want British Apology for Sex Law’, The Independent, 16 August 2008. 69. In 1994, ABVA had filed a similar petition, also in the Delhi High Court, which was dismissed for default. It was numbered as Writ Petition (Civil) No. 7455 of 2001. 70. The Delhi High Court further stated: ‘…an academic challenge to the constitutionality of a legislative provision cannot be entertained. Hence, the petition [is] dismissed.’ Unreported Order dated 2 September 2004 of the Delhi High Court in Writ Petition No. 7455/2001. 71. On 3 February 2006 the Supreme Court of India by an unreported order in Special Leave Petition (Civil) No. 7217/7218 of 2005 set aside the order of dismissal of the Delhi High Court, and directed the High Court to hear the constitutional challenge to Section 377 on merits. Gautam Bhan captured the significance of the order: ‘[b]eyond a technical ruling the judgement is a reminder to the Court and to the nation that the rights of the citizen cannot be ignored and that debate cannot be silenced.’ See: Bhan, Gautam. 2006, ‘Section 377 is Unnatural’, Hindustan Times, 9 February 2006; Singh, Sanghita. 2006, ‘A Ray of Hope for Gay Rights Activists’, DNA, 7 February, 2006. 72. Bhupen Khakhar, one of India’s most famous and gifted artists, never shied away from the subject of sexuality in his work. Homo-eroticism is prominent in his painting along with the anguish of being rejected from society. See: ‘Bhupen Khakhar: A Retrospective’ by Usha Mirchandani, The Fine Art Resource, Mumbai (2003). Vikram Seth, one of India’s leading writers became increasingly open about his sexuality. See: ‘An Equal Swing’, Hindustan Times Sunday Magazine, 16 October 2005; The most public coming out though has been of the Prince of Rajpipla, in Gujarat. See: ‘Out of the Closet’, India Today, 10 July 2006; also see: Miss India USA contestant and Miss Congeniality, 2003 winner, Kashish Chopra, comes out as a lesbian in a story titled ‘Out of Closet’, Society, July 2006. 73. 478 U. S. 186 (1986). 74. As Justice Stevens who dissented from the Bowers majority noted, ‘Unfavourable opinions about homosexuals have ancient roots. Like equally

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atavistic opinions about certain racial groups, these roots have been nourished by sectarian doctrine....Over the years however interaction with real people, rather than mere adherence to traditional ways of thinking about members of unfamiliar classes, [has] modified these views.’, in Joyce Murdoch and Deb Price, Courting Justice: Gay Men and Lesbians v. the Supreme Court, New York: Basic Books, 2002, p. 513. 75. 539 U.S. 558 (2003). 76. Rao, R. Raj. 2003, The Boyfriend. New Delhi: Penguin.; Mukherjee, Neel. 2009, Past and Continuous. Picador India, April 2009, (Winner of the Crossword Book Award 2009); Ambai. ‘The One and the Other’, In a Forest a Deer (Translated from Tamil to English); Murugan, Perumal. 2004, Current Show. Chennai: Tara Publishing; Dawesar, Abha. The Three of us, Penguin India (2000) and Babyji, Penguin India (2005). 77. Dattani, Mahesh. 1998, ‘On a muggy night in Mumbai’, available at www. maheshdattani.com. 78. See: Bombay Boys (1998), at www.imdb.com/title/tt0168529/; Rules: Pyar Ka Super Hit Formula (2003), at www.imdb.com/title/tt0375021/; Page 3 (2005), at www.imdb.com/title/tt0808306/; Honeymoon Travels (2007), at www.imdb.com/title/tt0808306/; and Fashion. Alongside numerous documentaries like Nishit Saran’s Summer in my Veins (2000); Sangamaand T. Jayashree’s Many People Many Desires (2003), Dr. Tirthankar Guha Thakurta’s Piku Bhalo Aacchey (2004); and features like Sridhar Rangayan’s Gulaabi Aaina (2003), Your’s Emotionally (2006) and 68 Pages (2007); Ligy Pullapaly’s Sancharram (2004). 79. For example, Laundas are traditional male dancers, who dance as women across Bihar in weddings. However, their lives are without the abuse and violence that accompanies gender transgression. See: Poddar, Kakoli. 2005, ‘The Laundas of Bihar’, Society, August 2005. Similarly, a troupe called ‘Bin Baikancha Tamasha’ in Maharashtra is an all male traditional Lavani troupe. See: Jiwani, Subuji. 2006, ‘It’s a pity we can’t whistle’, DNA, 9 July 2006. 80. Dostana has been acknowledged as one of the highest grossing gay-themed movies. See: Doctor, Vikram. 2008, ‘Dostana cracks the genre game’, Economic Times, 27 December 2008. 81 My Brother Nikhil (2005). See: www.mybrothernikhil.com. 82. Janeman National School of Drama, Ek Madhavbaug by Chetan Datar (Avishkar), Chotya Sa Suttit by Sachin Kundalkar, available at www.marathichitrapat. com/theatre.php?id=3. 83. See: Aldridge, Marcus and Arvind Narrain. 2009, The Right that Dares to Speak its Name. Bangalore: Alternative Law Forum.

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84. What in effect the judges do by using the reasoning of analogous grounds, is to keep the door open to other groups which might suffer discrimination, availing the protection of Article 15. As the judges note, once again drawing from South African case law, some guidelines can be laid down as to what could be an unspecified [analogous] ground of discrimination. ‘In some cases they relate to immutable biological attributes or characteristics, in some to the associational life of humans, in some to the intellectual, expressive and religious dimensions of humanity and in some cases to a combination of one or more of these features’ (Para 103). This stands in sharp contrast to the 2003 decision of the US Supreme Court in Lawrence v. Texas where even while ruling Texas’s sodomy laws unconstitutional, J. Kennedy was careful to limit the finding. He held that, ‘[i]t does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.’ See: Lawrence v. Texas, 539 U. S. 538 (2003). 85. The Special Leave Petitions have been filed by Suresh Kumar Kaushal and his brother (both astrologers), Bhim Singh (Chairman of the Jammu and Kashmir National Panthers Party), B. P. Singhal (member of the Vishwa Hindu Parishad, former Parliamentarian, also intervened at the Delhi High Court level) and individual enthusiasts like B. Krishna Bhat, S. D. Pratinidhi Sabha and Ram Murti. Kaushal’s prime concerns range from the threat posed by same sex marriage, to the threat Naz poses to the defence system: ‘since jawans live away from their families, they could be tempted to gratify themselves using their colleagues’. Bhim Singh has reportedly stated that ‘he cannot allow judges or politicians to mislead as far as human morality is concerned. This is an American invasion.’ Apart from individuals two separate SLPs have been filed by the Association of Apostolic Churches which believes that homosexuals practice a ‘perversion of god’s order’ and can be ‘made straight’, and finally by the Delhi Commission for Child Rights led by Amod Kanth, who strongly perceives decriminalisation as a threat to child rights despite the selective amendment to Section 377, and no correlation between homosexuality and paedophilia. See: ‘Race against the Rainbow’, Times of India, 30 August 2009. 86. Praveen Agarwal, counsel for the Kaushal bothers, submitted before the Supreme Court that there had been seven cases of gay marriage after the 2 July judgement. He added that ‘this was likely to affect the institution of marriage’. See: ‘Supreme Court Notice to Centre on 377’, The Hindu, 10 July 2009.

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87. See: Rich, Adrienne. 1994, ‘Compulsory Heterosexuality and Lesbian Existence’, Blood, Bread, and Poetry. New York: Norton. See also: Menon, Nivedita (ed.). 2007, Sexualities. Delhi: Women Unlimited, p. 36. 88. ‘Granting a legal sanction to homosexuality will affect family lines, and disintegrate the society’, VHP leader Dilip Khandelwal quoted in Milind Ghatwai’s article ‘VHP wages poster war against homosexuality’, The Sunday Express (Bhopal edition), 18 July 2009. 89. ‘Only whores choose their partners’, Times of India, 6 September 2009; ‘In the name of honour’, Frontline, Vol. 26, No. 17, 15–28 August 2009; People’s Union for Democratic Rights (PUDR). 2003, Courting disaster: A report on Inter-caste Marriages, Society and State, available at www.pudr.org (accessed on 10.09.09). 90. Dionne Bunsha documents a conversation with Mangubhai Maharaj associated with the Bajrang Dal: ‘I have rescued 496 girls from the clutches of their Muslim husbands. There are thirty eight police cases filed against me for doing this seva. I will continue my work,’ he tells me and my journalist friend while flipping through a file with newspaper articles which chronicle his crimes. See: Bunsha, Dionne. 2007, Scarred: Experiments with Violence in Gujarat. New Delhi: Penguin, p. 247. See also: PUCL-K. 2009, ‘Cultural policing in Dakshina Kannada’, available at www.pucl.org (accessed on 16.09.09). 91. PUDR’s report, Courting Disaster, see note 89; Mody, Perveez. 2008, The Intimate State. London: Routledge; Chowdhry, Prem. 2007, Contentious Marriages, Eloping Couples. New Delhi: Oxford University Press. 92. The District court in Panchamal, Gujarat ruled in favor of Sonu Singh (21 years) and Rekha Marwari’s (19 years) decision to live together as a couple, despite opposition from families, holding that they were adults and enjoyed the fundamental right to live together. See: ‘Court gives same sex couple reprieve’, Press Trust of India, Ahmedabad, 12 March 2006. A Magistrate’s Court in Thrissur, Kerala, held that there was nothing in the law to prevent two women from exercising their freedom as adults to choose with whom they wished to live. See: ‘Court Permits Young Women to Live Together’, Mathrubhumi, 27 October 2002, p. 1. 93. Raju, S. 2006, ‘Meerut furious over lesbian “marriage”’, Hindustan Times, 11 January 2006. ‘Five days ago, the couple wed at a local temple. Both are now pariahs. Sita, who is reportedly the “male” in the relationship, faced the wrath of her family. She was allegedly locked up in a room and thrashed. The chafed and traumatized girl attempted suicide and had to be hospitalized…Activists of Surbhi Parivar and Shiv Sainiks demonstrated in

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front of commissioner’s office to oppose the “marriage”. “This is against out culture and we can’t tolerate it”, they said.’ 94. In October 2005, the Parasia Police in Chhindwada (Madhya Pradesh) were baffled when two girls, Jyoti and Savita asserted their rights to live as a same sex couple. See: ‘Runaway Lesbians baffle Cops’, Mumbai Mirror, 26 October 2005; AFP on 30 January 2006, captured one of the most memorable photographs of a lesbian couple, living together for more than 25 years in an isolated village of Raju Tanda, some 280 km south east of Hyderabad. The photograph shows Badhavathi Sali and Bibi Banodu eating lunch in a field close to their home. See also: Sharma, Maya. 2006, Loving Women: Being Lesbian in Unprivileged India. New Delhi: Yoda Press. 95. The queer community is overwhelmed by the ever increasing list of runaway lesbian couples. These are women who fall in love in hostile environments. Many run away to bigger cities, to support groups, looking for securtiy from a hostile family without any economic support. However, many just end up committing suicide. See: V. N., Deepa. 2005, ‘Queering Kerala’, in Arvind Narrain and Guatam Bhan (eds), Because I Have a Voice. New Delhi: Yoda Press, pp. 175–196. See also: ‘Women in love, marry each other, enter suicide pact: one dead’ (Lucknow), Indian Express, 12 May 2005. 96. Menon, see note 87, p. 37. 97. Mody, see note 91, p. 144. 98. See: Ambedkar, B.R. 2002, ‘The Hindu Code Bill’, in Valerian Rodrigues (ed.), The Essential Writings of B.R. Ambedkar. New Delhi: Oxford University Press, pp. 495–516. 99. See note 5. 100. Section 2 (1) of the Hindu Marriage Act applies the act to (a) any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj; (b) any person who is a Buddhist, Jaina or Sikh by religion. 101. Mody, see note 91. 102. See: http://thepinkchaddicampaign.blogspot.com/ (accessed on 30.09.09). 103. PUCL-K, ‘Cultural Policing in Dakshina Kannada’, available at www.pucl. org/Topics/Gender/2009/cultural_policing.pdf (accessed on 30.09.09). 104. See: www.thehindu.com/2005/12/23/stories/2005122309791200.htm (accessed on 30.09.09).

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Acknowledgements The Editorial Collective would like to gratefully acknowledge all those who have contributed pieces to this volume. We also would like to thank our publisher Arpita Das of Yoda Press for creating this unique space for emerging work on sexuality through the Sexualities list of Yoda Press. The comments and feedback of the Sexualities Series Editor, Gautam Bhan, have undoubtedly enhanced the quality of the book as a whole. We would also like to thank Nishtha for painstakingly and diligently copyediting the entire manuscript and producing the final version.

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Section I Conceptualising Queer Politics of Law

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Queering Democracy: The Politics of Erotic Love Arvind Narrain

Introduction

It’s only in the last decade or so that the notion of a queer politics has come to have increasing salience in both academic as well as activist circles in India. Much of the critique around normative notions of sexuality and gender has centered around the growing opposition to the anti-sodomy law (Section 377 of the IPC). While the challenge has been rightly phrased in terms of a petition before the Delhi High Court as a demand for equal rights, the question before queer activism is whether or not the challenge to Section 377 has implications for a wider democratic politics. Is the task of queer politics to press for the inclusion of citizens who are being discriminated against on the basis of their gender and sexuality within the existing democratic framework? Or can one take it a step further and argue that there are implications of the queer perspective for the question of a democratic practice? Is the imagination of a queer politics merely about access to rights for queer citizens or also about questioning structures which limit the very potential of human freedom? At the level of conceptualising queer struggle, it has been argued that it must indeed go beyond the question of rights to critique fundamental structures in society. A queer vision is not merely about equal rights for LGBT persons but about loosening up the rigid structures

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of caste, gender and compulsory sexuality. It is about questioning notions of purity, muddying rigid boundaries and opening out a space for those at the margins of the hegemonic structures which make up our society. What a queer vision also calls for is an open-ended political project which has the capacity to be self-reflexive and take on new concerns. A queer project is not envisioned as being hegemonic in the sense of drawing rigid lines to define the community or being doctrinaire about what are the concerns which affect the community. A sense of openness to different ways of being and association is at the heart of the queer political project. One can take inspiration from Leela Gandhi’s re-reading of anarchist traditions (which were causalities of a more hard and scientific socialism) as embodying a commitment to a discourse of ‘openness’, and an ‘iterative defence of an uncovered, permeable, unknown, undisclosed future’.1 This openness or ‘provisionality is privileged as the condition of eventual inclusivity[...], unexpectedly giving shape to a subversive coalitional modality, and gathering seemingly disparate causes under the same umbrella.2 Can we read a similar openness as being at the very heart of the queer political struggle? Does an open-endedness of the queer project emerge from the very nature and complexity of the queer struggle? As a 2005 anthology of queer writing demonstrated, it was only a self-reflexivity at the heart of queerness which allowed for a lesbian perspective to accommodate a transgender worldview, for a gay perspective to understand that class might be a central queer issue from the perspective of kothis and for a queer feminist activist to constantly revise her very understanding of politics with the fast-changing notions of sexuality and gender.3 In fact as the editors refuse to lay out a ‘tightly written summary of the limits, beliefs, and tenets of a queer politics, with which one could agree or disagree’, they refuse to, ‘lay out a philosophy, argue a case, and even present an identifying label that “queers” could then use to name themselves to others’. The reason for this unwillingness to be programmatic is that, ‘the true test of queer politics will only come with time, for like other living histories, the future is as yet an unwritten part of the story.’4

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This essay will argue that an open-ended queer political project draws its strength from an understanding of what it means to be queer in India. The provisionality of queer notions of struggle emerges from the very fact that to be queer is twinned with the idea of being reflexive. If this is indeed true, then it would be self-contradictory for queers to rigidly draw lines and lay down doctrinaire manifestos given the constantly changing nature of queer identity itself. The question here is: if such is indeed the nature of queer identity, how is it possible to take forward an imaginative notion of what queer struggle means? Can queer struggle be conceptualised to take on board notions which go beyond those that immediately affect LGBT persons? Can an understanding of the structures of family and marriage and their complicity in keeping intact rigid identities lead us to a political understanding which places caste, marriage and family at the centre of queer politics? This essay will first try and understand why identities emerge as political ways of being in post-independence India, and then go on to draw out strands of what a queer location can contribute to a democratic project by drawing some analogies to the Dalit movement. Finally, the essay will address ways of imagining a queer struggle which can contribute to the democratic project in India. The Death of the ‘Unmarked Citizen’: The Importance of Identity in the Politics of Post-Independence India

The dream of nationhood as conceptualised by Nehru was that with the coming of the modern nation, older identities based on region, language, caste and religion would gradually cease to be politically salient as individuals would be treated as citizens unmarked by categories of caste, religion and gender. However at the beginning of the twenty-first century, identity in the public sphere remains of great political salience. Critics of the modern nation state have rightly pointed out how, in spite of the attempt of some states to embed respect for cultural diversity, states invariably take on the identity of the majority community, with the minorities being expected to adapt to the majority’s

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ways. The resurgence of ethnic identities in the public arena right from Rwanda to Pakistan, India to USA and France is simply a testament to the fact that nation states have failed to make space for their minorities. Minority groups do not feel included in even those states which are multicultural in their constitutional design, as these states, in spite of their constitutional commitments, remain fiercely mono-ethnic in their everyday practices. Even so-called multicultural states remain unable to create a sense of belonging outside the bounds of religion or ethnicity. The nation still remains identified with one ethnic group.5 Is the failure of the state to be non-discriminatory in its practice towards all its citizens confined only to the markers of religion and ethnicity? Are there other markers of identity, on the basis of which the state continues to discriminate regardless of constitutional norms? Are there ways in which the state, while continuing to talk of all citizens as equal, treats some citizens through a discriminatory lens, as unequal on the basis of their ‘identity’? And how is society complicit in this treatment? To take three examples of how identity matters in democratic India: a) One of the most disturbing events of post-independence India happened in Gujarat in 2002. Post the burning of a coach of the Sabarmathi Express in Godhra, violence was unleashed against the Muslim community in Gujarat. For five days from 28 February to 4 March 2002, there was systematic and targeted violence against the Muslim community. There were over 2,000 Muslims killed; Muslim women were raped, property belonging to Muslims was destroyed and 235 dargahs and mosques were destroyed. There was an attempt at destroying the very basis of physical, biological, cultural and psychological life of the Muslim community in Gujarat. The state was complicit in this mass crime which warrants the legal term ‘genocide’ to describe it, as it was nothing less than a ‘co-ordinated plan of different actions aiming at the destruction of essential foundations of life of national groups with the aim of annihilating the groups themselves’.6 It can be shown that the plan

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to commit genocide was born at the very top, through various actions and inactions of the Chief Minister, Narendra Modi. For his actions, he has been rewarded with a renewed mandate from the people. For the Muslim community, everyday life in Gujarat remains precariously dependent on the will of the majority, with the minority being subject to a continuing pattern of discrimination. Today, over seven years after the event, some Muslim families still cannot return to their homes, the perpetrators of the genocide have not yet been brought to book and Gujarat remains a state deeply divided along communal lines.7 b) Post the devastating Asian tsunami at the end of 2004, in a report which came out as early as 1 January 2005, Annie Namala on behalf of the Fact Finding team, noted: As we watched, trucks of food and clothing came to the village and were getting distributed among the fisher community. The Dalits who ran after the lorries came back empty handed. They further complained that since morning three-four trucks had come to the village and the fisher community did not allow any of them to give any relief to the Dalits.8

As the Report poignantly notes, ‘Can one erect a hierarchy of deaths where death in the fisher family is more costly to the family than a death in the Dalit family or can we grade the dead like we grade the living, along caste lines?’9 The answer unfortunately is yes. The grading along lines of caste and class was evident not only in the response of civil society but equally in the response of the state which chose to exclude Dalits and adivasis in its very definition of those entitled to relief and rehabilitation.10 The tsunami was not the first time that entire communities were left out when it came to humanitarian aid. Post partition, the question of what compensation is to be given to the landless, who invariably were Dalit, was raised by Dr Ambedkar but never satisfactorily answered.11 Similarly the relief and rehabilitation efforts post the Orissa cyclone excluded those at the margins in India’s villages, namely Dalits and adivasis.12

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c) Though Section 377 has been read down by the Delhi High Court, it does not automatically mean that LGBT persons are not subject to the violence of the state. To quote one instance from a report by the PUCL-K: In the police station, she was pushed into a room with her husband. Around 15–20 police men stripped her in the presence of a senior police officer who was in the police station at that time.... All the 15–20 police men stood around her, sexually abusing her by touching her all over her naked body. They humiliated her further by forcing her to spread her thighs and touching her sexual organs.13

What all three extracts bring into sharp focus is the way the local state functions with a brutality and callousness which only speaks of a deeprooted structural discrimination, which cannot be easily explained away as the aberrant behaviour of a few individuals. In fact the socalled aberrant behaviour becomes not only thinkable but also do-able only because of a wider reservoir of social feeling which regards those who deviate from the heterosexual norm, those who are Dalit and those who are Muslim, as less than human. The three instances speak of the way the structures of caste, religion and sexuality operate in an everyday fashion to deny equal rights to the citizens of this country. One could multiply instances such as this in independent India, all of which would paint a picture of the state as imbued with prejudices of various kinds based on caste, class, gender, sexuality and a whole series of other markers. The politics of location is really born at the point where these oppressions are not taken note of either by the state or by dominant progressive voices. The silence of the state is met by the angry and vociferous speech of those who come from locations which carry stigma and are despised by both the state and society. If one were to compile an open-ended register, the markers on which discrimination is perpetrated would minimally include gender, class, caste, religion, ethnicity, disability and sexuality—all in a state committed to rule of law and equal rights for all citizens at the level of the constitution.

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It remains a fact that for a long time, progressive politics in India was a monopoly of the left with little space for the articulation of the multi-faceted nature of human suffering. In fact, as early as 1936, Dr Ambedkar signposted the problem with the leftist hegemony. He noted: If socialists are not to be content with the mouthing of fine phrases, if the Socialists wish to make socialism a definite reality then they must recognize that the problem of social reform is fundamental and that for them there is no escape from it. That, the social order prevalent in India is a matter which a Socialist must deal with, that unless he does so he cannot achieve his revolution and that if he does achieve it as a result of good fortune he will have to grapple with it if he wishes to realize his ideal, is a proposition which in my opinion is incontrovertible. He will be compelled to take account of caste after revolution if he does not take account of it before revolution. This is only another way of saying that, turn in any direction you like, caste is the monster that crosses your path. You cannot have political reform, you cannot have economic reform, unless you kill this monster.14

The Emergence of the Politics of Location

Out of the frustration with this dominant worldview expressed so eloquently by Ambedkar, were born the numerous struggles based on the vision which comes with being located differently. Thus the politics of location is simply one way of saying that class is not the only salient political category; there are also people who are lower caste, sexually despised or disabled. And some people are all of the above. Any self-critical practice will have to take the politics of location seriously because it forces us to be constantly open to the multifaceted ways in which human beings are constituted and the numerous hierarchies which continue to make up society. In an age where no single ideology is dominant, the good thing is possibly an openness to diverse experiences which can challenge a monochromatic way of envisioning and engaging in politics.

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Is there a tone or timbre to the voice of the subordinated? It is sometimes a cry of anger, hurt or sheer rage, sometimes a minute description of daily injustice and yet other times, it is a passionately argued voice of reason. What does the voice of the subordinated, in its various notes, actually do? One can delineate at least two functions which the voice of resistance serves.15 Politics of affirmation and solidarity: Resistance identities

Perhaps most importantly, the voice of resistance breaks the silence. The voice of pain or anger lets us know that all is not well with the definition of politics as we know it. The point of politics begins when you discover that what you feel are not your feelings alone, that your cry of rage is shared by a wider group of people and that what you have to say resonates with the experience of other people as well. Its speech builds new solidarities and reaches out across great distances to awaken the impulse of politics in others similarly situated. It gives a name to suffering and a politics to a cry of pain. Perhaps central to the political impulse is the desire to build solidarity on the basis of one’s identity. To take one example from a pamphlet called ‘Queers read this: I hate straights’: I hate that in twelve years of public education, I was never taught about queer people. I hate that I grew up thinking I was the only queer in the world and I hate even more that most queer kids still grow up the same way. I hate that I was tormented by other kids for being a faggot, but more that I was thought to feel ashamed for being the object of their cruelty, taught to feel it was my fault. I hate that the Supreme Court of my country says its okay to criminalize me because of how I make love. I hate that so many straight people are so concerned about my goddamned sex life... I hate straights.16

There is something of this feeling of political discovery in what Bina Fernandez and Gomathi have to say on viewing the film Fire: For those of us who identify as women who love women, that such a film should have been made at all and shown in mainstream theatres

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seems almost unbelievable. The experience of sitting in a theatre full of women and watching the film with its scenes of love and caring between two women, and not a man and a woman, was moving in a way that prevented immediate analysis or critique. Foremost was a sense of exultation that within the constant barrage of heterosexist imagery, there was one possible representation visibilising and validating the ways in which women can love women.17

The two extracts cited above are both voices which are explicitly located as queer. The first extract, which embodies a voice of anger, puts forward in almost poetic rap fashion, a critique of exclusion by mainstream society. The second embodies a voice which symbolises a kind of discovery; a sense that one is not alone and that one’s desires are shared by a wider group of people. Both extracts speak from a certain location and the insights they give us on the way society is organised are based on that location. Perhaps the most important thing about the voices of the subordinated speaking for themselves, is that they affirm a stigmatised identity and restore value to what was previously perceived as dross. The reappropriation of the word ‘queer’ which was initially a term of insult for homosexuals and the use of the word ‘Dalit’ which means downtrodden are both examples of ways in which one attempts to reclaim and reinvent an identity by investing it with notions of pride in struggle. Questioning the mainstream: Project identities

The politics of location taken one step ahead, recognises that affirming one’s identity within a field of hegemonic identity, leaves unquestioned the power of the system to name. Thus the location or standpoint of the activist/writer is used to produce a critique which can dismantle the system which produces the difference. Perhaps one of the most powerful examples of a standpoint which wishes to dismantle the very idea of hierarchical division, as opposed to asking for dignity within a field of difference, is the development of Ambedkar’s idea of the annihilation of caste. Equality within the system was seen to be a pipe-dream; rather the only way an equal status could

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be achieved would be by dismantling the religion on which the caste system is based. In Ambedkar’s understanding, lives of dignity for the scheduled castes are only possible if the basis of Hindu religion—be it a belief in the Vedas or the caste-bound nature of marriage—is destroyed. What Ambedkar posits is a radical critique. As Ambedkar powerfully puts it: Social reforms fall into different species. There is a species of reform, which does not relate to the religious notion of people but is purely secular in character. There is also a species of reform, which relates to the religious notions of people. Of such a species of reform, there are two varieties. In one, the reform accords with the principles of the religion and merely invites people, who have departed from it, to revert to them and to follow them. The second is a reform which not only touches the religious principles but is diametrically opposed to those principles and invites people to depart from and to discard their authority and to act contrary to those principles.... The destruction of Caste is a reform which falls under the third category. To ask people to give up Caste is to ask them to go contrary to their fundamental religious notions. It is obvious that the first and second species of reform are easy. But the third is a stupendous task, well nigh impossible. The Hindus hold to the sacredness of the social order. Caste has a divine basis. You must therefore destroy the sacredness and divinity with which Caste has become invested. In the last analysis, this means you must destroy the authority of the Shastras and the Vedas.18

The Darbar Mahila Samanwaya Committee (DMSC), in its sex workers manifesto, also marks a realisation that for change to take place, one can’t merely ask for equality but instead one has to critique and transform mainstream institutions. The DMSC manifesto notes: The process of struggle that we, the members of Mahila Samanwaya Committee, are currently engaged in has only just begun. We think our movement has two principle aspects. The first one is to debate, define and re-define the whole host of issues about gender, poverty, sexuality that are being thrown up in the process of struggle itself. Our experience of Mahila Samanwaya Committee shows that for a marginalized group to achieve the smallest of gains, it becomes imperative to challenge

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an all-encompassing material and symbolic order that not only shapes dominant discourses but and perhaps more importantly, historically conditions the way we negotiate our own locations as workers within the sex industry.19

The (DMSC) Manifesto is a call to critically examine the role of how institutions such as marriage and family, and notions such as respectability play a role in marginalising those women who do not conform to societal expectations. The converse of the devaluation of the lives of women in sex work is the unquestioned acceptability that mainstream institutions like marriage and family have. The critique of the DMSC is also echoed by the development of queer politics, where one refuses to merely affirm gay identity, but rather wishes to deconstruct the system which produces such identity. The argument from the queer standpoint is really to question the dominant structures which underpin the continued stigmatisation of queer people. To take one concrete example, a queer viewpoint on the right to marry debate for homosexuals would be that homosexuals should not ask for the right to marry, but rather question the heterosexist and patriarchal roots of the institution of marriage itself. The only way in which one can enhance the potential for human freedom for all people is not by asking for inclusion within the institution of marriage but rather by calling for its destruction.20 The Politics of Location: The Problematic of Intersections

Thus to summarise, what the politics of location does at the minimum, is to affirm previously devalued identities and pave the way for those social groups to build new solidarities and start demanding equal treatment. At its most radical edge, the place of location is a point from which the mainstream identities based on caste and sexuality are sought to be dismantled. In terms of the project of democracy what the politics of location does is to throw up new questions. First, the question of whether the democratic state will ever recognise groups discriminated against on grounds of sexual orientation as equal citizens and grant citizenship

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rights which the fictional unmarked citizen enjoys. Second, whether democracy can ever be realised in a world where the structure of caste, compulsory heterosexuality and marriage continue to exist as social givens? It is also clear that the burden of making democracy meaningful is borne not so much by the state but rather by grassroots groups. The right to information movement led by the Mazdoor Kisan Shakti Sangathan (MKSS), the critique of development by the Narmada Bachao Andolan (NBA) and the women’s movements’ critique of patriarchy are all examples of how the project of democracy is really a grassroots phenomenon to which the state remains highly resistant. If the value of the politics of location can be appreciated in the above terms, then the next question to be answered is: what are some of the problems one faces in the very articulation of this form of politics? Perhaps one of the most troubling and vexing questions which the politics of location throws up is: how do the various political positions, be they of caste, gender, class or sexuality, intersect? In the ideal world of activism, where ‘human suffering’ is the lowest common denominator, we empathise with and act upon all forms of suffering. However the world of activism is subject to much the same flaws as the wider society, and there are hierarchies and divisions. Sometimes these take explicit forms wherein those coming from one location refuse to concede the space of ‘legitimate politics’ to those from other locations. Sometimes the sub-text is more hidden. The tendency of certain voices from marginalised groups to themselves stigmatise other groups remains a key problem for the politics of intersectionality. Thol Thirumavlavan, a key figure belonging to the Dalit Panthers, castigated well-known Tamil actress Khushboo for supposedly justifying pre-martial sex. He noted, ‘Khushboo made the remarks on pre-marital sex to justify her own life’s experience. She had no right to talk of the chastity of Tamil women.’ He went on to note: Tamil culture is not just about chastity. It is not correct to advocate free sex. Marriages are based purely on trust. Both partners have to be faithful to each other if the marriage is to work. Periyar held the view

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that women were being enslaved in the name of chastity. It is applicable to both men and women. It is important to protect the institution of marriage.21

The location of the sexual outsider seems particularly vulnerable to her suffering being rendered a function of chance and not seen as a question of politics. In fact, More often than not, the abuse suffered by these subaltern sexual cultures has been made invisible even by the activist community using a convoluted logic that arrogates to itself the ability to calibrate pain. First comes class, then comes caste, then come gender, ecology and so on. If there is any space left on this ark of suffering, then sexuality is included as a humble cabin boy. There is no hope of the last being the first in this inheritance of the meek.22

Queerness as the Politics of Radical Kinship

The question remains as to whether there is any political basis for these intersecting marginalised voices to come together to further the idea of democracy, or is it just a pious hope based on a perception of a common humanity? The argument for a common politics is still to be made, but there are hopeful pointers towards building a common politics. In her fascinating work, Leela Gandhi draws a linkage between those who were seen as cranks or outcastes in the heart of empire and the very beginnings of the anti-colonial movement. In particular she draws our attention to the fin-de-siécle utopian socialism practised by figures such as Edward Carpenter and their embodiment of ‘homosexuality as a capacity for radical kinship’. Carpenter in his day was active in the homosexual rights movement, the anti-vivisection movement and spoke up against colonialism and for prostitutes’ rights and vegetarianism. In fact as Leela Gandhi points out, Hind Swaraj mentions Carpenter’s book Civilization: Its Cause and Cure. What is remarkable about the unique kind of politics practised by Carpenter is that it was ‘marked by an apparent disregard for what we now know as

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“identity” or “single issue politics”, thus enabling the easily transferable sympathies and promiscuous alliances that we have witnessed among unlikely ideological bedfellows.’23 What accounted for the remarkable range of Carpenter’s affinities? In Leela Gandhi’s opinion Carpenter ‘stubbornly extols the experience and condition of homosexuality as the cornucopian source of his ethical and political capacity as the privileged rehearsal ground for his strange affinities with foreigners, outcastes, outsiders’.24 Carpenter played a part in ‘expanding, however briefly, the ideological scope of modern homosexuality’.25 At a much later point in time, Michel Foucault similarly evoked a form of politics which expanded the meaning of homosexuality. Foucault was not interested in the question of what the secret of homosexual desire is but rather ‘What relations, through homosexuality, can be established, invented, multiplied, and modulated?’26 As he put it: One of the concessions one makes to others is not to present homosexuality as anything but a kind of immediate pleasure, of two young men meeting in the street, seducing each other with a look, grabbing each other’s asses and getting each other off in a quarter of an hour. There you have a kind of neat image of homosexuality without any possibility of generating unease, and for two reasons: it responds to a reassuring canon of beauty, and it cancels everything that can be troubling in affection, tenderness, friendship, fidelity, camaraderie, and companionship, things that our rather sanitized society can’t allow a place for without fearing the formation of new alliances and the tying together of unforeseen lines of force. I think that’s what makes homosexuality ‘disturbing’: the homosexual mode of life, much more than the sexual act itself. To imagine a sexual act that doesn’t conform to law or nature is not what disturbs people. But that individuals are beginning to love one another—there is the problem.27

So the question really is: even when we think of homosexuality, what does it mean? What does the sexual act mean and what do the relationalities brought into being by the sexual act mean? The sexual

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act itself can be seen as a form of questioning of what Gayle Rubin has called ‘erotic injustice’. That is, what one is questioning is a culture of sex negativity and a culture which hierarchically grades sex acts by placing homosexual acts near the bottom of the sexual hierarchy.28 In fact one can argue that the campaign against Section 377 is sometimes framed as an argument about valuing all forms of sex equally. It is about removing the stigma of unnatural from certain sex acts. It is about addressing erotic injustice. But can our politics go beyond revaluing homosexual sex acts to raising questions about ties of kinship, affinity and forms of power? Can queerness be, in Carpenter’s words, ‘about the politics of radical kinship’? To explore some of the possible ways we can think of queerness in this way, this essay will examine the connections between George Orwell, Ambedkar and the politics of intercaste marriages in India. Orwell and Ambedkar: Some Parallel Critiques?

Some of these connections emerge interestingly enough in one of the key novels of the twentieth century, George Orwell’s 1984 which has been usually read as a dark and brooding meditation on the future as irredeemably dystopic. The novel is set in the future, in a country Oceania which is ruled by a dictatorship which minutely controls the lives of its citizens using the concepts of thought crime, face crime, double think, the ritual of the Hate Week, the institution of the thought police and other insidious modes of control. What is fascinating is the link the totalitarian dictatorship draws between control of pleasure, denial of love and its own ability to perpetuate its dominance. Key to the self perpetuation is the Junior Anti Sex League which functions as a vigilante group punishing any one who has sex for pleasure either in marriage or outside marriage. Winston, the anti-hero of the novel has an affair with Julia. This otherwise mundane fact of the ‘affair’, gets invested with extraordinary significance in the world of 1984. Winston sees himself as a rebel who desires a world outside the control of Big Brother. In Winston’s

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thoughts, he sees himself as ‘a lonely ghost uttering a truth that nobody would ever hear. But so long as he uttered it, in some obscure way the continuity was not broken. It was not by making yourself heard but by staying sane that you carried on the human heritage.’29 He empathises with the Party enemy Goldstein and ‘his heart went out to the lonely derided heretic on the screen, sole guardian of truth and sanity in a world of lies’.30 Julia, in contrast to the more intellectual Winston, instinctively grasps the nature of the control of Big Brother: With Julia everything came back to her own sexuality. As soon as this was touched upon in any way she was capable of great acuteness. Unlike Winston, she had grasped the inner meaning of the Party’s sexual puritanism. It was not merely that the sex instinct created a world of its own which was outside the party’s control and which therefore had to be destroyed if possible. What was more important was that sexual privation induced hysteria, which was desirable because it could be transformed into war fever and leader worship.31

Winston, through his affair with Julia, begins to understand her point: That was very true he thought. There was a direct intimate connection between chastity and political orthodoxy. For how could the fear, the hatred and the lunatic credulity which the Party needed in its members be kept at the right pitch except by bottling down some powerful instinct and using it as a driving force? The sex impulse was dangerous to the Party and the Party had turned it to account.32

Both Winston and Julia, in their understanding of what they are doing, empty the ‘affair’ of its conventional meaning and take pride in the transgressions which it signifies. Winston: ‘Listen. The more men you’ve had, the more I love you. Do you understand that?’ Julia: –‘Yes perfectly.’ Winston: ‘I hate purity, I hate goodness. I dont want any virtue to exist anywhere. I want everyone to be corrupt to the bones.’33

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Based on this shared understanding of the meaning of sex, perhaps the most powerful performance of rebellion by Winston and Julia are the acts of love between them, which Winston describes as ‘a magnificent gesture by which a whole civilization seemed to be annihilated.’ In Winston’s analysis, ‘their embrace had been a battle, the climax a victory. It was a blow struck against the Party. It was a political act.’34 In Orwell’s brilliant analysis, there is a close connection between the sexual puritanism insisted upon by the party and the political orthodoxy embodied by it. Purity is the essence of totalitarian power. If we turn from Orwell’s analysis of the relationship between sexuality and power to Ambedkar’s analysis of the relationship between marriage and the perpetuation of the caste system, there are astonishing parallels. In The Annihilation of Caste, Ambedkar notes: I am convinced that the real remedy is inter-marriage. Fusion of blood can alone create the feeling of being kith and kin, and unless this feeling of kinship, of being kindred, becomes paramount, the separatist feeling— the feeling of being aliens—created by Caste will not vanish. Among the Hindus inter-marriage must necessarily be a factor of greater force than it need be in the social life of non Hindus. When society is already well knit by other ties, marriage is an ordinary incident of life. But where society is cut asunder, marriage as a binding force becomes a matter of urgent necessity. The real remedy for breaking caste is intermarriage. Nothing else will serve as the solvent of caste.35

In Ambedkar’s understanding, once again it is marriage across castes that creates new forms of alliance and new forms of love and affection, which can profoundly shake the totalitarian nature of the caste system. Ambedkar’s statement can be read as a strong indictment of purity, a discomfort with (sexual) orthodoxy and a belief in the subversive possibilities of love. If such is indeed the close connection between the institution of marriage and the perpetuation of the caste system, what is indeed called for is the ‘...magnificent gesture by which a whole civilization

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seemed to be annihilated’, i.e., love transgressing the borders of caste. It is precisely this defence of subversive love that those who see the connections embodied above must take forward. Interestingly, but perhaps inevitably, the dangers of ‘love marriage’ to the perpetuation of the institutions of caste and control of women is best grasped by the upholders of the system. The People’s Union of Democratic Rights (PUDR), in a powerful report on intercaste marriages, documents the brutal consequences which follow when young people belonging to different castes decide to get married against the will of the community. To cite just one example out of the many which have been extensively documented by PUDR: A Jat girl Susheela eloped with a Dalit boy Rajpal. Both were adults. The parents of Susheela filed a false case of kidnapping against the boy and coerced the girl to return to her home. The girl was produced before the Magistrate where she stated: ‘I am married to Bittoo (Rajpal) of my own free will.’ Her sister, Lalita who had also run away with her, stated before the Magistrate that: ‘My sister wanted to marry Bittto (Rajpal), but she was being forcibly married to someone else.’ This statement by both the girls however still resulted in their being sent to the custody of their maternal uncle who took them back to their village. The girl and her sister apparently committed suicide that night. However the PUDR report concludes: While the family claimed that it was ‘suicide’, women in the neighbourhood told us that they heard the girls cry out for help in the night, arousing a strong suspicion among many people that the girls were forcibly poisoned. The cries were privately confirmed to us by an elderly Jat lady who argued that the family had no option but to kill the girls as the two refused to change their statements.36

As far as Rajpal was concerned, a criminal case of abduction and rape was filed against him and four of his friends. The other Dalit women in the village were threatened with rape and the pressure exerted by the Jats resulted in two suicides among the Dalits. While the violence which is exerted against the Dalit community can be explained by reference to caste prejudices, the key question to

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answer is: what accounts for such brutality by family members against their own daughters? Why was love across castes so threatening to the Jat community? According to the PUDR Report: Apart from ensuring smooth reproduction of the caste group, this practice [arranged marriage] additionally provides control over children in the hands of the male elders. This patriarchal control, which serves as the guiding principles on which family life is based, is wholly in consonance with the requirements of the structures of caste. Both patriarchy and caste feed into each other when the issue at stake is an inter-caste marriage. For such marriages willy-nilly challenge both these structures.37

Interestingly it was Friedrich Engels who underlined the patriarchal assumptions underlying arranged marriage and the way in which what he called sex love could provide a more egalitarian basis to the relationship. He noted: Our sex love differs materially from the simple sexual desire, the eros of the ancients. First it presupposes reciprocal love on the part of the loved one; in this respect, the woman stands on a par with the man; whereas in the ancient eros, the woman was by no means always consulted. Secondly, sex love attains a degree of intensity and permanency where the two parties regard non-possession or seperation as a great, if not the greatest, misfortune; in order to possess each other they will take great hazards, even risking life itself—what in antiquity happened at best, only in cases of adultery. And finally a new moral standard arises for judging sexual intercourse. The question asked was not whether such intercourse was legitimate or illicit, but also whether it arose from mutual love or not?38

Subversive Love: A Meeting Point of Struggle?

What is necessary at both the level of theory and practice is to place the issue of subversive love firmly at the centre of the intersectional struggle against the oppressions of caste, gender and sexuality. An insightful

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reading of the subversive potential of romantic love for queer people is offered by Shohini Ghosh. Ghosh argues that the great fascination which Bollywood exercises among queer people is precisely because it privileges love as an emotion over the social obligations to parents, community, caste and religion.39 This privileging of romantic love opens out a new terrain of affinities which have the potential of being subversive of the dominant structures of caste, class and sexuality. Of course the question which comes to the fore is whether any of this has anything to do with queer struggle. Is there a way in which these struggles against the normative regime of sexuality are about being queer? Nivedita Menon’s argument is that we need to see that the struggle against Section 377 is not about a homosexuality which is out there but about a procreative heterosexuality. What keeps in place procreative heterosexuality is the continued exclusion and stigmatisation of homosexuality. Similarly she argues that we ‘need to insert the stories of violence against inter-caste/religious marriage and lesbian suicides into a history of compulsory heterosexuality and of marriage as the institution that best represents it—its bright lights showing up even sharper against its dark underbelly.’40 So if one is taking one’s cue from Carpenter and Foucault, then inter-caste marriages are really one way of rethinking community, kinship, sociality and relationality. They are a critique of both compulsory heterosexuality and the structures of caste. In their privileging of love over convention, pleasure over obligation and self fulfilment over social expectation, they are decidedly queer. Inter-caste marriages within this framework are as integral to the queer struggle as the struggle against discrimination based on gender identity or sexual orientation. Notes 1. Gandhi, Leela. 2006, Affective Communities. New Delhi: Permanent Black. 2. Ibid. 3. Narrain, Arvind and Gautam Bhan (eds) 2005, Because I Have a Voice. New Delhi: Yoda Press. See essays by Ashwini Sukthankar, Alok Gupta and Chayanika Shah.

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4. Ibid., p. 27. 5. Chandoke, Neera. ‘The logic of recognition?’, available at www.indiaseminar.com/semsearch.htm. 6. Schwabas, William. 2000, Genocide in International Law. Cambridge: Cambridge University Press, p. 25. 7. See: Mander , Harsh. 2009, Fear and Forgiveness. New Delhi: Penguin. 8. The team consisted of representatives of National Campaign on Dalit Human Rights (NCDHR), Human Rights Forum for Dalit Liberation (HRFDL), Dappu and Safai Karmachari Andolan. 9. Ibid. 10. See: Mohan, Niruj et al., ‘Relief and rehabilitation—Ensuring inclusion’, Economic and Political Weekly, Vol. 9, April, 2005. 11. ‘Although Ambedkar carried on a correspondence with Nehru in December 1947 to try and win them justice, little changed. The untouchable refugees could not get land for settlement in villages since it was assumed that they were landless.’ See: Omvedt, Gail. 2004, Ambedkar: Towards an Enlightened India. Delhi: Viking Penguin, p. 124. 12. See: Das, Sana. ‘A study on coastal area calamities and vulnerable people’s entitlements: A critique of the Orissa relief code’ and ‘A critique of famine codes in India: A study of the Rajasthan famine code and vulnerable people’s entitlements’. On file with the Alternative Law Forum. 13. People’s Union for Civil Liberties (PUCL)- Karnataka. 2003, Human Rights Violations Against the Transgender Community: A case study of hijras and kothis in Bangalore. Bangalore: PUCL-K, p.29. 14. Ambedkar, B. R. The Annihilation of Caste, available at www.ambedkar.org/ ambcd/. 15. Manuel Castells distinguishes three forms of identities: Legitimising identity: introduced by the dominant institutions of society to extend and rationalise their domination vis-a-vis social actors. Resistance identity: generated by those actors who are in positions/ conditions devalued and/or stigmatised by the logic of domination, thus building trenches of resistance and survival on the basis of principles different from, or opposed to, those permeating the institutions of society. Project Identity: when social actors, on the basis of whichever cultural materials are available to them, build a new identity that redefines their position in society and, by doing so, seek the transformation of overall social structure. See: Castells, Manuel. 1997, The Power of Identity. Oxford: Blackwell, p. 8. 16. Blasius, Mark et al. 1997, We Are Everywhere. New York: Routledge, p. 777.

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17. Narrain, Arvind and Gautam Bhan (eds). 2005, Because I Have a Voice. New Delhi: Yoda Press, p. 200. 18. Ambedkar, see note 14. 19. Darbar Mahila Samanya Committee. 2005, ‘Sex workers manifesto’, in Monica Narula et al. (eds), Sarai Reader 05: Bare Acts, Delhi: The Sarai Programme, p. 570. 20. See: Warner, Michael. 2000, The Trouble With Normal: Sex, Politics, and the Ethics of Queer Life, Cambridge, Mass.: Harvard University Press. 21. Tehelka, 5 November 2005. 22. Narrain, Arvind. ‘Queer people and the law’, available at www.indiaseminar.com/2003/524/524%20arvind%20narrain.htm. 23. Gandhi, Leela. 2006. Affective Communities. Delhi: Permanent Black, p. 177. 24. Ibid., p. 35. 25. Ibid. 26. Foucault, Michel. 1994, ‘Friendship as a way of life’, Ethics Vol.1. London: Penguin, p. 136. 27. Ibid. 28. Rubin, Gayle. 1999, ‘Thinking sex: Notes for a radical theory of the politics of sexuality’ in Peter Parker and Peter Aggleton (eds) Culture, Society and Sexuality: A Reader. London: UCL Press. 29. Orwell, George. 1981, 1984. New York: Signet, p. 26. 30. Ibid., p. 16. 31. Ibid., p. 110. 32. Ibid., p. 111. 33. Ibid., p. 104. 34. Ibid., p. 105. 35. Ambedkar, see note 14. 36. People’s Union for Democratic Rights (PUDR). 2003, Courting Disaster: A Report on Inter-caste Marriages, Society and State, p. 3. 37. Ibid., p. 12. 38. Engels, Friedrich. 1970, ‘Origins of family, private property and state’ in Karl Marx et al., Selected Works. Moscow: Progress publishers, p. 504. 39. Ghosh, Shohini. 2002, ‘Queer pleasures for queer people’, in Ruth Vanita (ed.), Queering India. New York: Routledge. 40. Menon, Nivedita. 2007, ‘Outing heteronormativity: Nation, Citizen, Feminist Disruptions’, in Nivedita Menon (ed.), Sexualities. New Delhi: Women Unlimited, p. 37.

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Ordering Justice, Fixing Dreams: An Ethnography of Queer Legal Activism Naisargi N. Dave

On a wintry New Delhi evening in early December 2001, two nights into my fieldwork, I was enjoying after-dinner conversation in the living room of two local activists. They were Lesley and Jaya, a couple I had befriended years earlier, and who were also co-founders of the queer political advocacy collective, PRISM, or People for the Rights of Indian Sexual Minorities. Among the group that night was Akshay, then employed by the non-profit Lawyers Collective and also a founding member of PRISM. He lounged on the divan, regaling us with hilarious stories and spontaneously composed, bawdy, songs set to the sound of his jangling bangles. We were all in stitches, enjoying a carefree queer moment. But with only a question, the atmosphere in the room that night became suddenly acrid. Akshay casually asked us if we were aware that the Naz Foundation (India) Trust—an HIV/AIDS NGO simply known as Naz—was preparing to submit a Public Interest Litigation (PIL) in the Delhi High Court that week through their legal counsel at Lawyers Collective.1 Hearing silence, he continued. You must know, he added, that the petition would call for a ‘reading down’ of the antisodomy statute, Section 377 of the Indian Penal Code (IPC), which criminalises sexual congress against the order of nature. What Naz and the Lawyers Collective planned to achieve with this reading down, he added, was nothing short of the decriminalisation of all same-sex sex that is adult, consensual and had in the confines of ‘the private’.

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Perhaps in an uncomplicated world, such an announcement might have been met with elation. Lesley and Jaya might have been overjoyed that a powerful HIV/AIDS organisation had marshalled its impressive resources to wage a legal battle on behalf of gays and lesbians across the country. They might have even hugged their satisfied messenger, congratulating him on his organisation’s role in staging this confrontation. Instead, there was only a stunned, angry silence that turned quickly into vituperative anger. Lesley, Jaya and the others censured Akshay for a host of related issues: for not consulting with the larger ‘community’ when planning Naz’s legal action; for betraying the majority of queer men by insisting on the designation of a respectable (and mostly impossible) zone of ‘private’ sex, and betraying all women by further entrenching the public-private distinction; and, finally, for demonstrating the contemptible hubris of assuming that legal change actually changes anything. Akshay, agitated but emboldened finally spoke as plainly as possible, referencing the AIDS pandemic and Naz’s primary argument about the negative impact of Section 377 on HIV outreach work: ‘People are dying,’ he said. This simple fact renders this litigation beyond politicking, beyond philosophising, beyond, he added, ‘questions of the right to live well or holistically.’ It is, he argued, ‘simply about the right to live.’2 How, he implied, could an activist argue with that? Well, activists did argue with that, and in fact Naz and Lawyers Collective faced a barrage of criticism from movement representatives across India, many of whom boycotted the legal effort, refusing to lend public support to the petition. The extent of this resistance was such that even the Government of India, in its legal response to the PIL, could chide Naz for failing to build a movement around their own efforts.3 At issue in the confrontation between the petitioners and the ‘community’ they claimed to represent were questions as critical as the very meaning of community; of intra-queer hierarchies along such heteronormative lines of gender, class, expertise and access to the means of social and cultural production; and, centrally, of the role of law in achieving social change.

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If this debate had been the only one around litigation and justice in queer India, it would have been consequential enough. But one of the most important aspects of the Section 377 controversy, I believe, was its conflicted if mostly unspoken coincidence with a second legal debate that blurred the lines of solidarity and of philosophical certainty, which were established in opposition to and support of the Section 377 petition. This second debate centred on a primarily legislative effort spearheaded by a well-connected Delhi women’s NGO, Sakshi. Sakshi, with international backing,4 sought to make India’s genderspecific sexual assault laws (i.e., in which only a man can commit sexual assault, and that, only against a woman) into gender-neutral ones (i.e., such that the law would recognise sexual assault of a man by a man, and sexual assault of a woman by a woman).5 On the face of it, and certainly according to Sakshi, this seemed like legislation that queer groups could support. Technically, a gender-neutral sexual assault law would apply to the sexual abuse of a male child by a male adult—a crime that had heretofore had no law of its own and had thus been prosecuted under the anti-sodomy statute, Section 377.6 Gender neutrality, then, would provide one more legal justification for the striking of Section 377. But on a more abstract level, gender neutrality in sexual assault law holds the potential of radically unsettling the heteronormative scaffolding of Indian law7—namely, the premise of woman as universally Victim and man as universally Perpetrator—or the ineffably anti-queer maxim that women are of a certain vulnerable nature, men are of a certain powerful nature, and ‘never the twain shall meet’, whether in romance or in rape. Furthermore, and with an eye to the justice claims of queer activism, gender-neutral sexual assault law would, even if just symbolically, offer victims of same-sex sexual assault a means of redress. But instead of supporting these shifts— philosophical, practical, symbolic and deeply optimistic—a vast majority of queer groups banned together with autonomous women’s groups to oppose gender-neutral sexual assault law.8 Among my tasks in this essay is to compare the positions that activists formulated around these coeval debates, namely the Section 377 PIL and the gender

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neutrality legislation. For what this comparison shows us is the uneven and always shifting terrain upon which debates around the role of law in social change are contingently enacted. Lesley and Jaya, along with a vast majority of queer activists who were lesbians (and thus invisible to phallocentric sodomy law), non-elite men (for whom a private sphere is elusive), and feminists, opposed Naz’s efforts to amend Section 377. The one factor that linked these groups together in this specific coalition was a highly contextual sense of lack of vulnerability to the law but only insofar as their lowly status (or the lowly status of their constituents) would adhere regardless of what the law on sodomy said. Their arguments about the law-society nexus in this debate was that the law is meaningless: that it serves as nothing more than a magic spell murmured by robed men over the cauldron of real inequities that constitute the social world.9 The law, they suggested, means nothing to the already weak. Of these activists who were antagonistic to legal efforts in the context of Section 377, lesbians and feminists in particular (including those at PRISM) would come to feel deeply, and newly, vulnerable to the possible consequences of gender-neutral sexual assault laws. If gender neutrality were won, they protested, women could be accused of sexually assaulting men, or lesbians could be accused by third parties of sexually assaulting each other. Here their opposition to legal change was based on a radically different philosophy about the relationship between law and society. Instead of continuing to proclaim, ‘the law means nothing to us!’, here those same activists argued that the law means everything—it is all-powerful, deeply consequential and must protect the weak from the strong (i.e., women from men, and lesbians from the false accusations of straights). This is important for in the study and execution of social movements, the question of the lawsociety nexus has been a central preoccupation. Some scholars have argued, like Naz’s detractors, for the inconsequence of law to social change and actual justice—that law is myth, magic, and meaningless.10 Many others argue on behalf of what might be termed the ‘law is not enough school’, claiming that law can aid marginal actors somewhat, but that real change happens on the so-called ‘ground’.11 Fewer

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scholars and activists, but some, still argue for progressive law as a real precursor to social justice.12 But what ethnographies of activism and legal change enable is a disruption of the false solidity of these philosophical positions about law and social transformation. Despite best efforts, there is no one answer to the question, ‘How does law impact society?’ I demonstrate here that an actor’s position on the question of how law impacts society (and thus, of how law impacts her) will depend on that actor’s self-perceived vulnerability to a particular law at a particular moment. Mine is, in part then, an argument for the importance of ethnography in the study of politico-legal terrains. Beginning with the heated Section 377 dispute through queer debates around gender neutrality, I hope to illuminate what I see as four constitutive ethical problematics of legal activism. The first explores the relationship between the creative practices of justice that radical politics seek to effect, and the moral fixity of the legal discourse that claims to pursue this justice.13 The second asserts that the exclusions and hierarchies that must be produced in order for legal activism to proceed are the very divisions that undermine the ethical claims of that activism. The third argues that legal reform efforts seek to disrupt existing moral orders while necessarily (if unwittingly) declaring their own moral visions. Finally, the fourth concerns the ways by which a person’s perceived vulnerability to a law then determines a larger political philosophy about law’s efficacy and authority and thus centres or decentres law based on the self-perceived vulnerability of a vocal few.14 Between Justice and Law: The Right to Privacy Claim

I began this essay with the story of the disagreement between Akshay, Jaya and Lesley on the second night of my fieldwork. The petition at the centre of that dispute was set in motion in the year 2000 by Shaleen Rakesh, then the director of one of Naz’s HIV/AIDS outreach projects. Naz approached Lawyers Collective with the idea of litigation and the latter agreed to represent them. It was decided that Naz would make the following argument: that Section 377 is unconstitutional and

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impedes Naz’s HIV/AIDS outreach efforts with at-risk communities of MSM, or ‘men-who-have-sex-with-men’. The very existence of an anti-sodomy statute, they argued, drove homoerotically-inclined men further underground, and therein, beyond the reach of the outstretched arms and condom-bearing hands, of HIV/AIDS NGO workers. It is highly ironic that in an effort to ostensibly protect men who habitually or recreationally have sex in public parks, they would stake their argument on a ‘right to privacy’ claim. But that is indeed what the petitioners did, to the consternation of those very populations they claimed to be representing. Naz based their right to privacy argument in part by citing a 1994 case called Rajagopal v. State of Tamil Nadu (1994) in which the court asserted a citizen’s ‘right to be let alone’. Feminist scholars have long noted that this demarcation of a ‘private’ realm has justified and produced the second-class status of women, rendering the violations they face within the space of the home outside the sphere of legal intervention. Thus, an acknowledged moral liability of trying to effect feminist social change through legal reform is the fact that legal discourse actively constructs the private as law’s space of nonintervention, one that is exempted from the values of justice and equality.15 Indeed, a 1984 Delhi High Court judgement, upheld later by the Supreme Court, claimed that, ‘in the privacy of the home and married life, neither…the Right to Life nor…The Right to Equality has any place.’16 It is within such a context that Naz asserted, citing the Rajagopal judgement, that ‘a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation … and education among other matters.’17 It is within this context that Naz called for a sphere of legal non-intervention in order to at least protect a new class of newly respectable sexual citizens. Naz’s compromising position between the ideal of social justice and the reality of practical legal choices is not an unusual one. Progressive legal reform is everywhere haunted by this tension between the dreams of possibility that animate activist practice in the first place and the moral fixity of the legal discourse deployed in the eventual effort to turn those dreams into social reality. As an example of the forms and

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felt consequences of this tension, I want to turn to a lesbian support group meeting held on a Saturday afternoon in August 2002. The host of the weekly meeting was an internationally funded lesbian organisation called Sangini which was founded in 1997 and also operated a telephone helpline. Sangini started as a Naz subgroup and continued to work out of the Naz office. Over chai and namkeen, 12 of us entered that day into an unusually political discussion of Naz’s legal intervention and its relevance to the lesbian, bi- and transsexual women who call the helpline or attend Sangini meetings. It was a nearly unanimous sentiment that neither the anti-sodomy statute itself, nor the petition to amend it, had much bearing on the lives that most of the attendees live or the daily fears that most of them live with. The facilitator and Sangini’s co-director, Cath, asked what those real concerns are and the answers came down, quite simply, to compulsory marriage and the insecurity and alienation that would result from its eschewal. The fight that Naz was waging—to ensure a domain of privacy in which a man is beyond the law’s reach when determining the configuration of adult relationships within his home—was precisely antithetical to the fight these women were waging against fathers, brothers and mothers alike. They didn’t need the further downing of shutters on the domain of the home; they needed the doors to escape it. Others, still, found the petition irrelevant because, for them, having a domain of their own, defined by liberty and autonomy, was little more than fantasy. Four days after the meeting I just alluded to, I was at the Sangini office taking phone calls on the helpline with Sangini’s co-director, Betu. Towards the end of the evening, Cath walked in, looking very pleased with herself. ‘I’ve figured it out’, she said. Taking the bait, we asked what she had figured out. She was still troubled by the last meeting’s conversation, still searching for an answer to what Sangini’s attendees need most. Finger in the air, she announced her answer: ‘A place to bonk!’ And though we burst out laughing, it turned out that she was quite serious. What she was arguing is that the pain that women come to Sangini with—of marriage pressure, coming out and loneliness—would at least be assuaged if they had the space and freedom, in the first place, to simply be

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alone with the people they love and to realise whatever beauty there is in what they experience as sorrow. Cath was certainly right that women lacked spaces of their own. I thought of the married women I sometimes speak to on the helpline, who rush desperately through five minutes of talk before a husband, grown son, or mother-in-law becomes suspicious about their absence. These are women without dominion, women incarcerated by the private and never lords of it. Betu also came to see Cath’s point, recalling an exercise we had done in Sangini months earlier in which everyone created an image of their personal utopia. As Betu pointed out, the unifying theme of these images was, in a Virgina Woolf sort of way, space: dreams of homes, rooms, privacy. We talked about one of the pieces in particular: a large, grassy expanse and a woman lying, undisturbed and easy, under a tree. Its author was Veronica, a lesbian woman in her early forties. Because she is unmarried, she continues to live at home with and is helping to support her mother and adult brother. Loneliness is, of course, a radically subjective thing, its phantoms difficult to communicate; but Veronica had tried. She described the feeling of returning at the end of the day to a place populated with people who do not know her, where there is no phone with which to dial out. It is not simply that she has no place to ‘bonk’, but that she has no place to be and to love. The point, argued by Cath and illustrated by Veronica, is simply that the privacy that Naz’s petition seeks to protect is an unequally distributed privilege, the enshrinement of which only further advantages economically independent men, and further stigmatises the poor men who have their sex in public parks and the lesbian women who haven’t a room of their own. Legal Activism, Symbolic Violence and (limits to) the Ethics of Talk

It was precisely such concern around the gendered and classed elitism behind the advocacy of a protected zone of ‘privacy’ that inspired a loose collective of queer groups to call a national strategy meeting in Pune in January 2002. The several groups responsible for this meeting

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tenuously cohered based on their shared distrust of the big-name NGOs like Naz and Ashok Row Kavi’s Humsafar Trust. Based on this opposition, they aimed to form a national alliance of pro-feminist, anticlassist, anti-communal queer organisations; this opposition would be demonstrated, in part, through a rigorous critique and boycott of Naz’s legal efforts. On the second morning of the three-day meeting, Chayanika, a veteran feminist and lesbian activist from Bombay’s Stree Sangam was laying out, point by point, her critique of Naz’s right to privacy claim. Others in the large circle on the floor listened attentively. I had happened to bring along Lesley’s copy of the petition and was following along as Chayanika read aloud from her own copy. Soon, sensing eyes upon me, I looked up. I saw five women just across the room from me, alternately gesturing at my document, eyebrows knitted and making a flicking motion with the wrists of their open right hands as if to say, ‘‘What is that? Explain it!’ Confused, I pointed to myself to claim its ownership, not sure what else they could be asking. Others began to notice our gesticulations and someone finally interrupted the speaker to ask what was going on. ‘She has a copy of the petition!’ another announced with a mixture of condemnation and shock. Quickly, all hell broke loose in the room. In timid Hindi, I explained that someone from PRISM had lent me a copy of her petition. Two men I had never met before began loudly denouncing ‘arrogant foreign spies’ and urging that I be removed. Most, however, were more concerned about what my possession of the document indicated about the relationship between PRISM—an ostensibly autonomous, nonfunded collective; Naz—a well-funded NGO and perceived power centre; and Lawyers Collective—the legal engine behind this radically divisive petition. For among the political and intellectual reasons to oppose Naz and its legal petition (for example, the critique of the right to privacy approach) many saw a reason even more firmly personal and affective: that is, the sense of ‘not being consulted’ on matters of dire importance to their politics and lives, and on matters, they thought, to which they could effectively contribute. If PRISM had a copy of the petition that the others reported many obstacles in obtaining, it implied that PRISM had been deemed worthy of consultation and the rest of them, politically inconsequential.

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Political initiatives such as the Naz petition are often met with vigorous opposition and demands for desisting. These angry rejections come from other LGBT groups on the grounds of a ‘lack of consultation’. This is not a phenomenon unique to queer politics, but emerges in every contesting political community from disability rights to land rights to the women’s movement. There were, admittedly, moments in my observations when such objections felt like little more than egoism, envy, or even personal vindictiveness; the activists with whom I worked have no doubt that this is sometimes the case. There is, however, something else at stake in such battles over consultation: that is, the very process though which people imagine themselves as belonging to a community of political practice, which is, in its turn, engaged in the production of new forms of valuation. Debates around the circulation of knowledge are, in other words, about activists understanding themselves as subjects of consequence and agents of social change. Language is constitutive of social life and that which is shared is an emergent property of dialogue.18 They are, further, the hierarchies and boundaries within dialogic engagement—hierarchies of relative competence and boundaries to the equal distribution of social knowledge—that determine the limits of what can be shared, among whom, and to the exclusion of which classes of people. The idealised notion of a ‘speech community’, or a group of people who are bound through a shared language (and, thus, a shared interpretative and productive relationship to the world) is belied precisely by those economic and social conditions that shape the uneven acquisition of what Bourdieu refers to as ‘legitimate competence’.19 In the case of the activist engagement I am examining here—that with the state, and executed through efforts at legal reform—this legitimacy reveals itself as conferred through the competence to speak in the rarefied and opaque language of state authority. Those who can (and do), become the bearers of representational authority and stake their claims to a privileged means of socio-political production; those who cannot (or do not), find themselves literally voiceless in the newly valued sites of political action. It is this symbolic violence of exclusion—an effect of benign or purposeful neglect, and with the effect of rationalising

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divisions of political labour (the connected and the not, the speakers and the spoken of, the makers and the made)—that is called into focus with the demand: ‘Why were we not consulted?’ At issue are the ethics of egalitarian functioning and the recurring awareness of its limits. Legal Activism as Moral Vision/Vulnerability as Moral Certainty

It is reasonable to ask why such protests and protestations matter. Why should an analyst be concerned—in the context of an independent organisation’s independently conceived legal intervention—about Veronica’s far off dreams, the Pune activists’ sense of betrayal around a lack of consultation and anti-feminist legal positions, or the words of a gay man called Vinod who said that a successful Naz petition would never turn his mother’s disdain into open-armed acceptance or turn his companions in the park into worthy citizen-subjects? These queries matter because in the context of progressive activism the call for legal reform always necessarily invokes a theory of how law should be used (differently than how it is), and thus offers up an alternative vision of social morality. Legal scholar Nicholas Bamforth puts it like this: Any justification for law or law reform invokes a vision of how law should be used in a legitimate form of government. Such a vision will rest on a theory of justice—that is, a theory concerning rightful and wrongful distributions of entitlements among members of society—which is closely connected with a theory of political morality, concerning the principles which should guide the exercise of public power by state institutions.20

Critics of the petition, such as PRISM, Sangini’s support group members and the Pune activists, are pointing out that the moral vision Naz lays out rests on a theory of injustice, further privileging a de-classed male body while suggesting apathy towards the legally immaterial, domestically incarcerated female non-actor. Critiques of legal reform are critical engagements with newly offered moral positions about who is and is not worthy of ‘justice’.

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The incumbent responsibility, however, of positing a moral vision is not limited to those, like Naz or Sakshi, who audaciously instigate legal reform. That responsibility is borne as well even by those members of a political community who resist efforts at legal change. Here I’ll need to return to the debate about the gender neutrality bill, synchronous with the contest around the Section 377 PIL between 2001 and 2003. In the struggle around gender neutrality in sexual assault law, Sakshi, like Naz, was offering an alternative moral vision about the proper use of law in a legitimate government. Through its endorsement of gender-neutral sexual assault law, Sakshi and its supporters, however contentiously, advocated a moral vision that sees all people— regardless of chromosomal composition—as capable of violence, and that considers all forms of sexual violence between one human and another as deserving of legal retribution and redress. This potential broadening of the sample of potentially sexually criminal bodies—to include now, the traditional heteronormative female victim as well as the woman who has sex with women—made feminist and lesbian activists feel newly vulnerable to the reaches of criminal law, and it was this nascent vulnerability that served as an impetus for confrontation with Sakshi and its supporters. As lesbians and other feminists across the country—including those at PRISM, at Forum Against the Oppression of Women (FAOW) and 30 other collectives—resisted this legal reform, they necessarily offered their own, if status quo-ist, moral vision. It was one that said: women are victims and men are perpetrators 21 (the very structure of heteronormativity); that good people will be vulnerable to ‘false accusation’22 (the same argument that has impeded implementation of more stringent rape law); and, finally, that ‘now is not the time to talk about violence in same-sex relationships’23 (delay of justice for the few in the interests of the vocal more). What I want to point out through this coincidence of debates is that the political actors who intervened against Naz’s legal reform efforts on the implied grounds that the moral vision Naz was offering was faulty and unethical, were at the same time—but in the context

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of a different legal debate—offering their own moral vision. This vision was, much like Naz’s, based on a return to the normative in order to protect a particular class of people. For Naz, the normative was, in part, the continued enshrinement of the ‘private’ as space of legal non-intervention in order to protect those with dominion; for the anti-gender neutrality coalition, the return was to the violently heteronormative binary of male as perpetrator and female as victim in order to protect lesbians and other women from the danger of accusation. These moral positions were advanced even if they meant the delay of justice or a continued non-recognition of certain Others. Furthermore, each of the various theories of law’s rightful deployment offered up over the course of these synchronous debates—that the private is sacrosanct or that the private must be fiercely watched over, that the law means nothing to the weak or that the law means everything—were not steadfast moral positions, but were contingently inhabited based on a group’s perceived vulnerability to a particular law at a particular moment in time. What is important to observe is how the always contingent becomes expressed as morally stable through the normalising practices of legal activism. This narrative, as we know now in the summer of 2009, winds its way to triumph in the form of the momentous Delhi High Court decision to decriminalise consensual sex between same-sex adults.24 What I have offered in this chapter is a close reading of one moment in that narrative, one that demonstrates a constitutive tension in activism between radical imaginings and their normalisation. The process of translating the ethical aspirations of justice into law’s tongue is marked by certain perils that disrupt the very centre of activism itself. But the rolling complexity of the story I have related—in all its contradictions and missed loops and urgent passions—signals that the constant confrontation between possibility and limit, justice and law, dreams and order that defines activism is not perilous as much as it is vital— the very motor of social action and of brave, determined movements towards an always uncertain ethical future.

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Acknowledgements Funding for the research on which this chapter is based, and support for writing, was provided by Fulbright Hays, the University of Michigan, and a Connaught Start-Up Award from the University of Toronto. For comments on earlier versions of this argument I want to particularly thank Anna Kirkland, Alaina Lemon, Sumathi Ramaswamy, Jennifer Robertson and Miriam Ticktin. Special thanks to participants and attendees of the panel, ‘Sexing the Law: Sexual Subjects and Legal Terrains in India’ at the 2007 Annual Conference on South Asia in Madison, WI. I am also grateful to the editors of this volume for their insightful comments and engagement.

Notes 1. Naz Foundation v. Govt of N.C.T. of Delhi & Ors [2001]. 2. Such privileging of the ‘right to simply live’ exemplifies what Miriam Ticktin (2006) critically calls the ‘sacred place of biological integrity’ in contemporary transnational moral regimes of human rights and medical humanitarianism. 3. In Naz Foundation v. Govt. of N.C.T. of Delhi & Ors, Counter-Affidavit Respondent 5 [2003], the Government of India offered Naz advice on how to start a social movement: ‘The petitioner may well lobby with the Parliament and involve doctors, psychiatrists, criminologists, sociologists, and legal experts so as to mobilize public opinion’ (p. 2). 4. Sakshi ’s pro-gender neutrality efforts were funded in part by the MacArthur Foundation, Ford Foundation and UNIFEM. For commentary on the funding of Sakshi’s efforts, see: Agnes, Flavia. 2002, ‘Law, Ideology and Female Sexuality: Gender Neutrality in Rape Law’, Economic and Political Weekly, 2 March; Menon, Nivedita. 2004, Recovering Subversion: Feminist Politics Beyond the Law. New Delhi: Permanent Black, p. 221. 5. This process began when Sakshi petitioned the Supreme Court to direct the Law Commission of India (LCI) to draft recommendations for a new sexual assault law. The LCI commenced its task and solicited recommendations from two NGOs, Sakshi and IFSHA, one party-affiliated group, AIDWA, and also the National Commission of Women (NCW), which had, incidentally, drafted a similar bill to that of Sakshi’s years earlier in 1993 (for more on NCW’s draft bill, see: Agnes, Flavia. 1992, Protecting Women Against Violence? A Review of A Decade of Legislation, Economic and Political Weekly; Agnes, Flavia. 2002, ‘Gender Neutrality in Rape Law’, Combat Law, Vol. 1, No. 1; Menon, Nivedita. 2004, Recovering Subversion: Feminist

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Politics Beyond the Law. New Delhi: Permanent Black). The LCI accepted most of their recommendations, and submitted them in March 2000 as the 172nd Report on Review of Rape Laws. In sum, their recommendation was the following: to replace in the IPC the offence of rape with that of sexual assault, which would incorporate ‘all kinds of penetration in the vagina, anus, or urethra of another, whether by a part of the human body or by an object.’ They also suggested deletion of Section 377. 6. Bhaskaran, Suparna. 2002, ‘The Politics of Penetration: Section 377 of the Indian Penal Code’, in Ruth Vanita (ed.), Queering India: Same-Sex Love and Eroticism in Indian Culture and Society. New York: Routledge, pp. 15–29; Gupta, Alok. 2001, ‘The History and Trends in Application of the AntiSodomy Law in the Indian Courts’, The Lawyers Collective, Vol. 16, No. 7, pp. 9–12. 7. See: Kapur, Ratna and Brenda Cossman. 1996, ‘Women, Familial Ideology and the Constitution: Challenging Equality Rights’, in R. Kapur (ed.), Feminist Terrains in Legal Domains: Interdisciplinary Essays on Women and Law in India. New Delhi: Kali for Women, pp. 61–99. 8. See: Agnes, Flavia. 2002, ‘Law, Ideology and Female Sexuality: Gender Neutrality in Rape Law’, Economic and Political Weekly, 2 March. A coalition of 32 organisations was formed in Mumbai in early December 2001, at a national meeting held to discuss and formulate opposition to the Law Commission of India’s 172nd Report on Review of Rape Laws. Ten of the organisations in this anti-gender neutrality coalition were groups dedicated to, and comprised of, LGBTKQH people. These included CALERI, OLAVA, Sahayatrika, Sangama, Sangini and PRISM. The 32 groups were unanimous in their rejection of the Report. One of the outcomes of the meeting was a letter of opposition sent to the Law Minister, which I will return to later in the essay. 9. See Otto Kahn-Freund who claims that people see law as having a ‘magic’ ability to change lives (Kahn-Freund, Otto. 1969, ‘Industrial Relations and the Law: Retrospect and Prospect’, British Journal of Industrial Relations, Vol. 7, p. 301). 10. [Scheingold, Stuart. 2004 (1994), The Politics of Rights: Lawyers, Public Policy, and Political Change. Ann Arbor: University of Michigan Press], echoing, echoing Kahn-Freund (see note 9) argues that legal rights serve only a ‘mythic’ role for social change; Gerald Rosenberg (Rosenberg, Gerald. 1991, The Hollow Hope: Can Courts Bring About Social Change? Chicago: University of Chicago Press) describes the role of law in social movements (including gay ones) as that of ‘flypaper’, luring activists with the illusion of social transformation

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and then preventing the deployment of their energies in more efficacious pursuits. 11. The ‘Law is Not Enough’ school is one where many queer and feminist thinkers, including Indian ones, locate their arguments. It is a general position for those who have a sense of what it is like to be marginal to, or criminal under, the law, and thus have an affective understanding of law’s significance; it is occupied also by those thinker-activists who claim a radically ethical aspect to their labours. Michael Warner talks about the turn to legal change as a normalising of the ethics of queer life (Warner, Michael. 2000, The Trouble With Normal: Sex, Politics, and the Ethics of Queer Life. Cambridge: Harvard University Press); Nivedita Menon argues that legal discourse inevitably stills and reinforces notions of gender and sexuality, thus troubling a feminist ethics that strives for new radical possibilities (Menon, Nivedita. 2004, Recovering Subversion: Feminist Politics Beyond the Law. New Delhi: Permanent Black); Dennis Altman, recognising the importance of legal change, nevertheless argues that the effort to change laws keeps us from doing the more difficult everyday work of being gay and lesbian in a hostile world [Altman, Dennis. 1993 (1971), Homosexuality: Oppression and Liberation. New York: New York University Press]; Foucault has said that gay rights are certainly worth attaining, but that the ‘real’ effects of rights are found in how we live (Halperin, David. 1995, Saint Foucault: Towards a Gay Hagiography. New York: Oxford University Press). 12. For example, Schultz (Schultz, David. 1998, Leveraging the Law: Using the Courts to Achieve Social Change. New York: Peter Lang). 13. See: Derrida, Jacques. 1992, ‘Force of Law: The “Mystical Foundation of Authority”’, in D. Cornell, M. Rosenfeld and D. G. Carlson (eds), Deconstruction and the Possibility of Justice. New York: Routledge, pp. 3–67. 14. In the larger project from which this essay is drawn, I define activism as ethical practice, and define ethical practice as consisting of three affective exercises: the problematisation of established social norms, the invention of alternatives to those norms, and the creative practice of new relational possibilities. I examine lesbian and gay activism in India through the constitutive tension between activism as ethical practice and the processes of normalisation that define the political institutions that activism necessarily engages. The four problematics I have laid out here, and the story I tell in these pages about how activists negotiated them, serve to demonstrate the play of ethical invention and normalisation in activism. For more on activism as ethics, see: Dave, Naisargi N. 2006, ‘Between Queer Ethics and Sexual Morality: Lesbian and Gay Activism in New Delhi, India’. PhD dissertation, University of Michigan; Dave, Naisargi N. 2008, ‘Between Queer Ethics and Sexual

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Morality’, in Monica Narula et al. (eds), The Sarai Reader 07: Frontiers. New Delhi: Centre for Studies in Developing Societies, pp. 387–395. 15. See: Menon, Nivedita. 2004, Recovering Subversion: Feminist Politics Beyond the Law. New Delhi: Permanent Black; Rao, Arati. 1996, ‘Right in the Home: Feminist Theoretical Perspectives on International Human Rights’, in R. Kapur (ed.), Feminist Terrains in Legal Domains: Interdisciplinary Essays on Women and Law in India. New Delhi: Kali for Women. 16. In Haksar (Haksar, Nandita. 1986, Demystifying the Law for Women. New Delhi: Lancer Press, p. 58), cited in Menon (Menon, Nivedita. 2004, Recovering Subversion: Feminist Politics Beyond the Law. New Delhi: Permanent Black). 17. Italicised words in bold in the original (Naz v. Govt.). 18. See: Tedlock, Dennis and Bruce Mannheim. 1995, ‘Introduction’, in D. Tedlock and B. Mannheim (eds), The Dialogic Emergence of Culture. Chicago: University of Illinois Press, pp. 1–32. 19. Bourdieu, Pierre. 1991, ‘The Production and Reproduction of Legitimate Language’, in J. B. Thompson (ed.), Language and Symbolic Power. Cambridge, Mass: Harvard University Press, pp. 43–65. 20. Bamforth, Nicholas. 1997, Sexuality, Morals and Justice: A Theory of Lesbian and Gay Rights Law. Washington: Cassell. 21. The coalition of 32 writes in their letter to the Law Minister, ‘[i]n cases of sexual assault men are perpetrators and women are the victims of the abuse.’ In the author’s possession. 22. PRISM, unable to send representatives to the Mumbai meeting in December 2001, sent a position letter to the meeting that outlined their solidarity with the anti-gender neutrality position. Among their objections to gender neutrality was the possibility of ‘false accusation’ of sexual assault by third parties against queer women and men, by parties against gender-queer female doctors or police officers, and by male rapists against their female victims. For example, they expressed concern in their letter about the strengthened and newly gender neutral custodial assault provisions; butch or otherwise gender transgressive cops and doctors, they said, would need to be protected from the ‘unwanted harassment’ of legal allegations. Furthermore, they argued that,‘[w]omen who are being raped will find that they are being prosecuted for sexual assault by their rapists … disempower[ing] women even further.’ This letter is in the author’s collection, and is also archived by Naz and by PRISM. 23. PRISM, in their letter to the Mumbai meeting, also argued against genderneutral sexual assault laws on the grounds that the cultural and political climate in India was not suitable for discussion of same-sex sexual assault.

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They wrote: ‘[N]one of us is in a position to really understand the contexts and issues of same-sex violence—we are still grappling with sex, sexuality, and gender….’ 24. Naz Foundation v. Government of NCT of Delhi and Others, WP(C) 7455/2001(High Court of New Delhi 2009.

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Queer in the Time of Terror Rahul Rao

The construction of a global discourse of LGBT1 rights and a politics of LGBT solidarity2 has been empowering for many of its participants. But it has not been an entirely benign development, free from questions of power and hierarchy. As LGBT communities have won political and legal battles in the West and have begun to get assimilated ever more deeply into their respective states, LGBT rights have become a marker of modernity, resulting in the creation of new hierarchies— what Jon Binnie calls ‘a new racism’—in international politics.3 States that fail to respect rights around sexual diversity are increasingly being characterised as backward and uncivilised, with the internationalisation of LGBT rights taking on the character of a modern-day civilising mission.4 Many have noted the historical irony here, in that while eighteenth- and nineteenth-century representations of the ‘Orient’ were replete with images of decadence and licentiousness (harems, concubines, pederasty, etc.), the contemporary ‘non-West’ is castigated for its sexual repression. Third World feminists and feminists of colour in the West have long problematised assumptions of ‘global sisterhood’, alerting us to hierarchies of race, class and nationality that mark the global women’s movement.5 This essay seeks to extend some of these insights to global queer activism, a task that has become urgent in the wake of recent controversies that have erupted around such activism particularly in relation to the Middle East. Yet in being critical of global activism around sexual diversity, it is vital that we not lose sight of the homophobia against which it is directed. In virtually all societies in which homosexuality is

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criminalised or socially stigmatised, claims to LGBT rights are contested in a communitarian language that speaks to the preservation of a particular culture, religion or ‘way of life’.6 Homosexuality is cast as a corrupting, alien influence, imported from a decadent West. Genealogical analyses of the institutionalisation of homophobia in many societies have rendered the communitarian credentials of these claims suspect. For example, Marc Epprecht has argued that while politicised homophobia in Zimbabwe does indeed have some roots in traditional African culture, ‘it is also enormously indebted to Christian missionary propaganda, Western pseudo-science, and the demonstration effect of White Rhodesian “cowboy” culture.’7 Drawing on the scholarship of Ruth Vanita and Saleem Kidwai on representations of same-sex love in Indian literary and historical texts, Arvind Narrain notes an amplification of homophobia in colonial India under the influence of Western discourses of law, medicine and literature.8 These writers attribute the erasure of indigenous traditions of androgyny and same-sex behaviour to a perceived need to construct virile African and Indian nationalisms capable of overthrowing the colonial yoke. Something remarkably similar may be going on in contemporary Iraq where, a recent HRW report suggests, the humiliation of six years of occupation has engendered a crisis in Iraqi masculinity, which sectarian militias now seek to recuperate by hunting down men perceived to be gay, effeminate or otherwise subversive of established gender codes.9 Without valorising pre-colonial histories as uniquely tolerant, the evidence from a number of societies points to the institutionalisation of homophobia as a result of the encounter between colonialism and nationalism. Yet notwithstanding these complicated genealogies, most contemporary articulations of homophobia are voiced in a selfconsciously communitarian idiom that claims to uphold local norms of social morality against an imported vice. This essay attempts to find a language in which to criticise the supremacism that lurks within the global politics of LGBT solidarity without downplaying or ignoring the oppressiveness of homophobia. Indeed, the central argument of the essay is that Third World queer activists and queer activists of colour in the West increasingly find

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themselves operating in a forcefield constituted by two kinds of narratives, both of which have disenfranchising implications for their self-assertion. On the one hand, ‘rescue’ narratives produced by white, Western activists purporting to act in solidarity with them; on the other hand, ‘authenticity’ narratives produced by members of their national, racial and/or religious communities, insisting on the foreignness of homosexual identities and behaviour. Joseph Massad’s recent intervention in these issues illustrates the dangers of failing to critique both sorts of narratives. Massad is fiercely critical of Western LGBT solidarity politics which, in his view, takes the form of an attempt to transform practitioners of same-sex conduct in the Arab world into subjects who identify as homosexual.10 Although premised on the assumption that the construction of homosexual identities is a precondition for the advancement of a rights agenda, Massad argues that the push from behaviour to identity—what he calls, following Foucault, ‘incitement to discourse’—is an imperialist imposition that is narrowing the space for same-sex behaviour by inviting governmental repression of increasingly visible sexual minorities. While sympathetic to his criticisms of the aggressively orientalising impulses of some Western activism, I take issue with two aspects of his argument. First, Massad tars all Western activism with the same brush. His criticisms are an indiscriminate screed levelled at the totality of international LGBT activism that emanates from the West, the institutions of which he collectively refers to as the ‘Gay International’. In contrast, this essay attempts to disaggregate the Gay International, bringing to light distinct manifestations of a gay rescue narrative on both the political right and left, produced by different actors with different sorts of motivations (the focus here is on activists in the US and UK). Demonstrating that there is no single politics to this Gay International is a first step towards deciding whether there is anything worth salvaging in its politics of putative solidarity with Third World sexual minorities. Second, there is something troubling about Massad’s denial of the agency and subjectivity of Arabs who are appropriating and reworking

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Western identities in their struggles for sexual self-determination. Massad dismisses such individuals as unrepresentative—‘a miniscule minority’, ‘small groups of men in metropolitan areas such as Cairo and Beirut’11—but also more ominously, as ‘native informants’ to Western activists, a phrase that is loaded with the historical memory of indigenous elites engaged in traitorous collaboration with colonising powers. In addition, he assumes that their motivation for identifying within the categories of a Western sexual ontology is class-based: ‘part of the package of the adoption of everything Western by the classes to which they belong.’12 While class position certainly gives such individuals access to Western sexual ontologies, it cannot be assumed a priori that the motivation for identification in these terms is a consumerist one, rather than something that stems from dissatisfaction with the ‘traditional’ sexual ontology. Rather than treating the question of motivation as an empirical one, Massad has in effect decided that coming out as gay in the Arab world is less about wanting to live in truth and more akin to buying the latest Calvin Klein underwear. While openly gay Arabs in the Middle East may indeed be a ‘miniscule minority’, their characterisation as faddish and traitorous amounts to a transhistorical normative claim about how Arabs ought to express non-heteronormative preferences. In effect, in criticising Western rescue politics and its local interlocutors, Massad slips into a reinforcement of authenticity narratives that police how sexual preferences ought to be expressed. The question that needs to be posed is whether it might be possible to criticise rescue narratives without reinforcing authenticity narratives that patrol the boundaries of community and identity. This leads me to consider, in conclusion, the dilemmas of actors who perceive themselves as being trapped between rescue and authenticity narratives. Rescue Narratives: The Contemporary Context

On 19 July 2005, two boys—Ayaz Marhoni and Mahmoud Asgari— variously reported to have been between 16 and 18 years of age, were

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hanged by the government of Iran in the city of Mashhad, for an alleged crime involving homosexual intercourse. Western activists were bitterly divided over how to respond.13 Some regarded the boys as having been hanged on account of their sexuality and fiercely denounced the government of Iran, demanding that Western governments take punitive action. British activist Peter Tatchell, whose group OutRage! first brought the story to the attention of Western media, was quoted in a press release as saying: ‘This is just the latest barbarity by the Islamofascists in Iran…the entire country is a gigantic prison, with Islamic rule sustained by detention without trial, torture and state-sanctioned murder’, before going on to claim that over 4,000 lesbians and gay men had been executed by the government since the 1979 revolution.14 Conservative US commentator Andrew Sullivan echoed this language, repeating the claim that the boys had been hanged by the ‘Islamo-fascist regime in Iran’ for ‘being gay’. Expressing disappointment that more gay organisations had not rallied to the war against ‘Muslim religious fanatics’, Sullivan emphasised: ‘this is our war too.’15 The linkage of Iran with fascism was reinforced by Doug Ireland, a journalist based in New York, who described the Ahmadinejad government as being engaged in a ‘major anti-homosexual pogrom targetting gays and gay sex.’16 The Human Rights Campaign, the largest LGBT civil rights organisation in the US, called upon the then Secretary of State Condoleezza Rice, to issue an ‘immediate and strong condemnation’ of Iran for its hanging of the teenagers who, it alleged, had been tortured and killed ‘simply for being caught having consensual sex’. It urged that ‘atrocities committed by foreign governments against all people must be condemned swiftly and forcefully by the world’s greatest democracy.’17 The Log Cabin Republicans, an organisation of gay and lesbian members of the US Republican Party, issued a press release in which it noted that ‘In the wake of news stories and photographs documenting the hanging of two gay Iranian teenagers, Log Cabin Republicans re-affirm their commitment to the global war on terror.’ The group’s President Patrick Guerriero is quoted as saying ‘This barbarous slaughter clearly demonstrates the stakes in the global war on terror. Freedom must prevail over radical Islamic extremism.’18

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It was not the first time that Western observers had expressed revulsion at the sexual mores of Iranian society. In an ironic reversal of contemporary attitudes, travelogues of Western visitors to Iran between the seventeenth and nineteenth centuries frequently record disgust at the observation of same-sex liaisons within aristocratic circles in Tehran. In her work on the ‘gender and sexual anxieties of Iranian modernity’, Afsaneh Najmabadi notes some dramatic and perplexing shifts in representation in Iranian culture and traces these to the encounter with the West. For example, while notions of beauty were largely undifferentiated by gender in early (1785–1925) Qajar paintings with beautiful men and women being depicted with very similar facial and bodily features, by the end of the nineteenth century the portrayal of beauty had become less androgynous and more gendered. In a similar vein, while biographical writing well into the nineteenth century contains numerous non-judgemental references to diverse sexual preferences, twentieth-century references to same-sex relationships are much more disapproving. Najmabadi attributes these shifts, in part, to a growing Iranian awareness of European disapproval of the homosociality of Iranian society and the same-sex practices that this engendered. This fuelled an anxiety on the part of Iranian elites to disavow the very practices that their European interlocutors considered vices.19 If the heteronormalisation of Iranian society was a marker of modernity in the late nineteenth century, the exact opposite has become true in the early twenty-first. Returning to the events of 2005, Western voices of condemnation were divided in terms of the remedial action that they advocated. Some like Sullivan and the Log Cabin Republicans regarded incidents such as the Mashhad hangings as vindicating the use of force against ‘radical Islam’ wherever it manifested itself; others like Tatchell and OutRage! sought to clarify that their denunciation of the hangings did not amount to an endorsement of war against Iran.20 Indeed Tatchell appears incongruous amongst the many Republican Party-affiliated gay voices in the US who happened to agree with him on this issue. He has long campaigned for left-wing causes and is currently a member of the Green Party in Britain, which stands to the left of the Labour Party on

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virtually all issues. Although appearing to share a common position, these different reactions to the Iran hangings were underpinned by distinct sets of political considerations, which I discuss in the following section. The more institutionalised activists—those in organisations such as Amnesty International, Human Rights Watch (HRW) and the International Gay & Lesbian Human Rights Commission (IGLHRC)— responded in a very different fashion. Reflecting on his initial reactions to the reports of the Mashhad hangings, Scott Long of HRW notes that he was sceptical of the accounts that Tatchell, Ireland and others were providing because they relied mainly on diasporic and exile groups as their sources. These groups, in his experience, had long sought to refract situations in Iran that presented human rights concerns through the lens of LGBT rights, in a politically opportunistic attempt to attract the support of yet another international constituency in their struggle against the theocratic regime. In addition, he believed that conflicting reports that claimed that the boys had been executed for raping a 13-year old boy, while quite conceivably trumped up by the regime to justify the sentence, should not have been dismissed out of hand without careful consideration.21 HRW, Amnesty and IGLHRC sought to reframe the issue as one about the execution of minors—a violation of the UN Convention on the Rights of the Child and the International Covenant on Civil and Political Rights (both of which Iran has signed).22 One crucial implication of this reframing was that if Iran were to be censured for its execution of children, the US lacked the moral standing to do so. Of the 10 countries that are known to have executed juvenile offenders since 1990, Iran topped the list with 24 executions, while the US followed a close second with 19.23 (The US Supreme Court declared the use of the death penalty against juvenile offenders unconstitutional in March 2005.24) In addition, some activists in these organisations worried that attacking Iran could legitimate the Bush administration’s demonisation of the Iranian regime at a time when tensions were already running high on account of its nuclear programme and the election of the conservative Ahmadinejad to the office of President only a few weeks before.

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Rescue Narratives of the Right

In the wake of the Mashhad hangings, it was possible to discern the emergence of a discourse on right-wing gay websites based in the US and Europe, in which gay rights were pitted against the putative beliefs of ‘Islamists’. A central feature of this discourse is that it placed LGBT rights at the heart of an enlightened Judaeo-Christian ‘West’, which confronted a uniformly homophobic ‘non-West’ ‘sunk in ignorance, superstition, barbarism, and moral darkness’,25 evidenced by its failure to respect such rights. Indeed the very purpose of the comparisons by means of which this narrative is constructed seems to be the extraction of a hierarchy in which the West is better than the non-West, Israel is superior to Palestine,26 Christianity is preferable to Islam,27 and so on. Gayatri Chakravorty Spivak has characterised colonial feminism—exemplified by such acts as the British abolition of sati in India in the nineteenth century—as a case of ‘white men, seeking to save brown women from brown men’.28 Through such gestures, imperialism represents itself as the establisher of the good society by espousing women as objects of protection from their own (racial and national) kind. Something similar appears to be at work in the contemporary eagerness of white queers to save brown queers from brown homophobes. Jasbir Puar’s notion of homonormative nationalism or ‘homonationalism’ is useful in understanding part of the impetus for rescue narratives, particularly as they operate in contemporary US politics. Borrowing from Lisa Duggan’s idea of ‘homonormativity’ which refers broadly to the phenomenon of gay subjects becoming embroiled in a politics that does not contest dominant heteronormative forms but upholds and sustains them, Puar defines ‘homo-nationalism’ as a ‘collusion between homosexuality and American nationalism that is generated both by national rhetorics of patriotic inclusion and by gay, lesbian, and queer subjects themselves.’29 Contrary to conventional gendered readings of state and nation as being only supportive and productive of heterosexuality and always repressive and disallowing of homosexuality, Puar suggests that ‘there is room for the absorption and management of homosexuality…when advantageous for US national interests.’30

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From the perspective of the US state, such absorption might enable the cooption of LGBT rights as additional legitimation for the ‘war on terror’ and the project to reshape the Middle East.31 The harnessing of ‘Islamist persecution of LGBT rights’ in this fashion is analogous to the use of the Taliban’s persecution of Afghan women as justification for the war on Afghanistan in 2001.32 Yet it might legitimately be asked whether a homophobic Republican US administration—such as the one in power in 2005—might have had any interest in using alleged LGBT persecution in the Middle East in this fashion. It might be thought that significant constituencies within the party base (evangelical Christians come to mind) would have been alienated by any advancement of LGBT rights either domestically or abroad. In what ways might the ‘absorption and management of homosexuality’ advantage the US state, particularly when it has been captured by the homophobic right? Two responses are possible. First, the existence of a group such as the Log Cabin Republicans who, as mentioned earlier, regarded the Mashhad hangings as vindicating their commitment to the ‘war on terror’, testifies to the emergence of a gay rescue narrative within the party. Second, the global status of LGBT rights has become institutionalised as a matter of concern to the US state. Since 1991, the State Department—under pressure from activists such as Michael Petrelis, Margaret Cantrell and Barrett Brick—has included information about human rights abuses against sexual minorities on account of their sexual orientation in its Country Human Rights Reports.33 Insofar as the US government uses human rights instrumentally for the achievement of strategic objectives, LGBT rights are now fair game. Yet the more significant motivations for the gay rescue narrative may lie not in the international interests of the US state so much as in US domestic politics. It is worth recalling that the narrative is produced, not by state functionaries, but by mostly right-wing non-governmental gay activists. It could be argued that it is the very incompleteness of their inclusion within the US nation and, more specifically the Republican Party, which furnishes a powerful incentive for collusion between homosexuality and nationalism. Offering a ‘gay’ reason for

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supporting nationalist projects such as the ‘war on terror’, the gay rescue narrative becomes a means of expressing patriotic sentiment with a view to hastening assimilation into nation and party. Patriotism functions as what Puar calls a ‘defensive and normalising’ gesture,34 signalling proximity to a nation and party of which one is not (yet) a full member by emphasising distance from the ultimate Others. Through the gay rescue narrative, the message that right-wing gay activists appear to be sending to a Republican Party whose acceptance they crave, seems to be: ‘you are against the terrorists; the terrorists are against gays; therefore you ought to be with gays’. Rescue Narratives of the Left

If assimilation at home rather than solidarity with distant others explains the predominant motivation behind the production of rescue narratives by right-wing constituents of the Gay International, how do we understand the politics of someone like Peter Tatchell, who would typically be seen as ‘left-wing’ in both the US and UK? Tatchell has been dismissive of the suggestion—which I put to him in an interview in 2007—that his activism against the Iranian regime might have played into the hands of warmongering neoconservatives. Hitting back at his critics (organisations such as HRW and IGLHRC, which distanced themselves from his protests), he says: They seem to take the view that because the United States is against Iran, we mustn’t do anything that fuels the argument that Iran is a bad regime. My view is very simple. Human rights are universal and indivisible, whether in Iran, Britain or the United States. There’s no ifs, no buts. You defend the persecuted and oppose the oppressor… there’s no qualifications, there’s no exceptions, it’s universal, for everyone, everywhere, in all circumstances, at all times…. I’m fed up with leftwing—well what I call the rightwing left—who say, ‘I’m sorry, I sympathise with the execution of the Arabs in south-west Iran35 but, I’m sorry, they’ll have to die. The bigger picture is we’ve got to stop the war, we’ve got to stop the US attack on Iran.’ It’s not either/or. The two things go hand in hand. The idea that sections of the far left, the

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sectarian left, are prepared to sacrifice the lives of other human beings for the greater good—that is the road to Stalinism and Pol Pot…. They’re saying ‘those lives are expendable. They might in other circumstances be worthwhile protesting about, but not now. Because the greater good demands that we do everything to ensure that the neocons have no arguments or evidence to back their case.’36

In analysing Tatchell’s position, it is vital to bear in mind that in contrast to conservative activists in the US, he operates from a more gay-friendly jurisdiction in which LGBT citizens have won a number of significant victories, particularly since the election of a Labour government in 1997. Indeed for British and northern European activists, the fulfilment of much of the LGBT rights agenda at home has freed up time and resources and added a moral impetus for the internationalisation of activism on behalf of distant others who are seen as less fortunate. This is not to suggest that sexual minorities in these countries have achieved all their aims, but with the ‘great’ victories of decriminalisation, same-sex partnerships and—in some cases— marriage, behind them, the existential crisis experienced by activists as a result of these achievements is alleviated to some extent by human rights abuses in the Third World that can be framed as gay rights violations. Clifford Bob has written about the relationship of mutual dependence between embattled Third World insurgents and activists and Western patrons, reminding us that while the former depend on the latter for material resources, Western activists derive significant non-material resources from their Third World interlocutors: a raison d’etre, legitimation for international activism, proof that their agenda remains unfulfilled, symbols for broader campaigns, prestige with their support base, etc.37 These are plausible motivations for Tatchell’s interest in framing human rights abuses abroad as gay rights violations. Indeed any criticism of his activism is met with the response that his interventions are explicitly requested by sexual minorities suffering oppression in distant parts of the world. This emphasis on the authorisation or legitimation of activism parallels a phenomenon

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that is increasingly evident in the field of development, where a new orthodoxy insists that development must be ‘owned’ by its intended beneficiaries, an outcome that requires listening to the previously silenced voices of subalterns. Yet critics of the modified development discourse of ownership have pointed out that the act of listening is in itself an exercise in power, with agents of development attempting to set the terms of their encounter with previously silent subalterns. As Cynthia Wood notes sceptically, We decide to whom we will speak and which of the many silenced voices it is important to hear. We do not want to listen to anything unpleasant. It is unlikely that we will try to speak with someone we know is ‘uncooperative’ or unsupportive of development. Implicit in our new project is the demand that the third world woman perform for us, within the limits of our needs and desires.38

Arsham Parsi, a gay Iranian activist who obtained asylum in Canada from persecution on account of sexual orientation, is critical of Tatchell’s brand of activism, arguing that his commemoration of the 2005 hangings with protests outside Iranian embassies a year later was counterproductive and politically damaging.39 When I put it to Tatchell that some Iranian activists appeared to be critical of what he was doing, he was incredulous at first, arguing that Parsi was initially supportive of the protests and changed his mind only after he had been influenced by Long. That Parsi was initially supportive appears to be true, given that he had himself incurred criticism from other Iranian activists for standing with Tatchell on the issue.40 Tatchell is also quick to point out that Parsi does not speak for all Iranian homosexuals. He claims that there were five Iranian LGBT groups/magazines at the time of the commemorations, four of which supported his protests. He cites a letter of support issued by MAHA, an e-list which claims a subscription of 1,700 members and a readership of 3,000–5,000, which strongly endorsed the protests despite the controversy they generated.41 Tatchell’s claims of support are difficult to verify, given his unwillingness to reveal the identity of his interlocutors and the general difficulties of studying the political organisation of homosexuals in Iran.

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These issues have recurred in Tatchell’s relations with African activists, many of whom publicly dissociated themselves from his campaigns in relation to Nigeria and Uganda, citing his failure to consult with local activists and his pursuit of misguided tactics that could endanger local movements.42 Once again, Tatchell insists that his activism is solicited by many Nigerian and Ugandan activists, citing groups such as Gay and Lesbian Alliance (GALA) and Makerere University Students’ Lesbian Association (MUSLA) in Uganda. He also suggests that his critics—groups like Sexual Minorities Uganda (SMUG)—were animated by petty local turf rivalries. In his view, their denunciation of OutRage! was precipitated by resentment that it worked with other groups in Uganda, and fear of a loss of status as these local rivals gained international visibility and prestige as a result of their collaboration with OutRage!.43 Whatever the truth of Tatchell’s claims of local support, this does not elide the problems outlined by Wood. In a field apparently crowded with ‘native informants’, the Western solidarity activist seems to reach out to those who endorse his project, while ignoring the criticisms of those who do not. Local interlocutors in turn are not abject, apolitical actors suffering oppression, but complex subjects with interests and agendas of their own. The entry of resource-rich solidarity activists into an already fractious terrain can set off a competitive dynamic amongst local actors competing with one another to be privileged informants in anticipation of the potential rewards that might flow from such relationships. Far from assisting in the creation of a united front against homophobia, the external activist can exacerbate local tensions and fracture the movement. Finally, one has to consider the politics of the larger organisations in the Gay International (Amnesty, HRW, IGLHRC, etc.). Such actors are vulnerable to many of the criticisms that could be made of Tatchell. They too ‘need’ human rights violations abroad as a reason for being, and have an interest in framing power struggles in different parts of the world as ‘rights violations’ with a view to sustaining particular programmes and campaigns. They share the same sexual ontology as the right- and left-wing gay saviours discussed here. In this sense, Massad is not wrong to speak of the Gay International as a

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collectivity. In the context of their reactions to the 2005 executions in Iran, however, some crucial distinctions have to be made. Notwithstanding their common ontological premises, these organisations have generally tended to be wary of foisting a Western sexual ontology on subjects in countries like Iran in the absence of evidence of self-identification in these terms. HRW’s recent report on the persecution of queers in Iraq, for example, describes the men interviewed for the report as ‘gay’ only because they themselves used the term in preference to newly-coined Arabic equivalents such as ‘mithli’. Even so, the report cautions against the assumption that being ‘gay’ in Iraq has the same connotations as it does in the West, noting that its usage in Iraq has as much to do with gender as with the object of one’s sexual desire.44 In some cases, these organisations have resisted applying an LGBT rights frame to particular instances of abuse. In a virtual reprise of the events of 2005, when Makwan Mouloudzadeh, a 21-year-old Iranian man, was sentenced to death in June 2007 on charges of having raped three boys when he was himself only 13, groups like OutRage! and the Italian collective Gruppo Everyone once again treated the case as one of gay persecution and lobbied the Iranian government vociferously in these terms, demanding that the sentence be lifted. In contrast Amnesty and HRW, following investigations which revealed no evidence of any sexual acts whatsoever, flatly denied that Mouloudzadeh was gay and sought to reframe advocacy around the issue as being that of the execution of juveniles. Their position was based on evidentiary considerations, but also on the grounds that it was tactically ill-advised to campaign for Mouloudzadeh as a ‘gay’ person in a country where homosexual conduct, whether consensual or not, carries the death penalty. Despite a brief window of hope in which the sentence was suspended by the head of Iran’s judiciary pending an official investigation into allegations of trial irregularities, Mouloudzadeh was executed in December of that year. Long argues that the framing of advocacy on his behalf in terms of gay rights did real damage to his case, possibly inducing the Iranian authorities to carry out the sentence.45

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I put it to Long that although the reframing of cases involving homosexual conduct in terms of other issues such as juvenile justice might be tactically astute given the sensitivities of the Iranian regime, the unwillingness to frame advocacy squarely in terms of sexual freedom failed to challenge patriarchy or vindicate the right to be different. In any case, what would HRW do if it were confronted with a case involving consenting adults, in which the evidence was not murky? In response, Long brought to my attention two other incidents in May 2007 and February 2008, in which the Iranian police had raided private parties in Esfahan and arrested a number of people on charges of ‘hamjensgarai’ (homosexual conduct). In its responses to these incidents, HRW acknowledged that the individuals involved had been arrested on suspicion of homosexual activity, and called for arrest and prosecution on that basis to end. But, he adds: …we were ultimately trying to speak to an Iranian audience. And Iranian audiences, regardless of what they think about lavat [sodomy], the main things on their mind are people being arrested for the way they look, the way they dress—particularly women but not just women—and the invasion of privacy, the fact that the Basij—the religious police—can break into anybody’s apartment if they think alcohol is being drunk or something bad is going on. So we basically tried to phrase it as an issue of police harassment of people for looking different, and privacy, which I think is something that everybody can understand. And the thing that so pissed me off about this whole Western brouhaha about Mashhad—aside from the fact that they were claiming facts which they didn’t have—was that there was absolutely no attempt to understand what would resonate in Iran…Privacy, yes! Homosexuality, no!46

The emphasis here is on enlarging the constituency that might be enlisted in the struggle for sexual autonomy by moving beyond identity categories such as ‘gay’, ‘queer’ or even ‘women’, to focus on issues and demands in which multiple groups might have a common interest. Far from seeking to impose Western sexual identities on non-Western populations, key actors within Massad’s Gay International seem wary of framing struggles for sexual self-determination in terms of sexuality at all!47

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In sum, the Gay International—if it can be seen as a single entity at all—is an extraordinarily fractious space. Its constituents span the entire political spectrum, from right-wing activists concerned about furthering their incomplete assimilation into party, nation and state, to left-wing Greens looking for new causes to replenish spent agendas. It is united by a common Western sexual ontology, but its constituents disagree radically on whether, when and how to export this ontology to the rest of the world. And while some of its constituents seem eager to use gay rights as a means of consolidating Western hegemony, others seem wary of contributing to such an outcome. Between Malevolent Enemies and Condescending Friends

Having investigated the politics of different sorts of rescue narratives, it is necessary to remind ourselves of the authenticity narratives that queer subjects confront in many communities in order to fully appreciate the complexity of the dilemmas that non-Western queer activists as well as queer activists of colour in the West face in the contemporary conjuncture. These dilemmas are made all the more fraught by the security preoccupations and panics of the ongoing ‘war on terror’. Ubaid Rehman and Asif Rashid, members of Imaan (‘faith’)—a support group for British LGBT Muslims—described to me how much of their work involved combating not only homophobia within the Muslim community, but also Islamophobia within the gay community.48 The former entails providing support to Muslims struggling to come to terms with their sexuality under pressure from families and clerics. Illustrating the forms that Islamophobia within the gay community takes, Rehman narrated how members of Imaan who participated in the 2005 London Pride wearing hijab (so as to preserve their anonymity) were approached by Pride stewards enquiring if they were suicide bombers. Imaan has also responded to gay activists who attack Islam per se rather than particular interpretations of the religion—here Rehman mentioned a group called Gay and Lesbian

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Humanist Association (GALHA)49, which once published material that was abusive of the Prophet. One way in which Imaan attempts to fight homophobia within the Muslim community is to increase its visibility by inserting itself into discussions on subjects of concern to the community as a whole, such as racism and Islamophobia. In doing so, Imaan precipitates interactions with mainstream Muslim organisations such as the Muslim Council of Britain (MCB) regardless of whether or not those organisations recognise its legitimacy. The possibility of agreement on issues unrelated to sexuality seems to offer Imaan an opening into dialogue with the very elements within their faith community whose homophobia they must work so hard to change. The strident rhetoric of white, non-Muslim gay activists whenever Islam is implicated in homophobia, shows little awareness of these complex negotiating dynamics. Although Rehman personally has good relations with Tatchell and refuses to criticise him on any account, he displayed a fleeting exasperation with him in an unguarded moment: …Iqbal Sacranie [former Secretary General of the MCB] definitely [holds] homophobic views. But we still have to work with those people around issues like Islamophobia and racism and things like that, and it’s only by working together that we can help change perspectives instead of knocking them and saying that we’re different and we’re not working with them because they hold these views. And that’s the thing where Peter Tatchell and people like that fall down. They think just because you don’t accept people being gay, I’m not accepting you.50

These dilemmas seemed familiar to Rauda Morcos, a lesbian Palestinian citizen of Israel, who ran an organisation of Palestinian lesbians— Aswat (‘voices’)—at the time I interviewed her in November 2007. As a group for Palestinian lesbians run out of Haifa in Israel, Aswat is concerned primarily with providing a safe space for the discussion of issues associated with sexuality. But as an organisation of and for Palestinians, it can hardly ignore the facts of Israeli Occupation and the struggle for Palestinian statehood. Indeed, the organisation’s

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mission statement mentions addressing the conflict between national and gendered identities as one of its key priorities.51 Because Israel’s relative gay-friendliness gives Aswat the space in which to organise, I was interested in how this complicated its members’ identification as Palestinian. Morcos described how although Aswat worked with a number of Israeli LGBT groups, none of them were actively anti-Occupation except for a group called Kvisa Shchora (Black Laundry).52 She said that when Aswat issued an anti-war statement during the 2006 Israeli attack on Lebanon, it was seen as an enemy by some Israeli LGBT organisations. Shortly thereafter, when the group’s first conference scheduled for March 2007 received threats from the Islamic Movement (an organisation of Israeli Muslims), Israeli LGBT organisations flocked to support Aswat. ‘This really annoys me’, Morcos remarked angrily. ‘Are you my friend only when I am attacked by your enemy?’ And virtually echoing the sentiments of my informants in Imaan, she said: ‘As for the Islamic Movement, we don’t want to see them as the enemy. They are our people, we want to work with them.’ Morcos described how the Israeli media and some LGBT organisations, salivating at the prospect of conflict between a Palestinian lesbian organisation and a Palestinian fundamentalist movement, egged Aswat on to a confrontation. Not wishing to pander to such voyeurism, the group hired a private security company to guard the conference venue, so as not to have to rely on the Israeli police for protection against fellow Palestinians. Ultimately, the protest by the Islamic Movement’s Women’s League was a muted affair, dwarfed by the conference which was, by all accounts, a success. But the experience seems to have pushed Aswat into that familiar, desolate space between orientalist LGBT allies and homophobic community members. As Morcos remarked: Sometimes in Israel you are put in a position where you have to defend your enemy. We have many problems within our community. Every time we want to criticise something in our community, Israel welcomes it. As if they don’t have anything wrong with them. And then some Israelis say, ‘if you were not in Israel, you would not have been able to do this.’53

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In 1941, the political theorist Hannah Arendt published an angry open letter addressed to Jules Romains, then president of the international association of writers, PEN. The letter was occasioned by Romains’ complaint that he had been insufficiently thanked for his antifascist deeds, which included securing the release of numerous Jewish refugees from French concentration camps. Arendt notes pointedly that Romains’ efforts were gestures performed ‘for the sake of your own honour and the reputation of the organisation you represent’. Jews, she said, regarded Romains ‘as an ally and comradein-arms, rather than as a benefactor.’ Arendt saw Romains’ actions as basic obligations in a joint struggle—gratitude simply did not enter into the relationship. As she puts it: What concerns us Jews in all this and what makes us blush again for the hundredth time is our despairing question: Is our alternative truly only between malevolent enemies and condescending friends? Are genuine allies nowhere to be found, allies who understand, not out of either sympathy or bribery, that we were merely the first European nation on whom Hitler declared war? That in this war our freedom and our honour hang in the balance no less than the freedom and honour of the nation to which Jules Romains belongs? And that condescending gestures like the arrogant demand for gratitude from a protector cuts deeper than the open hostility of antisemites?54

Arendt’s account of the Jewish predicament might well describe the position of queer activists caught between malevolent authenticity narratives and condescending rescue narratives. The malevolence of homophobic opponents is expected, the condescension of putative allies much more startling. It is a condescension that comes out of being embedded in cultural contexts that are seen to be developmentally superior, by virtue of having already posed the questions, fought the battles and won the liberties that distant sexual minorities now struggle for (the assumption being that they struggle for the same liberties). The satisfaction that white queers derive from saving brown queers from brown homophobes stems from the confirmation that this heroic gesture seems to provide for something that whites have always

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‘known’: that ‘whiteness’ (and everything non-racial that this additionally signifies) is superior to ‘brownness’ and will always be so. Without wishing to generalise about non-Western queer activists and queer activists of colour in the West, the foregoing vignettes attempt to highlight a common protest dilemma that many of them face. Far from being simply ‘native informants’ to the Gay International as Massad would have us believe, it should be clear by now that their relationships with the International are in fact much more complex and conflictual. Although many have begun to appropriate Western identities in their struggles for sexual self-expression, this has not amounted to a slavish endorsement of everything that emanates from the Gay International. Instead, their quest for self-determination has entailed a struggle against both homophobia within their communities and salvation by international/white LGBT allies. The latter struggle has been for power and resources but also, ironically, for recognition as equals. In part, what these activists have been trying to say to their purported rescuers is that they are not just gay, but other things as well—Palestinian, Arab, Muslim—and that gay liberation that does not respect those other identities is no liberation at all. Notes Thanks are due to Elizabeth Angell, Lee Jones, Keith Stanski, Arash Sedighi and the editors of this volume for comments and criticism. 1. I use the term ‘LGBT’ to refer to an essentially liberal identity politics that aims at the inclusion of sexual minorities within the political community. ‘Queer’ refers to a more radical politics that challenges the deep structures of heteronormativity, rather than seeking inclusion within them. I also use the term ‘queer’ as an umbrella category encompassing non-Western sexual minorities, such as hijras and kothis, that cannot easily be accommodated within a Western-style LGBT identity politics. 2. Kollman, Kelly and Matthew Waites. 2009, ‘The global politics of lesbian, gay, bisexual and transgender human rights: an introduction’, Contemporary Politics, Vol. 15, No. 1. 3. Binnie, Jon. 2004, The Globalization of Sexuality. London: Sage Publications, pp. 68–76.

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4. Hoad, Neville. 2000, ‘Arrested development or the queerness of savages: resisting evolutionary narratives of difference’, Postcolonial Studies, Vol. 3, No. 2. 5. Mohanty, Chandra Talpade. 2003, Feminism Without Borders: Decolonizing Theory, Practicing Solidarity. Durham: Duke University Press, Ch. 1. 6. Stychin, Carl F. 2004, ‘Same-sex sexualities and the globalisation of human rights discourse’, McGill Law Journal Vol. 49, p. 955. 7. Epprecht, Marc. 2005, ‘Black skin, “cowboy” masculinity: A genealogy of homophobia in the African nationalist movement in Zimbabwe to 1983’, Culture, Health & Sexuality, Vol. 7, No. 3, p. 263. 8. Narrain, Arvind. 2004, Queer: Despised Sexuality, Law and Social Change. Bangalore: Books for Change, pp. 41–45; Vanita, Ruth and Saleem Kidwai. 2001, Same-Sex Love in India: Readings from Literature and History. Basingstoke: Palgrave, p. 200. 9. Human Rights Watch. 2009, ‘“They want us exterminated”: Murder, torture, sexual orientation and gender in Iraq’, August 2009, available at www.hrw.org/node/85050. 10. Massad, Joseph A. 2002, ‘Re-orienting desire: The gay international and the Arab world’, Public Culture, Vol. 14, No. 2, p. 362. 11. Ibid., p. 373. 12. Massad, Joseph A. 2008, Desiring Arabs. Chicago: University of Chicago Press, p.173. 13. For comprehensive accounts of the controversy see: Kim, Richard. ‘Witness to an execution’, available at http://www.thenation.com/doc/20050815/ kim; Schindler, Paul. ‘The battle over Iran’, available at http://gaycitynews. com/site/index.cfm?newsid=17334312&BRD=2729&PAG=461&dep t_id=568864&rfi=8. 14. ‘Execution of gay teens in Iran’, OutRage!, 27 July 2005, available at http:// www.petertatchell.net/international/iranexecution.htm. 15. Kim, Richard. ‘Witnesses to an execution’ (See note 13). 16. Ireland, Doug. ‘Iran’s anti-gay pogrom’, available at http://www. inthesetimes.com/article/2458/. 17. Human Rights Campaign. 2005, ‘Secretary Rice urged to condemn execution of gay Iranian teens’, 22 July 2005, available at http://www.hrc.org/1945. htm. 18. Log Cabin Republicans. 2005, ‘Log Cabin Republicans denounce execution of gay youth by Iran’, 26 July 2005, available at http://online.logcabin.org/ news_views/log-cabin-republicans-denounce-execution-of-gay-youth-byiran.html.

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19. Najmabadi, Afsaneh. 2005, Women with Mustaches and Men without Beards: Gender and Sexual Anxieties of Iranian Modernity. Berkeley: University of California Press, Chs 1&2. 20. ‘Iranian gay group backs 19 July protests’, OutRage!, 14 July 2006, available at http://www.petertatchell.net/international/irandemo.htm. 21. Interview with Scott Long, New York, 21 September 2009. 22. Human Rights Watch. 2005, ‘Iran: End juvenile executions’, 26 July 2005, available at http://www.hrw.org/en/news/2005/07/26/iran-endjuvenile-executions. 23. Amnesty International, ‘Executions of juveniles since 1990’, available at http://www.amnesty.org/en/death-penalty/executions-of-childoffenders-since-1990. 24. BBC News, ‘US court bans juvenile executions’, available at http://news. bbc.co.uk/1/hi/world/americas/4308881.stm. 25. Varnell, Paul. ‘Toward a gay foreign policy’, available at http://www. indegayforum.org/news/show/27139.html. 26. There is a considerable orientalist discourse, which uses the closeted status of most gay Palestinians as a means of undermining support for Palestinian self-determination per se. See for example: Halevi, Yossi Klein. 2002, ‘Tel Aviv dispatch: Refugee Status’, The New Republic, 19 & 26 August, 2002; Bernstein, Davi J., ‘Gay Palestinians suffer under Arafat’, available at http://www.yaleherald.com/article.php?Article=933; Varnell, Paul. ‘Israel, Palestine, and gays’, available at http://www.indegayforum.org/ news/show/27154.html; Goodwin, William. ‘Palestine’s oppression of gays should not be ignored’, available at http://www.sodomylaws.org/world/ palestine/pseditorials001.htm; Kirchik, James. ‘Palestine and gay rights’, available at http://www.advocate.com/exclusive_detail_ektid33587.asp. For a critique, see Kuntz, Blair. ‘“Queer” as a tool of colonial oppression: The case of Israel/Palestine’, available at http://www.zmag.org/content/ showarticle.cfm?ItemID=10756. 27. See for example the comparative religious writings of Paul Varnell at www. indegayforum.org. While he acknowledges the universality of bigotry and homophobia across the monotheistic religions, Christian proscriptions of homosexuality are rationalised and contextualised, even if ultimately criticised, while Islam’s lack of pluralism and internal contestation is emphasised. For a remarkably different treatment of Islam, stressing its indeterminacy and contingency and the consequent scope for reconciliation of sexuality and faith, see: Whitaker, Brian. 2006, Unspeakable Love: Gay and Lesbian Life in the Middle East. London: Saqi, pp. 113–42.

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28. Spivak, Gayatri Chakravorty. 1988, ‘Can the subaltern speak?’, in Cary Nelson & Lawrence Grossberg (eds), Marxism and the Interpretation of Culture. Basingstoke: Macmillan, p. 296. 29. Puar, Jasbir K. 2006, ‘Mapping US homonormativities’, Gender, Place and Culture, Vol. 13, No. 1, pp. 67–8. 30. Ibid. p. 72. 31. For an instance of linkage between queer solidarity and support for the war on Afghanistan, see Paul Varnell, ‘Bombing for justice’, available at http:// www.indegayforum.org/news/show/27137.html. 32. For an instance of linkage between feminist solidarity and the war on Afghanistan, see Laura Bush, ‘Radio address by Mrs. Bush’, 17 November, 2001), available at http://www.whitehouse.gov/news/releases/2001/11/ 20011117.html. 33. Rosendall, Richard J. ‘The state department’s gay rights tool’, available at http://www.indegayforum.org/news/show/27346.html; Ireland, Doug. ‘LGBT advocates needn’t cozy up to state department’, available at http:// gaycitynews.com/site/news.cfm?newsid=18173976&BRD=2729&PAG= 461&dept_id=569346&rfi=6. 34. Puar, ‘Mapping US homonormativities’, p. 70. 35. Tatchell is currently campaigning on behalf of the Ahwaz Arabs, an ethnic minority in southwest Iran, who allegedly suffer various forms of statesanctioned discrimination and persecution. The boys executed at Mashhad in 2005 are thought to have belonged to this community (Whitaker, Unspeakable Love, p. 128). 36. Interview with Peter Tatchell, London, 23 October 2007. 37. Bob, Clifford. 2006, The Marketing of Rebellion: Insurgents, Media, and International Activism. New York: Cambridge University Press, p. 15. 38. Wood, Cynthia A. 2001, ‘Authorising gender and development: “Third world women,” native informants, and speaking nearby’, Nepantla: Views from South, Vol. 2, No. 3, p. 435. 39. Telephone interview with Arsham Parsi (Toronto), 18 October 2007. 40. See for example: Roshan, Mitra and Kourosh Shemirani. 2006, ‘Gays in Iran’, Gay City News, 3 August 2006, available at http://gaycitynews. com/site/index.cfm?newsid=17334376&BRD=2729&PAG=461&dep t_id=568864&rfi=8. 41. MAHA, 2006, ‘The need for continued international solidarity with Iranian LGBTs’, 15 August, 2006, available at http://www.ilga.org/news_results. asp?LanguageID=1&FileCategory=9&ZoneID=3&FileID=879. 42. ‘African LGBTI human rights defenders warn public against participation in campaigns concerning LGBTI issues in Africa led by Peter Tatchell and

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Outrage!’, 31 January 2007, available at http://mrzine.monthlyreview. org/increse310107.html. 43. Tatchell interview, see note 36. 44. Human Rights Watch (see note 9), pp. 9–10. 45. Long, Scott. 2009, ‘Unbearable witness: how Western activists (mis) recognize sexuality in Iran’, Contemporary Politics, Vol. 15, No. 1, pp. 120–2. 46. Long interview, see note 21. 47. Ironically, Long is one of the Western activists whom Massad singles out for criticism in the context of advocacy around the infamous ‘Queen Boat’ incident in Cairo in 2001, when a raid on a floating discotheque culminated in the arrest and prosecution of a group of men alleged to be ‘practising debauchery’ (Massad, Desiring Arabs, pp. 182, 185–7). It is of course possible that Long has come to this position precisely as a result of such criticisms. 48. Interview with Ubaid Rehman and Asif Rashid, London, 17 November, 2007. 49. http://www.galha.org/. 50. Rehman interview, see note 48. 51. Aswat, ‘Our mission and aims’, available at http://www.aswatgroup.org/ english/about.php. 52. http://www.blacklaundry.org/eng-index.html. 53. Telephone interview with Rauda Morcos, Haifa, 12 November 2007. 54. Arendt, Hannah. 2007, ‘The house of Judah’s gratitude? (Open Letter to Jules Romains), October 24, 1941’, in Jerome Kohn & Ron H. Feldman (eds), The Jewish Writings. New York: Schocken Books, pp. 134–36.

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Recovering the ‘Body’: The Search for a Constitutional Justice Shrimoyee Nandini Ghosh

con·sti·tu·tion: (ko˘ n'stı˘-too'shen, -tyoo'-) noun. 1. The basic principles and laws of a nation, state, or social group that determine the powers and duties of the government and guarantee certain rights to the people in it.1 2. The physical makeup of the body, including its functions, metabolic processes, reactions to stimuli, and resistance to the attack of pathogenic organisms.2 The South African Constitution. Ripe with new metaphors, the promise of beginnings, not forgetting its past but ever remembering it. A memorial to histories of dismemberment, ugliness, and atomisation. Moving on to a new jurisprudence—as a bridge3, as a rainbow4, with reconciliation rather than anger5. A jurisprudence that talks of justice in context, that speaks of ‘substantive equality,’ of substance, of the stuff of people’s lives. One that speaks of different people, and embraces difference instead of reducing it. A constitution which acknowledges that the citizen is not unmarked and disembodied but has a body, a sex, a race, a sexual orientation, a history, pain, memories. That the rights bearing citizen-man does not only live a public political life but a social and economic one. That people live in connection to communities. A justice that acknowledges relations and connections and not just individuals. A dream of justice deliberative and deliberate—judges as elders in a gathering in a

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clearing under a tree, rather than imperious imperial men in black robes.6 Not a timeless, unreal, disembodied justice but a justice made real in specificities of time and place and people.7 Then one day a man (who desires other men) approaches the elders asking for the shade of their justice. The dream of justice encounters the body in its most real, bodily form. Suddenly criminal sex gay sex dirty sex is in the courtroom, in the clearing under the trees. The elders deliberate and decree that this messy criminal body must be civilised, rendered civil for citizenry, for drawing room intercourse, for polite company. The homo-sexy body is domesticated, made familial, made familiar. So that love against the norms is not disturbing, disconcerting strange or dangerous—Gays are people just like us, the judges decree. So we include them in the shade (the shadows?) of constitutional family life; these people who live like us, and build bonds like us, who make love for the same reasons we do though not in exactly the same ways (but we won’t go too much into that). Time passes and (another ‘other’)—a whore—is brought to the Court and she Refuses. Refuses to agree to live by this civility. To make love like civil people do. ‘I want to sell it’, she says. Why should I give it to you for free? I want this bawdy body of mine in the market, in the bazaar. I want to strut my stuff, parade my wares, walk the streets, slut around. I want to explode inside and outside market and bedroom private and public pleasure and commerce. She asks for the right (if rights are a process whereby the constitution is embodied, rendered bodily and rendered possible) to exist outside this libidinal economy of cosy love and domesticity. She wants, this bawdy woman, the right to see sex as work (as hard hard work), the right to do this work, the right to perform sex for payment, the right to make love not for love. The elders recoil from the embrace of the whore. Again, they render her criminal. Her body forever the repository of memories that are not memories yet. She will be the carrier of pastpresents—of racial segregation, venereal disease, dismemberment, moral contamination, terror. The promise of citizenship is not for the promiscuous. Her constitution, her physical being is unconstitutional. **** In the first part of this essay, I try to unearth the discursive construction of the bodily and the sexual in the jurisprudence of the

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Constitutional Court of South Africa, looking most closely at the judgement in Jordan8 and more generally at other judgements where the court encountered ‘womanhood’ or sexual difference. In the Jordan judgement, the Constitutional Court by a majority of six to five upheld the constitutional validity of Section 20 (1) (aA), an apartheid era law that criminalised ‘illicit and carnal intercourse’ for reward. The minority judgement (by Justices Sachs and O’Reagan) stated that this law criminalising prostitution discriminated against women but suspended its order of invalidity for 30 months to allow the legislature to enact suitable legislation. Not only did this mean that the law was not immediately invalidated, ever per the majority, but since their’s was the minority judgement, the state’s obligation to enact such a law has unsurprisingly remained unfulfilled. At the beginning of this essay, I historicise these judgements by briefly exploring feminist and post-colonial retellings of the female body’s fraught relationship with the law and the collusions/ collisions between imperial power, race and sexuality. I then make explicit the questions I wish to ask of post-apartheid jurisprudence: what are the traces of colonial and patriarchal fantasies, of sexual and racial containment and othering, that linger in the judgements of the Constitutional Court? What taxonomy of womanhood, sexual difference and citizenship does the Court construct? Who is worthy of constitutional shade and who must remain outside? In the final part of this essay, I tentatively search for the possibility of imagining a new bodily politics, a politics of desire and pleasure inside the law. Law and feminist legal thought’s views on sexuality in some ways disturbingly mirror each other.10 Both focus unwaveringly on what is destabilising and dangerous about women’s sexuality. While law’s paternalism and violence terrorises, domesticates and pathologises women’s bodies, feminist legal theorising can only see sex, sexiness and sexuality as inextricably tied to the tired languages of domination and masculinity of which law is an instrument. Both essentialise and victimise women forever into saying ‘No’, into being always violated. Yet despite the law’s repressive power, women do continue to say ‘Yes’ both within the constraints of dominant

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moralities and outside of them —to desire sex wantonly, to perform their sexiness in public/to sell it in the market/to share it in their homes with other women/to not share it despite being married. While some feminists may argue that these female ‘others’ engage in acts of bodily subversion and resistance at the margins of legality, haunting the law’s boundaries, but necessarily by their very female-ness forever outside, this answer leaves me unsatisfied. I want to explore if there is the possibility of another sort of feminist and feminine legality; one that embraces sexuality in all its promiscuous messiness and bodyness and bawdiness and diversity. As a postscript I tell another story of law’s encounter with a sexual other: our own. I briefly analyse how constitutional words become flesh in the judgement in the Naz Foundation case11 dealing with the criminalising of ‘carnal intercourse’ in India. This essay then is a search for a constitutional justice not in the sense of a distilled, disembodied spirit of legality, but constitutional as in the bodily, that of and pertaining to the physical body. The Law, the Whore and the Primitive: A Brief History The whore stigma reflects deeply felt anxieties about women trespassing the dangerous boundaries between public and private. Streetworkers display their sexual and economic values in a crowd—that social element permanently on the verge of a breakdown—and thereby give lie to the myth of rational control of deviance and disorder. Hence the fetishistic investment of the law in policing the prostitute’s body.12

In psychoanalytic terms the feminine is the unruly savage ‘other’ of the masculine symbolic order, made abject by its ordering violence but always disrupting, subverting and resisting it by its very alterity and difference. Thus though female subjectivity and materiality is in various ways constituted by the law and other technologies of biopower, it is never contained by it. The whore is the ultimate symbolic embodiment of the ungovernability of female bodies and desires, their delinquency and deviance. The streetworker defies the patriarchal order of the economy (demanding money for that which the man is entitled to for free), space (freely roaming the labyrinth public street)

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and the social (bringing the market into the bedroom and the bedroom into the market) and hence a cause for extreme anxiety and violent repression.13 A figure that causes equal anxiety in the orderly universe of modern and western rationality is that of the unknowable and ungovernable ‘primitive’ or native colonised other. McClintock describes how, by the latter half of the nineteenth century, the analogy between erotic deviance and racial deviance emerged as a necessary element in European imagination, bolstered by the emergent knowledges of medicine, colonial geography, demographics and anthropology.14 The invention of racial fetishism became central to the regime of sexual surveillance while policing of ‘degenerate’ sexuality became central to the policing of all dangerous classes both in the Western metropolis and its colonised peripheries: the working class, the colonised, prostitutes, the Irish, the Jews, gays, lesbians, alcoholics, criminals and the insane. Erotic deviants were frequently figured as racial deviants, atavistic throwbacks to a racially primitive moment in human prehistory, surviving ominously in the heart of the imperial metropolis. At the same time colonised peoples were characterised as erotic deviants, the embodiment of primordial erotic promiscuity.15 Carol Smart examines how in the late nineteenth century, which she characterises as a ‘moment of crisis’ both for the empire and industrialism, the intensification of these anxieties was manifest through a moral panic and increasing regulations and legislations relating to abortion, sexual offences, contraception and, in the case of the colonies, white slave trade, miscegenation and interracial sexual activity as well as the access, regulation and surveillance of prostitutes.16 In South Africa, the complex histories of migration and settlement, of flows of capital and labour, of the cities, mining towns and homelands are intimately intertwined with the histories of sexual and racial regulation, profiling, segregation, surveillance and criminalisation. In the aftermath of the Boer War, the Cape Parliament passed the Contagious Diseases Act (similar acts were passed in almost every British Colony), which made provision for the establishment of scheduled towns, the registration of prostitutes, and compulsory

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medical examinations and hospitalisations, obstensibly to control the spread of venereal disease among soldiers. However, as Karen Jochelson argues,17 discourses about infectious disease illuminate society’s fault lines, whether of class or race or gender, and reveal its deepest anxieties and fears. She uses the prism of venereal disease to construct a genealogy of the pathologisation and surveillance of bodies in colonial and apartheid South Africa within and outside the complex maze of interlinked bio-power and govermentality18 that apartheid laws constructed. Thus she shows how, in the first decades of the twentieth century, the incorporation of white women into the urban workforce, changing sexual mores and miscegenation were seen as markers of white degeneration and a threat to white supremacy; and how medical and sociological studies of ‘amateur prostitution’ helped to construct ‘abnormal’ white behaviour as similar to ‘normal’ African characteristics thus bolstering the notions of ‘European’ identity and white supremacy at the heart of the segregationist state. In a similar vein, Mia Swart analyses judicial attitudes and criminal trials in that period and finds a similar impetus to violently repress transgressions.19 It was at the end of this period that these attitudes saw their consolidation and legislative realisation in the form of the first Immorality Act of 1927. The Act, enacted in the Cape Province, prohibited ‘illicit carnal intercourse’ across lines of colour. It is important to remember in the telling of this story that the terrain of South African colonial policy is not a monolithic one, riven as it is with regional difference, discontinuities and contradictions.20 While the apartheid state valued highly its moral purity, its economic and tourism policies simultaneously encouraged the growth of ‘pleasure peripheries’ in neighbouring Lesotho,21 and the centres of casino capitalism and gambling in the Bantustans which were characterised as sites of illicit pleasure and vice within South Africa. Traces of this history remain to this day in the Sun Cities and pleasure palaces of contemporary South Africa.22 While the prostitute always existed in the penumbra of illegality—in the ancillary economy

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to mining townships, surveyed and policed by zoning regulations, municipal laws and laws relating to public order—criminal sanction only attached to her under the amendment to the Immorality Act in 1988, which was then renamed the Sexual Offences Act.23 It is these and other residues and memories of these colonial histories, moral and sexual contamination and colonial fantasies of illicit and carnal pleasure that I seek to unearth in the next section. Recovering the Body in the Jordan Judgement

While there has been considerable feminist and legal debate and disagreement about the decriminalisation and/or legalisation of prostitution, I do not engage with those debates in this essay.24 What I am interested in exploring is how the figure of the prostitute emerges in the Jordan judgement. What tropes and narratives do the judges employ to render her again and always outside the pale of legality? This is thus not so much a legal or constitutional analysis of the arguments and counter arguments raised, as a discursive investigation.25 The erasure of histories

The most striking thing about the majority judgement by Justice Ngcobo is the degendering and ‘deracing’ of the figure of the whore. She has no race, no gender and no history. She is ‘any person’ who engages in sex for reward26 and ‘gender is not a differentiating factor’.27 Though the judge acknowledges that the violence of the law visits most visibly on the female prostitute, he points to the existence of males in the profession as well. By denying the sexed and bodily nature of state violence that constitutes and disciplines the prostitute, the judge attempts to erase the materiality and specificity of her existence. Justice Sachs reads the Sexual Offences Act shorn of its violent and segregationist history by posting the doctrine of ‘shifting purpose’28 to divest the words ‘illicit’ and ‘carnal’ of their meanings in the South African imaginary. Thus not only is the prostitute rendered sexless and genderless, she is also without race. She is neither black nor white

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nor coloured, she is neither poor nor rich, neither rural nor urban but an unmarked and faceless body, blank except for the inscriptions of state-sanctioned violence and criminality.29 Criminality and contamination

The tropes of criminality, moral deviance, danger and disease are repeatedly and disturbingly summoned in the judgements. Where it is argued that the law discriminates since the (male) customer who participates equally in the ‘crime’ is not criminalised, the judge draws upon the ‘qualitative’ difference between prostitutes and customers. She is the ‘repeat offender’, her body therefore more worthy of criminal sanction than the customer who may ‘seek the services of a prostitute only occasionally’.30 Prostitution is essentially a criminal act per se and so the whore has no right to privacy because in the law of crimes there are no boundaries between public and private.31 To further bolster this argument, the judge draws upon the phantom of the Riotous Offenders Act and states that the customer is an ‘accessory’32 to the crime, implying of course that the main criminal is the whore. She is also the repository of licentious and untrammelled sexual agency. She ‘knowingly accepts the risk’33 of lowered social standing by choosing to engage in sex work. Despite her occasional appearance as victim, especially in the figures of the child sex worker and the trafficked or violated body (though she is violated only by customers and her pimp and not the State), she is predominantly the embodiment of moral and social deviance and only has herself to blame for provoking such social censure. Her linkages to criminal deviance are elaborately set out: sex work is conducive to violent abuse of prostitutes both by customers and pimps; it is associated with and encourages international trafficking in women; it has close connections with other crimes such as assault, rape and even murder; and it is a frequent and persistent cause of public nuisance.34 Aside from her criminality, the body of the prostitute is the diseased carrier of moral and sexual contamination. She carries STDs such as AIDS (the contemporary equivalent of the colonial Syphilis whose discursive trajectory Karen Jochelson traces) and embodies the pathology and irrationality of the drug addict.35

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Love and money

The whore in the judgement also brings forth deep moral anxieties by transgressing the boundaries of familial and matrimonial love, thus bringing the market into the bedroom and sex into the marketplace. She is in this industry ‘solely for the money’.36 She is different from any other women who may perform sexual favours for gifts of other sorts37 because she engages in sex as commerce38 thus commodifying her body which is not ‘something to be commodified’.39 The expression of her sexuality is not at the ‘core of the area of private intimacy’.40 Her sexuality is ‘indiscriminate’ and ‘available to all and sundry’ and ‘all about sex and all about money’. It thus ‘does not fall within the range of human relationships that must be secured against undue intrusion by the state’.41 The traces of the hyper-sexed, uncontainable native subject and the feminine other are thus inscribed unto her. Her body is outside of law’s protection and she is rendered the defaced dehumanised un-citizen. Unspoken for in Jordan and invisible except by their absence are the bodies and sexualities of those women and sexual others that the court does protect and whose rights are rendered possible and bodily. In the next section, I explore the sorts of womanly citizenship and civil (as opposed to criminal) sex acts that the constitutional court constitutes and sustains. Citizenship and the Domestication of Desire

The legal system maintains a shaky line between sex workers and other women. Anti-prostitution laws are erratically enforced; eager customers and obliging hotel services collaborate in the ‘crimes’ prostitutes commit with relative impunity. Anti-prostitution rules formally preserve the distinction between legal and illegal sexual activity. By preventing the line between sex workers and ‘mothers’ from disappearing altogether, anti-prostitution rules reinforce the maternalized female body that other legal rules more directly support.42

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In this section of the essay, I very briefly explore the ways in which dominant narratives of motherhood, matrimony, victimhood and familial love frame the understandings of citizenship in the postapartheid context in contrast to the un-citizenship and un-belonging of the whore. To do this, I examine four judgements where the constitutional court encountered materialities of womanhood and sexual difference. In all these instances the court ruled in favour of the women/sexual minority. In the first of the cases, Hugo, the court found that a law that granted single mothers with children under the age of 12 a presidential pardon but did not afford such a pardon to single fathers similarly situated, was constitutional. The court’s reasoning rested on a gendered and historical reading of motherhood in South African culture and essentialised the mother’s special nurturing responsibilities towards her children. Mary Jo Frug points out: …the legal rules that criminalize prostitution are located in a legal system in which other legal rules legalize sex-rules, for example, that establish marriage as the legal site of sex and that link marital sex to reproduction by, for example, legitimating children born in marriage. As a result of this conjuncture, anti-prostitution rules maternalize the female body. They not only interrogate women with the question of whether they are for or against prostitution; they also raise the question of whether a woman is for illegal sex or whether she is for legal, maternalized sex.43

This case read with Jordan is the corollary of Frug’s formulation. The legal rules that legitimate motherhood, as the natural state of women, fit together with those that delegitimise non-marital sex, to create a particular picture of womanhood in law. In the case of Brink v. Kristoff,44 a case concerning the matrimonial property rights of married spouses, the court implicitly evokes the ideal of a Victorian companiate ‘marriage of equals’ based on dignity of partners and shared and equitably distributed responsibilities and burdens. In such an ideal the property law, which places an unfair responsibility on one (the wife) is anachronistic. Propriety and property invest in the body of the good wife and it is her being which is constitutionalised. While a ‘properly’ married woman is entitled to

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dignified protection and a right to property, by virtue (pun intended) of her stance in favour of knowing the proper place for sex and money, a woman of truly independent means (a sex worker) cannot profit from her ill begotten earnings. In the Carmichele45 case we encounter a body ‘in terror’, one upon which violence is visibly mapped, and indeed graphically, forensically so. She is the innocent victim of a rape, the female body terrorised by a ‘sexual deviant’ and pervert (as opposed to the prostitute whose body is both always already violated and unrapeable in the eyes of law). We see the rape visually inscribed in every detail in the text of the judgement and onto her legal body. The constitutional court finally decrees that the case for compensatory relief be re-tried. Ironically, if she succeeds in her claim, then the suffering of her violated sexual self will be commodified in monetary terms—much like the unrapeable sex of the prostitute. The final case is that of National Coalition for Gay and Lesbian Equality (the sodomy case)46 where the section criminalising sodomy in the Sexual Offences Act was held to be constitutionally invalid by the Constitutional Court. In this case, the Constitutional court constructs a model of constitutionally protected sexual relations. Constitutionallysanctioned or ‘civil sex’ as it is characterised by Nicole Fritz is (in contrast to prostitution/criminal sex), ‘private and intimate’ for the purpose of ‘nurturing relationships or taking life-affirming decisions about ‘birth, marriage or family’ and facilitative of ‘deep attachment and commitments to the necessary few other individuals with whom one shares not only a community of thoughts, experiences and beliefs but also distinctly personal aspects of one’s life’.47 Homoerotic desire is thus de-eroticised and rendered domestic, familiar, familial and knowable through losing its sexual charge and its capacity to destabilise norms of the heteropatriarchial world. The Search for a Constitutional Justice

We have come full circle then. We began with a vision of South African justice? that was contextual rather than disembodied, embracing of

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the other’s singularity, her memories, her difference. Yet we have seen how at least in one instance the law’s embrace recoils violently from the ‘other’ and renders her forever criminal; and how in other instances the law subsumes what is different and destabilising and domesticates the erotic charge of those that exist at the margins of the law situating them within the tired binaries of natural/unnatural, private/public, normal/abnormal which they now no longer interrogate or challenge. Judith Butler argues that, ’the matter of bodies is indissociable from the regulatory norms that govern their materialisation’,48 and that the regulatory schemes producing ‘bodies that matter’ are historically revisable because they simultaneously produce an excluded domain of ‘abjected bodies that challenges the hegemony of the symbolic order’. Yet this apparition of the feminine, lurking at the margins of the law— ‘the traces of absent women are ‘necessarily both . . . oppositional and . . . precarious’.49 Can the ‘other’ never be instantiated in a more material and bodily fashion within law’s language of liminality and determinacy? Can we talk of a new law where her pleasures rather than her pains, her bodily presence rather than its lack, her substance rather than her phantasm, become the body of a new sort of constitutional justice? Where she can joyously and vigorously say ‘Yes Yes Yes’ to pleasure and desire rather always deny, have to prove in forensic terms her lack of consent—She said No, and she meant it, she really meant it?50 The question is this: must the ‘other’—the feminine, savage, homosexual, the vagrant—always exist at the peripheries of the law? Peter Fitzpatrick argues that the law depends on its ceaseless openness and its exteriority for its content and very existence. It is only in relation to the ‘others’ that the subjects inside the law are constituted. The law then is neither closed nor limited—it is labile and limitlessly open.51 Thus the unruly, the wanton, the wild, the sensational feminine is the basis on which law derives its determinate and determining power. Perhaps in this conception, the legal and political project that feminist lawyers must engage themselves in is in constantly and creatively imagining and discursively constructing new

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subjectivities, new exteriorities that the law must come to terms with and render interior to it. Where the law violently criminalises and excludes, it can be prised open to include. But that which it includes is not subsumed because she exists both inside and outside, and so on and on, without closure. This would be then be the bodily and feminine law. Afterword

In another country, my own, a strange and wonderful thing happens. It begins slowly, almost ten years ago. A friend of gay men, who works on preventing a terrible disease that gay men are believed to be susceptible to, comes to the judges seeking the constitutional shade on their behalf. The gay men dare not come themselves, because who is to say they won’t be thrown in jail the moment they show their faces? So they agree that it is best that the friend pleads their case in this clever though covert manner. The friend is careful and clever and diplomatic. He chose his words carefully—putting the health of the nation first, not saying anything too messy or distressing and certainly nothing about the joys of buggery, the pains of unspeakable loves or what gay men see when they look in the mirror. In fact what they say is this: if you don’t let the gay men in, they will haunt you and plague you, these terrible hidden forbidden bearers of disease that exist despite your law. Terrible things will come to pass, let them in, so that you may see them, so that you may treat them, that you may teach them how to make love in safe ways. Many years pass, the shadows grow long. Gay men in whose name the judges have been petitioned have grown increasingly alarmed and sad. Surely there is more to us than this disease, they say? Surely we have a name other than AIDS? After much thinking and many consultations they decide to come to the judges themselves. Before they know it many friends join them—lesbians, lovers, friends, feminists, hijras, some who have no name in the law though everything in law must have a name. So many others in fact that they find it hard to come up with a name that describes themselves. They all come though they are secretly terrified. They bring their bodies and they bare their souls— their punished tortured suffering bodysouls, their lovingsexy bodysouls. Or they try, anyway, which is the most that can be said for anybody. They tell stories

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about themselves; they speak about what it’s like to be the unspeakable, to be raped, to be constantly afraid. One time in court, they bring a mirror and tell the judges what they see when they look inside. All the time they are afraid, but they are growing stronger, their voices louder. Somehow despite themselves they begin to hope. After many months, on a very hot day in July, the judges invite them in, finally, to come take their place in the constitutional shade. Come on in, they say—there’s space enough for you. Come on in, you were invited all along, we were wrong before, come on in. The constitutional shade is rainbow coloured and dances, it shimmers it sings. Sometimes, Lawmaking like lovemaking is as much about the imagination as it is about bodies. Sometimes judges have imaginations as vivid as our own. Notes 1. 2. 3. 4.

The Websters Dictionary of Law. The American Heritage Stedman’s Medical Dictionary. Wessel Le Roux uses the metaphor of the bridge in Le Roux (2004). For the image of the rainbow in the new South African imaginary, see for instance Nelson Mandela’s Inaugural Address, May 10, 1994, available at http:// www.anc.org.za/ancdocs/speeches/inaugpta.html; See also: Baines, Gary, ‘The rainbow nation? Identity and nation building in post-apartheid SouthAfrica’, available at http://www.arts.uwa.edu.au/MotsPluriels/MP798gb. html; Habib, Adam. 1996, ‘Myth of the rainbow nation: Prospects for the consolidation of democracy in South Africa’, African Security Review, Vol. 5, No. 6. 5. For writings on the Truth and Reconciliation Commission generally see: http://www.csvr.org.za/res/pubsrctp.htm which contains an archive of academic papers. 7. For a general critique of the uses of images and metaphors in the new South African imaginary see: Law, Jennifer, ‘The treachery of images: Photomontage and the ‘new’ surrealism in South Africa’, available at http://www.museums.org.za/sam/conf/enc/law.htm; For a post colonial critique of ‘new South Africa’—an expression ‘fraught with much meaning and meaninglessness all at once’, see: Findlay, Isobel M. 2003,‘Working for postcolonial legal studies: Working with the indigenous humanities’, Law, Social Justice and Global Development, Issue 1, available at http://elj.warwick. ac.uk/global/03-1/findlay.html. 8. Ellen Jordan and another v. State. Case No CCT 31/01.

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9. I am aware that throughout this essay I tread dangerously close to constructing essentialist dichotomies of masculine/feminine, western/primitive, abstracted/bodily. I use these ideas as tropes and metaphors; symbolic characters in a story I am trying to narrate. The intent is not to substitute Law’s essentialism and binaries with their feminist mirror image. 10. See: Vance, Carole (ed.). 1989, Pleasure and Danger, London: Harper Collins; Franke, Katherine. 2001, ‘Theorising yes: An essay on feminism, law and desire’, Columbia Law Review, Vol. 101, p. 181. 11. 2009, Delhi Law Times, Vol. 160, p. 277. 12. McClintock, Anne. 1992, ‘Screwing the system, sexwork, race and the law’, Boundary 2,Vol. 19, No. 2, Summer. 13. Ibid. 14. For the constructions of sex and race through colonial sociologies in India see: Levine, P. 2000, ‘Orientalist sociology and the creation of colonial sexualities’ Feminist Review, Vol. 55, Summer 2000. For a more general view on the nature of colonial knowledge, see also: Mahmood, Tayyub. 1999, ‘Colonialism and modern constructions of race: A preliminary inquiry’, University of Miami Law Review, Vol. 53, p. 1219. 15. Ibid. 16. Smart, Carol. 1992, ‘Disruptive bodies and unruly sex: The regulation of reproduction and sexuality in the 19th century’, in Carol Smart (ed.), Regulating Womanhood. London: Routledge. 17. Jochelson, Karen. 2001, The Colour of Disease, Syphillis and Racism in South Africa, 1880-1950, London: Palgrave. 18. See generally: Foucault, Michel. 1990 (reprint), The History of Sexuality, Volume 1: The Uses of Pleasure. New York: Vintage. 19. Swart, Mia. 2002, ‘The Carifinianian curse, The attitude of South African judges towards women between 1900–1920’, South African Law Journal, Vol. 120, p. 540. See also: Keegan, Timothy. 2001, ‘Gender, degeneration and sexual danger: Imagining race and class in South Africa, ca. 1912’, Journal of Southern African Studies, Vol. 27, No. 3, September 2001. 20. See note 14. See also: Wojcicki, J. 2003, ‘The movement to decriminalize sex work in Gauteng Province, South Africa, 1994–2002’, African Studies Review, December 2003, which traces the various historical, legal and political trajectories of the histories of prostitution. 21. Crush, Johnathan and Paul Wellings. 1983, ‘The southern African pleasure periphery’, Journal of Modern African Studies, Vol. 21, No. 4, Dec 1983, p. 673. 22. For an account of South Africa’s gambling industry and its historical development, see: Sallaz, Jeffrey J. Gambling with Development: Casino

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Capitalism in South Africa and on Indian Lands in California, available at http:// www.irle.berkeley.edu/culture/conference/sallaz.pdf. 23. For the nature of harassment and violence the street workers and brothel prostitutes continue to face, see various documents and seminar papers archived at The Sexworker Education and Advocacy Taskforce (SWEAT) website at http://www.walnet.org/csis/groups/sweat/96sweat.html. 24. For some of these debates, refer to Columbia Journal of Gender and Law Feminist Review, Special issue: Sex Work Reassessed, 2001, see specifically Holly B. Fechner’s ‘Three stories of prostitution in the west: Prostitutes’ groups, law and feminist “truth”’, p. 67. For a South Africa specific account see note 14, J.Wojcicki. She presents an account of the ANC’s reluctance to support the decriminalisation campaign, as prostitution was characterised as ‘unafrican’ perhaps in response to the Apartheid states’ representation of the hyper eroticised and promiscuous black body. She argues that in general the campaign found more supporters among white South Africans who were not haunted by these spectres. It is interesting in this light to note that the two dissenting judges in Jordan, though muted in their dissent were both white South Africans. 25. For a critique of the case from a liberal feminist rights-based viewpoint see: Kreuger, R. 2004, ‘Sexwork from a feminist perspective’, South African Journal on Human Rights, Vol. 20, p. 137. For a critique of the court allowing cultural identity politics rather than the rights of occupational freedom to frame the issue before it, see Le Roux (2003). 26. Para 9 of the Jordan judgement. 27. Ibid., para 15. 28. Ibid., para 106. 29. For a similar defacement of the stripper see J. Yakoob’s judgement on Phillips v. DPP, a case which concerned the freedom of expression of sexual performers, but in which he does not discuss the materiality of what constitutes an ‘obscene’ performance. The stripper features in a bodily form only fleetingly. Once, in the midst of anxiety about the ‘dangerous’ combination of alcohol and nudity (in the dissent) and again in the laughing evocation of the masculine fantasies of ‘nipples and tipples’ (in the concurring judgement). 30. Ibid., para 10. 31. Ibid., para 17 and para 27. 32. Ibid., para 11. 33. Ibid., p. 19. 34. Ibid., para 86. 35. Ibid., para 86.

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36. Ibid., para 29. 37. Ibid., para 39. 38. Ibid., para 48. 39. Ibid., para 30. 40. Ibid., para 76, quoting the National Coalition for Gay and Lesbian Equality Case. 41. Ibid., para 79. 42. Frug, Maryjo. 1992, ‘A postmodern feminist manifesto, an unfinished draft’, Harvard Law Review, Vol. 105, p. 1045. 43. Ibid. 44. Case No CCT 15/95. 45. Case No CCT 48/00. 46. Case No CCT 11/98. 47. Fritz, Nicole. 2003, ‘Crossing the Jordan, a constitutional space for (un)civil sex?’, South African Journal on Human Rights, Vol. 20, p. 231. 48. Butler, Judith. 1993, Bodies That Matter: On the Discursive Limits of ‘Sex’. London: Routledge. 49. Goodrich, Peter. 1997, ‘Criminology and the aesthetic of feminine disappearance’, Modern Law Review, Vol. 60, p. 428. 50. For some of the ideas of a politics of pleasure and the possible, I rely on: Vance, Carole (ed.). 1989, Pleasure and Danger, London: Harper Collins.; and Franke, Katherine, ‘Theorising yes: An essay on feminism, law and desire’, Columbia Law Review, Vol. 101, p. 181. 51. Fitzpatrick, Peter. 2003, ‘Breaking the unity of the world: Savage sources and feminine law’, Australian Feminist Law Journal, Vol. 19, p. 47.

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The Razor’s Edge of Oppositionality: Exploring the Politics of Rights-based Activism by Transgender Women in Tamil Nadu Padma Govindan and Aniruddhan Vasudevan

Introduction

In what way does the modality of rights-based activism affect the queer community’s on-the-ground struggle for equality and challenge the macro-structure of heteronormativity? As a result of pre-extant structures of social recognition in the South Asian HIV/AIDS activism discourse, political action demanding recognition of their individual civil identities, and ongoing engagement with issues of economic justice, Tamilian transgender women (known as ‘aravanis’1) have become the most public of sexual minorities in the state of Tamil Nadu. A group of aravani activists have forged a social movement in this decade that has successfully procured certain civil rights such as the possession of ration cards, voter identity cards, passports and the constitution of a special welfare board with the specific task of addressing their community’s social exclusion at the state and local level. This essay interrogates the roadblocks and dangers that lurk in the way of social transformation. In presenting an overview of these developments, we begin with the aravanis’ initial demand in 2003

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for ration cards and voter identity cards. Within the purview of this essay, this interrogation takes a closer look at a few issues: the state’s framing of the aravani identity, the confusions around nomenclature and the mechanics of visibility. Besides problematising the way the state frames the transgender identity in order, as it were, to justify making it a beneficiary of welfare measures, this essay draws attention to the bureaucratic confusions around the official gender category to be assigned to aravanis. This is not merely an issue of nomenclature, but is symptomatic of both the foundational and problematic nature of the gender binary within locations of reductive and productive social institutions. The question then, is not just one of recognising a third gender category and energising its individuals with rights, entitlements and welfare schemes, but in allowing the concomitant bureaucratic discomfort to make state processes self-reflexive of their binary foundations. While these engagements with the state and its institutional structures on the part of politicised aravanis have demonstrated the core tenet of rights-based activism that ‘counterhegemonic political practices reflect the belief that the processes of law can be forced to reflect the ideals of justice, however imperfectly, incompletely, or unwillingly’,2 our concern is also with the possible slippages inherent in any movement’s attempt to pursue social justice through the law. Specifically, we contend that given the Indian state’s deep-seated anxiety about destabilising gender and sexual binaries, the problematic use of techniques of visibility on the part of the aravani community, and the inadequacy of employing engagements with the State in an isolated fashion raise the troubling spectre of the public de-coupling of queer gender and sexual identities from their challenge to social heteronormativity, as well as an erosion of the politics of oppositionality in the queer movement as a whole. The oppositionality of queer identities to notions of legitimate sexual and gender subjects lies in their ‘threatening presence exposing the grounds of the legitimate subject as based on erasures and exclusion’.3 Transgender identities not only mark the boundaries of normative definitions of gender and sex, but also expose the mechanisms by which such

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normativity functions and the hegemonic purposes those mechanisms serve. Does the process of integration or mainstreaming of such subjects and their transformation into legitimate subjects necessarily point to a thorough engagement with these regulatory mechanisms? Besides the aravani community’s necessary and crucial civilrights activism, there needs to be a more complex and long-term engagement with the incompleteness of legal processes in securing broader social justice, and the attendant necessity of building a public movement towards questioning the very foundations of gender and sexual inequality in social structures, both within and outside the purview of the state—a proposal for which we will pose a few possible approaches at the conclusion of this essay. A History of Actions

In order to orient the reader, we have assembled a history of actions on the part of the aravani community in Tamil Nadu to secure rights and protections under the law. The history of transgender involvement in the Indian queer visibility movement dates to the mid-1990s with international aid agencies such as the World Health Organization (WHO) and UNAIDS identifying these communities as being at risk of HIV infection, the start of anti-prostitution and trafficking activist movement in India, and the subsequent flood of international grant and donor money into the Indian non-profit sector. However, a community-based initiative to address issues of rights and identity did not truly coalesce—at least in Tamil Nadu—until 2003.4 Priya Babu, founder and director of the Social Integrated Development for Aravanis (SIDA) Foundation and a prominent transgender activist in Tamil Nadu, describes the beginning of the movement from a strictly HIV/AIDS context to a rights-based discourse this way: I had been working in the HIV/AIDS field since 1998. Both in Bombay (Mumbai) and Chennai. I had a lot of issues with that work, personally. I was not sure if there was any way of knowing if the work we were doing was bearing fruits…. So at some point I dropped all that work and went to Theni to work (personal interview, 2008).

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After moving from Mumbai to Theni in 2003, Priya began working for a non-governmental organisation (NGO) called Arogya Agam, setting up self-help microfinance groups and small businesses for transgender women in the Theni district. When the members of the NGO decided to begin the process of formal registration with the state of Tamil Nadu, they were asked by the Registrar’s office. If the designated NGO president had an official proof of identity, such as a ration card, electricity bill, or even a bank passbook. Because none of the members of the NGO had formal identity papers, they decided to open a bank account and present that documentation as proof of identity to the Registrar’s office. ‘When we thought about it’, says Priya, ‘we thought opening a bank account was the best idea…. But then the first question they asked us in the bank was if we had ration cards! That kind of depressed all of us—the fact that we could not even open bank accounts’ (personal interview, 2008). At this point, Priya and other transgender women decided to speak to Ms Rajani, president of the Dalit Thozhamai Mayyam in Madurai. Rajani describes her reaction to the aravanis’ needs this way: I had to engage with them meaningfully to understand aravanis, their desires, their urge to cross gender boundaries, and the social exclusion they faced. For me at that time, it boiled down to the issue of having the right to choose one’s gender…. And I felt that that choice must be respected and the civil rights of the persons making that choice must be protected. Whether I want to be male or female is my choice (personal interview, 2008).

Over the course of the next three months, through a process of regular consultation with Rajani, the group decided to file a petition at the Chennai High Court for ration cards. Money was required for filing petitions and constant travel between Theni, Madurai, and Chennai, which Priya and the other women provided through begging, along with some monetary help from Rajani. On 6 March 2004, a writ petition was filed in the Chennai High Court asking for ration cards for transgenders. It should be noted here

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that the Tamil Nadu Social Welfare and Nutritious Meal Programme Department had already issued a government order in October 2003, detailing the need for a subcommittee to study the ‘problem relating to the rehabilitation of eunuchs’5 in response to the major committee meeting on the ‘prevention of trafficking and combating commercial sexual exploitation of women and children’ (Tamil Nadu Government Order 201, 2003). There is no mention in the government order of addressing the transgendered individuals’ need for official, staterecognised forms of identification, or elaboration on the meaning of ‘rehabilitation’. It is not clear whether this subcommittee convened at any time during the court hearing on the petition. At Rajani’s suggestion, Priya and the other transgender women involved in filing the petition, moved to Chennai and began attending court proceedings every day. Simultaneously, this foundational group of 15 aravanis was involved in other ongoing initiatives to create visibility and a support network for transgender women in Tamil Nadu. They registered the Sudar Foundation for transgender advocacy and economic empowerment, and also formed a theatre troupe, ‘Kanadi Kalai Kuzhu’. C. K. Gariyali of the State Women’s Commission compiled a report on the status of transgender-specific rights in other countries, which the group presented at court. Finally in July of 2004, the High Court of Tamil Nadu announced that transgender individuals could choose either ‘male’ or ‘female’ as their gender when applying for official identity documents. In their petition the group had asked for a third gender to be added to official documents and so they were not entirely satisfied with the judgement.6 However, lacking both the funds and the wherewithal for another protracted legal battle, they decided to accept the announcement for the time being. Also, district collectors in Kanchipuram and Vellore began offering free and subsidised housing to aravanis under government schemes such as the Indira Awaas Yojana.7 Energised by the very public announcement of state-sanctioned legitimacy, more aravanis began actively engaging in issues of economic justice and visibility by forming self-help groups, working with other NGOs on alternative livelihood training for transgender communities,

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and forming cultural performance troupes. Around this time, the Centre for Social Initiative and Management began offering a one-year masters degree in social work for aravanis. Many of the women who received degrees found jobs in NGOs and social justice organisations. As a strategy for continuing to involve the state in the ongoing sociocultural activism that they were organising, Priya and her colleagues sent letters of invitation to various government officials for events and performances that they staged, particularly when those events concerned the ethics and accessibility of sex-reassignment surgery. In 2006, Asha Bharathi, a transgender activist then working with the Thamil Nadu Aravanigal Association (ThAA), spearheaded a public rally of aravanis in Chennai. This was an attempt to visibilise, once again, the community and its issues. Asha remembers: Sangama funded us. We had the meeting here at SWAM (Social Welfare Association for Men) in Chennai. Then we had the rally in which hundreds of people participated. I had met the Chief Minister’s Secretary and given him a letter. I never heard from them, so I left it at that. But when the rally was going on, a jeep was sent to pick me up and take me to the Legislative Assembly which was in session right then. Minister Poongothai was the Minister for Social Welfare in Tamil Nadu then. I gave her our memorandum. We had several demands, including the need for voter’s identity card, housing facilities, etc. Most of it was accepted by the state government.

In December 2006, the state subcommittee on transgender welfare (formed in 2003), re-convened to issue a second government order with recommendations to the state government in order to ‘improve the living conditions of the Aravanis [sic]’, which the state agreed to instate. The recommendations of the subcommittee included large-scale counselling and sensitisation programs, particularly for children with ‘behaviour changes’ in schools and their parents, as well as counselling for MSMs (men who have sex with men, but are not gay-identified) against pursuing sex-reconstruction surgery. In addition, the government order issued guidelines for disciplinary actions against schools and colleges who refused to admit aravanis,

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small loans and training programmes for aravani self-help groups, and information for medical institutions should they receive patients who wish to undergo SRS after counselling, and quarterly ‘grievance day’ meetings with collectors to address the distribution of ration and identity cards. The list of recommendations also suggested conducting a large-scale, comprehensive study of the ‘behaviour and lifestyle’ of aravanis in Tamil Nadu with the aim of ‘giving full rehabilitation for their improvement and upliftment of life.’ The cumulative effect of activist efforts from the transgender community and government sanction resulted in the constitution of the Aravani Welfare Board in May 2008, established specifically to address the issues of aravani constituency in Tamil Nadu. The board includes 10 official members who vote on and pass policy decisions, and 10 unofficial aravani representatives (of whom Priya Babu is one) who act in an advisory capacity. In the same month, in response to long-standing demands from the community and after intervention from the newly-formed Aravani Welfare Board, a third government order was issued guaranteeing reserved seats to transgendered individuals in Tamil Nadu colleges and universities.8 In June, 2008, Priya Babu and K. Dhanam submitted a petition to the central government’s Parliamentary Grievances Committee arguing for nominated representation for transgender women in both the state and the central legislative assemblies. In this petition they refer to the seat reservations available for the Anglo-Indian community in the Parliament and made a similar case for the transgender community, whose members are too scattered throughout different constituencies to be able to amass community vote banks. As of December 2008, there has been no forward movement with regard to addressing their petition. Priya and Dhanam attribute the committee’s silence on this issue to the general silencing of discussion of the Women’s Reservation Bill from national debates. In August 2008, a few of the aravani organisations came together under the banner of the Federation of Indian Transgenders (FIT) to constitute a body that will ensure the proper functioning of the Aravani Welfare Board as well as the execution of the several policy-level

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changes made by the state government. SIDA Foundation (Priya Babu), Sahodari Foundation (Kalki), Transgender Rights Association (Jeeva), South India Positive Transgender Foundation (Dhanam), Anbu Trust (Viji), Sudar Foundation (Vasanthi), Erode Aravanigal Association (Santhiamma) and Trichy Transgenders Association (Sonali) constitute the Federation of Transgenders as of now. ‘When we are at the level of policy changes and welfare measures, it is important that the different groups and organisations united under a banner to ensure all these happen smoothly,’ says Dhanam (personal communication, 2008). In March 2009, acting upon recommendations of the Social Welfare Board, the Government of Tamil Nadu began implementing the system of free Sex Reassignment Surgery (SRS) at the Government General Hospital in Chennai. The need for this had been recognised in the earlier Government Orders of 2006 along with words of caution about discouraging MSM from going for Sex Reassignment Surgery. Salma, the Chairperson of the Tamil Nadu Social Welfare Board says, ‘In our continued interactions with the aravani community, we came to understand the importance of this procedure. In the absence of any system about it, aravanis have had to go to quacks to get the surgery done. Hence we made recommendations to the Ministry of Social Welfare to take necessary actions.’ Aravani activists also engaged in advocacy insisting on proper counselling procedures around hormone therapy and Sex Reassignment Surgery. With a careful and measured approach to approving aravanis for this surgery, the state medical establishment is moving towards systematising the counselling procedures, the surgeries required and the follow-up treatments. Even a brief glance at this history illustrates the vexed nature of dismantling the gender binary in the non-theoretical, on-the-ground reality—highlighting both the sites for collective resistance as well as the silencing of less visible individuals and unpopular attitudes through collective action. In the following sections, we will explore both the advantages of employing a rights-based empowerment discourse in drawing visibility to a marginalised community, as well as the problematics of engaging with the nation-state and the limits of its decidedly non-neutral legal framework. The coalescing of the

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transgender political consciousness around and through a rights-based discourse of political visibility is certainly evident in the history of actions we have assembled, and the work of politically active aravanis like Priya Babu and their allies, such as Rajani, illustrates the efficacy of consistent utilisation of state machinery to lobby for specific material goals. The actions of this particular band of aravani activists over the course of the past five years present a complex nimbus of intersections between the private politics of individuals, rights-based activism based on both the pursuit of individual rights and an idealised vision of community empowerment. In the following sections we will explore the use of political techniques utilised by members of the aravani community—techniques that focus on the conferring of state-granted legitimacy and rights—and interrogate the implications for individual and community visibility within the queer discourse. Constituting Selfhood: Techniques of Visibility and Debates within the Aravani Community

Any analysis of a political, rights-based movement demands a close examination of the techniques of visibility, inter-community tensions and the nature of that movement’s engagement with processes of government. The aravani community in Tamil Nadu is marked by a multiplicity of voices, identities and values that frequently become stifled when the real social stigma and violence they face is defanged and brought in line with the state project of ‘rehabilitation’. The aravani activist effort must contend with the silencing of those disruptive voices and the potential erasure of radical and limit-test subjectivities through a civil rights discourse if the movement is to coalesce into a larger public dialogue. In this section we will examine the specific example of the simultaneous silencing and pragmatic use of visibility as a politic technique of presenting an image of an unbroken, smoothly connected historical past as a transgendered body. Male-to-female transgender people of India have traditionally organised themselves in communes, usually called jamaats.9 A unit of this matriarchal structure features an older hijra or aravani as a

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‘guru’ (or mother-figure with several chelas—younger, newly initiated hijras/aravanis) and her acolytes. There are elaborate rituals that mark one’s entry into a jamaat and acceptance as a chela. These rituals, with their mytho-religious underpinnings10 bind them to a structure of kinship in which relationships, roles and duties are both implicitly suggested and explicitly performed. Among these duties include the tribute of money by chelas to gurus from begging, sex work or other forms of employment, obedience to community norms with regards to behaviour and dress, and affectionate devotion. Gurus are expected to provide guidance, emotional support for the young chelas and advice about undergoing castration. This community structure, while looser and less binding in south India than in northern regions of the country, nevertheless provides one of the few real-world (and admittedly rigidly hierarchical and problematic) models for aravanis in how to organise as a family and community after establishing a public transgender identity. It should be noted at this juncture that the jamaat system frequently fosters violent and coercive behavior between gurus and chelas, in no small part due to the pressures to earn money and support community members in the context of a larger social stigma. For example, in July 2008, Devayani, a young transgender woman living in Chennai, committed self-immolation allegedly in response to harassment by her guru, Jaya. Latha, a friend who tried to save her from the flames, survived while Devayani suffered third-degree burns and died at the hospital a few days after the incident. Jaya was charged with extortion and abetment of suicide. The incident accentuated the existing tensions within the guru-chela system and emphasised its profoundly hierarchical and potentially repressive possibilities, while also highlighting the inability or unwillingness of the newly-constituted Aravani Welfare Board to publicly address issues of violence against and within the community. There was little intervention from the Aravani Welfare Board during or after the Latha-Devayani episode. At the same time, there is a valid argument from both older and younger members of the aravani community that the effort to ‘mainstream’ transgender women by the Tamil state and aravani

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activists can lead to an erasure of all that is oppositional, subversive, and empowering about the re-authoring of heterosexist Indian traditions by the aravani jamaat religious practices. For example, in her book Aravanigal samugya varaiviyal, Priya Babu refers to a popular aravani religious event, the Koovagam Festival, which takes place annually at the Koothandavar temple in the Villupuram district of Tamil Nadu. She writes: Even the name ‘aravani’, though of recent usage, bears permanent reference to the story of Aravan in the Mahabharatha. Aravanis see themselves as that transgendered aspect that Krishna assumed for a night to marry Aravan, to fulfil his wish for conjugal union before his sacrifice to the gods the next morning…. Even today, at Koothandavar Temple in Villupuram district, aravanis congregate every year to commemorate this narrative. Ecstatic celebrations of their marriage to Aravan are followed overnight by their sorrow of mourning for their dead husband.11

This festival, in addition to being a common gathering point for aravanis in south India, also serves as an empowering space in which to publicly worship and re-write the framing of religious texts from a genderqueer perspective and as a subaltern re-reading of an episode from the Mahabharata. However, the reformist tendencies of the state processes are revealed in the following observation made in the Hindu in a news item on the aravanis’ response to the constitution of the Aravani Welfare Board: ‘K. M. Ramathal, of the Tamil Nadu State Commission for Women, said the transgenders had rights to celebrate, but by taking part in certain rituals like tying the thaali and removing them in Koovagam, the transgenders were only lowering themselves’.12 In acknowledging the historical context of the jamaat system, many aravani activists point to its storied past as an instance of the respect transgendered women received in the medieval Mogul courts, as well as to the mention of transgender women in ancient south and north Indian texts such as Silappadikaram and the Mahabharata,13 as an legitimising example of the aravani’s place in the Indian tradition, and

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as a way of drawing a sharp distinction between the de-stigmatised identity of aravanis in the past and their marginalised identities in the present. Simultaneously, many aravani activists decry the violence, rigidity and acceptance of heterosexual feminine norms within the jamaat system as primitive and incompatible with the modern identity as citizen. Several younger aravanis have publicly expressed discontent with the traditional structures and find them restrictive and undermining in their pursuit of civil rights: For the younger generation today, certain things are being obstacles…. In today’s context, when we go to work fighting for rights. When they say, ‘I am your naani, I am your guru. You should obey me. Sit down. Do this, do that, massage my feet,’ it is an impediment in our rights-based work in the world. We accept their opinions. Elders (in the community) must also listen to us.14

The use of a strategic essentialism, to borrow Gayatri Spivak’s term15 certainly has its political uses by presenting the aravani identity as homogeneous across the population, part of a supposedly blameless and glorious Indian past, and thus deserving of civil rights and social acceptance. However, this technique of visibility has the effect of denaturing all that is subversive, sexual, and liberatory about the traditional jamaat practice—preventing an honest community appraisal of what is both an oppositional and oppressive alternative social system, while giving it the sheen of non-threatening tradition. Ultimately, without a space in which to openly assess the internal struggles of the community and acknowledge the sheer multiplicity of voices and values within the aravani population—a space that the Aravani Welfare Board does not yet appear to provide—the uses of strategic essentialism16 effectively erase the shifting strategies that give aravani identities and desires the strength of opposition and draw the larger identification of the community under the purview of state-defined identities in the name of attaining provisional rights and privileges.17 We are tempted to argue that the sense of individuation that is inherent in the demand for and bestowment of civil rights is in some senses antithetical to community structures that are strictly vertical

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and hierarchical. The issues and arguments here need to be teased out without falling into the traps of some simplistic binary framework of tradition and modernity where the individuation emphasised by the discourse of civil rights is somehow perceived as detrimental to traditional collective arrangements. Another troubling binary in which this debate is framed is that of communing and mainstreaming, with the latter (problematic) concept dreaded—often understandably—as a process that tolls the death knell for rituals and traditions that hold the community together and give it a sense of coherence and narrative power. Spectrum of Visibilities: The Possibilities and Limits of Rights-based Activism

It is theoretically possible to situate the current aravani mode of activism as a third space between complete political marginalisation on one hand and the hypervisibility attendant with the ‘othering’ of communities through the dominant international human rights discourse on the other. However, the reality as it is lived on the ground problematises such a space as a vehicle for transformative social justice work simply because the nature of state-based social intervention can in itself be a tool for blunting the edge of oppositional politics and socio-cultural identity. This blunting can be affected by positioning policy changes and welfare schemes as vacuous amelioratory measures and not as means for larger dialogue and change. Moreover, as it happens in the case of aravani and the government of Tamil Nadu, it is crucial to resist recognition based on sympathy for alleged abnormality and freakishness. This kind of recognition hits at the fundamental selfdefinition and the collective self-respect of the aravani community. By way of example, the Tamil Nadu state’s framing of aravanis as a marginalised community is a site of tremendously problematic assumptions about the nature of gender and non-heterosexuality, the language of which requires interrogation in order to assess the aravani political movement as a whole. As mentioned earlier, the government orders dealing with the rights of aravanis have tended to assume a

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paternalistic mode of protection that imagines the aravani body and selfhood as one of psychic disorder and sordid lifestyle choices. In the 2006 government order, it is noteworthy that the subcommittee described aravanis as suffering from a ‘disorder’, thus rendering them the blameless victims of biology and deserving of government aid: Aravanis are biologically born male who define themselves as a ‘women trapped in a man’s body’. This behavioral disorder makes them behave like girls. Most of the aravanis left their Home [sic] and after joining their community live miserable lives, seeking out a living by begging, dancing and prostitution; thus becoming vulnerable to diseases like HIV/AIDS (emphasis added).18

The government order then continues to mandate a programme of ‘identifying remedial measures’ through the financing of self-help groups, counselling, and research into ongoing measures to give aravanis ‘full rehabilitation for their improvement and upliftment of life’. This statement echoes the sentiment expressed in the 2003 government order that ‘the problem relating to the rehabilitation of the eunuchs need [sic] a detailed study’. The implication is that the transgender identity is a psychological or biological disability that must be ameliorated through mainstreaming with so-called ‘normal’ society. It is clear from the language used in these official documents that in the state framing of aravanis, they occupy a position of such marginalisation, ‘ignored and treated with contempt and disgust by all the sections of society’,19 that their claim to the rights and protections of citizenship are not, in fact, based on their status as full citizens, but on their freakish position outside the bounds of mainstream norms and the necessity of drawing them into the bounds of normative social existence and regulation. It appears that despite acting as a radical rupture in the business of bureaucratic wrangling, the political activism of the aravani community in Tamil Nadu (reaching its apotheosis in the establishment of the Aravani Welfare Board in 2008) also represents the continually vexed relationship between marginalised individuals and the state that purports to represent them, as well as the difficulty of using the human

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and political rights discourse to dismantle or publicly problematise issues like inequality and systemic violence as they relate to gender, sexuality and desire. In order to explore the mechanics of this discourse, it is first necessary to define the boundaries of the terms ‘invisible’, ‘visible’ and ‘hypervisible’. For this, we turn to Arvind Narrain’s 2004 monograph Queer: Despised Sexuality, Law, and Social Change. Narrain describes the politics of queer visibility as a series of ‘effects’ resulting from social and cultural intolerance. Invisibility is described as the effect of smothering queer individuals and queer cultures and to ‘invisibilize the contributions of queer culture and queer people to Indian culture, history, and society’.20 He extends the boundaries of visibility to include hypervisibility: ‘the reconfiguration of the “absence” which becomes a presence when it comes to being objects of the criminal law, figures of derision in the media, or victims of a pathological condition in the medical discourse’.21 Narrain then posits the existence of a third space of agentive visibility, one in which queer individuals and communities define themselves and their sexual and gender identities, rather than being defined by oppressive social structures, through producing oppositional structures. He qualifies this possibility by stating: ‘(Any) advocacy effort, including the use of the law, will have to work at…pointing to an alternative culture of resistance based on a critique of institutions, such as compulsory heterosexuality, family, and the state’.22 However, it is also important to note that both visibility and hypervisibility call forth the possibility of a resedimenting of normative identities and reproducing forms of marginalisation—for example, of queer women and transgender individuals—within the queer community itself. The question of visibility has to be attached to an interrogation as to whether the visibility in question is a deliberately modulated one that risks homogenisation in its presenting of a uniform community identity. Such a pragmatic presentation of community identity could necessitate the erasure of other, more problematic, identities, voices and bodies. In talking about her work with Sahayatrika, a support and

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advocacy network for lesbian and bisexual women in Kerala, V. N. Deepa articulates these fissures in the use of visibility as a political tool: Visibility continues to be both empowering and disempowering for sexuality minority movements, and we must all grapple with its contradictions…. It seems we need to adopt a multiplicity of strategies; we need to create both spaces of safety and privacy, and continue to make interventions in the public sphere.23

Though Deepa’s comment emerges in the context of media scrutiny of human rights defenders, it is significant in pointing out how not all visibility is empowering or transformatory. Moreover, visibility and the mechanics of visibility are often informed by an exclusion of a multiplicity of voices from the discourse under creation. By continuously referring to aravanis as ‘eunuchs’ in the government orders, the state does not only display its ignorance about this gender identity, but also conflates all complexities into one category of ‘castrated males’. This attempt to understand and name what currently defies intelligibility (transgender self-identification) within the gender binary in terms of an existing, though agentially impoverished, category (‘eunuch’), could be detrimental to the very notions of a sexual and gendered selfhood. Moreover, this seemingly innocuous identification of male-to-female transgender identity with eunuchs betrays a tendency to locate the transgender experience almost exclusively in the surgical terrain of castration, emasculation and sex reassignment (discussed later). The implications this has for the pre-operative transgender women or the ones who cannot, for several reasons, undergo the surgery are enormous. Dismantling the Gender Binary—The State’s Ambivalence and the Community’s Confusions

The issue of agreeing upon a gender tag for male-to-female transgender people is an excellent illustration of questions of multiplicity of

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perceptions. The Tamil Nadu government appears both ambivalent and confused about the implications of dismantling the basis of gender binary within a legal and policy framework—a confusion, it must be added, that is mirrored within the aravani community itself. For example, aravanis are interchangeably referred to as transgender, eunuchs and aravanis in official government documents; the official identity of ‘E’, ‘T’ and ‘F’ are available for various official identity papers. There exists a tremendous degree of uncertainty and confusion at the bureaucratic level over the appropriate gender designation of aravanis, due to a kind of inconsistency in implementation of the state order; on some official documents, such as voter identity cards and ration cards, aravanis can only choose between ‘male’ and ‘female’ as their gender identity. However, on other documents, such as passport applications and, as of May 2008, college applications under the newlyestablished transgender quota, aravanis can actually pick ‘aravani’ or ‘eunuch’ as their official gender identity. (Strangely enough, the reserved seats for aravanis at colleges and universities are categorised under the quota for women’s seats, which presumably implies that aravanis constitute a special sub-category of women.24) Thus, it has become common for transgender individuals to be simultaneously male, female and transgender for the purposes of legal identification. This lack of specificity does not emerge out of happy intentionality. Though it seems like a victory for self-identification, the simultaneous prevalence of different categories under which aravanis are allowed to identify has become a perceived roadblock in the very functioning of the Aravani Welfare Board. One of the primary tasks the Board has set for itself is the aravani census and mapping. As an agency set up to administer welfare measures for a specific community, it is but natural for that agency to desire to have a grasp on the demography of this delocalised community. Besides the fact that the census programme has not really been implemented as of December 2008, what is of interest is the anxiety surrounding who qualifies as being identified as transgender for the purposes of legal definition. Geetha Jeevan, the chair of the Aravani Welfare Board, said that the community

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should make that decision and that she hopes the engagement with the aravani members of the board will help them arrive at some criteria. Meanwhile, Noori, a transgender woman and prominent anti-HIV/ AIDS activist, expressed misgivings about the institutionalisation of transgender identity as a separate category: ‘I do not know how far it will work. I feel the option to choose “male” or “female” had fewer issues with it. Now who can identify as TG? All who have undergone the emasculation? Also those who have not? Even those who don’t live in female clothes all the time?’ (personal interview, 2008). Though Priya Babu recognises the problems of identification and self-identification this process entails, she feels that it is important to gain state legitimacy to the transgender identity and that mechanisms for establishing criteria can now be set in motion. Rajani, a veteran in both the women’s and the Dalit movements, points to the need for a separate gender category, but out of a different concern: The issues of aravani will get diluted because their gender status does call for specific recognition. I think the best way to go about it is to recognise them as a third gender category and bestow on that the civil rights and entitlements that they deserve as people…co-opting them into the category ‘Women’ is a problem. The key issues are very specific and they will get diluted when categories are put together (personal interview, 2008).

It might be that the need for a third gender category of official identification and the apparent need for its narrow specificity must be teased out. In the interest of the larger rubric of gender and sexuality politics where the protean nature of desires that inform identities are recognised and valued, it might be a worthwhile engagement not to debate the need for a category, but rather how inclusive any category can and should be. As it is, the politics of the transgender in Tamil Nadu has not only raised questions about the authenticity of the aravani experience, but also seems to have made transgender identity coterminous with aravani identity, leaving little space for female-tomale transgenders, no matter how few they may be.

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Marking the Body: Desires, Intelligibility and Recognition

The issue of sex reassignment surgery is one equally fraught with ambivalence within both the state bodies as well as the aravani community itself. The 2006 government order recommends the counselling of MSMs (men who have sex with men) ‘as far as possible to prevent them from going into sex-reconstruction surgery’,25 while simultaneously requesting the Health and Family Welfare committee to ‘take up a decision regarding legalised sex-reconstruction surgery…for aravanis who are willing to take up the surgery even after counseling’. (As mentioned earlier, the system of free sex reassignment surgery based on counselling and assessment was implemented in March 2009 at the Government General Hospital, Chennai.) Just as within the aravani community itself there is seething debate regarding the validity of individuals claiming the transgender identity without undergoing the surgery, government bodies are having a similar difficulty in deciding who exactly constitutes an aravani and what rights and protections should be given thereof. Geetha Jeevan, chairman of the Tamil Nadu Social Welfare Board, has acknowledged that the issues of sex reassignment and of inconsistencies in official identities, are both thorny questions of policy that elude a simple catch-all solution. However, an analysis of the language and structure of policies directed towards aravanis indicates a more insidious absence of awareness of the multiplicity of transgender identities and lived experiences. There also seems to be a simultaneous willingness to exclude individuals from accessing resources for the sake of establishing uniform guidelines and a profound difficulty in organising those very guidelines in the face of such a complex refuting of the gender and sexual binaries on which the modern legal framework is predicated. In a larger sense, these struggles over semantics and the details of implementing public policies represent a deeper anxiety over the disruption of established methods of regulating the identities of citizen and subject, as well as problematising the very notion of rights through access, categorisation and exclusion. Judith Butler offers a useful reframing of the question of officially addressing the gender binary:

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(Persons) are regulated by gender, and that this sort of regulation operates as a condition of cultural intelligibility for any person. To veer from the gender norm is to produce the aberrant example that regulatory powers (medical, psychiatric, and legal, to name a few) may quickly exploit to shore up the rationale for their own continuing regulatory zeal…. What departures from the norm disrupt the regulatory process itself?26

We argue that the state’s attempt to define and identify the valid aravani body, suffering, and identity is predicated precisely on a desire to draw aravanis into a ‘culturally intelligible’ personhood. We also contend that the very nature of existing beyond the long-established legal and social gender binary eludes categorisation within the framework of a policy-produced subject position.27 Hence the deep-seated anxiety on the part of government representatives with regard to addressing the needs of the aravani community beyond the vague platitudes of ‘rehabilitation’ and ‘upliftment’. On the subject of the pursuit of equality through civil rights-based activism, we contend that the very processes of state regulation and oversight—surveys, census-taking, research—re-form the aravani subject as an object, a discrete category of identity into which some individuals may be placed and others removed. The move to identify criteria for legalising sex-reassignment surgery, for example, sets up a condition for the very validity of assuming a transgender body, a condition that some will be able and want to meet, and others will not. Urvashi Vaid, in her book Virtual quality: The Mainstreaming of Gay and Lesbian Liberation, describes the struggle for rights and recognition within the gay and lesbian activist community in the United States in a way that is apt for assessing the problems with the Tamil Nadu state’s framing of aravani rights: Civil rights are newly defined as a reward given by society for good behaviour. Such rights are deemed benefits that society grants to some of its constituents—the deserving minorities—rather than as basic human rights and values…When framed in the materialist language of law…the idea of civil rights becomes more about the realisation of access than the institution of equity. Under a rights-based model, the

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social contract we seek is fulfilled by access to the system rather than actual equal treatment under it.28

In light of this assessment, it becomes clear that state-level policy makers and representatives, while probably well-intentioned, have offered a deal of conditional privileges based on a programme of exclusion through definition and identification—a deal that the aravani activist community is taking up. While not overtly stated, these conditions are implicit and inform the very locations from which state responses to aravani demands have emerged. As Michel Foucault describes in his essay ‘The subject and power’, the modern state acts ‘as a very sophisticated structure in which individuals can be integrated, under one condition: that this individuality would be shaped in a new form, and submitted to a set of very specific patterns’.29 The state’s ambivalence in its approach notwithstanding, there is risk of the aravani activist community uncritically accepting such a qualified set of governmental gestures as ‘rights’. It is not only that they can be taken away under any justifiable guise—the absence of funds for implementing programmes, the growing demands of another marginalised group that ‘needs’ more help, etc.—but that such a programme of protection and ‘rehabilitation’ reconstitutes a transgender identity and experience away from its more liberatory possibilities and towards a new order of integration into a social structure that is still heterosexist and patriarchal, on the condition of granting certain partial privileges and recognition. Ultimately, if the notion of justice through law, rather than existing as an abstract ideal, is itself contingent on the shifting prejudices and opinions of its public arbiters,30 then it becomes necessary for those pursuing a larger social equality to question and critique the forms of justice and emancipation granted by the stakeholders of state processes. Conclusion

The critique that has emerged from our analysis of the process of aravani engagement with the Tamil polity is, fundamentally, a critique

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of the very nature of state-based interventions in issues of social inequality, and the efficacy of marginalised and subaltern communities developing a response to structuralised violence through simultaneous demands for individual rights and community aid. We have asserted through the course of this essay that such communal efforts towards public activism make necessarily pragmatic decisions regarding the hierarchisation of concerns within the community to be brought to government attention, but that the danger of establishing a mode of resistance primarily through the rubric of civil (and thus state-granted) rights is the possible erosion of the political and social oppositionality of that marginalised community and the loss of its potential to publicly problematise deeper-rooted structures of oppression at the level of micro-interactions with private communities and individuals: families, neighbourhoods, social groups, schools and offices. As Nivedita Menon points out: ‘Does the law have the capacity to pursue justice, and more fundamentally, can “justice” be conceived of in a universal sense as suggested for example, by the term “social justice”?’31 The demand for legal and constitutional reform is an active engagement with the polity, though the modality of that demand is essentially outside the purview of governmentality. Official change and accommodation of any sort bring with them dangers of complacency and the state-led coopting of oppositional politics, blunting its edges, as it were. In other words, with the creation of categories for welfare and rights, the state could potentially set in motion a politics of appeasement where the hidden aim would be the deferral of true reform. For example, the recent constitution of the Aravani Welfare Board could ‘well be the first step towards reversing the discrimination suffered by the transgender community’, as Vidya Venkat has observed.32 But the possibility of this becoming a token gesture is very real in a setup where the aravanis are non-official members and hence lack real decision-making powers. Only a continuous interaction with the official members of the board and other policy makers, on the part of the community, will ensure that the Welfare Board does not become a placebo that presents the appearance of social transformation without its attendant social actions. It is clear from examining the government

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orders that constituted the creation of the Aravani Welfare Board, as well as from our personal interviews and other source material, that rather than representing an active engagement with the fluidity of gender identity, the aravani community will be forced to repeatedly contest the state-sponsored reproduction of the public perception of transgendered individuals as psychopathologised, non-agentive subjects, and victims of poverty and disease. Of course, our critique does beg the question: does any of this matter? After all, it can be argued that it is better as a marginalised individual to have a few conditional and problematic legal protections than none at all.33 Arvind Narrain’s views on the necessary simultaneity of legal reform and public movements point to an important requirement in translating legal change to social reality: Any law reform which does not take into account a simultaneous change in the heterosexist attitudes of people which are constantly reinforced by existing societal structures such as family, religion, and media is bound to be fruitless…legal change can only be part of a wider process of social change (emphasis added).34

It is in this context that activities like the ethnographic work undertaken by people like Priya Babu documenting aravani cultural practices and arts, theatre work by groups like the Kannadi Kalai Kuzhu, and the compilation of aravani self-narratives by Revathi, a transgender activist with Sangama, Bangalore, figure as some of the diverse efforts that have contributed to the cumulative strength of the movement. We further suggest a deeper commitment to both selfreflexive practices of assessment from within the community as well as building alliances—both strategic and personal—with other political movements. In her essay ‘The struggle to be ourselves, neither men nor women: Mak nyahs in Malaysia’, Khartini Slamah offers an inspiring vision of what a self-critical emancipatory transgender movement could look like:

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Over the years, our politics as transgenders has shifted considerably. We are no longer asking the law to recognise us simply as men and women—which is what earlier generations of transsexuals fought for— rather, we want a status that goes beyond the dichotomous structures of sex and gender roles recognised within and by the law. We define ourselves using a mobile logic based on self-identification rather than corporeality…there is no one version of being a mak nyah. Some of us feel that it is important to have breasts, others do not. Most of us want a woman’s shape but some of us do not see this as important. And only half of us feel that a sex change would improve our lives.35

Slamah then goes on to describe mak nyah collaboration with other queer peoples in Malaysia: Working with gay men at Pink Triangle helped us to understand that we carried many of the same prejudices as our families, society, and religion. We also learned that just as we are discriminated against on the basis of gender, gay men and other non-heterosexuals face discrimination because of their sexuality.36

Any emancipatory movement demands an ongoing engagement with both the powers of the state, the desire for legitimation37 and a critical stance towards the choices made in the attempt to achieve a space for oppositional desire and identity. This level of engagement with larger issues of heteropatriarchy and sexism within the community, as well as a critical approach to the pragmatics, risks and limits of engaging with the state, can help sustain a movement beyond the specific pursuit of legal rights and also create a more equitable and accepting space both within and outside the community itself. Notes 1. Because the communities we are referring to in this essay are comprised primarily of male-to-female transgender individuals, for the sake of convenience, we will be using the terms ‘aravani’ and ‘transgender’ interchangeably. However, it should be noted that the debate over labels as identifiers of populations is central to the struggle of transgender com-

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2. 3. 4.

5.

6.

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munities for state-granted rights and social legitimacy, and that within this debate female-to-male transgender individuals are frequently denied visibility, in no small part due to the absence of a convenient vernacular term for use in identifying them as part of a community, as we will discuss later in this essay. Menon, Nivedita. 1999, ‘Rights, bodies, and law: Rethinking feminist politics of justice’, in Nivedita Menon (ed.), Gender and Politics in India. New Delhi: Oxford University Press, p. 262. Kapur, Ratna. 2005, Erotic Justice: Law and the New Politics of Postcolonialism. New Delhi: Permanent Black, p. 91. Though the surface perception is that the framing of aravanis in the HIV/ AIDS discourse as a ‘high-risk group’ has led to a public perception of them as associated with the disease, the space has also served as a structure of recognition without which future act of political resistance would be difficult to identify as such. In this sense, the HIV/AIDS context has, however unintentionally, served as the most urgent and contemporaneous framework in which polity and the arbiters of public culture have had to re-imagine transgender women as subjects of modernity—albeit in terms of disease and infection. See Nivedita Menon’s essay ‘Outing heteronormativity: Nation, citizen, feminist disruptions’ for an excellent assessment of this phenomenon: ‘In India AIDS prevention is, in effect, the point at which disciplinary power and biopower’s normalizing techniques intersect. The official discourse of HIV/AIDS control and the funding generated by it is extremely statecentric, and is about new ways of regulating and controlling sexuality and the population as a whole. However, its effects are uncontrollable, and spill over into forms of radicalization it could not have predicted or desired’ [Menon, Nivedita. 2007, ‘Outing heteronormativity: nation, citizen, feminist disruptions’, in Nivedita Menon (ed.), Sexualities. New Delhi: Women Unlimited, p. 6]. As cited in Vidya Venkat’s article on transgender rights for Frontline titled ‘From the shadows’, Asha Bharati, president of the Tamil Nadu Aravanigal Association, has declared that the use of the term ‘eunuch’ is a stigmatising form of identification: ‘We are no longer the castrated men who guarded royal harems of Arab kings’ (29 February 2008). This is a point of contention in the aravani community that the Tamil state institutions seem uninterested in examining. There exists a tremendous degree of uncertainty and confusion at the bureaucratic level over the appropriate gender designation of aravanis, due to a kind of inconsistency in implementation of the state order; on some official documents, such as voter identity cards and ration cards, aravanis can

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only choose between ‘male’ and ‘female’ as their gender identity. However, on other documents, such as passport applications and, as of May 2008, college applications under the newly-established transgender quota, aravanis can actually pick ‘aravani’ or ‘eunuch’ as their official gender identity. Thus, it has become common for transgender individuals to be simultaneously male, female, and transgender for the purposes of legal identification. The larger implications of this state-induced anxiety over officially dismantling the gender binary will be discussed in depth later in this essay. 7. The Indira Awaas Yojana is a government programme for constructing homes primarily for freed bonded labourers, and scheduled castes and tribes below the poverty line. A maximum of 40 per cent of the IAY allocated funds can be used for the construction of homes for non-SC/ST BPLs. 8. Tamil Nadu Government Order 175, 2008. 9. It is conjectured from the use of this Islamic term for communes and conventions that the system must have taken root during the days of the Nizams of Hyderabad. 10. See Vidya Venkat’s article for Frontline: ‘Over the years, transgender persons have, as a community, developed their own parallel society with its unique language and tradition. They live in isolated communities…which follow a matriarchal family system. It comprises a nayak who as the chief of the clan appoints a guru—usually an elderly hijra—to initiate the chela (follower) into the group…. Transgender persons have negotiated their space in society by appropriating religious and cultural beliefs…. Till date hijras undergo castration with the ritual belief that they are sacrificing their maleness to get the blessings of the goddess’ (Venkat, Vidya. 2008, ‘From the shadows’, Frontline, 29 February). 11. Babu, Priya. 2007, Aravanigal Samugya Varaiviyal (A. Vasudevan, trans.). Chennai: Thenthisai, p. 17. 12. Special Correspondent. 2008, ‘Transgenders thank government for constituting welfare board’, Hindu, 6 May. Retrieved from www.hindu. com. 13. See Priya Babu’s study of aravani musical traditions, Aravanigal Samugya Vasairiyal (see note 11), for an example of this legitimising technique: ‘The contemporary history of transgenders in India is one of denial of human rights and respect to one of its oldest known communities. References to transgenders, who are called aravanis in Tamil Nadu, are strewn all over Tamil literature, history, and hagiography. Tolkappiyam, the ancient Tamil treatise on grammar, does not only make a reference to male-tofemale transgenders as “pedis”, but decrees that they should be referred in the feminine gender of language. Silappadikaram, the grand epic that has a

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prominent place in the Tamil consciousness (the sixth-century Tamil epic), bears reference to the unique art practices of the aravani community.’ 14. Revathi, A. (ed.). 2005, Unarvum Uruvavum (A. Vasudevan, trans.). Chennai: Adaiyum and Sangama, p. 21. 15. Chakravorty, S., S. Milevska and T. E. Barlow (eds). 2006, Conversations with Gayatri Chakravarty Spivak. Calcutta: Seagull Books, p. 63. 16. See: Sivaramakrishnan, K. 2002, ‘Situating the subaltern: History and anthropology in the subaltern studies project’, in D. Ludden (ed.), Reading Subaltern Studies: Critical History, Contested Meaning, and the Globalization of South Asia. New Delhi: Permanent Black: ‘The point is that a shared moral economy is itself a contingent historical creation, which is modulated and contested, promoting both internal solidarity within groups and hostility across them. The subaltern may be used as a purely contrastive category, but to have force it must itself be critically disassembled’—disassembled, we would argue, from within the group itself. 17. ‘The differences can also have to do with the mode of subjection; that is with the way in which the individual establishes his relation to the rule and recognizes himself as obliged to put it into practice…not only in order to bring one’s conduct into compliance with a given rule, but to attempt to transform oneself into the ethical subject of one’s behavior’ [Foucault, Michel. 1992, The History of Sexuality, Volume 2 (R. Hurley, trans.). New York: Penguin Books (Original work published 1984). 18. Government of Tamil Nadu, Social Welfare and Nutritious Meal Program Department. 2006, Social welfare—rehabilitation of aravanis (eunuchs) [G.O. (MS) No. 199]. Chennai: Government of Tamil Nadu Printing Office. 19. Ibid. 20. Narrain, Arvind. 2004, Queer: Despised Sexuality, Law, and Social Change. Bangalore: Books For Change, p. 7. 21. Ibid. 22. Ibid., p. 8. 23. Deepa, V. N. 2005, ‘Queering Kerala: Reflections on Sahayatrika’, in Arvind Narrain and Gautam Bhan (eds), Because I Have a Voice: Queer Politics in India. New Delhi: Yoda Press, pp. 193–94. 24. ‘It is therefore not the biological category of “woman” that required reservation, but particular kinds of materially located experiences that need to find space in representative institutions. The issue is not whether one can biologically become a woman at any point in one’s life, but whether experiences of “women” or different “classes” or “castes” can be written into parliamentary discourse—and these identities are not simply biological. If the experiences of hijras, among other identities, are to be similarly written in,

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then we must think more of radical alternatives than to divide representation simple between “men” and “others”. The experience of oppression of hijras is not reducible to the experience of “women”…. Moreover, precisely because “everyone wrestles with gender to some degree”, it does not seem to take us very far to translate all political questions into the language of “rights” for fixed and settled identities to be fitted within the framework of the existing modern state institutions’ [Menon, Nivedita. 2007, ‘Outing heteronormativity: nation, citizen, feminist disruptions’, in Nivedita Menon (ed.), Sexualities. New Delhi: Women Unlimited, pp. 26, 27]. 25. It is noteworthy that while many aravanis themselves refer to the surgery as ‘reassignment’, the state refers to it as ‘re-construction’. This begs the question of whether the state mechanisms view transgender people as needing to be put back in their ‘right’ gender, or as deformed non-gendered people who need to be given an appropriate gender. 26. Butler, Judith. 2004, Undoing Gender. New York: Routledge, pp. 52, 53. 27. ‘This body becomes a point of reference for a narrative that is not about this body, but which seizes upon the body, as it were, in order to inaugurate a narrative that interrogates the limits of the conceivably human. What is inconceivable is conceived again and again, through narrative means, but something remains outside the narrative, a resistant moment that signals a persistent inconceivability’ (Ibid.). 28. Vaid, Urvashi. 1995, Virtual Equality: The Mainstreaming of Gay and Lesbian Liberation. New York: Anchor Books, p. 182. 29. Foucault, Michel. 2003 [1982], ‘The subject and power’, in P. Rabinow and N. Rose (eds), The Essential Foucault. New York: The New Press, p. 132. 30. See: Menon, Nivedita. 1999, ‘Rights, bodies, and law: Rethinking feminist politics of justice’, in Nivedita Menon (ed.), Gender and Politics in India. New Delhi: Oxford University Press, p. 264: ‘At particular moments “Justice” is constituted by specific moral visions, but the discourse of the law is predicated upon the assumption that justice can be attained once and for all by the fixing of identity and meaning. The meaning delivered by law as the just one then gets articulated in complex ways with other discourses constituting identity, and tends to sediment dominant and oppressive possibilities, rather than marginal and emancipatory ones.... [The] experience of “self” and “body” validated by feminism as “real” acquires meaning precisely through an interplay of contexts, a movement that is halted by the rigid codifications required by legal discourse.’ 31. Ibid., p. 262. 32. Venkat, Vidya. 2008, ‘From the shadows’, Frontline, 29 February, pp. 100– 104.

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33. ‘The language of rights can be alienating and individualistic but since it refers to some desirable capacities and powers the oppressed should have, it can be empowering…in deconstructing the legal discourse, we would not be abandoning the terrain of law altogether. Rather, by making visible what has been repressed by emancipatory discourses of the bourgeois democratic revolution, we can recognize the extent to which engagement with the law continues to be inevitable and sometimes fruitful, but also in what ways such an engagement can run counter to our emancipatory vision’ (Menon, see note 30, pp. 278–88). 34. Narrain, Arvind. 2004, Queer: Despised Sexuality, Law, and Social Change. Bangalore: Books For Change, p. 11. 35. Slamah, Khartini. 2005, ‘The struggle to be ourselves, neither men nor women: Mak Nyahs in Malaysia’, in G. Misra and R. Chandiramani (eds), Sexuality, Gender, and Rights: Exploring Theory and Practice in South and Southeast Asia. New Delhi: Sage Publications, p. 107. 36. Ibid., p. 107. 37. ‘I want to maintain that legitimation is double-edged: it is crucial that, politically, we lay claim to intelligibility and recognizability; and it is crucial, politically, that we maintain a critical and transformative relation to the norms that govern what will and will not count…. This latter would also involve a critical relation to the desire for legitimation as such. It is also crucial that we question the assumption that the state furnish those norms’ (Butler, Judith. 2004, Undoing Gender. New York: Routledge).

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Section II Section 377 and Its Politics

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The Presumption of Sodomy: Section 377 in India and Beyond Alok Gupta

‘As to any primary mischief, it is evident that it produces no pain in anyone. On the contrary it produces pleasure, and that a pleasure which, by their perverted taste, is by this supposition preferred to that pleasure which is in general reputed the greatest. The partners are both willing.’1

Part I: Introduction a) The Presumption of Sodomy: Local or Foreign

More than 80 countries around the world still criminalise consensual homosexual conduct between adult men, and at times between adult women.2 Robert Mugabe’s (in)famous ‘homosexuals are worse than pigs and dogs’3 speech has been followed by the Indian,4 Nigerian5 and Ugandan6 governments defending anti-sodomy laws in their country as both morally important and foremost culturally rooted. When Section 377 of the Indian Penal Code (IPC) was challenged, India’s Ministry of Home Affairs submitted an affidavit stating that ‘The law does not run separately from society. It only reflects the perception of the society…. When Section 377 was brought under the statute as an act of criminality, it responded to the values and mores of the time in the Indian society.’ The famous Wolfenden Report of 1957 urged that ‘homosexual behaviour between consenting adults in private should no longer be a criminal offence.’7 Even though the codification of anti-sodomy laws

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was supported by the colonial government, they were not equally interested in eradicating them from the colonies they still controlled. The classic example is Hong Kong, which during the decriminalisation of consensual homosexual sex in Britian in 1967, had the similar Section 377 and was a British protectorate. Several commentators have argued that the fear of conservative attitudes8 prevailing against homosexuality in Hong Kong prevented a follow-up of Wolfendenlike reform.9 Courts and legislators have deliberately distanced themselves from conclusions like those of the Wolfenden report, finding—in the ultimate paradox—that England now embodies the sexual decadence against which India must be defended. Addressing the sodomy law in 1983, India’s Supreme Court proudly declared that ‘neither the notions of permissive society nor the fact that in some countries homosexuality has ceased to be an offence has influenced our thinking.’10 After a fiery debate, Singapore’s government refused to rid itself of its colonial law against homosexual conduct in 2007. The supporters of this position cited the ‘communal cohesiveness’ that the British statute supposedly defended.11 A petition to the Prime Minister called the law, which had been forced on the colony decades ago, ‘a reflection of the sentiments of the majority of society… Repealing [it] is a vehicle to force homosexuality on a conservative population that is not ready for homosexuality.’12 In November 2001, the then Prime Minister of neighbouring Malaysia, who had encouraged Anwar Ibrahim’s first ‘sodomy’ trial, blamed homosexuality on the former colonial power: ‘The British people accept homosexual [government] ministers,’ he said. ‘But if they ever come here bringing their boyfriend along, we will throw them out. We will not accept them.’13 The defence and appropriation of anti-sodomy laws in the homophobic rhetoric of the state and its representatives, especially in the last few decades, belies a very important and less known fact. Sodomy laws throughout Asia and Africa have always consistently been colonial impositions. They were drafted, legislated and enacted by colonial jurists and legislators, based entirely on ‘their view of the world’ and what they thought was best for the colony that they were respectively

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in charge of or interested in. These laws did not emerge through any democratic process, debate or cultural history of the various diverse regions of the world where they can now be found. They were in fact monolithic, certain, non-negotiable penal impositions, based on the colonisers’ assumption of a shared biblical morality and important means for policing the sexuality of the colonial subjects. b) Presumption of Sodomy Colonial law introduced a new element in the policing of sexuality. What in pre-colonial times was pointed by a multiplicity of authorities right from the family to the samaj, was now supplemented by a legal order which brought in new notions of what was acceptable sexuality and what was not. Perhaps the most direct legal command on the notion of unacceptable sexuality was Section 377 of the Indian Penal Code.14

There are two strains of arguments repeatedly faced by queer activists in opposition to their demand for the repeal of anti-sodomy laws. First is the cultural argument: anti-sodomy laws in Africa and Asia are in fact culturally reflective and part of the independent, modern, democratic nation state. Second, the less subtle but equally homophobic argument is based on the apparent non-use of the law.15 A 1957 Ugandan case16 combined an answer to both. The act of ‘special favor’ by Hoyle in giving Maruku one shilling and some sugar as presents, became a reasonable motive for sodomy for lack of any other evidence. Thus in this case the unusual interaction between a white officer and a native herdsman created a strong presumption of sodomy leading to Hoyle’s arrest. This presumption of sodomy, without the proof of the act of sodomy, has permitted numerous unofficial detentions, arrests and harassment of queer people. The decision in the case of Hoyle came soon after the recommendations of the Wolfenden Report to decriminalise consensual adult homosexual sex. The judge agreed that the opinion relating to consensual ‘homosexual offences are changing’ but was tied by the existence of the anti-sodomy law in Uganda.17 Unfortunately, the reform of the anti-sodomy law based on the Wolfenden recommendations was confined to England. It did

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not follow suit in Uganda, which continued with the anti-sodomy law after independence in 1961. The discussion in this essay detailing a judicial and legal record of homosexual activities is also an attempt to make sense of the new ‘creative’ use of sodomy laws. The broader understanding of sodomy has legitimised state and police harassment that no longer requires a specific sexual act to warrant an arrest, but relies on the wider idea of ‘presumption’. Part II of this essay traces the history of Britain’s law on ‘sodomy’, or ‘buggery’, from its medieval origins to the 19th-century attempt to rationalise the chaos of common law. It began in India and travelled from Nigeria to the Pacific in the imperial bureaucrat’s baggage. Part III shows how the sodomy provisions connected with other laws and practices that strengthened the colonial state’s authority: laws that marked out whole populations as ‘criminal’, and medical practices that marked off some bodies as intrinsically, physiologically perverse.18 Part IV traces how courts, under colonialism and in the newly independent states, interpreted the vague language laid down in the colonial codes. Two themes emerge: First, judges tried to bring an ever-widening range of sexual acts within the laws’ punitive reach—descending, while doing it, into almostcomical obsessions with orifice, organ and ‘forbidden’ desire. Second, the sodomy laws almost universally made no distinction on the basis of consent or the age of the partners. The sense of horror that lawmakers and judges felt for homosexual conduct simply obliterated these issues. The ‘homosexual’ therefore emerged before the law deeply tarnished by the association with pedophilia and rape—as a sexual monster.

Finally, Part V discusses the belated inclusion of lesbian women within the offence of gross indecency. Part VI concludes with the understanding that sodomy laws do not aim just at punishing acts. They post broad moral proclamations that certain kinds of people, singled out by presumption and prejudice, are less than citizens—or less than human. Eliminating these laws is a human rights obligation.

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Part II: Criminal Codification ‘Buggery must not be named among Christians…’ Edward Coke19

The European anti-sodomy laws had a long prehistory. The historian R. I. Moore finds in the 11th and 12th centuries the birth of a ‘persecuting society’ in Europe, targeting various enemies within— Jews, lepers, heretics, witches, prostitutes, and ‘sodomites’20—who threatened purity and carried contamination, and had to be cast out and controlled. The first recorded mention of ‘sodomy’ in English law dates back to two legal treatises called Fleta21 and Britton22 in medieval England, which clubbed sodomy with ‘racial hatred, sorcery and heresy’.23 No records are available of actual enforcement of these laws, however it has been well documented that ‘sodomites’ were hunted, punished and often burnt alive in quite the same manner in which witch-hunting operations were carried out in medieval England. Edward Coke famously argued that the mere mention of sodomy was considered potentially inspiring. The colonial jurists had to walk a precarious line of drafting the offence in a manner that would not invoke unwarranted interest or curiosity. Thus began the furtive, but not very silent, interaction with the drafting of the unnatural offence. The first codified offence against homosexuals in England was known as ‘Buggery’, punishing ‘the detestable and abominable Vice of Buggery committed with mankind or beast’ with death by hanging, which was enacted in the reign of Henry VIII in 1533.24 The death penalty for buggery was formerly abolished in England in 1861. Indian Penal Code and Codification in the British Empire

Less well known is the fact that the codification of homosexual offences actually began as far back as 1825, when the task of devising law for the Indian colony was entrusted to the historian Lord Thomas Babington Macaulay. Macaulay chaired the first Law Commission of India and was the principal drafter of the Indian Penal Code—the first

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ever exhaustive draft of codified criminal law produced by the British empire.25 The colonial environment was the perfect field for the rationalisation and systematisation of offences. The colonies were passive laboratories. A 19th-century historian observed that the Indian Penal Code was a success because the (metropolitan British) legislature was ‘powerful enough to have a distinct collective will and to carry it out without being hampered by popular discussion’.26 This autocratic imposition of a codified penal code took advantage of the ‘absence of a developed and contentious Indian public opinion around questions of criminal law’, allowing Macaulay a ‘free field for experimentation’.27 Introducing a draft in an 1837 speech, Macaulay discussed the clauses in detail. But when he reached his version of the anti-sodomy provision, he showed discomfort that the drafters had been compelled to think about such distasteful issues: Clause 361 and 362 relate to an odious class of offences respecting which it is desirable that as little as possible should be said […we] are unwilling to insert, either in the text or in the notes, anything which could give rise to public discussion on this revolting subject; as we are decidedly of opinion that the injury which would be done to the morals of the community by such discussion would far more than compensate for any benefits which might be derived from legislative measures framed with the greatest precision.28

The ‘injunction to silence’29 against anti-sodomy laws, propagated by Coke and followed by jurists like Macaulay led to ‘a strange state of affairs’. Nowhere till date in any anti-sodomy provision throughout the former British colonies do we see the use of the term sodomy. The stigma and shame attached to the term, coupled with the fear of its infectiousness gave rise to euphemisms around it, which also gave rise to scope in the future amendment and refinement of the offence under the guise of clarifications. Instead of following the old British offence of ‘buggery’—which in many ways considering the ‘injunction to silence’ and Macaulay’s own reluctance to a debate or discussion on the issue, might have been the

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best option—he chose to draft a fresh offence. The legislative measure with ‘the greatest precision’ turned out to be the most unclear law on sodomy. The two proposed clauses, distinguished by the element of consent, pertaining to ‘Unnatural Offences’ read as follows: Cl. 361 ‘Whoever, intending to gratify unnatural lust, touches, for that purpose, any person, or any animal, or is by his own consent touched any person, for the purpose of gratifying unnatural list, shall be punished with imprisonment of either description for a term which may extend to fourteen years and must not be less than two years, and shall also be liable to fine. Cl. 362 ‘Whoever, intending to gratify unnatural list, touches for that purpose any person without that person’s free and intelligent consent, shall be punished with imprisonment of either description for a term which may extend to life and must not be less than seven years, and shall also be liable to fine.

The point of distinction between Cl. 361 and Cl. 362 is a longer punishment for non-consensual and lesser for consensual, clearly incorporating differing standards of ‘harm’. However, the meaning of ‘touch’ was never defined. In fact the idea of ‘gratifying unnatural lust’ was so vague and ambiguous that it was discarded before the final draft.30 The final draft of the Indian Penal Code came into force in 1860 (delayed because of the Indian mutiny in 1857) and carried a modified definition under the title of Unnatural Offences,31 which then became a thumb rule for defining the offence of ‘sodomy’ in further colonial Criminal/Penal Codes. This was called Section 377 of the Indian Penal Code, the dreaded source of homophobia throughout the former British Colonies: Section 377: Unnatural offences—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 10 years, and shall be liable to fine.

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Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

There was no explanation provided for the meaning of ‘carnal intercourse’ or ‘the order of nature’. It applied the offence both to heterosexuals and homosexuals and equated it to bestiality, making penetration the sole criteria. And unlike Macaulay’s first draft it makes no distinction between consensual and non-consensual sex—and is therefore harsher. It punishes both consensual and non-consensual sodomy with a punishment up to 10 years to life. For lack of access and availability of other legislative records, diaries and documentation, the reasons for the change are not known. However, on the face of it, it is possible to conclude that there was a deliberate attempt to: • equate consensual sodomy with non-consensual, therefore not treating consensual sex separately and, perhaps, leniently; • enhance the Punishment; • confine the offence from mere ‘touching’ to acts involving ‘penetration’. Did the drafters not provide a specific anal-sex-related definition of the offence merely because of the injunction to silence, or was there another agenda in place? Was it a sly attempt to create ambiguity ‘to cover the whole range of sexual acts against the order of nature, the variety of which the drafters recognized and did not wish to limit by words of description’?32 A discussion on the jurisprudence of sodomy below will attempt to provide some answers. ‘Gross Indecency’ was a very wide offence that could possibly cover all kinds of non-penetrative sexual acts between two men. Although this provision was never introduced in the Indian Penal Code itself, it was incorporated in subsequent legal codes, even those that derived from the Indian Penal Code—like the Sudanese Penal Code in 1899, and Singapore and Malaysian Penal Codes as far back as 1938.33

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The Indian Penal Code was applied through most of Asia and Africa. A process of evolutionary adaptation began as every territory used the existing codes, ‘improving and bringing them up to date, and the resulting product is then used as the latest model for an enactment elsewhere’.34 By the Straits Settlement of 1882, the Indian Penal Code travelled to Singapore, Malaysia and Brunei.35 Between 1897 and 1902, the Indian Penal Code was applied in Kenya, Uganda and Tanzania.36 However, the passage of the Indian Penal Code into East Africa was not without protest, which came from the British residents. The association of British in East Africa was strongly opposed to the imposition of the Code and the policy of placing ‘white men under laws intended for a coloured population despotically governed’.37 Thereafter the Indian Penal code was adapted as the Sudanese Penal Code in 1899. The Sudanese Penal Code of 1899 represents a rare progressive strain in the codification of ‘unnatural offences’. The Sudanese provision although identical to the Indian Section 377, added a slight twist; it reads: S. 318 “Whoever has carnal intercourse against the order of nature with any person without his consent, shall be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to fine; provided that a consent given by a person below the age of sixteen years to such intercourse by his teacher, guardian or any person entrusted with his care or education shall not be deemed to be a consent within the meaning of this section. Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.38

In the Sudanese Penal Code the ‘gross indecency’ provision, like with sodomy, only punished non-consensual ‘gross indecency’.39 The silent and undocumented success of the Sudanese Penal Code in rationalising the Penal Code, as far as the sodomy and gross indecency offences were concerned, was lost after the Sudanese Government in 1991 imposed a Sharia-inspired penal code, providing specific punishments for Zina.40 The rationalisation of the sodomy offence in the colonial Sudanese Penal Code was offset by the new categories of ‘rogues and

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vagabonds’ in it (unlike the IPC, its direct predecessor) that specifically target effeminate homosexual men indulging in prostitution. In an inadvertent move, the identity of the homosexual was criminalised over the act. Queensland Penal Code and Colonial Bureaucrat

The Queensland Penal Code (QPC) was drafted in 1899 by the Chief Justice of Queensland (Australia), Sir Samuel Griffith, based on the draft prepared by J. F. Stephens in 1878.41 It came into force in 1901 and was the second most influential penal Code, especially in British Africa. The QPC followed the IPC in drafting the ‘unnatural offence’ but also introduced the category of the ‘passive’ sexual partner, the one who ‘permits’. Thus Section 208 of the Queensland Penal Code read as follows: Any person who — a) has carnal knowledge of any person against the order of nature; or b) has carnal knowledge of an animal; or c) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years. The inclusion of the permitting catamite was deliberate to provide a clarification that both partners in the act of sodomy were criminal. Even though ‘penetration’ was an essential ingredient to prove an ‘unnatural offence’,42 QPC introduced an independent offence of ‘attempts to commit unnatural offences’.43 Thus even in the absence of penetration, otherwise an essential ingredient of ‘unnatural offences’, any and every undefined ‘attempt’ could create a presumption of the offence. The following story of the spread of QPC in Africa is important to discredit the mythical claims of modern African and Asian leaders that anti-sodomy laws represent values of independent African nations.

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While the offence of sodomy was continuously being refined during the adaptation of the penal codes in newer colonies, it was not done through any clear organised process. These laws were introduced into the history of Africa and Asia merely through the whims and fancies of the pervasive colonial agent—the bureaucrat. Outside Australia, the QPC was first enforced in Papua New Guinea and Northern Nigeria in the nineteenth century. It then became a model for the drafting of a uniform Federal Criminal Code in Nigeria in 1916. The Code in the 1950s was used as a model to redraft the criminal codes of East Africa, where it replaced the Indian Penal Code. However, the journey and adoption of the QPC and IPC across Africa was not as smooth. The colonial office had no continuous or persistent policy with regards to codification. Nigeria has been the classic example, where the territorial division between Northern and Southern Nigeria became a battleground for the despotically appointed colonial heads of state and their scheming advisers.44 The Chief Justice of Northern Nigeria, H. C. Gollan, decided to adopt the Queensland Penal Code as the model for the Northern Nigeria Penal Code, which came into force in 1904. However, the High Commissioner and the Secretary of State of Southern Nigeria, wanted a penal code modelled on the Indian Penal Code. John Shuckburg-Risely, adviser to Lord Elgin, the Secretary of the southern part, thought that the Indian Penal Code departed too far beyond English principles of law and strongly opposed the idea. Risely along with Hugh Bertram Cox, another adviser, managed to convince the Secretary after which the process was derailed and finally dropped. A decade later, despite cries that the code would add more crimes and enslave people, a common Criminal Code based on the Northern Code (modelled on QPC), was brought in force in 1916, two years after the amalgamation of Nigeria.45 Even though the ‘unnatural sex’ provision in the Criminal Code of Nigeria remained faithful to the QPC, it continued the ‘furtive’ engagement with the offence by taking advantage of the existing vagueness in the meaning of ‘carnal knowledge’. It re-defined ‘carnal knowledge’ to exempt sex between ‘a husband and wife’.46 Thus the

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vagueness in the language created a scope for refining and limiting the offence, to the real and ultimate objective—to regulate sex between men, and also unmarried couples. This also created an anomaly with the rationale of ‘order of nature’, which rested on the idea of non-procreative sex. Here the idea of ‘natural’ sex has shifted from procreative to marital heterosexual sex. However, two more radical changes were still due to come to the randomised process of criminal codification in Africa. After the codification of the Criminal Code of Nigeria, the colonial office in East Africa wanted the influence of the Indian Penal Code eliminated. Here another adviser to the Secretary of State, Henry Grattan Bushe, who like Risley did not consider the Indian Penal Code ‘English’ enough, played an important role.47 The fact that Macaulay, indisputably an Englishman, had drafted the Indian Code seems to have been overlooked. Bushe was successful in his efforts and soon had the colonial office on the side of the Nigerian Criminal Code. In 1930, Kenya, Uganda and Tanzania all abandoned the Indian Penal Code and adopted drafts based on the Nigerian Criminal Code. Thus they inherited much wider provisions, as they punished a passive partner in sodomy, attempts to sodomy and gross indecency.48 A legal historian argues that the ‘personal views and prejudices’ of Risely (in his initial advocacy for the QPC in Nigeria), and Bushe (who lobbied for the abandonment of IPC in East Africa), formulated the policy for adoption of criminal codes, where none existed.49 In one last sweeping change in 1960, the territory of Northern Nigeria chose to have a separate Penal Code, independent of the Federal Criminal Code, and took the Sudanese Penal Code of 1899 as its basis, which was ironically based on the IPC, and which Northern Nigeria had earlier rejected. Despite the injunction to silence, once again a ‘furtive’ attempt was made to re-craft sodomy. The noncriminalisation of consensual sodomy in the Sudanese Penal Code did not go unnoticed. The Northern Nigeria Penal Code reverted to the old consent-neutral IPC definition in Section 377.50 However, just to avoid confusion and bafflement, it did not do the same with the

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‘gross indecency’ provision, which remained applicable only to nonconsensual activities.51 Along with the Sudanese Penal Code, one other anomaly is the shape the anti-sodomy law took in Ghana. Ghana is one of the few former British colonies52 in the whole of Africa and Asia where consensual sodomy is treated as a mere misdemeanour.53 This is the result of the ideological differences between colonial drafters of the penal codes. R. S. Wright, a liberal jurist, strongly influenced by the ideas of personal liberty propagated by John Stuart Mill,54 was asked by the British colonial office to draft a penal code for Jamaica. Wright’s Code was different from the Queensland and Indian Penal Codes on the issue of law and morality. Wright’s Code separated consensual buggery from non-consensual and punished the former with a maximum twoyear penalty. Wright’s Code never made it to Jamaica for which it was originally drafted, but it was applied in St. Lucia in the Caribbean and also became the principal source for the drafting of the Penal Code of Ghana.55 Thus under Section 105 of Chapter 6 titled ‘Sexual Offences’ of the Penal Code of Ghana: ‘Whoever is guilty of unnatural carnal knowledge—(a) of any person without his consent, is guilty of first degree felony; (b) of any person with his consent, or of any animal, is guilty of a misdemeanor’. I draw the following four conclusions: a) The offence of sodomy was not a simple, long-established offence that has remained unchanged. In fact the colonial authorities were continuously grappling with the correct definition, meaning and scope of sodomy. And the injunction to silence was nothing but a sham, a cover for disguise, an excuse to make laws without discussion and finally an attempt to legitimise prejudice and autocracy. b) The offence of sodomy, with the exception of Sudan or Ghana, was continuously re-defined with the clear purpose to widen its scope, moving gradually towards the homosexual identity from the act.

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c) The ‘order of nature’ has moved beyond procreation and to conjugal heterosexuality. d) The penal codes and their anti-sodomy provisions that are so often defended as morally and culturally reflective, were never drafted through any deliberative process, public discussion, and did not build on or support customary law, but were in fact—and we can safely say that—random impositions by colonial officers, at their own whims and fantasies. e) Finally, the colonial project of codification has buried debates on decriminalisation of consensual sodomy that have emerged in the Sudanese and Ghanaian Penal Codes, which require studying, albeit not in the scope of this essay. Part III: Crimes of the Personal Condition: Twisted Anuses, Transgenders and Vagrancy Laws

In this section, the roles of forensic anal examination and the continuously changing scope of vagrancy laws will be examined together to understand the legal creation of the idea of the catamite, homosexual and transgenders. Under forensic examinations ‘marked bodies’ have become signs of permanent and habitual sodomites. On the other hand the scope of vagrancy—the offence of being in a particular state, not related to any criminal act or omission—has been expanded over the years to also include the vagrant homosexual and transgender person. This discussion connects us to the principal themes of the essay: the criminalisation of the homosexual and transgender person on the basis of a presumption of ‘sodomy’. Forensic Injustice ‘The nineteenth-century homosexual became a personage, a past, a case history, and a childhood, in addition to being a type of life, a life form, and a morphology, with an indiscreet anatomy and possibly a mysterious physiology.’ Michel Foucault56

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‘Infundibuliform’ literally means ‘funnel shaped’ and has been used to describe two things in particular—shapes of flowers and anuses of habitual sodomites. Here, we are concerned with the latter. The relevance of anal examination can be seen in one of the first reported cases in appeal under Section 377 of the IPC. In the case of QueenEmpress v. Khairati57 in 1884, Khairati was convicted under Section 377 by the Sessions Judge on the charge ‘that he, within four months previously to the 15th of June (1883), the exact time it being impossible to state, did in the district of Moradabad abet the offence of sodomy, by allowing some unknown person to commit the offence of sodomy on his person….’ Khairati was identified as a eunuch,58 as he ‘was found singing dressed as a woman among the women of a certain family’. The trial court further stated that ‘…he is shown to have the characteristic mark of a habitual catamite—the distortion of the orifice of the anus into the shape of a trumpet59 also to be affected with syphilis in the same region in a manner which distinctly points to unnatural intercourse within the last few months.’ Thus Khairati was not arrested and convicted for any particular incident of sodomy, but on suspicion based on appearance, substantiated by medical examination. The lower court finally stated in conclusion that ‘the three facts proved against the accused—his appearance as a woman, the misshapement [of the anus], the veneral disease—irresistibly lead to the conclusion that he has recently subjected himself to unnatural lust’.60 Justice Straight, on appeal set aside the conviction as the time, the place or the identity of the accomplice was unknown. However, he called the police efforts in ‘checking these disgusting practices… laudable’. Sexual offences create a controversial legitimacy for the state to allow forensic intervention into the bodies of the victims to determine the occurrence of the offence, to separate the truth from false accusation, and often to establish the exact extent to which sexual interaction has taken place. This for example, especially in common law countries, requires a victim of rape to be examined by medicalforensic experts, to record physical injuries/signs of the occurrence of rape or penetration. These invasive practices of maintaining a sexual

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record, have famously, under the various colonial Contagious Diseases Acts, created the idea of the ‘common’ or habitual prostitute, with repeated convictions under the Act due to the presence of venereal diseases.61 The same applies for cases under sodomy and the creation of a ‘habitual sodomite’. Therefore a complete impact of sodomy laws cannot be understood by looking at the substantive legal offence alone. Evidentiary rules and requirements to prove the offence of sodomy have played a key role, in constituting the criminal identity of the homosexual. In Khairati the forensic evidence was taken as proof that sodomy definitely had taken place at a prior time, for lack of any further culpable evidence. The ‘culpability’ of disfigured anuses can be attributed to the role of the medico-forensic writers. Most forensic writers divide homosexuals between passive and active agents. The six peculiarities of a sodomite’s anus were popularised by Auguste Ambroise Tardieu62 in 1857 as ‘the excessive development of the buttocks; the funnel-shaped deformation of the anus; the relaxation of the sphincter; the effacement of the folds, the crests, and the wattles at the circumference of the anus; the extreme dilation of the anal orifice; and ulcerations, hemorrhoids, fistules’.63 This criteria, broadly of the funnel-shaped anus, suggesting an elasticity to the anal sphincter due to permanent exposure to anal penetration, becomes the decisive means for determining the ‘habitual’ homosexual nature of the person and consequently tools for abuse, harassment, torture and entrapment. Another important treatise on the subject is Glaster’s Medical Jurisprudence and Toxicology which followed Tardieu and famously declared that ‘an infundibuliform shape of the anus’ was a confirmed sign of a passive sodomite.64 Various Indian forensic-medical experts followed the writings of Tardieu and Glaster, adding new parameters based on their own understanding of the ‘difference’ in sodomites’ bodies. Ejaz Ahmed, for example, points to the ‘patulous state of the anus, and the destruction of the folded or puckered state of the skin in this part’.65 Narayan Reddy takes the notion of dilation further and provides a rough sphincterometer, requiring as proof an opening of

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‘4 to 5 cm in diameter through which rectum can be seen’.66 Another forensic expert moves beyond just the physical signs of penetration to the way the sodomite prepares his appearance. He lists ‘the shaving of the anal hair but not necessarily the pubic hair’ as evidence to impugn a habitual, passive sodomite.67 The conjectures of forensic writers are not attempts to document single sexual acts, but in fact to infer life histories and identities.68 In the Indian case of D. P. Minwalla v. Emperor,69 the defendant uses the lack of a marked anus as a proof of a non-criminal life history. Mr Minwalla was caught in the act of anal sex with another man in the back of a truck, in a semi-public space. Mr Minwalla, in a desperate attempt to redeem himself, submitted to a medical examination to convince the court that his anal orifice was not shaped like a ‘funnel’ which is a sign of a habitual sodomite. The court confirmed the conviction of Minwalla with a reduced sentence, mindful of the absence of the important physical attribute. The relevance of the anal examination in invoking assumptions about life histories can also be seen in a case from Pakistan. Pakistan inherited the Indian Penal Code and retains Section 377 in its original language. However in the early 1970s the Hudood Ordinance under Section 12 introduced the offence of Zina, which punishes sex between men only when it is coupled with the act of abduction.70 In Muhammad Din71 the two accused were charged with the offence of Zina for forcibly committing sodomy on another young man at a Railway Station in Lahore at night. The medical examination of the complainant stated that ‘the Doctor found no marks of fresh violence on the anus and rectum of the complainant….The anus of Muhammad Aslam was found moderately funnel shaped and he appeared to be a habitual passive agent.’ On the basis of the medical report the court rejected the argument that the ‘victim’ was at the railway station so late, because he had missed the train. The court in fact stated: ‘It appears that complainant had gone to the railway station long after the train for Narowal had left, and … for some other purpose.’ The other purpose according to the court was ostensibly linked to the shape of the anus, as ‘this

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view received support from the medical evidence that he appeared to be a habitual passive agent’. The court thus refused to believe ‘that the complainant had been kidnapped or abducted for the purpose of subjecting him to unnatural lust’. The court dropped the charge under Zina and convicted the accused under Section 377 which punishes sodomy without the requirement of consent or coercion. Loitering without Purpose! ‘The vagrancy laws were designed to alleviate a condition defined by the lawmakers as undesirable.’72

Vagrancy laws essentially target people wandering on the streets with no purpose. However, the ‘wanderers’ are selectively identified as migrant labourers, poor people, beggars, urchins, thiefs and mentally unstable persons.73 The ‘undesirable’ vagrant now also includes the ‘queer’ on the street.74 Among the new class of people in this category are those who are lewd, indecent and obscene, more specifically women soliciting/prostituting on the streets,75 homosexual men76 and particularly transgender sex workers. Thus vagrancy laws, as far as homosexual and transgender men are concerned, were drafted on the assumption of ‘sodomy’ and target men who the law understands as ‘habitual sodomites’. This can also be termed as the ‘Khairati rule’: you look homosexual or transgender so you must have committed sodomy. The Vagrancy Act in England subdivided vagrants into three classes that distinguish first-time offenders like idle or disorderly persons, from repeat offenders like rogues and vagabonds; and incorrigible rogues.77 This distinction of the habitual vagabond was followed in the Sudanese Penal Code 1899. SPC did not punish consensual sodomy. However, it compensates for its lack of sodomy-related proscription by creating a new identity-related category of a vagabond that describes the catamite, but more particularly the transgender. SPC defines seven types of ‘vagabonds’, one of whom expressly includes the ‘catamite’.78 The ‘catamite’ is defined as a ‘any male person who’

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i) ‘dresses or is attired in the fashion of a woman in a public place’ or ii) ‘practises sodomy as a means of livelihood or as a profession’. Thus the appearance of a man in the attire of a woman indicates a strong likelihood of criminality, presumably sodomy. Gledhill while commenting on the Sudanese provision agrees that it is directed at ‘the male prostitute’ and clarifies that the second para applies to a ‘habitual’ offender of sodomy.79 He further adds that ‘it is not necessary to prove when and where any individual act of this nature occurred’.80 The inclusion of a habitual sodomite as a vagabond in the Sudanese provision, qualified by an appearance and a professional role as a prostitute, only requires that the ‘catamite’ be found. No other proof is mandated or required for his/her arrest and incarceration. The British considered the hijra community in India a ‘distasteful nuisance’.81 Laurence Preston’s work highlights the manner in which the traditional rights of hijras to enjoy the ‘revenues’ of land and money owned by them were obstructed by the British in concert with the village authorities.82 The Anti-beggary Law for example in the Bombay and Bengal Presidencies also criminalised the traditional right of the hijras to beg. However, the real distaste for them was linked to the strong association of the hijras with the offence of sodomy. Here the colonial vagrancy laws were adapted to the make the ‘personal condition’ of being a hijra or a eunuch a criminal offence. The Criminal Tribes Act of 1871 in India, inspired by vagrancy laws, termed entire tribal communities, as dacoits, thieves and therefore criminal. Thus, even to be born in a community that was notified as a criminal tribe carried a mark of a criminal. The 1897 amendment to the Act, expressly included ‘eunuchs’ as a notified tribe under the Act. Under the provisions of this statute, any eunuch who appeared ‘dressed or ornamented like a woman in a public street…or who dances or plays music or takes part in any public exhibition, in a public street…[could] be arrested without warrant and punished with imprisonment of up to

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two years or with a fine or both.’ The local government was required to keep a register of the names and residences of all eunuchs who were ‘reasonably suspected of kidnapping or castrating children or of committing offences under Section 377 of the Indian Penal Code’. The criminal categories of the vagrant catamite and the criminal ‘eunuch’ allow the state—the sole authority that may judge and punish—to arrest transgender people without proof of an actual act. The presumption of sodomy and the association of certain communities/identities with the ‘abominable’ act is enough. This legitimises harassment, abuse, arrest and detention of homosexuals and transgender persons merely for being who they are, based on certain acts, physical traits, bodily marks or appearances. Thus, the ‘personal condition’ creates a very strong ‘presumption of sodomy’. Part IV: Jurisprudence: The Despicable Specimen of Humanity ‘Appellate judges are not entitled to say what they do not mean or to mean what they do not say. For what they say and mean has a communitywide acceptance.’83

In an early 20th-century Indian case84 a young man called Ratansi was caught and later released for attempting to have anal sex with Noshirwan. In court, Ratansi did not deny his homosexual love/sex interest, inviting the ire of the judge, who called him a ‘despicable’ specimen of humanity for being addicted to the ‘vice of a catamite’,85 on his own admission. The judge was unable to punish Ratansi and Noshirwan as they had been caught before they could finish the act— actual penetration. But once again much like in Khairati the judge, tied by the limits of the law in convicting the ‘sodomite’/‘catamite’, did not shy from expressing his disgust and moral opprobrium at the sexual activity. The association of the person—a catamite, with the act, rather than the act in isolation becomes important. It is the objective of this section, to bring the rhetorical discussions into the main narrative. There are two simultaneous trends in the following judicial decisions:

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a) the inclusion of different sexual acts in the scope of the ‘unnatural’, b) the exclusion/exemption of heterosexuals from the scope of such ‘unnatural’ acts. Sodom to Gomorrah ‘Why does an act, historically embedded in the Chinese custom of “playing the flute”, be considered a crime?’86

The changing judicial imagination of homosexual sex played a key role in re-drawing the sexual map of ‘immorality’ through laws like Section 377. The meaning of ‘carnal intercourse against the order of nature’ was never defined. In one of the first recorded Indian cases87 unnatural offence was confined to ‘anal sex’ as ‘the act must be in that part where sodomy is usually committed’.88 The scope of Section 377 was redefined in Khanu v. Emperor,89 an influential decision on the Indian anti-sodomy law.90 On facts the case involved a coercive act of oral sex between an adult male and a minor. The non-consensual and coercive nature of the sexual activity did not play an important role in the decision. The only question that concerned the Court was whether oral sex, coitus per os, the sin of Gomorrah, was an unnatural carnal offence under Section 377 of the IPC. Khanu held that the scope of Section 377 is not limited to coitus per anum (anal sex) and can also be extended to coitus per os (oral sex).91 Sodomy became a constitutive element of Section 377 along with the possibility of other sexual acts. The basis for determining what these other acts could be was not a simple process, but involved an elaborate interpretation of carnal intercourse, penetration,92 and the order of nature. The first set of the reasoning was clinical and defined the order of nature as ‘the possibility of conception of human beings’. Therefore any form of oral or anal sex is criminal as it does not lead to procreation, and worse is akin to bestiality. However, no thought was or has been

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given to the fact that other forms of penetrative sex, for example penovaginal sex with contraception, squarely falls within the same logic, and distributing of condoms should therefore also be an offence. In the next step, carnal intercourse was defined as, ‘a temporary visitation to one organism by a member of the other organization, for certain clearly defined and limited objects. The primary object of the visiting organization is to obtain euphoria by means of a detent of the nerves consequent on the sexual crisis. But there is no intercourse unless the visiting member is enveloped at least partially by the visited organism, for intercourse connotes reciprocity.’93 (circa). Thus as long as there is an orifice (in this instance, the mouth) which can envelop the ‘penis’ and provide sexual climax, it qualifies as carnal intercourse. As it cannot lead to procreation it becomes an ‘unnatural offence’.94 Based on the criteria of penetration and their own limited understanding of sex between women, the courts here excluded ‘lesbian’ sexual activities from the scope. The court stated that ‘the sin of Lesbos or Reboim is clearly not such intercourse, and I doubt if mutual cheirourgia95 would be such.’ The exclusion was caused solely by the inability of the courts to define lesbian sexual activity within the terms of penetration and carnal intercourse. It is here that the role of the ‘gross indecency’ provision becomes relevant for criminalising sex between women. Apart from criminalising oral sex, the decision in Khanu opened wide doors for the attribution of a larger meaning to Section 377. Khanu was followed in a 1961 case from East Pakistan96 (present-day Bangladesh) to extend the scope of the identical Section 377 of the Pakistan Penal Code to ‘thigh sex’. The court in Pakistan followed the penetration-specific definition of Khanu and held that ‘the entry of the male organ of the accused into the artificial cavity between the thighs of Giasuddin, would mean penetration and would amount to carnal intercourse.’97 The decision in Khanu was further followed and modified in the Indian case of Lohana Vasantlal.98 On facts, quite like Khanu, it involved three men who forced a fourth underage boy to have anal and oral sex with them. However, the judgement is so caught up with the inclusion

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of oral sex under 377, in a conceptual framework of ‘sexual perversity’ wider than Khanu that it completely forgets and belittles the actual injury and harm caused to the boy who was forced to undergo the sexual act. There is no discussion on the use of force and coercion. The accused in this case were punished not because they forced a minor into oral sex, but because they had the act of oral sex per se. Lohana Vasantlal distinguished sex for procreation as an outdated theory, but still considered oral sex to be a criminal offence because of the sheer inappropriateness of the act.99 It went a step further, and started a discussion about the permissibility of ‘oral sex’ as a prelude to natural vaginal sex, as long as it does not become a substitute.100 In this manner the Lohana court devised the ‘imitative test’; for example, oral sex was imitative of anal sex in terms of penetration, orifice, enclosure and sexual pleasure therefore similar to anal sex and worthy of the punishment under Section 377. Khanu was a decision that was written during the British occupation of India, by British judges representing and appointed by the colonial government. The case of Lohana appeared in the Indian Courts two decades after independence of India in 1947. However, the transition to independent, democratic India did not alter the despotic colonial ideology with which Section 377 was interpreted in 1967. Thus the inheritance of colonial judicial homophobia continued, and from oral and thigh sex we move to mutual masturbation in the case of Brother John Antony v. State101 in 1992. In this case once again ‘an assault (possibly violent) has taken place is of secondary importance’.102 The judgement delves deep into the meaning of the sexually perverse and discusses other forms of sexually deviant practices like ‘tribadism’, ‘bestiality’, ‘masochism’, ‘fetichism’, exhibitionism and ‘sadism’103 and concludes, using the imitative test, that mutual masturbation falls within 377 as ‘the male organ of the petitioner is said to be held tight by the hands of the victims, creating an orifice like thing for manipulation and movement of the penis by way of insertion and withdrawal’.104 The extension of sodomy laws to masturbation was not exclusive to Indian courts, but a similar trend also originated in the US Courts.105

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The side references to the idea of prelude versus substitute in Lohana was finally concretized into law in the famous Singaporean decision of PP v. Kwan Kwong Weng.106 The complainant in this case was a 19-year-old woman who had been manipulated by the accused into performing oral sex on him. Kwan Kwong Weng continued the obsession with the unnaturalness of the act and dismissed the value of consent: ‘…fellatio between a man and woman, whether the woman consented or not, which was totally irrelevant.’107 This has a serious effect on the concept (or lack) of consent in cases of 377, as the decisions dealing with non-consensual sexual activities by undermining ‘the creation of the victim’ also make ‘the non-existence of a victim’108 in cases of consensual sexual activities irrelevant. The Singapore Court created a clear distinction between two kinds of oral sex, ‘prelude’ to vaginal sex, which is acceptable versus oral sex as ‘substitute’, which is not.109 Both Lohana and Kwan Kweng, disregard the ‘procreation’ justification as outdated. They accept and affirm that people have sex for pleasure, which in a way is a huge development and an important judicial admission. However, at the same time the acceptance of pleasure does not lead to an acceptance of ‘oral sex’. Thus a right to sexual autonomy and practice for different consensual sexual acts like oral sex exists but only for heterosexuals. This hetero-normative emphasis on sexual activity is an attempt to enforce a moral sexual order, and not just prohibit an isolated sexual act. Sodomy in Matrimony

Under common law, consensual sodomy between married couples is not an offence. The Nigerian Criminal Code of 1916 excluded sodomy between a husband and a wife. In Grace Jeyaramani110 the judge held that ‘the husband could be guilty of sodomy if the wife was not a consenting party’. Grace substantiates the point that anti-sodomy laws are really meant to prevent same-sex sodomy and not opposite-sex sodomy.111 Sodomy laws therefore are inter alia meant to prevent, what we understand in the contemporary world as consensual homosexuality

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and also to enforce a moral order that frowns upon any sex outside the marital relationship. Therefore the justification or meaning of the ‘order of nature’ has now moved away from ‘procreation’, to heterosexual marriage. This is still a limiting idea as the ‘majority of heterosexual relationships are in fact organized outside the conjugal domain’.112 Thus the matrimonial home becomes the new order of nature, where oral sex, cunnilingus and even sodomy are permitted. Both the secular and the religious laws have converged on heterosexual marriage as the sole qualifying criterion for sex, pleasure and experimentation. Gross Indecency

The introduction of the offence of ‘gross indecency’ by the famous Labouchere Amendment in England in 1897, was an acknowledgement that two men could practise many other sexual acts apart from sodomy, and that a wider criminal framework was needed to criminalise them. The ‘gross indecency’ provision remains undefined. It depends on what a man on the street, a policeman in a public park or a judge on the bench considers (in)decent. Recently, a 1998 amendment to the Tanzanian Penal Code has clarified that gross indecency is indeed any sexual act that ‘falls short of actual intercourse and may include masturbation and indecent behaviour without any physical contact’. Thus, these non-penetrative sexual activities between two men could involve kissing, holding hands, sleeping together and or possibly looking at each other with an intimate intention without any overt physical contact. The usefulness of the gross indecency provision in arresting homosexual men can be seen in the 1946 Singapore case of Captain Marr.113 Captain Marr, a naval officer was charged with committing gross indecency with a young Indian prostitute called Sudin, even when no one had witnessed the offence. The police found the Captain’s watch with Sudin and Sudin’s shirt was discovered in the Captain’s room, which became persuasive evidence that ‘gross indecency’ had taken place. This is significantly different from an allegation of

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sodomy, which generally relies upon medical examination as proof of sodomy. Thus the lack of any physical signs of penetration creates a strong, albeit refutable, presumption on the non-occurrence of sodomy. Gross indecency on the other hand could be inferred from any ‘suspicious activity’ between two men. The category of the offence of grossly indecent, and its application between men only, unlike the sodomy offence that applies to both homosexuals and heterosexuals, was a clear attempt to specifically target a category of men who have sex with each other—as habitual sodomites, perverts and consenting adult homosexuals. Heterosexual Impunity

The three different discussions in the section above culminate with the recent amendment to Section 377 A in Singapore. The confusion caused by Kwan Kweng that heterosexuals could be punished for oral sex led the government, under pressure from the heterosexual majority, to launch a review of the law only as far as its application to heterosexual sex was concerned. Human rights activists launched a petition to eliminate the ban on consensual homosexual conduct as well. LGBT advocates courageously joined in public debate. However, the law was eventually selectively amended to keep sex between men a criminal offence. Prime Minister Lee Hsien Loong voiced personal sympathy for gay citizens: ‘We … do not want them to leave Singapore to go to more congenial places to live.’ But, he added, ‘homosexuals should not set the tone for Singapore society’: Singapore is basically a conservative society. The family is the basic building block of our society... And by ‘family’ in Singapore, we mean one man one woman, marrying, having children and bringing up children within that framework of a stable family unit.114

The Singapore story tears off the mask. It shows that Section 377’s central focus, despite the heterosexual acts it had always punished, lay in eliminating homosexual conduct.

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Consent (Ir)relevant115

Consent in anti-sodomy laws in irrelevant. The emphasis on the ‘act’ alone, ‘actus reus’, irrespective of consent has had the eventual effect in some cases of criminalisation of the victims of non-consensual sodomy themselves (often the very complainant). In a case from Papua New Guinea,116 MK filed a complaint against his employee for committing sodomy on him, and the court found a conviction against him as an accomplice. The Penal Code of Papua New Guinea was derived from the Queensland Penal Code and its anti-sodomy provision also punishes the passive sexual partner in the offence. The main question before the court was should MK the passive sexual partner, also be punished for committing the offence of sodomy, even if he did not actually consent to it. It was decided that MK should be punished as he had permitted, or allowed his boss to penetrate him. The offence of sodomy is only concerned with the act, which in this case had been completed, irrespective of the consent (or lack of) of the passive partner.117 Justice Prentice writing a separate concurring judgement stated that the word ‘permit’ does not mean consent, but in fact it means to ‘allow, suffer, not prevent’.118 In an important admission about the real purpose of anti-sodomy laws, that they are not so much concerned with independent sexual acts, but invested in the task of instituting a moral order, Prentice J. further stated: Buggery is one of the offences of sexual indecency which modern text writers see as not designed so much for private protection as for the enforcement of officially received opinions on particular aspects of sexual morality.

Fortunately, a non-consenting partner in an offence of sodomy has rarely been convicted himself or herself. The courts generally do accept the lack of consent as a defence. The ruling in MK, however exceptional, is relevant to highlight the sheer travesty of justice that sodomy offences have been capable of. In fact recent commentaries on anti-sodomy laws clarified that ‘all participants in unnatural offences are perpetrators, unless any of them is not a consenting party.’119

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Hence, this explicit clarification to exclude the non-consenting party reinforces the need to punish the consenting catamite. Even though the sodomy provisions generally deem the element of consent irrelevant, from the first drafting attempts of Macaulay, Wright, the Sudanese Penal Code and the latest consent-based distinction in the Malaysian Penal Code, we see that consent actually does play an important role. The emphasis has always been to punish consensual sodomy more leniently in comparison to non-consensual sodomy. This has repeatedly indicated an acceptance on the differing standards of harm in consensual sodomy. For example, the Whipping Act enforced in British India in 1909 prescribes whipping only for coercive sodomy.120 Thus, even if the language of the offence of unnatural sex did not create a distinction between consensual and coercive sex, acts like the controversial legislation on whipping did that. Part V: Gross Indecency and Criminalising Lesbians

The Anglophone definition of sodomy as an ‘unnatural offence’ is separate and distinct from the general ecclesiastical offence of sodomy, for its ostensive exclusion of lesbian women from the offence. The ‘religious’ offence of sodomy, historically, has always been wide enough to cover sexual acts/relationships between women. The prosecution of Felipa de Souza in 1591, in a small north-eastern province of Brazil, for the ‘nefarious and the abominable’ crime of sodomy is an important testimony of the pervasive reach of the offence.121 A scholar from Singapore has argued that the legal ‘omission of lesbianism amounts to the symbolic annihilation of lesbians’.122 Through a diabolical process of rendering lesbian sexuality invisible, sex between women remained absent from legal sanctions in Anglophone countries. In Khanu the sin of Lesbos was exempted largely due to the inability of the court to define it within the criteria of penetration,123 as non-penetrative sex is not considered ‘real’ sex.124 However, at the same time ‘lack of legitimacy’ has ensured that lesbian women continue to be equally oppressed as gays and transgenders.

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The equation of anti-sodomy laws with homosexuality often creates the perception of its connection with lesbian sex, as illustrated by a few examples below: • In 1987 in the Indian state of Gujarat, an application for annulment of marriage was filed against Tarun Kumar, a female-to-male transgender person, stating that he ‘…possesses neither the male organ nor any natural mechanism of cohabitation, sexual intercourse and procreation of children’ and called for criminal action under Section 377.125 • In a widely reported case in Singapore a journalist saw two girls kissing and fondling each other and reported the incident to the police, who invoked the indecent behaviour provision of the Public Nuisance Law.126 • In August 2000, a Sri Lankan newspaper published a letter stating that ‘lesbianism is at least an act of gross indecency and unnatural’ and as a solution offered ‘somehow, misguided and erratic women should be corrected and allowed to understand the true sense and reality of life.’127 Sri Lankan activists filed an application with the Press Council to declare the article objectionable and called lesbianism an indecent, abnormal and immoral act. • In April 2002 a Ugandan publication called Red Pepper published names of two women who had arranged a private ‘engagement’ ceremony presided over by a pastor. These two women, Susan Nabukenya and Margie Kyeyune, were later detained in by the Kampala Police under the anti-sodomy law.128 • In April 2006, a police complaint was filed in New Delhi made by the father of a 21-year-old woman X, stating that she had been abducted by another woman Y. The Magistrate refuse to accept the statement of X that she had left her parental home of her own free will and stated that ‘it appears that prima facie under the guise of the aforesaid section there are hidden allegations of an offence under Section 377 as well.’129

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Rape and Lesbian Sex!

While the colonial story of sodomy has been about the creation of the criminal homosexual, the modern legacy of sodomy, inherited and continued by former British colonies, has been about the ‘lesbian’ woman. Large parts of Asia, Africa and the Caribbean, have shown a similar trend towards the criminalisation of lesbian women. Ironically this has happened through a discourse meant for reform of rape laws. The ‘hierarchies of wrongs’ within which the offence of sodomy has been specifically located becomes important. Edward Coke classified ‘buggery or sodomy’ in Chapter 10 of the third volume of The Institutes, between ‘murder’, ‘homicide’ and ‘rape’. Moran argues that the location of ‘buggery’ within ‘the extreme forms of unlawful killing and the most grave threat to the male/female carnal order’, associates buggery with crimes that cause ‘extreme violence to the body’. Buggery is not just the most heinous of offences, it is also then a crime ‘akin to death’,130 even though Justice Ackermann, in his opinion decriminalising consensual sodomy in South Africa, has famously argued that ‘the fact that the ambit of the offence was extensive enough to include “male rape” was really coincidental’.131 The taxonomy of the offence of rape with sodomy has consequences beyond just the equation of homosexuality with rape. Rape laws under the Anglophone criminal codes are strictly confined to peno-vaginal intercourse. Even though the courts in Khanu, Lohana and K. Govindan have been very liberal in defining the scope of sodomy, they have refused to expand the meaning of rape.132 This practice of expansion of the meaning of the ‘unnatural’ through the sodomy offence, instead of rape, signifies the broader need to view sexual activities like oral sex, thigh sex, penetration by an object and even cunnilingus as primarily unnatural, even when committed with consent. Alexander has argued that the position of ‘heterosexual practices’ as the norm becomes useful in defining the unnatural practices, ‘which disrupt marriage and certain dominant notions of conjugal family’. As we will see below, in Malaysia, Sri Lanka, and some countries in the Caribbean amendments meant for the broadening of the offence of

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rape, end up re-defining ‘unnatural offences’ and ‘gross indecency’ to include sex between women. While at the same time the feminist demands for recognition of marital rape are repeatedly denied. Here once again the marital heterosexual sphere is sacrosanct, unquestionable and beyond the reach of the law both for the non-consensual ‘natural’ act and/or every consensual ‘unnatural’ act. Malaysia was one of the first Asian countries to amend its Penal Code to create the possibility of criminalising sex between women. In 1989 Malaysia, pursuant to the demand made by the women’s movement,133 amended its Penal Code134 wherein, instead of amending the rape provision, the legislators completely re-drafted the old Section 377, dividing it into five different parts, broadening its meaning and scope more than ever before ‘presumably partly in the belief that the end effect would be the same.’135 This modern 377 provision separates bestiality,136 consensual and non-consensual sex, which were punished together in the old draft. But the three really important substantive changes137 introduced by the amendment are: • For the first time in a British derived legislative provision, carnal intercourse is defined as anal or oral sex. • The increased punishment for non-consensual sex indicates an acknowledgement of varying degrees of harm. • Finally and relevant to this part, it makes the offence of ‘gross indecency’ gender-neutral.138 The introduction of Islamic law in Malaysia has also created new or parallel sexual offences like Liwat (sodomy) and Musahaqah139 which means ‘sexual relations between female persons’. Like in Malaysia, in 1995 activist attempts made to rationalise the Sri Lankan rape laws led to the criminalisation of lesbian sexual activity. The State refused to liberalise both the rape and the abortion provisions citing religious and ethnic interests.140 A Malaysian commentator/activist writes that ‘the motivation of doing so seems to have been derived from their primary interest in codifying nonheterosexual penis-anus/mouth intercourse as abnormal, as opposed to criminalising non-consensual sexual activity which women’s groups wanted recognised as a violation of women’s bodies.’

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The draft of Sexual Offences Bill, 2000 in Uganda, in an attempt to punish lesbian sex, and to go around the requirement of penetration, proposed a fresh definition of unnatural sex by dropping the requirement for carnal intercourse altogether: ‘Any person who performs a sexual act with another person against the order of nature with the consent of that other person commits an offence.’141 Similar successful attempts have been made in the Caribbean with the offence of ‘serious indecency’ in Trinidad and Tobago punishing sex between women by five years, and the explicit proscription with 20-years’ imprisonment for ‘sexual intercourse’ between women in the Bahamas.142 Conclusion

‘The sun may have set on the British Empire, but the empire lives on. It’s amazing how millions of yellow-and brown-skinned people have so absorbed Victorian prudishness that even now, when their countries are independent— and they are all happy and proud they’re free from the yoke of the British— they stoutly defend these laws...as the embodiment of their ancestral Asian values.’143 South Africa’s Constitutional Court justice Albie Sachs, concurring with the historic decision to overturn his country’s law against sodomy, wrote: It is important to start the analysis by asking what is really being punished by the anti-sodomy laws. Is it an act, or is it a person? Outside of regulatory control, conduct that deviates from some publicly established norm is usually only punishable when it is violent, dishonest, treacherous or in some other way disturbing of the public peace or provocative of injury. In the case of male homosexuality however, the perceived deviance is punished simply because it is deviant. It is repressed for its perceived symbolism rather than because of its proven harm …. Thus, it is not the act of sodomy that is denounced… but the so-called sodomite who performs it; not any proven social damage, but the threat that same-sex passion in itself is seen as representing to heterosexual hegemony.144

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The legal scholar Dan Kahan writes that ‘Sodomy laws, even when unenforced, express contempt for certain classes of citizens.’145 This contempt is not simply symbolic. Ryan Goodman, in exhaustive research based on interviews with lesbian and gay South Africans before the sodomy law was repealed, found the statutes have multiple ‘micro-level’ effects. These are independent of occasion when the law is actually enforced. To the contrary: even without direct enforcement, the laws’ malign presence in the books still announces inequality, increases vulnerability, and reinforces second-class status in all areas of life. The laws ‘disempower lesbians and gays in a range of contexts far removed from their sexuality (for example, in disputes with a neighbour or as victims of burglary),’ Goodman writes. As this essay has shown, they influence other areas of knowledge: ‘the criminalization of homosexual practices interacts with other forms of institutional authority, such as religion and medicine.’ The statutes empower social and cultural arbiters to call the homosexual a criminal. Goodman concludes that ‘The state’s relationship to lesbian and gay individuals under a regime of sodomy laws constructs … a dispersed structure of observation and surveillance. The public is sensitive to the visibility of lesbians and gays as socially and legally constructed miscreants.’146 This essay suggests that the colonial-era sodomy laws ultimately became, not punishments for particular acts, but broad instruments of social control. They allow states to assert, without real evidence, a supposedly shared moral sense—and separate and brutalise those beyond it. They are terms of division and tools of power. The judicial and legislative history of the Anglophone antisodomy laws laid out in this essay is not complete without a final acknowledgement of the proposed Nigerian law against same-sex marriage.147 The 2006 Nigerian bill—criminalising all aspects of lesbian and gay identity and life—completed the arc that Macaulay’s Indian Penal Code began. This bill proposes to prohibit homosexual love (same-sex amorous relationships) and gay and lesbian activism taking the colonial attempts at re-defining sodomy to its ultimate logical conclusion.

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The criminal reach of anti-sodomy laws as they have been understood by the State and its agents—political leaders, judges, police (not to mention the public) —has gone beyond the mere act of sodomy and criminalises the very personhood of people with same-sex desires. This broad criminalisation of the homosexual identity and sub-culture under criminal law speaks volumes of the emancipatory potential of decriminalising consensual homosexual sex. The campaigns for law reform are not merely for a right to have sex, but to be able to live a life without fear of arrest, detention and harassment. No country can defend its anti-sodomy laws on the basis of cultural, moral or religious arguments if they otherwise commit themselves to human rights. Decriminalisation of consensual sex between adults goes to the core of human rights and dignity. Antisodomy laws are a historical wrong that needs to be rectified. The recent victory in the Delhi High Court with decriminalisation of consensual sodomy by the reading down of Section 377 is a huge step forward not just for India, but for the global battle against anti-sodomy laws. Countries like Hong Kong, South Africa and Fiji in Asia and Africa have already shown us the way by decriminalising consensual sex, in lieu of their commitment to human rights for all. This essay has attempted to connect the history, meaning and use of the anti-sodomy laws in Anglophone Asia and Africa. A similar connection needs to be made in order to challenge them collectively. Notes 1. Bentham, Jeremy. 1785, ‘Offences Against One’s Self’, available at http:// www.columbia.edu/cu/lweb/eresources/exhibitions/sw25/bentham/ index.html#16. 2. Ottosson, Daniel. 2007, ‘State-Sponsored Homophobia: A World Survey of Laws Prohibiting Same-Sex Activity Between Consenting Adults’, an International Gay and Lesbian Association (ILGA) report, available at http://www.ilga.org/statehomophobia/ILGA_State_Sponsored_ Homophobia_2008.pdf (accessed 1 August, 2008). 3. Johwa, Wilson. 2004, ‘Culture-Zimbabwe: “Dogs and Pigs” no more?’ Johannesburg: Inter Press Service, 23 May, 2004.

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4. The Government of India, in classic defence of anti-sodomy laws, has stated that ‘the right to privacy cannot be extended to defeat public morality, which must prevail over the exercise of any private right.’ It further affirms the real purpose of the anti-sodomy laws, which is not to monitor some obscure sexual acts, like this essay will highlight but ‘behavioral sanction of legislative authority of the State, as it tends to affect the social environment’. Special Leave Petition (Civil) no. 7217/7218 of 2005 in the Supreme Court against the Delhi High Court order. 5. Bello, Hammeed M. 2006, ‘Obsanjo wants the National Assembly to outlaw homosexuality’, Daily Trust, Abuja, 30 March 2006. 6. Cameron, Edwin. 2001, ‘Constitutional Protection of Sexual Orientation and African Conceptions of Humanity’, South African Law Journal, Vol. 118, No. 4; ‘African Leaders Denounce Homosexuality’, 1 October, 1999, available at www.rainbownetwork.com; ‘African Leaders Hide Political Woes Behind Homophobia’, 25 April, 2001, available at www. monthlyreview.org; ‘Behind the Mask’, 1995, available at http://www. mask.org.za/index.php?page=kenya. 7. Committee on Homosexual Offences and Prostitution. 1963, The Wolfenden Report: Report of the Committee on Homosexual Offences and Prostitution. New York: Stein and Day, p. 23. The report said: ‘The law’s function is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others...It is not, in our view, the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern of behaviour.’ 8. Petersen, Carole. J. 1997, ‘Hong Kong and the Unprecedented Transfer of Sovereignty: Values in Transition: The Development of the Gay and Lesbian Rights Movement in Hong Kong’, Loyola Los Angeles International Comparative Law Review, Vol. 19, pp. 337, 340; Chan, Phil. 2004, ‘The Gay Age of Consent in Hong Kong’, Criminal Law Forum, Vol. 15, No. 3. 9. Hong Kong finally did decriminalise consensual sodomy in 1990, in its own time and through its own process of public debates, lobbying and ofcourse local activism. 10. Fazal Rab Choudhary v. State of Bihar, 1983, All India Report (Supreme Court), p. 323; Kailash v. State of Haryana, 2004, Criminal Law Journal, p. 310 at para 8, ‘Various fundamental differences in both the societies [England and India] must be realised by all concerned, especially in the area of sexual offences’, one judge held. In fact, historians contend that in India before British rule, there was no aggressive policing of homosexual conduct; See: Kidwai, Salim

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and Ruth Vanita (eds). 2000, Same-Sex Love in India: Readings from Literature and History. New York: St. Martin’s Press. 11. Aidil, Mohammed. 2007, ‘Re-Scoping s. 377A: A Juxtaposition of Views,’ Juris Illuminae, Vol. 3, No. 3, January 2007, available at http://www. singaporelawreview.org/wp-content/uploads/2007/01/jurisjan07.pdf (accessed 25 August, 2008). 12. ‘Open Letter to the Prime Minister’, available at http://www.keep377a. com/Letters.aspx (accessed 25 August, 2008). 13. Human Rights Watch. 2002, ‘Lesbian, Gay, Bisexual, and Transgender Rights’, Human Rights Watch World Report 2002, p. 604. 14. Narrain, Arvind. 2008, ‘A despicable specimen of humanity: The policing of homosexuality in India’ in Kalpana Kannabiran and Ranbir Singh (eds), Challenging the Rule(s) of Law: Colonialism, Criminology and Human Rights in India. New Delhi: Sage. 15. Khanna, Shamona. 1992, ‘Gay Rights’, The Lawyers, June 1992; Gupta, Alok. 2002, ‘The History and Trends in the Application of the Anti—Sodomy Law in the Indian Courts’, Humjinsi: A Resource book on Lesbian, Gay and Bisexual Rights in India. Mumbai: India Center for Human Rights and Law; It is argued that anti-sodomy laws are not really being enforced so why invest time and energy with them, when there are so many more important issues in developing countries. See: Posner, Richard. 1992, Sex and Reason. Cambridge, Mass.: Harvard University Press; Versey, Farzana. 2006, ‘Does it pay to be gay?’, Deccan Chronicle, 19 September, 2006, available at http:// qmediawatch.wordpress.com/2006/09/30/a-biased-article-does-it-payto-be-gat/. 16. Hoyle v. Regiman, Cr. App. No. 242 of 1957, Uganda Law Reports, pp. 314–321. 17. An extensive quote in the judgement from a 5 September, 1957 report in The Times argued: ‘Adult sexual behaviour not involving minors, force, fraud, or public indecency belongs to the realm of private conduct not of criminal law. Nearly all civilized countries recognize the futility of making into crimes what are regarded as sins against morality.’ 18. See Moran, Leslie J. 1995, ‘“The Homosexualization of English Law’, in Didi Herman and Carl Stychin (eds), Legal Inversions: Lesbians, Gay Men, and the Politics of Law. Philadelphia: Temple University, 1995. 19. Coke, Edward. 1628, ‘Of Buggery or Sodomy’, The third part of the Institutes of the Law of England. 20. Moore, R. I. 1987, The Formation of a Persecuting Society. London: Blackwell; see also: Dougals, Mary. 2002, Purity and Danger: An Analysis of the Concepts of Pollution and Taboo. London: Routledge.

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21. Fleta was produced in the court of Edward I in 1290, and apart from describing punishments for dealing with Jews, it stated that: ‘Those who have dealing with Jews or Jewesses, those who commit bestiality, and sodomists, are to be buried alive after legal proof that they were taken in the act, and public conviction.’ The Law in England 1290-1885, available at http://www. fordham.edu/halsall/pwh/englaw.html. 22. Ibid. The treatise of Britton states that: ‘Let enquiry also be made of those who feloniously in time of peace have burnt other’s corn or houses, and those who are attained thereof shall be burnt, so that they might be punished in like manner as they have offended. The same sentence shall be passed upon sorcerers, sorceresses, renegades, sodomists, and heretics publicly convicted’. 23. ‘The Maps Tale’, January 2004, available at www.yawningbread.org/ arch_2004/yax-350.htm. 24. It was repealed in 1553 with Queen Mary’s succession. However, it was re-enacted by Queen Elizabeth I in 1563. This ten-year moratorium in the offence occurred largely due to Queen Mary’s belief that sodomy as an ecclesiastical crime was best left in the hands of the Church of England. George Painter: ‘The sensibilities of our forefathers, the History of Sodomy laws in United States’, available at http://www.sodomylaws.org/ sensibilities/introduction.htm#fn31. 25. Friedland, M. Y. 1992, ‘Criminal Codification: Earlier Efforts’, Commonwealth Law Bulletin, July 1992, p. 1173. 26. Stephen, J. F. 1883. A History of the Criminal Law of England, Vol. III. London: Macmillan, p. 304U. 27. Singha, Radhika. 1998, A Despotism of Law: Crime and Justice in Early Colonial India. New Delhi: Oxford University Press. 28. Report of the Indian Law Commission on the Penal Code, Dated 14 October, 1837, pp. 3990–91. 29. Moran, see note 18, p. 33 30. A similar offence of ‘homosexual touching’ is defined under Section 121 the Islamic Civil code in Iran, as Tafkheey. http://www.unhchr.ch/Huridocda/ Huridoca.nsf/TestFrame/7b4f5ec0493538258025671a003ad2c7?Opendoc ument. 31. The final definition was based on the Latin principle contra natura ordirum habiut veneream et Carnaliter cognovit (carnal intercourse against the order of nature). 32. Chong, Daniel Chia Jin. 2001, ‘The Offence of Unnatural Sex in Singapore’, Singapore Academy of Law Journal, Vol. 13, p. 406.

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33. Section 377A was introduced into the Singapore Penal Code by Section 7 of the Penal Code (Amendment) Ordinance 1938 (No. 12 of 1938). The reason as stated in the Proceedings of the Legislative Council of the Straits Settlements in 1938 was to ‘[make] punishable acts of gross indecency between male persons which do not amount to an unnatural offence within the meaning of s 377 of the Code.’ Page C81 dated 25 Apr 1938. See microfiche no 672, Straits Settlement, Legislative Council, Proceedings (SE 102) Vol. 1938 (Central Library Reprographic Dept, National University of Singapore). 34. Morris, H. F. 1974. ‘A History of the Adoption of Codes of Criminal Law and Procedure in British Colonial Africa, 1876-1935’, Journal of African Law, Vol. 18, No. 1, Criminal Law and Criminology (Spring, 1974), pp. 6–23. 35. Read, James S. 1963, ‘Criminal Law in Africa of Today and Tomorrow’, Journal of African Law, Vol. 1 7, No. 1 (Spring, 1963), pp. 5–17. 36. East Africa Protectorate (Kenya) received the Indian Penal Code in 1897 by the East Africa Protectorate Order in Council, 1897 and Uganda by a similar Uganda order in 1902. 37. Morris, see note 34, p. 13 38. Gledhill, Alan. 1963, The Penal Codes of Northern Nigeria and the Sudan. London: Sweet & Maxwell, p. 443. 39. Ibid., p. 444, Section 319: ‘Whoever commits an act of gross indecency upon the person of another without his consent or by the use of force or threats compels a person to join with him in the commission of such act, shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine; Provided that a consent given by a person below the age of sixteen years to such an act when done by his teacher, guardian or any person entrusted with his care or education shall not be deemed to be a consent within the meaning of this section.’ 40. Ottoson, see note 2. In the Sudanese Penal Code of 1991, Section 148 defines Sodomy as: ‘(1) Any man who inserts his penis or its equivalent into a woman’s or a man’s anus or permitted another man to insert his penis or its equivalent in his anus is said to have committed Sodomy; (2) (a) Whoever commits Sodomy shall be punished with flogging one hundred lashes and he shall also be liable to five years imprisonment; (b) If the offender is convicted for the second time he shall be punished with flogging one hundred lashes and imprisonment for a term which may not exceed five years. (c) If the offender is convicted for the third time he shall be punished with death or life imprisonment.’ 41. Friedland, see note 25, p. 1177. 42. Section 6 of the QPC: ‘Carnal Knowledge: When the term “carnal knowledge” or the term “carnal connection” is used in defining an offence,

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it is implied that the offence, so far as regards that element of it, is complete upon penetration.’ 43. Section 209 of the QPC: ‘Any person who attempts to commit any of the crimes defined in the last preceding section is guilty of a crime, and is liable to imprisonment with hard labor for seven years.’ 44. Morris, H. F. 1970, ‘How Nigeria got its criminal code?’, Journal of African Law, Vol. 12, No. 3 (Autumn, 1970), pp. 137–54. 45. Ibid., p. 151. 46. Section 6: ‘“Unlawful carnal knowledge” means carnal connection which takes place otherwise than between husband and wife.’ 47. ‘Bushe determined that a body of criminal law and procedure, more in accord with English law, should be introduced into East Africa.’ Morris, see note 44, p. 14. 48. For example Section 140 of the Penal code of Uganda reads: ‘Any person who (a) has carnal knowledge of any person against the order of nature; or (b) has carnal knowledge of an animal; or (c) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years.’ Section 141: ‘Any person who attempts to commit any of the offences specified in the last preceding section is guilty of a felony and is liable to imprisonment for seven years.’ Section 143: ‘Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.’ 49. Morris, see note 44, p. 6. 50. Gledhill, see note 38, Section 284, p. 443: ‘Whoever has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to fine. Explanation: Mere penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.’ 51. Ibid., p. 444, the gross indecency (Section 285) provision of the Northern Nigeria Penal Code, 1960 was identical to Section 319 of the Sudanese Penal Code, 1899. 52. Bhutan and Liberia also treat sodomy as a petty misdemeanour. 53. A misdemeanour is a less serious offence. Those people who are convicted of misdemeanours are often punished with a fine, probation, community service or part-time imprisonment, served on the weekends or a maximum punishment of up to 12 months. Source: Wikipedia.

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54. Mill, John Stuart. 1974, On Liberty, Harmondsworth: Penguin, p.68. He stated that ‘the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.’ 55. Read, James S. 1962, ‘Ghana: The Criminal Code, 1960’, The International Comparative Law Quarterly, Vol. 11, No. 1 (Jan 1962), pp. 272–79. 56. Foucault, Michel. 1976, The History of Sexuality Vol. 1, London: Penguin, p. 42. 57. Queen-Empress v. Khairati, 1884 ILR 6 ALL 204. 58. Eunuch here refers to a hijra—a transgender identified person belonging to a traditional community of dancers, beggars and sex workers. 59. Khairati, pp. 602. 60. Khairati was possibly one of the first recorded examples of policing of (homo) sexuality in India. Saleem Kidwai and Ruth Vanita (eds) have argued in Same Sex Love in India: Readings from Literature and History (St. Martin Press, 2000) that prior to British rule there was no aggressive policing of homosexuality. 61. R. Walkowitz, Judith. 1980, Prostitution and Victorian Society. Cambridge: Cambridge University Press. 62. Ambroise Tardieu, Auguste. 1859, Etude Medico-Legale sur les Attentats aux Moeurs (‘Forensic Study of Assaults against Decency’) 3rd Edition. Paris: J. B. Bailliere. 63. Ibid., pp. 142–3. 64. Glaster, J. 1950, Medical Jurisprudence and Toxicology, 11th Edition. Edinburgh: Livingston, pp. 259. 65. Ahmed, Ejaz. 1980, Sexual Offences, 2nd edition. Hyderabad: Ashok Law House, pp. 736. See also: Subramanyam, B.V. (ed.) 1999, Modi’s Medical Jurisprudence and Toxicology, 22nd edition. New Delhi: Butterworths India, p. 521–533; and: Gour, S.N. 1988, Lyon’s Medical Jurisprudence for India, 10th edition. Allahabad: Law Publishers India Pvt. Ltd., pp. 482–488. 66. Reddy, K. S. Narayan. 2003, Essentials of Forensic Medicine and Toxicology. Hyderabad: K. Suguna Devi, p. 212. 67. Gupta, R. L. 1991, Medico-Legal Aspects of Sexual Offences. Lucknow: Eastern Book Company, p. 414. 68. Moran, see note 18. 69. D. P Minwalla v. Emperor, AIR 1935 Sind 78. 70. The Offence of Zina (Enforcement Of Hudood) Ordinance, 1979, Section 12 Kidnapping or abducting in order to subject person to unnatural lust: ‘Whoever kidnaps or abducts any person in order that such person may be subjected, or may, be so disposed of as to be put in danger of being subjected, to the unnatural lust of any person, or knowing it to be likely that such person

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will be, so subjected or disposed of, shall be punished with death or rigorous imprisonment for a term which may extend to twenty-five years, and shall also be liable to fine” and, if the punishment be one of imprisonment, shall also be awarded the punishment of whipping not exceeding thirty stripes.’ 71. Muhammad Din v. The State PLD 1981 FSC 191. 72. Chambliss, William J. 1991, ‘A Sociological analysis of the law of Vagrancy’, in John F. Galliher (ed.), Deviant Behaviour and Human Rights. Englewood Cliffs, NJ: Prentice Hall, p. 116. 73. Ibid. 74. Bowman, Karl M. and Brenice Engle. 1956, ‘A Psychiatric Evaluation of Laws of Homosexuality’, The American Journal of Psychiatry, Vol. 112, pp. 577–583: ‘Take for example a recent change in a California law regarding vagrancy. At common law, a vagrant originally was a wanderer from the place where he worked. Under PC 647,5, every “idle, or lewd or dissolute person” is a vagrant, Under PC 647a, every person “who annoys or molests any child under age of 18 is a vagrant”…and further …every person “who loiters about any school or public place at or near which school children attend, or who loiters in or about public toilets in public parks, is a vagrant,” punishable by the same maximum penalty as above. This seems an overboard law and according to one legal comment, lacks the element of mens rea, or specific intent, because not all loitering or peeping can be considered criminal.’ 75. Vagrancy laws are defined in terms of being rather than in terms of acting, for example, criminalise prostitution, which is based not on an act, but ‘prostitutes’ themselves. 76. Homosexual prostitution/solicitation was a crime under Section 32 of the English Sexual Offences Act 1956. 77. Bowman, see note 74, p. 578. 78. Section 448 (2) (e) of the Sudanese Penal Code This provision is followed by the N. Northern Nigeria Penal Code in Section 405 (2) (e). 79. Gledhill, see note 38, p. 749. 80. Ibid. 81. Preston, Laurence W. 1987, ‘A Right to Exist: Eunuchs and the State in Nineteenth Century India’, Modern Asian Studies, Vol. 21, No. 2. 82. Ibid. 83. Baxi, Upendra. ‘The Constitutional Quicksands of Kesavananda Bharati and the Twenty-fifth Amendment’ (1974) 1 Supreme Court Cases, p. 45. 84. Noshirwan v. Emperor AIR 1934 Sind 206. 85. Ibid., p. 208.

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86. Leong, Laurence Wai-Teng. 1997, ‘Singapore’ in Donald J. West and Richard Green (eds), Sociolegal Control of Homosexuality, A Multi-National Comparison. New York: Plenum Press. 87. Government v. Bapoji Bhatt (1884 (7) Mysore LR 280). In Bapoji Bhatt the appellant was charged with Section 377 on allegations of oral sex with a minor. 88. Ibid., p. 282. 89. Khanu v. Emperor, 1925 Sind 286. 90. It became the guiding case on sodomy in South Asia, South East Asia and East Africa. 91. Ibid., p. 286: The court further concluded that ‘the sin of Gomorrah is no less carnal intercourse than the sin of Sodom’. 92. Bhaskaran, Suparna. 2001, ‘The Politics of Penetration: Section 377 of the Indian Penal Code’ in, Ruth Vanita (ed.), Queering India: Same-Sex Love and Eroticism in Indian Culture and Society. New York: Routledge. Bhaskaran argues that ‘what counted as penetration continued to be an ongoing, arbitrary, and unsystematic discussion in several future judgements and commentaries’, (p. 20). 93. Khanu, see note 89, p. 286. 94. Ibid. Having established that oral sex was an offence like sodomy, the courts distinguished the offence as ‘less pernicious than the sin of Sodom’. The reasons for this once again, attributable only to judicial imagination were that ‘it cannot be practiced on persons who are unwilling. It is not common and can never be so. It cannot produce the physical changes which the other vice produces’ (p. 287). 95. ‘Cheirourgia’ is a Greek word that literally means ‘handwork’ or ‘work done by hands’. The judgement was possibly referring to act of mutual masturbation. See: http://www.medterms.com/script/main/art. asp?articlekey=5603. 96. Muhammad Ali v. The State PLD 1961 Dacca 447. 97. Ibid., p. 450. 98. Lohana Vasantlal and others v. The State AIR 1968 Gujarat 252. 99. Ibid. The judgement stated that the ‘orifice of the mouth is not according to nature meant for sexual or carnal intercourse’ (p. 254). 100. Ibid. The judgement approving Havelock Ellis’s distinction stated that: ‘If the stage of the aforesaid act was for stimulating the sex urge, it may be urged that it was only a prelude to carnal intercourse…Any orificial contact “between persons of opposite sex” is sometimes almost equally as effective as the kiss in stimulating tumescence: all such contacts, indeed, belong to the group of which the kiss is the type. Cunnilingus and fellatio cannot be regarded as unnatural for they have their prototypic forms among

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104.

105.

106. 107. 108. 109.

110. 111.

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animals…As forms of contrecatio and aids to tumescence they are thus natural and are sometimes regarded by both sexes as quintessential forms of sexual pleasure, though they may not be considered aesthetic. They became deviations, however, and this liable to be termed “perversions”, when they replace the desire of coitus’ (p. 253). Brother John Antony v. State 1992 Cr. L.J. 1352. The case arose from complaints by students of a boarding school against a teacher who forced the children to perform oral sex on him and also masturbated them. Philips, O. 1999, Sexual Offences in Zimbabwe: Fetishisms of Procreation, Perversion and Individual Autonomy. Unpublished Ph.D. thesis, University of Cambridge, July 1999, p. 193. See note 124, p. 1353: ‘Tibadism: Friction of the external genital organs by one woman on another by mutual bodily contact for the gratification of the sexual desire.’; Bestiality: Sexual intercourse by a human being with a lower animal.; Bestiality: Sexual intercourse by a human being with a lower animal; Bestiality: Sexual intercourse by a human being with a lower animal.; ‘Fetichism Experiencing sexual excitement leading to orgasm from some part of the body of a woman or some article belonging to her.’; ‘Exhibitionism Exposure of genital organs in public.’; ‘Sadism A form of sexual perversion in which the infliction of pain and torture act as sexual stimulus.’ Similarly in cases like Calvin Francis v. State of Orissa 1992 (2) Crimes 455 and State of Gujarat v. Bachmiya Musamiya 1998 (2) Guj. L. R. 2456, the judgements are only concerned with the unnaturalness of the sexual act involved and not the plight of the victim. Bowman and Engle, see note 74: ‘Present sodomy laws may cover homosexual acts, certain acts between heterosexual partners, acts with animals, fowls, or corpses, and, in one or two states, mutual masturbation or incitement to masturbation.’ (p. 577). PP v. Kwan Kwong Weng [1997] 1 SLR 697. Ibid., para 12. Philips, see note 125, p. 193. Ibid., para 24: relying on PP v. Tan Kuan Meng, the Kwan Kwong Weng Court held that ‘an act of fellatio which is performed between a man and a woman as a lustful substitute for and not a prelude to and enhancement for natural sex between them is carnal intercourse against the order of nature and punishable under s 377 of the Penal Code.’ Grace Jeyaramani v. E. P. Peter AIR 1982 Karnataka 46, p. 49. This legitimacy of consensual sodomy within marriage is criticised by Bhaskaran as the ‘…wife’s lack of consent serves to release her from a

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112.

113. 114. 115.

116. 117.

118.

119. 120.

121.

Alok Gupta marriage but an adult male’s consent lands him in prison. Bhaskaran, see note 113, p. 25. Alexander, Jacqui. 1994, ‘Not Just (Any) Body Can Be a Citizen: The Politics of Law, Sexuality and Postcoloniality in Trinidad and Tobago and the Bahamas’, Feminist Review, No. 48, The New Politics of Sex and the State (Autumn, 1994), pp. 5–23. Rex v. Captain Douglas Marr [1946] 1 MLJ 77. ‘Lee Hsien Loong’s Speech on Section 377A,’ available at www.yawning bread.org/apdx_2007/imp-360.htm, (accessed August 25, 2008). Alexander, see note 112, p. 10: ‘…legislation that conflate violent heterosexual domination, such as rape and incest, with same sex relations, thereby establishing a continuum of criminality among same sex rape, domestic violence, adultery, fornication and dishonesty. On this continuum the psyche of homosexuality becomes the psyche of criminality.’ Regina v. MK 1973 PNGLR 204. Ibid. Prentice J relied on an earlier common law decision in the case of Sydney Joseph Bourne (1952, 36 Cr. App. R. 125), where the complainant’s wife, who was being forced by her husband to be repeatedly sodomised by their dog, was also charged under the offence of Buggery. The Court in Sydney held, and was followed in MK, that: ‘But the offence of buggery whether with man or beast does not depend upon consent; it depends on the act and if an act of buggery is committed, the felony is committed.’ Ibid., Prentice J. ‘That is to say that once a person allowed, suffered or did not prevent (permitted) intercourse, having perceived what was about to take place, the character of the act, he would be committing an offence …’. Nsereko, D. D. N. ‘Uganda’, ‘Criminal law’, International Encyclopaedia of Laws, at col. 4, para 385. Section 4 of the Whipping Act: ‘Whoever….(b) compels or induces any person by fear of bodily injury, to submit to an unnatural offence as defined in section 377 of the said Code;…may be punished with whipping in lier of or in addition to any other punishment to which he may for such offence, abetment of attempt be liable under the said Code.’ The Act was repealed in India in the 1950s, however Pakistan retained it. In the case Atta Muhammad v. The State dealing with a sodomy conviction, the appelate court set aside the punishment of whipping stating that the act was non-consensual. Felipa de Souza, according to Mott, proudly admitted her ‘love and carnal affection’ for women and was viciously whipped on the streets of Salvador. Luiz Mott ‘O Lesbianismo no Brasil’ (Mercado Aberto, 1987), available at http://www.iglhrc.org/site/iglhrc/content.php?type=1&id=26.

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122. Leong, see note 86, p. 23. 123. Tibatemwa-Ekirikubinza, Lillian. 2005, ‘Criminal Law in Uganda: Sexual Assaults And Offences Against Morality’, Fountain Series in Law and Business Studies. While commenting on sexual offences in Uganda TibatemwaEkirikubinza notes that ‘women who perform sexual acts on each other are not caught by the current law because they do not posses a sexual organ with which to penetrate each other’ (p. 97). 124. Tamale, Sylvia. 2003, ‘Out of the Closet: Unveiling Sexuality Discourses in Uganda’, February 2003, available at http://www.feministafrica.org/ fa%202/02-2003/sp-tamale.html#_ftn2. 125. Joseph, Sherry. 1998, ‘The Law and Homosexuality in India’ CEHAT. International Conference on Preventing Violence, Caring for Survivors, Nov 28–30, 1998. YMCA, Mumbai, available at http://www.hsph. harvard.edu/grhf-asia/suchana/0909/rh374.html. 126. In this case Section 20 of the Miscellaneous Offences (Public Order and Nuisance) Act was invoked. The case was dropped subsequently after the identities of the girls were not established. Leong, see note 86, p. 131. 127. The letter signed by P. Alles in response to a report of ‘Companions on a Journey’s’ plans for an international lesbian gathering in Columbo proposed ‘to let loose convicted rapists among the jubilant but jaded jezebels when their assembly is in full swing so that those who are misguided may get a taste of the real thing.’ The Island, August 2000. 128. The UN Rapportuers on Torture and Arbitrary detention have noted that ‘fears have been expressed that the two women may be subjected to torture or other forms of ill-treatment, especially of a sexual nature, in police custody’. International Commission of Jurists. International Human Rights References to Human Rights Violations on the Grounds of Sexual Orientation and Gender Identity, October 2006, p. 82, available at http://www.icj.org/ IMG/UN_references_on_SOGI.pdf. 129. Recorded in the Intervention Application filed by Voices Against 377, in the ongoing challenge against the anti-sodomy law in India in the Delhi High Court, Civil Writ Petition No. 7455/2001. 130. Moran, see note 18: ‘Making the sense of buggery’, p. 70. 131. National Coalition of Gay and Lesbian Equality v. Minister of Justice 1999 (1) SA 6 (CC) at para 69. 132. Sakshi v. Union of India 2004 (6 SCALE 15), wherein the Supreme Court refused to broaden the scope of peno-vaginal definition of rape in Section 375, in rare obeisance to legislative prerogative. 133. The movement was led under the banner of Joint Action Group on Violence Against Women (JAG-VAW).

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134. See Criminal Code (Amendment) Act 1989 (Act A727 of 1989). The initial proposal submitted by JAG-VAW was an additional section 375A of the Penal Code, to redefine sexual intercourse as: (a) ‘sexual connection occasioned by the penetration of the vagina of any person or anus of any person by: 1. any part of the body of another person; or 2. an object manipulated by another person except where the penetration is carried out for proper medical purposes; (b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person; (c) cunnilingus.’ Hui, Beng. 2006, ‘One step forward, two steps back? Conundrums of the rape legal reform campaign in Malaysia’, in Gender, Technology and Development, Vol. 11, No. 1. 135. Hui, see note 134. 136. Section 377, Buggery with an animal: ‘Whoever voluntarily has carnal intercourse with an animal shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to fine or to whipping.’ Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. 137. 377A. Carnal intercourse against the order of nature. ‘Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.’ Explanation: Penetration is sufficient to constitute the sexual connection necessary to the offence described in this section. 377B. Punishment for committing carnal intercourse against the order of nature. ‘Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.’ 377C. Committing carnal intercourse against the order of nature without consent, etc. ‘Whoever voluntarily commits carnal intercourse against the order of nature on another person without the consent, or against the will, of the other person, or by putting other person in fear of death or hurt to the person or any other person, shall be punished with imprisonment for a term of not less than five years and not more than twenty years, and shall also be liable to whipping.’ 138. Section 377 D. Outrages on decency: ‘Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be punished with imprisonment for a term which may extend to two years.’ In Sukma Darmawan Sasmitaat Madja v. Ketua Pengarah Penjara Malaysia & Anor [1998] 4 Malayan Law Journal 742 it was clarified that the purpose of Section 377D is to punish gross indecency beyond sex between men alone.

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139. Section 26 Syariah Criminal Offences (Federal Territories) Act 1997. The punishment ranges from a fine of five thousand ringgit, three years imprisonment to whipping. 140. Thus the amended Section 365A enhances the punishment in cases of gross indecency involving minors, but at the same time also makes the entire offence gender neutral (including for consenting adults): ‘Any person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any person of any act of gross indecency with another person, shall be guilty of an offence and shall be punished with imprisonment of either description for a term which may extend to two years or with a fine, or with both and where the offence is committed by a person over eighteen (18) years of age in respect of any person under sixteen (16) years of age shall be punished worth rigorous imprisonment for a term not less than 10 years and not exceeding 20 years and with a fine and shall also be ordered to pay compensation of amount determined by court to the person in respect of whom the offence was committed for the injuries caused to such a person.’ Tambiah, Yasmin. 1998, ‘Realising Women’s Sexual Rights: Challenges in South Asia’, Nordic Journal of International Law, Vol. 67, pp. 97–105. 141. Tibatemwa-Ekirikubinza, see note 160, p. 109. 142. Alexander, see note 138, pp. 8, 9. 143. Yawningbread, see note 5. 144. National Coalition for Gay and Lesbian Equality v. Minister of Justice and Others. 1999. (1) South Africa 6 (Constitutional Court), p. 108. 145. Kahan, Dan M. 1999, ‘The Secret Ambition of Deterrence’, Harvard Law Review, Vol. 113, p. 413. 146. Goodman, Ryan. 2001, ‘Beyond the Enforcement Principle: Sodomy Laws, Social Norms and Social Panoptics’, California Law Review, Vol. 89, No. 3 (May 2001), pp. 643–740. 147. In January 2006, the president’s office proposed new legislation called the ‘Same Sex Marriage (Prohibition) Act.’ That was a misnomer: the bill’s reach went far beyond marriage. It would punish any ‘publicity, procession and public show of same sex amorous relationship through the electronic or print media physically, directly, indirectly or otherwise,’ and adoption of children by lesbian or gay couples or individuals. It dictated five years’ imprisonment for anyone, including a cleric, who abetted a same-sex couple in marrying—and for any person ‘involved in the registration of gay clubs, societies and organizations, sustenance, procession or meetings, publicity and public show of same sex amorous relationship directly or indirectly in public and in private.’

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Section 377 and the Retroactive Consolidation of ‘Homophobia’ Aniruddha Dutta

Indian cultural values are also being used by disempowered and marginalized groups to counter the idea of the ‘authentic subject’ that informs dominant cultural essentialism…. There is a need to ensure that the cultural move, which is used to challenge master narratives about Indian cultural values, does not become in turn its own unifying, essentialist and exclusionary discourse. Ratna Kapur1

Escaping the Triangle

It is by now a scholarly truism to note that gender and sexuality have been important and contested areas in definitions of cultural and national identity. Much academic work has studied how, during the process of conceptualising ‘India’ as a nation in the period under British rule, elite attempts to establish and define national culture involved normative descriptions of the (upper caste/class) Indian woman and sought to instil a refurbished national masculinity in the face of debilitating effects of colonialism. Much more recently, links between national identity and gender/sexuality have entered a phase of renewed conflict since the early 1990s, the decade of economic liberalisation as well as the political rise of the Hindu right wing.2 In addition to continuing struggles over femininity, masculinity and (hetero)sexual mores, this conflict became highly visible and intense

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in the case of non-heterosexual desires, behaviours and identities – for example, in the the debate around controversial cultural products like Fire, or around the validity of Section 377 in face of increasing activist pressure to read down the law. Simplifying the many possible nuances within these debates, one observes a certain triangular structure that often delimits and defines the most visible positions in the public sphere. The Hindu right and more conservative factions of the government have set the fray in proclamations of homosexuality as ‘western’, corruptive of or inhospitable to ‘Indian’ values and society. A second position, politically opposed and yet not entirely dissimilar to the first, mirrors the right in assuming a generally conservative Indian culture, but sees this as repressive and celebrates precisely those ‘western’ influences denigrated by the right—a lot of the liberal media coverage celebrating the changes wrought by liberalisation-globalisation in the bigger cities would fall within this category. A third position emerges when activists advocate a progressive sexual politics through revisionist readings of Indian culture and history, but also sometimes fall into problematic simplifications—like the nostalgic idealisation of a libertarian Hindu antiquity, or of the putative pre-colonial tolerance of different sexualities marred through the import of Victorian taboos or the advent of Muslim rule.3 This triangle (corresponding to essentialised readings of ‘Indian culture’ as ‘rightly conservative’, ‘repressive’ or ‘tolerant’) often restricts debates and discussions of social change in the public sphere—and falls within an overarching binary of modernity and tradition where the two are seen in mutually exclusive terms even where the dichotomy is sought to be overcome or harmonised. When the break of colonial rule is understood within such a dichotomy (of modernity confronting an older tradition, or in more sophisticated terms, modern capitalism confronting the threatened life-worlds of culture), we can only conclude that either homosexuality was a ‘western import’ for better or worse, or that homophobia was. Of course, both of these conclusions would be highly unsatisfactory in explaining the simultaneously colonial/Victorian and culturally protectionist logic of many of the defenders of Section 377 today.

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Conversely on the side of resistance, one falls short of understanding hybrid phenomena such as the politicisation of older categories like the ‘Hijra’ within the encompassing category of the sexual minority, as a vulnerable community entitled to legal rights and protections under the modern state along with similarly imperiled gay/lesbian/kothi, etc., subjects.4 While pioneering studies like Same-Sex Love in India have historicised same-sex love and non-heterosexual difference within a continuum of sub-continental history from the ancient through medieval to the modern period, it is my contention in this essay that the nature of the break instituted by colonialism—in particular, a law like Section 377—is often glossed over in the debates that surround it. The endurance and persistence of the law cannot be explained away in terms of the violence of an external colonial imposition alone, nor can it be seen as simply an extension of age-old prejudice emanating from an inherently repressive ‘tradition’ or ‘culture’. My argument—which lays no claim to originality as it weaves together those of many others—is that Section 377, though externally imposed without consultation, becomes part of the process of the re-mapping and re-figuration of extant categories of gender/sexual difference vis-à-vis a modern taxonomy of sexual acts and subjects and allows for the retroactive consolidation of tendencies phobic or resistant to such difference into a loose yet powerful assemblage of something like modern homophobia. This has parallels with other juridical and administrative processes during colonialism—such as the colonial interventions in local patriarchal practices inducing the erosion of slightly divergent practices like matrilineality and facilitating a selective codification of norms and conventions as law.5 Thus, the role and impact of Section 377 cannot be grasped within hoary India-West or modernity-tradition polarities but has to be understood within the ‘crucible of colonial relations’, to borrow an evocative phrase from the historian Mrinalini Sinha. This point of departure allows us to explore the mutual implication of the ‘modern’ and ‘traditional’, both in the contemporary phobia

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of gender/sexual variance and in the politics of resistance that has emerged to forms of that phobia. The Specificities of Tolerance and Taboo

First, to dwell on an apparent digression that might be actually quite germane to the purposes of our argument. Given that the nation-state is a comparatively recent phenomenon in history and that ‘India’ itself is a relatively recent categorisation intimately tied to the colonial process, to trace a theme, issue or problem through ‘Indian’ or even ‘South Asian’ or ‘sub-continental’ history is—to say the least—a complex and fraught exercise. There has been much debate between the one extreme position of historians and social scientists who see the commonality of region and history as mostly a colonial/elite nationalist interposition or invention, and at the other end, of those who interpret older notions of cultural and civilisational commonality as prefiguring or leading to the contemporary Indian nation. In their history of ‘same-sex love’ in the region, Ruth Vanita and Saleem Kidwai attempt to set a cautious balance between the extremes. They note the divergences between ancient/medieval notions of regional commonality on one hand and the territoriality of the modern nationstate on the other: Ancient texts like the Kamasutra and the epics do list various regions of what is today called India… and some contiguous regions which are not part of India today are included, but more distant regions that were known at the time, like Greece, are not included. Clearly, a concept of some sort of geographical and social commonality is at work here, although it is not that of the modern nation-state.6

At the same time, they argue for enough overlap and continuity in the conceptions of commonality to warrant the study of the region as a historical and social unit: ‘we don’t agree with those social scientists who argue this commonality was an invention of Western Orientalists. In one sense, all commonality is an invention, but this particular invention predated the arrival of the British by centuries’.7

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Even if we choose to take the word of Vanita and Kidwai on the evidence presented, an extremely pertinent issue remains for us to consider—the nature of commonality changes profoundly between the ancient/medieval and the modern periods. At the most evident and general level, there is a shift from socio-cultural contiguity or proximity to the bounded territoriality and modern governmentality of the nation-state—and thus the notional transformation of unequal members of hierarchised castes, or socio-culturally related subjects of diverse kings and empires, into the citizens of an integrated nationstate. This is obviously not a shift that was brought about overnight through formal independence. For instance, Faisal Devji analyses the Revolt of 1857 as a key episode in the larger transformation of the diverse subjects of Mughal or British Empire to homogenised subjects of the nation, brought under the same laws. In his analysis, this was met with severe resistance as older loyalties to family, caste and community came in tension with the fear of unification under a single government through railways, telegraphs and roads.8 If we locate this (more formal than actual) uniformisation and homogenisation as one key characteristic of the shift, then the history of gender/sexuality in the pre-colonial period has to take into account the specificity and locality of strictures as well as their absence vis-àvis factors like caste, gender and community. Indeed, Ruth Vanita’s analysis of legal, religious and medical treatises in ancient and early medieval India seems to support this preliminary assumption. Before the advent of Islam, the clearest examples of sexo-moral codes are to be found in the Shastras and Sutras, manuals and treatises falling between the last centuries BC and the 4th century AD. In her assessment of these texts, Vanita notes that while most of them ‘certainly subordinate nonpenetrative as well as nonheterosexual sex to penetrative heterosexual sex’, there is no uniform category of forbidden sex (such as ‘sodomy’) nor any uniform punishment. Rather, the penalty varies considerably between different acts and persons (acts involving the ‘defilement’ of virgins generally invite far more censure than that involving non-virgins; and many acts of heterosexual sex like adultery invite much more severe punishment than those between persons of

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the same sex). The Arthashastra, for instance, prescribes the same grade of fine for sex acts between two men as that for robberies of not very high value; a higher amount is demanded of a woman who forces sex on an unwilling woman. The Manusmriti prescribes a minor penance for a man having sex with a man, the same as that for a man who has sex with non-human females, a menstruating woman, etc. While a woman ‘deflowering’ a virgin maiden is heavily penalised, sex between two non-virgin women invites a minor fine. The punishment of acts is thus highly contextualised and corresponds to intricate rules of patriarchal and caste-based kinship—such that the ‘defilement’ of marriageable virgins of the same caste often attracts the highest censure. Rather than any separate categorisation of non-heterosexual acts or persons punishable as such, penances are likely to have been dependant on caste and have no clear correspondence to codified juridical penalties. As Vanita notes, ‘Many of these penances apply only to Brahmans; in some cases Brahmans might have been more subject to purity taboos and other castes might have avoided strictures, while in other cases the other castes might have been more severely penalized’.9 Medical treatises like the Sushruta Samhita have a pejorative view of men who habitually prefer other men, and regard them as being born of scant parental sperm, and the Skanda Purana issues the general warning of impotence as a consequence of such sexual acts. But there does not seem to be a category bridging medical, legal and religious aspects (like an offence ‘against the order of nature’). While there does not seem to be any psychological or juridical subject attached to a uniform category of punishable acts (thus neither any ‘homosexuality’ nor any ‘homophobia’ as such), this is not because of the absence of any notion of non-heterosexual desire or preference in totality. As noted by both Vanita & Kidwai and Gayatri Reddy in her introduction to With Respect to Sex, notions of ‘thirdness’ in gender and desire, beyond heterosexual dualism, found several cultural manifestations across the centuries and became prominent in the Jain debates on the question of the spiritual liberation of women. Even today, the diffuse historical persistence and long shadow of conceptions

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of ‘thirdness’ makes its presence felt in discourses around transgender and hijra difference, the mobilisation of Metis in Nepal, and so on.10 With Turkish, Persian and Arabic influences and the advent of Islam in the medieval period, the specificities of taboo and tolerance do not seem to have been overwhelmed by any common code. While the Quran or the Sharia might seem to have a more unequivocal condemnation of same-sex acts related to the Christian condemnation of ‘sodomy’, the Sharia was never strictly adhered to by the kings and emperors of the pre-Mughal or Mughal period.11 Rather, there were many contending authorities: different schools of Muslim jurists differed in their outlook, and the Hanafi school that gained prominence in India was among the less severe. As Muzzafar Alam notes in his seminal The Languages of Political Islam, there was also a hybridisation of juridical and ethical texts when they travelled into new languages and regions.12 The diplomacy of the state towards indigenous elites, as well as the role of syncretistic Sufi orders in spreading Islamic influence, ensured a growing openness to traditions like polytheism. By and large, this translated into non-interference in local codes and customs beyond the necessities of revenue collection and the maintenance of empire. The Assemblage of Homophobia

The rise of British dominance marked a profound shift from all previous empires in the subcontinent: the rule served interests located far away from the subcontinent and inserted the region into the global imperial order of modernity. However, as has been often noted, there seems to have been a conflict in governing strategies from early on: the Anglicists and Utilitarians favoured the restructuring and reform of indigenous society while the Orientalist school of colonial administration favoured rule through putatively traditional means.13 While the Anglicist ideology had come to dominate in the early 19th century, the Revolt of 1857 shook the imperialist confidence in reform and there was a revival of the Orientalist agenda of rule through the strategic use of ‘indigenous traditions’. But as scholars like J. D. M. Derret have demonstrated, these ‘traditions’ themselves had been selectively fixed

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through processes such as the codification of indigenous laws. In her work on the Sati debate, Lata Mani argues that the reliance on sacred Indian texts and those who could access them (Brahmans) produced a textualised view of tradition and reinforced Brahminical authority through colonial codification.14 These processes fed into a consolidation and reinforcement of different variant patriarchal norms at the level of colonial law—sometimes eroding comparatively women-friendly conventions in the bargain. Section 377 does not immediately fit in with this well-known history. Though it was imposed after the Revolt of 1857, in its bid to cure alleged native permissiveness and perversity from above, it seems to be in tune with the Anglicist rather than the Orientalist programme. In fact, it marks a far more arbitrary and severe mode of ‘reform’ than the law on Sati, the Age of Consent law, etc., in that it did not seek ‘native’ input or go through a process of public debate even among the indigenous elite. To use Ranajit Guha’s well-known formulation, it seems to be a classic case of ‘dominance without hegemony’, being imposed entirely from above without seeking the consent of the ruled.15 On the other hand, unlike many other juridical processes that had a direct impact on socio-cultural arrangements (such as the codification of Hindu laws, the demarcation of caste and community, etc.), the law never seems to have been enforced in a serious and consistent manner, with convictions being comparatively rare. Although a proper elaboration of this argument would require much empirical research beyond the scope of this article, I tentatively contend that Section 377—more than working in itself as a law—functioned as part of a larger colonial milieu that intensified anxieties about the effeteness and lack of proper masculinity among the colonised, especially the educated indigenous elite. While the law was a specific formulation to address ‘unnatural’ offences, it drew its impetus from anxieties about the putative permissiveness and degeneracy of ‘native’ societies.16 And since colonial power often justified itself at the ideological level by creating a hierarchy between the ‘manly Englishman’ and the ‘effeminate’ and ‘degenerate’ native educated class that was unfit for administrative power, the educated indigenous

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elite absorbed these anxieties deeply into their self-perception in turn, as they sought to overcome their situation of relative powerlessness. As Mrinalini Sinha shows in Colonial Masculinity, the growth of nationalist consciousness among the educated elite involved attempts to revitalise the colonised male on the path toward an invigorated national community.17 As the evidence from pre-colonial history suggests, there already existed notions that equated homoeroticism or same-sex acts with impotence or failed masculinity within the patriarchal context of caste societies, though in the absence of any uniform cross-caste or crosscommunity code there could have been significant variances in local terms. The colonial and nationalist ideology of masculinity channelised common patriarchal anxieties about failed or effete masculinity to the broader level of the nascent national community, which nationalists sought to raise from a corrupt or weakened state through strategies as diverse as Vivekananda’s cultivation of men’s athletics and Gandhi’s insistence on self-scrutiny and moral purification. Thus, just as Section 377 set out a sexo-moral code applicable uniformly to all subjects of the empire for the first time in subcontinental history, a parallel and broader process ensured that anxieties about failed masculinity, effeminacy and degeneracy could now function well beyond factors like caste or community on the generalised level of the national community and people. Thus, extant patriarchal barriers to homoerotic desire and strictures about proper gender roles could now be consolidated, enacted and reinforced in the name of the nation—and I would argue that this is what we begin to see in pre-independence discussions of homosexuality, such as the 1920s debate around the pejorative yet homoerotic stories by the nationalist writer ‘Ugra’ (Pandey Bechan Sharma), or Gandhi’s 1929 letter in Young India on curbing this ‘unnatural vice’.18 Of course, this process casts its long shadow even today in terms of the frequent culturally and socially protectionist arguments that are heard in the defence of the law. The consolidation of ‘homophobia’ is thus delayed and retroactive rather than being immediately or directly consequent upon Section 377, and is negotiated between refigured strains of tradition, colonialist

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and nationalist ideology, as well as Euro-American discourses of sexual difference through the century following the initial imposition of the law. I contend that because of this complex multidirectional process, a cohesive or internally-coherent discourse of ‘homophobia’ never emerges as such, and the aforementioned discussions and controversies evidence a strange assemblage of multiple strands.19 This is compounded by the fact that Section 377 drew from the older Christian category of ‘sodomy’ in its formulation and targeted sexual acts and not any kind of person, but by the late 19th and 20th centuries, attention had shifted in Western discourses to sexological and psychological types that solidified into the homosexuality-heterosexuality binary.20 As Kidwai and Vanita note in their overview of the controversy around Ugra’s stories, there was a cross-fertilisation of these psychological and sexological categories with (Hindu) nationalist anxieties, and even as homosexuals emerged in these stories as a specific kind of psychologically perverse people, they were often placed within the world of Urdu love poetry and elite Muslim culture. Categories and perceptions drawing from different discourses are often collapsed together in an incohesive manner: the foreword to a 1953 edition of the stories ‘first defines sodomy as pederasty, then as any nonvaginal sex with women or men, and finally expands the definition to include all same-sex desire’.21 Interestingly, the law itself is not explicitly invoked nor its enforcement advocated in these discussions. But in the post-independence period following the first legal challenges to the law in the 1990s, Section 377 increasingly becomes a visible peg to hang an odd complex of arguments, bearing the imprint of hybrid and messy post/colonial legacies. The phantom visions invoked in contemporary defences of Section 377—including cultural decay, social collapse, child abuse, foreign infiltration, misuse of AIDS funding, and so on—may seem incoherent but form a powerful assemblage that has updated itself since the pre-independence period to address contemporary anxieties. In the face of this agglomeration of profoundly disabling and restrictive tendencies, the resistance to Section 377 and homophobia has, in turn, brought together the issues, concerns and visions of many constituencies

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and groups into what is hopefully an assemblage facilitating love and the expansion of life’s possibilities. Notes 1. Kapur, Ratna. 1999, ‘“A Love Song to Our Mongrel Selves”: Hybridity, Sexuality and the Law’, Social and Legal Studies, Vol. 8, No. 3. 2. For links between nationhood and women during the colonial period see: Sangari, Kumkum and Sudesh Vaid (eds). 1989, Recasting Women: Essays in Colonial History. New Brunswick, NJ: Rutgers University Press; and for the refashioning of masculinity see: Sinha, Mrinalini. 1995, Colonial Masculinity: The ‘manly Englishman’ and the ‘effeminate Bengali’ in the late nineteenth century. Manchester: Manchester University Press. For the controversies during the 1990s, see: John, Mary and Tejaswini Niranjana. 1999, ‘Mirror Politics: Fire, Hindutva and Indian Culture’, Economic and Political Weekly, 6–13 March, 1999 and Kapur (see note 1). 3. See the critique of Giti Thadani’s Sakhiyani: Lesbian Desire in Ancient and Modern India (London: Cassell), in Kapur (see note 1), p. 358. 4. See, for instance, Gayatri Reddy’s discussion of the ‘sexualisation’ and politicisation of the ‘Hijra’ as a minority identity within the last two decades in ‘Geographies of Contagion: Hijras, Kothis, and the Politics of Sexual Marginality in Hyderabad’, Anthropology and Medicine, Vol. 12, No. 3, 2005. 5. Sangari and Vaid, see note 2. 6. Vanita, Ruth and Saleem Kidwai (eds). 2001, Same-Sex Love in India: Readings from Literature and History. New Delhi: Macmillan. 7. Ibid. 8. ‘The Mutiny’s Future’, a talk delivered by Dr Faisal Devji on 17 November 2008 at the Southern Asia Institute, Columbia University. 9. Vanita and Kidwai, see note 6, p. 105. 10. For ‘thirdness’ in relation to hijra identity see: Reddy, Gayatri. 2005, With Respect to Sex: Negotiating Hijra Identity in South India, Chicago: University of Chicago Press; with reference to Nepal see: Diwas, K. C. ‘The State of Homosexuality’, Himal Southasian, March 2008. 11. Vanita and Kidwai, see note 6, p. 113. 12. Alam, Muzzafar. 2004, The Languages of Political Islam: India 1200–1800, Chicago: University of Chicago Press.

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13. See Mrinalini Sinha’s discussion in the ‘Introduction’ to Colonial Masculinity: The ‘manly Englishman’ and the ‘effeminate Bengali’ in the late nineteenth century. 14. See: Derrett, J. D. M. 1961, ‘The Administration fo Hindu Law by the British’, Comparative Studies in Society and History, Vol. 4; and Mani, Lata. 1998, Contentious Traditions: The Debate on Sati in Colonial India; New York: Columbia University Press. 15. See Guha, Ranajit. 1999, Elementary Aspects of Peasant Insurgency in Colonial India, Durham, NC: Duke University Press. 16. For a forceful elaboration of this point, see the Human Rights Watch report, ‘This Alien Legacy: The origins of “Sodomy” laws in British Colonialism’, available at http://www.hrw.org/en/reports/2008/12/17/alienlegacy-0. 17. See Mrinalini Sinha’s Colonial Masculinity, 1995 for an extensive discussion on the issue. 18. See Vanita and Kidwai (note 6): discussion of the ‘Ugra’ controversy (pp. 246–252), and the Gandhi letter (p. 272). 19. I use the term ‘assemblage’ following the lead of Jasbir Puar in Terrorist Assemblages: Homonationalism in Queer Times, Durham: Duke University Press, 2007. 20. For the most influential analysis of these transformations see: Foucault, Michel. 1990, The History of Sexuality Vol. I: An Introduction. New York: Vintage. 21. Vanita and Kidwai, see note 6, p. 251.

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The Social Lives of 377: Constitution of the Law by the Queer Movement Akshay Khanna

Lord Thomas Macaulay, drafter of the Indian Penal Code, abhorred the very idea of discussion and debate on the ‘heinous offence’ that Section 377 criminalises. It relates, he argued: ...to an odious class of offences respecting which it is desirable that as little as possible should be said […we] are unwilling to insert, either in the text or in the notes, anything which could give rise to public discussion on this revolting subject; as we are decidedly of opinion that the injury which would be done to the morals of the community by such discussion would far more than compensate for any benefits which might be derived from legislative measures framed with the greatest precision.1

Section 377, couched in ambiguous terms of ‘carnal intercourse against the order of nature’, in other words, has been marked by a silence from its very inception and, until recently, has not been a matter of public debate. Neither has it been of much concern in Courts of Adjudicature which pronounce on the meaning and implications of legal provisions. Comprehensive legal analyses of High Court and Supreme Court pronouncements on the provision, for instance, identify a mere 131 cases since its inception 140 years ago.2 That this provision is now a familiar creature in the mass media in India, and arguably one of the most meaningful provisions of law today, is then a peculiar fact. Vested

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with ponderous implications for the terms of citizenship of queer folk, it has emerged as a dense signifier, a veritable social object. In this essay, I examine this phenomenon whereby a provision of law known to a few people has come to be a household object with multiple social lives. I argue that it is through activism that the provision of law has been given a new lease of life. There are two aspects of law that I evoke in this essay. The first relates to pedestrian usage of legal provisions in the everyday, where such provisions are merely another aspect of negotiations between people. The other—Law with a capital ‘L’—is an evocation of a grander realm of Legality. Here Law determines the very logics of citizenship and provisions of law are invested with meanings beyond their functionality. It is this transformation of Section 377 from being a provision of law to an articulation of Law that is at stake in its emergence as a social object. The larger question then is why Queer activists presume and produce the Law as their arena rather than law. In this context, I argue that the emergence of Section 377 as a meaningful object has given an intelligibility and a concreteness to experiences of exclusion, marginalisation and violence experienced by Queer folk. This process has been one through which the Law has been inaugurated as a space for the articulation of rather more diffuse tensions. This essay tells the story of how the law has been constituted by activism, and how, in turn, this investment in law allows it to provide meaning to experience. The Socialite Life of 377

On 16 September 2006, the following ‘Open Letter for the Overturning of Section 377 of the Indian Penal Code’, addressed to ‘The Government of India, Members of the Judiciary and All Citizens’, was released at a press conference in New Delhi: To build a truly democratic and plural India, we must collectively fight against laws and policies that abuse human rights and limit fundamental freedoms. This is why we, concerned Indian citizens and people of Indian origin, support the overturning of Section 377 of the Indian Penal

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Code, a colonial-era law dating to 1861, which punitively criminalizes romantic love and private, consensual sexual acts between adults of the same sex. In independent India, as earlier, this archaic and brutal law has served no good purpose. It has been used to systematically persecute, blackmail, arrest and terrorize sexual minorities. It has spawned public intolerance and abuse, forcing tens of millions of gay and bisexual men and women to live in fear and secrecy, at tragic cost to themselves and their families. It is especially disgraceful that Section 377 has on several recent occasions been used by homophobic officials to suppress the work of legitimate HIV prevention groups, leaving gay and bisexual men in India even more defenceless against HIV infection. Such human rights abuses would be cause for shame anywhere in the modern world, but they are especially so in India, which was founded on a vision of fundamental rights applying equally to all, without discrimination on any grounds. By presumptively treating as criminals those who love people of the same sex, Section 377 violates fundamental human rights, particularly the rights to equality and privacy that are enshrined in our Constitution as well as in the binding international laws that we have embraced, including the International Covenant on Civil and Political Rights. Let us always remember the indisputable truth expressed in the opening articles of the Universal Declaration of Human Rights that ‘All persons are born free and equal in dignity and rights. . . Everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind.’ We will move many steps closer to our goal of achieving a just, pluralistic and democratic society by the ending of Section 377, which is currently under challenge before the Delhi High Court. There should be no discrimination in India on the grounds of sexual orientation. In the name of humanity and our Constitution, this cruel and discriminatory law should be struck down. Sincerely...

The letter went under the names of Vikram Seth, among the most famous Indian authors in the English language, himself openly bisexual (or ‘partially gay’ as he called himself in interviews to the mass media around the release of this letter3); Swami Agnivesh, a well-known social

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activist affiliated to the Arya Samaj4 and most famous for his role in movements against bonded labour and caste-based violence; Siddharth Dube, a public health specialist consultant to the World Bank and the United Nations; Nitin Desai, a former UN Under-Secretary General; Aditi Desai, a sociologist; and Captain Lakshmi Sahgal, described as a Freedom Fighter and recipient of the Padma Vibhushan.5 In addition, the letter was signed by more than 150 ‘eminent’ personalities, including the likes of anthropologist Veena Das, activist and writer Arundhati Roy, professor of law Upendra Baxi, film director Shyam Benegal, and an impressive assortment of actors, academics, high-level public servants, TV personalities, journalists, lawyers, pulp fiction writers, film makers, artists, doctors, psychoanalysts, designers, musicians, rock stars.... In short, this was a rather top heavy list, featuring some of the biggest names in elite India. The cherry on top was a separate letter by Nobel laureate Amartya Sen in support of the Seth letter. As would be expected, a large number of dailies and news channels across the country covered the letter, carrying out interviews with some of the celebrities in the list. The New York Times carried the letter, and even the Guardian carried a piece, friends informed me from Edinburgh. And most significantly, the message flew straight into the High Court of Delhi, the place it was most intended to have an impact.6 This is a key instance through which Section 377 has been given a social life that the likes of Macaulay could not possibly have imagined. It is an instance, in other words, of the deployment of this law into the social realm, its creation as a space for contestations of not merely ‘sexuality’ or ‘morality’, but what it means to be a ‘truly democratic and plural’ nation, what it means to be a citizen of this nation and, most dramatically, what it means to be ‘human’. I had followed murmurs around the letter as my comrades in the movement did much of the ground work. I had been a bit uncomfortable with the idea of a group of rich elite folk speaking for the Movement, at a time when a primary argument of the conservative right was that homosexuality was an upper class concern and a result of western corruption. This did in fact happen. Columnists in some newspapers argued that this was evidence that the Gay movement was the concern

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of an elite few, that the ‘real’ India did not approve of homosexuality, and that India has far more important problems to address. This, I was later to be told by an activist who played a key role in the process, was a risk that the group was willing to take. A careful cost-benefit analysis had been done, one that ultimately paid dividends as the letter became a significant instance of civil society support for the Movement in years to come. In any case, on the day the letter was released, I was in a suburb of Kolkata, interviewing a young and small group of lower middle class Kothi activists from a group called Chayshta. Here, this big event took on an altogether different and unexpected hue. I recount this interview at some length in what follows as it resonated with a large number of other narratives I encountered in other parts of the country, and further, contained the opportunity to address most of the issues I want to examine here. My attempt is to use it as a narrative device rather than a simple rendition of a conversation. The interview took place almost entirely in Hindi, with a sprinkling of Bengali idioms and particular English phrases. My own description is largely in English, but I use a combination of these languages hoping to provide accessibility to readers while maintaining the specificity of the idioms used. Sweet Erotics and a Dangerous Woman

It had been a rather muggy Saturday morning in Kolkata. I had already interacted with some of the activists from Chayshta a few times in the previous week and this had been the day where I was given the opportunity to spend the entire day interviewing them. We had met in a rather crowded part of central Calcutta, at one of the larger outlets of Haldirams. Haldirams is a chain of eateries that originates in Bikaner, Rajasthan and dates as far back as 1937. From a small shop in a small town in India to one of the largest chain of eateries in the country with outlets in North America and its delicious savouries and sweets stocked in cornershops and supermarkets in the UK, this is a rather well-known story of small town enterprise making it big in neoliberal India. The outlets are often large, crowded, loud and garish with ornate

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plastic décor, bright colours and lights somehow emphasised by the rich and pervasive smell of ghee. There was something quintessentially middle-class 21st-century urban India about this space, competing with the mushrooming McDonalds phenomenon with a (thick) air of authenticity. This is the kind of space where young middle-class Indians in many cities now hang out, where families have special evenings out, college students share flirtatious moments, and also, as I found out that morning, young ‘macho’ men try to hook up with gender queer bodies. We spent just about enough time in Haldirams to have our Nescafe in plastic cups and decide that this was just too noisy and hectic a place for my dictaphone, and already no less than four young men had approached our group. A couple of them swaggered away gleefully, having successfully acquired cellphone numbers through overtly flirtatious and rather eager conversations with the posse of queens. There was much attention we attracted, even in this crowd, and most of this attention was seemingly erotic. Laughing at the fact that this stream of men approaching our table showed no sign of abating, Ranjit, the head of the group, made some phone calls to arrange an alternative space for us to have our session. Soon enough, six of us squeezed into a yellow Ambassador taxi and were off to a fascinating location, the house of one of Mekidi’s girlfriends. Meki, or Mekidi as s/he7 is affectionately called by the Kothis who treat her as a protective elder sister,8 was one of the most unforgettable characters I was to meet. More butch than the most masculine performing queer folk I have met in my own class, she exuded a masculinity that fascinated and scared me at the same time. The previous night the group of us had gone to a crowded area of Kolkata to eat at a place particularly famous for its biriyani. As we walked along the street, dense with street-side thelas/carts selling watches, fake Ray-bans, pirated DVDs and CDs, cheap clothes, and electronic goods, Mekidi commanded a respect that I had previously seen only in Hindi films. S/he came across as something like a Bhai, which literally means elder brother, but in Hindi films it is the term used for gangsters, for Dons of the Bombay Mafia. Except that s/ he was a woman. As s/he passed, it seemed, each shopkeeper, each

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helper, every man working in that footpath economy on the other side of official legality literally bowed down to greet and please, to remain in heris favour. S/he nodded back, stopping every now and then to chat, have a laugh, a paan, and to ask after their well-being and their business in the friendly fashion of a patron who knows that everything is in order in heris domain. At some point in our walk, however, s/he received a phone call that changed heris demeanour so drastically it sent shivers through me. The Motherfucker on the other side of the conversation had to hear something involving his anus and chilli powder. And as easily, having settled that business, she returned to her friendly back-thumping self, telling me that these Kothis were under heris protection, s/he would even give heris life for them and dare any Sisterfucker to lay a hand on them. S/he had already presumed that I was a Kothi myself and promised me the same protection as s/he handed me heris own helmet to wear for the ride back to my backpacker hostel. This was perhaps the scariest ride on a motorbike I have ever had, as s/he swerved at breakneck speed between buses, around corners, talking continuously about heris many girlfriends. Mekidi’s girlfriend, whose home we were warmly invited into that morning, it turned out, was a very gentle lady in her 50s, who worked as a clerk in a government office. She lived with her son and husband, both seemingly as gentle as herself, in modest government quarters. They were both present at different points in the course of the day and I was a bit surprised by the ease with which this presumably polyamourous arrangement offered up no tangible sense of tension. There was no attempt at hiding Mekidi’s relationship with our host, who she continued to refer to as her girlfriend in the presence of the husband and son. I found this remarkable and refreshing. I could barely imagine such ease around such an arrangement in a middle/ upper middle class household. It is here that we sat for the most part of the day and shared the stories of our lives, of negotiating Queerness in our worlds, our own fantasies of queer utopia, the myriad meanings and stories around the origins of terms like Kothi, Chhakka, Dhurrani, Maunga,9 the temporality of identity, desire, sex, language and politics.

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The Problem of Police Harassment

Chayshta is one of the younger organisations among the many that had come into existence in the last few years. Most of the members are in their early 20s, and almost all of them are students. They had never received funding, had no office space and had their meetings in each others’ houses and in public spaces like Haldirams. It had only been about two years since they had registered the group as a legal entity—a Society—and they had, two months previous to the interview, applied for entry into Manas Bangla, the main network of MSM HIV/AIDS groups working in West Bengal. Already, without funding, the group had been doing their work, I was told, on the meagre earnings of its members and through the use of various resources afforded to them by supportive people. While the group had interesting plans for the work they would do had they got funding, such as supporting young Kothis to go through school and college, and setting up ‘IGPs’ or income generation programmes, for the time being they were kept busy working in an ad hoc way helping Kothis in distress and trying to get them placed in jobs—primarily in Beauty Parlours serving women, painting Mehndi on hands, and as pedicurists. Thus far it seemed the problems they were addressing themselves to were about the sense of isolation, depression and confusion of young teenage queer males, the constant teasing and taunting in school or college, the pattern of dropping out as a result, and ultimately not being able to find a job. These things were not being addressed by the Manas Bangla network or by HIV/AIDS funding—I was told, ‘HIV/AIDS to baad ki baat hai’; that HIV/AIDS counselling and awareness was something that should take a lower priority than addressing the difficult social, economic and psychological conditions of young queer folk. In addition, Chayshta often found itself intervening in various Ghatnayen or ‘incidents’, and was trying to spread awareness about how they go about solving these Ghatnayen. My interest was piqued, what kinds of ‘incidents’ did they mean? And what did they do to solve them? Did they take on cases? ‘Yes’, I was told, ‘jab pata chalta hai ki humari community ke saath koi police harassment ho rahi hai ya galat vyavahaar ho raha hai to humari

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puri team jaati hai’—when we find out that our community is facing police harassment or unjust/wrong treatment, our entire team goes. So what was the nature of this galat vyavahaar, I asked, somewhat naively presuming that it referred simply to the ‘police harassment’ that he had mentioned in the same breath, that this ‘wrong treatment’ referred to the relationship with the law. What were their experiences in interaction with the police, I asked? The response surprised me, as Ranjit first laid an unexpected emphasis on the fact that ‘it is not as though all police are bad’. S/he continued, ‘We have had some good experiences and some bad. There are many people in the police, Inspectors, Hawaldars (the lowest cadre) who are good, who treat us with respect and who treat us like good citizens. But there is some badness in everything, so too in the police there are those who do badtameezi (literally, illbehaved, and often relating to sexual insults and taunts). Humen dekh ke hi Taali bajana, aur indirectly chhedna, jaise ek doosre se matak matak ke baat karna,’ s/he said, as soon as they see us, they do the Taali (Hijra clap),10 and tease and taunt us, like by speaking to each other with an exaggerated effeminacy. But this bad treatment was not simply in the nature of teasing, he went on. Sometimes their language was such, was so aggressive, as were their questions—‘Why are you like this? Why can’t you change? Don’t your parents say anything to you?’ Somehow this description of ridicule and the patronising articulations of gender-anxious patriarchs was unsatisfying to me. It did not, in other words, deliver all that the ponderous phrase ‘police harassment’ promised. I insisted: were there no instances they could share of police creating trouble, of being violent? For a moment, there was silence. Nandini, pondered aloud ‘police ke mamle me to aisa kuchch nahin hai’, there is nothing of this sort as far as the police are concerned, only to be immediately reminded by others in the group of heris own experience, which s/he was then called upon to narrate. This unfortunate incident took place one night when a group of them had gone out to a disco (there are a few discotheques in Calcutta that double up as cruising spaces for lower middle class queer males). There they did lots of masti—here referring to dancing, drinking,

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flirting. And Nandini took a fancy to a couple of boys. The boys approached, went through the courting rituals and finally suggested that they had a place to return to. Would he join them? Nandini went along but while on the road, they suddenly turned into a small street. There they were met by more boys, now there were five of them. These boys started beating herim up, stopping only when they had extracted all heris valuables—mobile phone, money, ring, watch. After the incident, at 1.30 am, Nandini, and other members of Chayshta who had by then been called, went to New Market Police station to make a ‘complaint diary’, referring to the First Information Report and the daily diary in which a simultaneous entry must be made in order for an incident to be considered to have been recorded as a case that the police is obliged by law to investigate. Instead of making the entry, the police started laughing, asking Nandini why s/ he was like a girl, what the hell was s/he doing with those boys in the small street so late at night anyway. Finally, on the insistence of a doctor friend who had come along to the police station that night, and on multiple requests that some action be taken, the officer in charge had recorded a report. No action was taken, however, and nothing happened for many months to come. Then, about six months later, Nandini happened to go to a wedding party, along with a Bhaiya (not a real elder brother, I was told, but a very supportive person with whom the Kothi community had good relations) and who had many ‘sources’. The boy who had beaten her up that night was at the wedding. Nandini told heris Bhaiya all that had happened, and Bhaiya, with all his sources and clout, had cornered the lad. Nandini did not get into the details of what happened but somehow the miscreant was convinced to cough up a reasonable sum of Rs 5,000 and had promised a further Rs 15,000 in the coming months. There are at least two remarkable points to note in this narration. First, that the primary violence in the case which was being narrated as an instance of ‘police harassment’ was perpetrated by a non-state actor. The ‘violence’ of the police lay in the ridicule, the refusal to take the complaint seriously, and the inaction in the face of aggressive theft and physical violence. It was the failure of the police to act in

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protection of ‘Citizens’ that was being experienced and spoken of as harassment. In activist narratives, especially around Section 377, as we shall see in the next section of this essay, the police are the primary perpetrators of physical and sexual violence and the credibility of this narrative is central to the argument for the removal of the antisodomy law. Reflecting on this narrative it was remarkable to me that this small group of young queer males, the target of this state violence, would go to the police station in the first place, and with expectations of action on their behalf. In a vein similar to the policeman’s question ‘what were you doing in that street so late at night?’, I wanted to ask—what were you doing in the police station so late at night?! It is not my intention to suggest on the basis of this instance that ‘police harassment’ is much ado about nothing—instances of sexual and physical violence are commonly reported and have been the context for protests and agitations in different parts of India. At the same time it is remarkable that there continue to be expectations of protection and support from the Police by queer folk and as the group suggested this expectation is in fact grounded in experience. in experience. Clearly this refers us to a relationship between the Queer body and the state more complicated than the simple imaginary of a necessarily antagonistic one between a monolithic homophobic state and a victimised non-citizen body of the queer male. This calls, in other words, for a disaggregation of both the State and of the queer body, and most significantly, for an account of the conditions under which the imaginary of the simply antagonistic relationship between monolithic entities comes to be the dominant form in civil society activism. The second point is that the ‘solution’ to the violence, the mechanism for the claim to justice, to reimbursement and retribution as well, lay outside the state. The Bhaiya, clearly a local strong arm with many ‘sources’, in other words, was the most effective ally. The presence of Mekidi, with seemingly immense power in heris own locality, and heris claim to being the protector of the Kothi community, was another pointer that the negotiation of one’s way in the

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face of violence and the claims to justice lie outside of the realm of the State. This calls for a decentring of the State and its formal law in an account of negotiating queerness in India. These points resonate with the work of Bangalore-based lawyer, academic and Queer activist Mayur Suresh. In an essay (Suresh, this volume) that I paraphrase below, he describes for us some experiences he had when doing fieldwork in Bangalore. Being himself Queer, he had gone to Cubbon Park, one of the most popular cruising areas in that city. He had made contact with someone who had suggested getting it on right there in the Park. Surprised at the absence of fear in this suggestion—Cubbon Park had recently figured in reports of Human Rights organisations as a primary site of Police Harassment of queer men and transgender folk11—he asked: ‘Here? But what if the Goondas (‘ruffians’/‘bad elements’) come?’. ‘So what,’ came the answer, ‘if we can’t run away, we’ll give them some money.’ Mayur then asked: ‘And what if the Police come?’ The answer in return was striking: ‘Same thing.’ Suresh brings this equivalence of the Police and the Goonda to bear upon a discussion on the role of the law in the constitution of the Subject. Examining Butler’s critique of Althusser and Foucault’s failure to bring together theories of power with psychoanalytical theories of subjectivity,12 he argues that constitutive theories of law which ‘construct their subjects as being inherently criminal’ overstate ‘the power of the law in constituting subjectivity’. In turn, Suresh asks whether it is possible to contemplate the constitution of the Subject, ‘one’s entry into sociality’, through practices of pleasure and through the erotic, rather than upon being criminalised. ‘It is by enquiring into the social world’, he concludes: where the law is decentred from the centrality of our inquiry can we imagine ourselves in ways that are not dependent upon the law or power to constitute our personhood. By decentring the laws in our studies of how the law effects the constitution of the self, we open up our inquiry to the possibility of the law’s failure to matter (Suresh, this volume).

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377 Moves Centre Stage, in the Wee Streets of Calcutta

Significantly, up until this point in my interview with Chayshta, that central figure of Section 377 had not even been mentioned. It had not featured, in other words, as that core concern which the Queer Movement and Vikram Seth had addressed themselves to. Curious about this striking absence in a narrative of the complicated difficulties in negotiating one’s queer way in the world, I brought this up. We turned to the question of Section 377. What is Section 377?, I asked, what are its implications for you, for the community you work with? This question brought about the most telling shift in the conversation. I was immediately offered the suggestion that Section 377 was the core traumatic fact, the source of homophobic violence, of extortion and violence by the police. In the blink of an eye, this Law took its place at the centre of the narrative of being Queer in India just as it does in the all too familiar narrative that I have heard and read, and indeed spoken and written in ‘advocacy documents’ addressed to various branches of the State, and to other movements. But equally telling was a sudden shift in the use of ‘we’ and ‘us’, from being about themselves and Chayshta, to a larger ‘us’—the movement, the generic Kothi, the abstract Queer body, and its relationship to the police. This seemed to me a rather large leap. Was this not evidence of a disjuncture between their own experiences of being Queer and a story they were called upon to provide evidence of by middle-class activists? Did this disjuncture not trouble them? I probed on. When was the first time you heard of Section 377?, I found myself asking. ‘Until about 6, 7 or 8 years ago we had never even heard of Section 377,’ said Ranjit, confirming the doubt I had accumulated through interviews in other cities. ‘We work with Purani Kothiyan, older Kothis who are now in their 50s or 60s.13 They had never heard of 377. They never needed to know about 377. But now.... ’ ‘They did not need to know? What do you mean, “need” to know?’ I interrupted. ‘At that time,’ said Ranjit, ‘there was not so much police harassment. But today there is too much. And nowadays the police says 377,

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this kind of language the police is using. In cruising areas of course, but now also in local market areas...pehle to chhedte hain, aur jab hum response nahin dete hain, tab dhhons jamate hain’—first they tease/ make sexual advances at us, and if we do not respond, they exert their power. The phrase ‘dhhons jamana’ is rather difficult to translate. It evokes the sense of an undue exercise of power and privilege, of bullying, showing off, and pulling rank. While it is somehow less than ‘abuse of power’, it carries a negative connotation of the arrogant exercise of a privilege that should not really be used. It refers to a certain duality— of a legitimacy of power, but also the demand that the exercise of that power be tempered in accordance with an economy of fairness that lies outside of the law. The police may have power under law, in other words, but to actually use that power is illegitimate, especially, as in this case where it is done in response to the rejection of a sexual advance. It is only in recent years that the police have begun to actually use this law as a threat and as a means to demand sexual favours and money. ‘Police ka to paisa khaane ka Dhandha ho gaya hai’, it has become a Business for the police to make money, Nandini chipped in. ‘But when they are not in their uniforms, these very same men also have sex with us—‘mazaa lete hain’, they take pleasure, s/he said, and after a slightly contemplative pause, ‘aur dete bhi hain’, and also give pleasure. ‘Those who are the guardians of the law are themselves against 377. If he is getting pleasure out of sex, why should he use the law? If this is shown to the people who have written this law, their heads will be lowered (in shame).’ ‘Police ka kaam hi logon ko harass karna hai,’ Ranjit went on, the job of the Police is simply to harass people, ‘lekin ab unke paas ye hatyaar hai’, but they now have this weapon. I was then told of another Ghatna, of a night when another group of Kothis was returning from a party. They were wearing some light make-up and were slightly drunk. The Police had stopped them and must have realised that they were Kothis. The Police themselves were quite drunk and harassed them a lot. They were then taken to the thaana, the local police station, and were threatened that a case of

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377 would be filed against them. But what the police wanted was money; the group of them pooled their money together, a mere Rs 700, and the police let them go. The picture of the Policeman that emerged here was distinct from the Government, distinct from the State, and from those who legislate. The Policeman was characterised as somehow being of the same world as the Kothi, as a player in a sexual economy, a taker and giver of pleasure. Undoubtedly he also bore the responsibility and power of the Law and what was wrong was that he was unduly using his privileges in this role. ‘But the police don’t know anything about the law, even lawyers don’t know what this law actually says,’ Ranjit added, giving me an instance of a recent interaction with an Advocate who did not know that it was not illegal to be Gay, and that it was only sex that was a crime. ‘This is why we have to spread awareness.’ ‘Section 377 is a very old law,’ Nandini chipped in, ‘it is not even Indian, it was some British Queen who made it. I think she did it to either hide her own weakness,’ s/he continued, speculating with a laugh in heris voice, that this Queen probably liked boys so much that their having sex with each other threatened the possibilities of her getting enough action. Trivialisations aside, this group offered me a critique of Section 377 as something foreign to India, foreign to their context and to the negotiations of their rights as Citizens in everyday interactions with the police. Emphasising that they had been approached by Kothis who wanted to know more about this law simply because the police had started mentioning it, threatening its use in the recent past, they argued that now it was essential to spread awareness of what this law actually stated. ‘And for this awareness to happen it must be told on all TV channels, the Government should understand that this is a thing of the world, that we are not “unnatural”, and that this law should be removed.’ ‘Lekin,’ I asked, trying to pull back to the question that most intrigued me ‘but why do you think the police has started using Section 377?’ I recounted a conversation I had had with a group of Hijras from Chennai. This group had argued forcefully that it was

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the fault of the Queer movement that the police now knew about the provision of law. If you hadn’t gone around screaming about the law no one would have known about it but now we have to face this increased violence of the police, they had argued. To me this had provided a critique of the role of class in activism—while civil society activists could afford to get their way out of police trouble and had lawyer friends and the like, those lower on the economic spectrum, who encountered the police more often in their everyday lives, would bear the brunt. I recall a similar argument being made at one of the first ever ‘MSM’ conferences, held in the outskirts of Bombay in 1999. This suggestion that the activism of relatively upper class folk was raising problems for those lower down the socio-economic ladder had at that conference created quite a furore. ‘Of course there are many people in the community, many Kothis who think that it is because of the LGBT movement, because of the NGOs, that the atyachaar (violence/harassment/injustice) has increased for us,’ Ranjit responded, neatly collapsing the critique of class that the Hijra group had offered, with a critique of the ‘NGOisation’ that the HIV/AIDS Industry has spawned. ‘But, well, even before NGOs were formed, there was atyachaar, even if not so much. I feel that because we have entered the Movement now, chunki hum ab Movement mein aa gaye hain, ye unki male ego ko hurt kar raha hai. That despite us, and even though there is this 377 Act, these people have come into a Movement and are fighting such a fight—this hurts their male egos.’ At this point Ranjit made something of a poetic turn. ‘Ye baat sahi hai’, s/he said, this fact is correct, ‘ki Movement badhi hai to atyachaar bhi badha hai’, that as the Movement has grown, the violence/injustice has also increased. ‘Lekin, jab Lawh tez jalne lagti hai, to uska bujhne ka samay aa jaata hai. Aur mere khayaal se, ab jo 377 pe itni charcha badhi hai, ye aag itni tez jalne lagi hai, ki iska bujhne ka samay aa chuka hai—but, when a flame burns at its brightest, its time to go out has come. And I think that now that we have spoken so much about 377, now that there is so much heated discussion, this fire is burning so harsh that its time to die has finally arrived.

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To my ears the word Lawh, or flame, sounded like Law. Maybe Ranjit meant it this way, maybe s/he didn’t, but this moment, in which the metaphor and its object collapsed into a unity, captured one of the most significant insights that I was to be gifted in my fieldwork. The Law had been given a life, it had been stoked into a flame and been brought to a point where it could not be ignored any more, neither by the State, nor by Queer folk on the street. Now that it had been invested with symbolic meaning, now that it was articulated in the relationship between the Queer body on the street and the police and in the relationship between those same bodies and non-state aggressors, it was time for the raging fire to die. In Ranjit’s metaphor, significantly, the fire had to be stoked. It was not a flame that was burning bright of its own accord but had to be instigated to burn itself out. This was our act of ‘becoming a Movement’, this was the act of according the colonial law a new lease to life: so it may die the death it long deserved. Shahnawaz Challenges Althusser

Shahnawaz, who had been the most silent if incisive participant in this conversation, spoke up at this point with a remarkable complication. ‘If the Government accepts,’ s/he said, ‘that we too are of this world (referring to an earlier conversation about the meaning of ‘unnatural’ as stated in the provision of law), if the Government removes this Law, if Kothis get their Haq, their Rights, and society understands that we also have rights—then there will be no more need to be so open, so public about what we are—people will understand by themselves.’ We had spent much of the morning talking about identity and on the conditions under which particular names were being taken on. In this context, Shahnawaz’s suggestion was that once the law had been removed, once the symbolic battle had been won, there would be no more need to be out in the open about ‘who we are,’ there would be no more need to spell out our queerness, to create and adopt intelligible identities. We would (once again?) be self-evident and ‘part of this world’. This was a rather complex formulation—our act of becoming Kothis, our

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adoption of these identities, was the act of becoming that body which the Law could attach to. And it was by becoming that body, that we provoke the flame to become a fire. This formulation, although it is but one strand of the more complex tapestry I have tried to describe above, and one which was presented to me all too easily, throws up a complication for some of the more nuanced understandings of the relationship between Subjectivity and Law. Michel Foucault’s work on the history of sexuality, for instance, tells the story of the how subjects are discursively produced, through the internalisation of regulatory and disciplinary regimes, through ‘work on the self’ and through which the subject becomes the site for harmonisation of the antagonisms of power.14 The Law here amounts to a ‘call to recognise oneself as a Subject’. Louis Althusser offers us the postulate of interpellation whereby the subject comes into (linguistic) existence at the point of turning to face the call of the Law (see Suresh, this volume, for a discussion). And finally, Judith Butler’s more recent work identifies a ‘passionate attachment’ to Subjection. In each of these, simplistically put, the Law precedes the Subject and in this sense constitutes it even though once the Subject enters the frame s/he/it negotiates the terms of Subjection. These theoretical frames seem fixated on identifying the moment of origin of the Subject in relation to Law. Butler is a slight exception to this in that she opens up the question of a fear of non-existence that brings about an attachment to Subjection, but ultimately concerns herself with the constitution/ adoption of the space of the Subject as intelligible in the Law. But according to the formulation that I have credited to Shahnawaz, we are evoking the Law, becoming a body that the Law may attach to, and appear to evoke/address. The Subject is not evoked by the Law, in other words, but rather, the Law is evoked by the Subject—or more precisely, we become Subjects in order to evoke the Law. Significantly, and ironically, we do this in order to obviate the power of that Law to evoke us as Subjects. In the particular context of Section 377, for instance, the objective was to expose the fact that it criminalised acts rather than the fact of being homosexual. In a rather convoluted series of moves, then, we are becoming Subjects in order

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to evoke the Law, and this in turn to establish that the Law has no power to evoke us as Subjects. I shall argue in the next section that the obviation of Law’s ability to refer to the Subject that it (does not) evoke is standing in for something quite else—for negotiations of socio-economic and political violence and marginalisation. The symbolic realm of Legality is being evoked, in other words, as a space for the playing out of far more tangible, embodied experiences of violence. Reading the Law into Violence. And Violence into the Law.

Here I want to briefly relate an ongoing discussion in the Queer movement around this particular narrative of the role of law in the Movement. As was evident earlier in this essay, a point of tension in this story is the disjuncture between the ways in which the symbolic violence of the Law is idealised by civil society activists and the ways in which the law is experienced by the working class/lower middle class Queer body. The question has been whether in bringing attention to Section 377, we, as civil society activists, have instigated violence of the state on the queer body. In this context I have often been told that—‘well, there is bound to be a backlash when a group, despised for its sexuality, demands rights’. This argument is often supplemented with reference to the history of Gay movements in Europe and North America. This is reference to the story of the rise of homophobic violence in response to a confidently claimed visibility in a public sphere which led to the Stonewall riots and finally the establishment of a legitimate and intelligible claim to citizenship rights on the basis of sexual identity by LGBT folk. The adage ‘nothing ventured, nothing gained’, in other words, continues to be a pervasive argument in response to charges that the visibility accorded to Section 377 has led to its actualisation. The class critique in this context has been to the effect that it is all well and fine to say that we must expect a backlash but who bears the brunt? Is it not, I would argue, those who must interact on an everyday basis with the police, those who cannot afford the right to ‘privacy’, and whose sexual universe exists in public spaces?

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Is it not, in other words, the working class/lower middle class Queer body that must now face the consequences of the increased visibility of the despised status of same-sex desire and gender transgression in the Law? In one of the richest interviews I was to have, dense with cogent argumentation on difficult questions, Arvind Narrain, a Bangalorebased activist and lawyer offered me another complicated argument in this context. The focus on the Law, he argued, gives form to what has thus far been a ‘diffuse criminality’. In other words, it is not that the law has given rise to violence—the Queer body has existed in the space of marginality and of violence for a long time. What the emergence of the Law as an explanation does, here, is make this violence intelligible, and significantly, actionable. He gives, in the interview, an instance of another leading activist, Manohar, who had in the mid-1990s spoken at a seminar at the National Law School in Bangalore, on the issue of police violence against sexual minorities and its implications on HIV/AIDS prevention. At that point, he had not even mentioned Section 377. The provision was set to take the stage a couple of years later, again at the National Law School at the first ever seminar on Gay Rights to be held in an Indian academic space. But now, said Arvind, it is practically impossible to imagine speaking about Police Harassment without reference to Section 377. This has been a process, he suggested of ‘developing a sense of an understanding.’ We are in a position to make more sense of the narratives of police violence and brutality today, or a different sense of it today, than we could even 10 years back. ‘Then it was a narrative of violence, today the violence is framed in terms of why the violence is happening.’ This, he suggests, is an effect of Human Rights work that has been carried out in the meantime, most notably through the production of two reports by the People’s Union of Civil Liberties (Karnataka), one on ‘Sexual Minorities’ and the other on the ‘Transgender’ community. The production of these reports had taken place through three processes. First, through the documentation of experiences of police violence—this was through group and individual interviews with people who accessed the support and services of Sangama (a group

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that at that point in time took the radical position of recognising sexuality as a political and economic issue in a context where sexuality was framed as a public health issue, something that concerned the State and Development industry primarily insofar as HIV/AIDS prevention work was concerned) and through interviews elicited by pamphleteering in cruising areas. The significant point here was that the very context of these reports was a high level of physical violence by the police, cases in the lower courts, and experiences of lawyers in these courts and police stations. The connection with the law was, in other words, ‘at the level of police station, and the court, the practical experience of human rights violation’. The second process was of negotiating with the emerging communities on what issues mattered, what needed to be emphasised, and significantly, what was to be left out of the reports. The third process was that of analysis—of offering an explanation for the violence, of the marginality. It is at this point that the Law emerged as the most significant narrative. ‘Initially,’ said Arvind, ‘the report was just about 8 to 10 pages long. We were trying to make sense of testimony. If you just put together these testimonies they do not make the report. (The) question becomes how do you account for this unthinkable extreme violence, these inhuman, extreme forms of violence? The answers we find, which does not mean that these are the answers, of course... the answers we find lie in the social structures, institutions of family, media, medical establishment, state—police and law. The testimonies are the starting point, and from then on it is how to make sense of these testimonies.’ While the process of researching and writing these reports involved work on various social structures—most notably medicalisation, the continuation of the treatment of homosexuality as a disease, and the use of Aversion Therapy involving such things as shock treatment—the structure that seems to have caught on most as the explanation for the violence is that of the Law. The point to note here is that the work of creating the social life of 377 is one that entails the dual processes of reading the law into violence, i.e., reading the

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law as an explanation or cause for violence in various contexts as well as reading violence into the law—the posturing of the law as a space where ‘diffuse criminality’ may articulate as tangible and therefore as juridically knowable and actionable. Let me summarise this particular narrative of the ‘social life’ of 377. This queer body, the urban, working class/lower middle class, has existed in a space of tension, or marginality, violence, and no doubt, eroticism. This especially as it begins to distinguish itself from the body of the Hijra, from the class or community that has been accorded particular places in hierarchies and social matrices. Civil society activism, fixated on the Law, legality and Constitutionalism, has created a greater awareness of Section 377, placing the abstract Queer body in the realm of illegality and therefore also legality. At the same time, Section 377 has emerged as an object in everyday negotiations that this queer body must transact in the neighbourhood, in the park, in the disco, the market and in the police station. In turn, the Law itself has emerged as a site for negotiation—on the one hand, symbolically, in terms of claims to the markers of Citizenship, and on the other, as a contested domain where the ‘actual meaning’ of the provision must be negotiated at the police station. As such, in their own ways, both Vikram Seth and the fabulous Kothis of Chayshta are invested in the fight against Section 377 and are, again, in their own ways participating in disparate battles around what it means to be a Citizen. But perhaps, these are disparate battles, imagined differently. To wrap up this essay, I offer a final vignette from the interview with Chayshta. Veena Das as the Auntyji-next-door

Earlier that morning Ranjit had received a phone call on his cellphone, which he had chosen to take while we were going through a round of personal narratives of queer adolescence. He had become rather excited and overhearing bits of his animated conversation it struck me that the news of the Vikram Seth letter had reached his ears. I was eager to hear what these folk thought of the dramatic act of solidarity

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by elite ‘Indian citizens and people of Indian Origin’ with the Queer movement. Soon enough, while we were discussing Section 377 and its time to go, Ranjit brought up his conversation in the interview itself. ‘Just this morning’, he said, ‘I heard the news that on behalf of the Court, now that the Supreme Court has told the Delhi High Court that it must hear the matter, the opinions of people are being collected about Section 377. Stalls are being set up all over, especially in Delhi, and people are being asked whether they think 377 should stay, or whether it should be removed. People are being asked to fill in Forms, and then these opinions will be collected and announced to the public, and to the Court—that this is the opinion of the people. Today there is a press conference in Delhi about this.’ This was news to me, and even as I jogged my mind for any reference to such a process in Delhi, Ranjit continued: ‘we were discussing this morning that we, in Kolkata should also do something for this. Immediately after the Durga Puja (the biggest festival in Kolkata), we will also come up with three forms, in English, Hindi and Bengali, and set up stalls all over the place to find out what exactly is the opinion of the people. And then in October we will also be having a press conference.’ Perhaps there had been a series of misunderstandings about what was happening in Delhi, as the news of the letter had made its long way from the desk of Vikram Seth to Ranjit’s cellphone. But this misunderstanding was telling of so many things. Ranjit’s description of the process was accurate in many ways. Indeed, a Form had been put together (albeit by one of the most accomplished of writers), indeed the opinions of a large number of people were being actively sought, and indeed these people were being asked to sign this form and demand that Section 377 be repealed. But this was not happening at a makeshift stall set up at the local street corner. This misunderstanding seemed to me to articulate a crucial difference in the imaginations of the Law and of the arena where the battle was to be played out. There was something deliciously subversive about the way in which the interaction between these different imaginaries brought

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about an equivalence between Vikram Seth and the group of people whose opinions had been sought precisely because they were Elite and Influential, and ‘log’, the people, the person at the street corner. This rather radical (perhaps accidental?) re-reading also seemed to me a contestation of the very imagination of what it means to be an activist and where the battle lies—the people one interacts with on an everyday basis, the folk of the pada/nukkad/street corner as against the world of articulations in Law, policy and mass media. But the fact is that Seth and group are not, of course, equivalent to either the person on the street or the small young activist group in the outskirts of Kolkata—Seth’s letter makes headlines in the Indian newspapers and occupies fairly impressive space in British newspapers and television. The ‘person on the street’, in this letter gets represented as an absence except insofar as particular instances of violence may be attributed to (his) universal homophobia. And perhaps the most significant question is what space the Kothi group finds in the Seth letter. It is present at the very centre of the letter, but it has no voice. It is that abstract queer body that may make its way in the realm of rights discourse only insofar as it is capable of performing the role of the persecuted. It is not acknowledged as a group engaged in particular battles (of the everyday?), or even as capable of speaking in the same discursive space as Seth. What this calls for is the examination of how these different articulations in which Section 377, a provision of law included without much debate in a Penal Code intended for efficient regulation of Britain’s biggest colony, is given a social life, relate to each other politically and economically. It is not that the symbolic violence of the Law, or juridical citizenship, is the exclusive concern of the elite or of civil society activism—these things are equally, if not more, significant to those negotiating their Queer selves with the police on an everyday basis. The folk at Chayshta were deeply concerned with Law, with rights and with freedom—in a juridical sense. The desire and demand to be treated as complete Citizens could not have been more clearly expressed—to the extent that the denial of such status was in itself articulated as violence.

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Civil and Political Society as Modes of Action

Partha Chatterjee has made an influential conceptual distinction between what he calls ‘civil society’ and ‘political society’. To put it simply, ‘civil society’ is the domain of constitutionality, human rights and the like—it is that ‘society’ which makes its claims juridically. This is the realm of the middle classes, which, after providing for themselves through the Nehruvian development process, are trying to garner the benefits of globalisation, as the Indian state and the bourgeoisie turn towards closer reintegration into the world economy. The domain of ‘political society’, on the other hand, is that of democracy where claims and benefits are negotiated between governmental agencies responsible for administering welfare and groups of population that count according to calculations of political efficacy. This is the slum dweller, migrants and the like organised as communities which negotiate with the politicians, the government, etc., who need them for electoral benefit and because of the strong moral economy involved. Chatterjee’s distinction has been taken seriously by academics and activists alike, with some significant and far reaching implications. In her recent book Recovering Subversion: Feminist Politics Beyond the Law, Nivedita Menon explores the limits of ‘Constitutionalism’—which she frames within the domain of ‘civil society’, as a ‘specific mode adopted by modern democracies of safeguarding the autonomy of the individual self’. This is a process, she argues, of ‘enforcing universal norms that marginalise, render obsolete and de-legitimize contesting worldviews and value systems’.15 There are some serious problems then, in the evocation of ‘Constitutionalism’ as a mode of political action. The language of rights and citizenship, she argues, are ‘no longer unprobematically available to an emancipatory politics’,16 and it might even be that trying to bring about positive transformation through the law can run counter to the ethics which prompt entry into legal discourse in the first place’ (emphasis supplied).17 She goes on to suggest that ‘...the struggle to reclaim and produce meaning will have to be waged in (the) uncomfortable realm...of political society’.18

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Arvind Narrain in a recent article similarly works with Chatterjee’s distinction in the context of Queer politics. He argues: ...the questioning of the heterosexual norm emerges from different vantage points. The civil society questionings take the form of writings, movies, the formation of groups, petitions, cases etc. From political society emerge rallies, protests and unique forms of threat all of which attempt to de-center the heterosexual norm. The future of the queer political project is really about how the strengths of the two are combined to bring about another world.19

In both these arguments, and in Chatterjee’s own frame, ‘civil society’ and ‘political society’ emerge as being differently embodied—to put it simplistically, ‘civil society’ relates to the middle class and ‘political society’ relates to the marginalised, the subaltern. Where the Subject of transformative politics of civil society is an abstraction of the marginalised body, it refers, in a loose sense to that embodiment that is here framed as ‘political society’. To see the context of activism around Section 377 through this frame would be easy—civil society activists are claiming to speak for the marginalised while identifying themselves with that body through a unity in being ‘sexual minorities’ or ‘LGBT’. While Narrain and Menon use Chatterjee’s formulation in very interesting ways and make some compelling arguments for looking ‘beyond the law’, they seem to suggest an impermeability between civil and political societies. Civil society ‘must learn from’ political society, or ‘we must find ways to combine forces’, etc. This seductive frame is good to think with. Yet, the ethnographic vignettes that I have offered in this article sit uncomfortably with it, for this frame seems to place the juridical in the realm of ‘civil society’ while identifying the realm of ‘political society’ with a strategic relationship with actors of the state. The Law, in other words, belongs to civil society, and pedestrian law to political society. The most significant implication of this discursive move is the framing of those in political society as judicially incompetent,20 thereby placing a responsibility on civil society to represent them in projects of Constitutionalism, or rather, justifying the representative claim of civil society actors to do

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so. The phenomenon of public interest litigation, for instance, draws on this exact framework. But the ‘subaltern’, I have argued in this essay, is also concerned with the Law and is involved in projects of producing it as a space for the negotiation of citizenship. And the elite equally have our own experiences of everyday law. The distinction then, is perhaps to be made not between civil and political societies as embodiments-in-theworld, but rather, as modes of action. On the one hand, this reinstates the grand Law as belonging, equally, with the ‘subaltern’. On the other, it opens up the far more interesting questions of the political, economic and cultural conditions of the relationships between these disparate yet connected projects. Notes 1. Report of Law Commission 1837, cf. Gupta, A. 2006, ‘Section 377 and the Dignity of Indian Homosexuals’, Economic and Political Weekly, 18 November 2006, p. 4815. 2. See: Gupta, A. 2001, ‘The History and Trends in the Application of the Anti-Sodomy Law in the Indian Courts’, The Lawyers Collective, Vol. 16, No. 7, p. 9; Bondyopadhyay, A. 2000, ‘Anti-Sodomy Laws: Their Impact on HIV/AIDS Interventions’, The Lawyers Collective, Vol. 15, No. 5. This is not to suggest that the provision has not been used in the lower courts. An unpublished research by historian Mario D’Penha, for instance, identifies 427 cases that were tried by lower provincial courts in just two provinces of British India, and in the span of just 10 years after its enactment. D’Penha is quick to point out that this surprisingly large number may reflect the tendency to prosecute under a law just around the time that it is enacted, and that this research cannot be read as representative of the use of the law throughout its history. This does not, however, detract from the point I seek to make here—that there has not been, until recently, a concern with this provision in higher courts or in public debate. 3. Seth’s use of language here is curious, given, especially his wit in suggesting bisexuality in his poem ‘Dubious’ (1980), where he asks ‘...In the strict ranks of Gay and Straight, What is my status: Stray? Or Great?’ Perhaps it is the case that he presumed that the word ‘bisexual’ would not be intelligible to the masses that were to hear his words. This familiar presumption is repeatedly replicated by Gay/Lesbian identifying activists, who often posit

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that Bisexuals are simply ‘undecided’, or not brave enough to come to terms with their homosexuality. 4. A Hindu reformist movement originating in the late 19th century. 5. The second highest civilian honour bestowed by the Indian State on its citizens. 6. The Letter reportedly came up for discussion in many hearings of a petition challenging the validity of Section 377. 7. My use of unorthodox pronouns is not simply a matter of Queer political practice and the project of creating new languages in which to transact gender, but one that simultaneously relates to a very specific problem of translation. Many Indian languages ascribe gender to objects. This is quite unlike English—where the ascription of gender to objects is metaphorical (for instance, when a ship is referred to as ‘she’). Grammatically, gender in Hindi attaches not to the person, but, rather, to the object and activities apropos of the person, and in verbs. What this implies is that the grammatical person is not already gendered and it is possible for such person to negotiate heris way through language without being marked as either male or female. The entry of a person into language, or the coming into linguistic existence does not already presume the ascription of gender. For a more detailed discussion on this and other issues relating to grammatical gender, see: Khanna, A. 2009, ‘A Refracted Subject: Sexualness in the realms of Epidemiology and Law’, PhD thesis submitted to University of Edinburgh. 8. The suffix ‘di’ designates an elder sister in Bangla. 9. The terms Chakka, Dhurrani and Maunga, are broadly, derogatory terms used to taunt effeminate males. The term Chakka is the most widely used abuse in most parts of India. It translates to ‘Sixer’, and is the same as the Cricketing term for when the ball is hit ‘over the boundary’. An interesting etymological narrative relating to the use of this number is that in parts of Uttar Pradesh, there is a particular dish called Chakka, which is a mixture of five vegetables and chick peas. The Hijra, who is also seen to be a mixture, one that contains everything, was thus named after this particular dish, I was told. It is interesting that in South India, rather than six, the number that designates the effeminate queer other is nine, and the term ‘wombath’ is used in exactly the same way as Chakka in north India. The term Dhurani is seemingly used more frequently in Kothi circles itself, and refers to a type of Kothi—the hypersexualised sort who is obsessed with penetrative sex. The term is similar to a word for ‘torn’ and is perhaps a metaphor relating to an anus that has stretched through penetration over a period of time. This was one among many explanations and it was suggested by some that actually this was the broad term for effeminate homosexual

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males until the term Kothi arrived in Bengal, and its reference to the hypersexualised sort is a recent cleavage. 10. The Hijra clap—the Taali, or Thirki as it is called in West Bengal is an easily identifiable sound to most Indian ears. The moment one hears the sound on a long distance train, one can see men rushing to seats next to the windows where they are less accessible to Hijras who come around demanding money, largely from men, often with a threat that they would expose themselves if not paid, thus bringing shame to these men. See Gayatri Reddy’s ethnography on the economies of shame and respect in this regard (Reddy, Gayatri. 2005, With Respect to Sex: Charting Hijra Identity in South India. Chicago: University of Chicago Press). The clap is rather difficult to master and being able to do so is, in many places, something of a rite of passage before one can be considered a Kothi. Significantly, the imitation of the clap, and sometimes just the suggestion that one is a Taali Bajane wala (one who claps) means to call someone a Hijra, without using the word. 11. See: PUCL(K). 2001, Human Rights Violations of Sexual Minorities, Bangalore: PUCL; PUCL(K) 2004, Human Rights Violations Against the Transgender Community. Bangalore: PUCL. 12. Butler, J. 1997, The Psychic Life of Power: Theories in Subjection. Stanford: Stanford University Press. 13. Earlier in the interview we had spoken about the fact that the term ‘Kothi’ itself was unknown in West Bengal until fairly recently. The term used earlier by these same people, the ‘Purani Kothiyaan’ was ‘Dhurani’. The arrival of the term and the identity of Kothi, which I have characterised elsewhere as a ‘global form’, (‘A Refracted Subject: Sexualness in the realms of Epidemiology and Law’, PhD thesis submitted to University of Edinburgh.), had brought about a re-signification of Dhurani as the hypersexualised Kothi. As such, the very term ‘Purani Kothi’ is a contradiction in terms, but circulates now as a timeless embodiment-in-the-world. 14. Zizek, Slavoj. 1989, The Sublime Object of Ideology. New York: Verso. 15. Menon, Nivedita. 2004, Recovering Subversion: Feminist Politics beyond the Law. New Delhi: Permanent Black, p. 2. 16. Ibid. 17. Ibid., p. 59. 18. Ibid., p. 217. 19. Narrain, Arvind. 2007, ‘Rethinking Citizenship: A Queer Journey’, Indian Journal of Gender Studies, Vol. 14, No. 1, pp. 61–71. 20. Das, V. 1995, Critical Events: An Anthropological Perspective on Contemporary India. Delhi: Oxford University Press, p. 156.

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GenderQueer Perspectives: Sameness and Difference in Sections 375/6 and 377 of the Indian Penal Code Jyoti Puri

Homosexuality was decriminalised with the Delhi High Court’s ruling to modify Section 377 so as to exclude consensual same-sex sexual activity from its purview. While we haven’t heard the last of either the legal regulation of homosexuality or the modified Section 377, not least because of the special leave petitions submitted in the Supreme Court, there is reason to be optimistic that Section 377 has been neutered. However, as academics and activists we cannot lose sight of the complexities of the struggle against Section 377, which are instructive about the tangle between institutionalised violence and the demands for justice. These lessons not only shed light on related struggles, such as the need to revise Sections 375/376 of the Indian Penal Code, but also help bring attention to the limits of the process and the judicial verdict through which homosexuality was decriminalised. Section 375 is the law that criminalises rape and Section 376 stipulates punishment. Sections 375/376 are proximate to Section 377 in juridical reasoning and, until recently, also in the reach for social justice. In the case of Section 375, sexual violence is specified heteronormatively1: rape is understood as sex forced by a man upon a woman or a girl. Heteronormative reasoning also prevailed in the case of Section 377, but with a significant twist. Unlike Section 375, which seeks to criminalise heterosexual sex under specific circumstances, Section 377’s ambit included virtually all ‘unnatural’ sexual activity,

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consensual or non-consensual, among men or between women and men; practices falling outside a strict norm of sexual activity become classified as crimes under Section 377. Unnatural sex acts, similar to rape, were considered sexual crimes against the state that needed to be curbed. ‘Rape law’ and ‘sodomy law’ militate against said forms of sexual violence but each in its own way also becomes sexual violence itself. Violence in rape law is encoded through definitions of rape, protecting the sexual status quo within the family and the failure to adequately protect women and girls. Existing rape law uses a narrow understanding of sexual assault so that not only are women and girls consistently reproduced as heterosexual subjects whose bodies are violable, but also men are produced as violators while themselves inviolable. ‘Forcible penis penetration of the vagina by a man who is not her husband’2 remains the operational understanding of rape that also safeguards women as the sexual property of husbands. Rape law fails to adequately protect women and girls from the crime, the criminal procedure code fails to protect them once litigation is underway, and few crimes are sufficiently or successfully prosecuted. Section 377 reinstated violence for different reasons—even though the law was relevant to all unnatural sexual practices, regardless of heterosexual or same-sex sexual context, it was interpreted to make same-sex sexual subjects ‘illegal’. Its vague but expansive language made Section 377 an imminent threat to same-sex sexual subjects. Although few cases were prosecuted in the higher courts, state institutions such as the police abused the law to commit physical violence, extort, blackmail and harass.3 ‘Feminised’ males/men as kothis and hijras were the most frequent targets of state and extrastate violence that was seen as defensible as long as same-sex and queer sexualities were criminalised through Section 377. Sections 375/6 and 377 have been pivotal in the struggle for justice but with seemingly separate histories and motivations. The mobilisation to reform Sections 375/6 are motivated by the need for stronger legislation that will perhaps prevent sexual assault, plug the loopholes that make it difficult to enforce the law and enable effective

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prosecution of crimes. It is aimed at undoing the sexual and gendered discourses that were enshrined into law by the British colonial state in 1860; these discourses frame rape as a ‘fate worse than death’, yoke women as sexual property of husbands and sift ‘good’ women who deserve the protection of the state from those who do not. Section 377 also related to the struggle to delete an archaic legacy of the colonial state but one that wrongly criminalised desire and impeded equal personhood and citizenship for same-sex sexualities. The movement against Section 377 was fuelled by the ways in which law supports cultural discrimination against same-sex sexualities as public morality and endorses intolerance and violence committed in intimate spaces of the family as maintenance of social order. As Arvind Narrain and Gautam Bhan4 note, the law and its prohibitions may be said to have been widely internalised to defend people’s prejudices against samesex sexualities and, thereby, give false justification for violence against these sexualities. On the surface, mobilisations against Sections 375/6 and 377 seem to be split especially along the lines of women’s issues versus queer issues. Indeed, the primary motivators behind the legal reform of rape are women’s organisations, especially the All India Democratic Women’s Association (AIDWA), that have historically sidestepped issues of same-sex sexualities. In the case of Section 377, the organisation that spearheaded the 2001 writ in the Delhi High Court, Naz Foundation (India) Trust, positioned itself as primarily working with same-sex sexualities, especially men/males. This apparent split needs to be re-examined, not least because of the conceptual and legal overlap between Sections 375 and 377. Further, the seeming split between the two sets of struggles ignores the presence and contributions of numerous individuals and groups who routinely bridge queer and women’s issues, and have mobilised against both laws—Saheli, PRISM, LABIA, Forum against the Oppression of Women, Sappho, and Alternative Law Forum, to name a few.5 This essay seeks to read the two sets of laws, Sections 375/6 and 377, and the struggles for legal reform in relation to one another. The purpose here is to ask deeper questions from the vantage point of

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Section 377 especially as its successes and lessons become apparent. It is to reflect carefully on the focus on legal reform given well-established feminist critiques.6 The recent decriminalisation of homosexuality provides an invaluable opportunity to come to grips with a welcome outcome that may nonetheless be flawed in its making. As a point of departure, the position taken here is that law presents an aporia, a philosophical and political quandary: whether law as a source of violence should be contested on its terrain or whether law is a symptom and node of violence that can be meaningfully reformed through a broader social and cultural movement for justice. The intention is not to resolve this impasse; rather, it is to grapple with the limitations of justice sought through legal reform. By exploring legal contestations across the sites of Sections 375 and 377, this essay seeks to understand how difference which is implicit in law is paradoxically recreated in legal challenges. If Section 377 encoded differences along the lines of unnatural versus ‘natural’ sexual practices, then Section 375 is based on a difference between violent and ‘normal’ heterosexuality. What interests and concerns me in this essay is that if law is a site of violence then to what extent do struggles for justice through legal reform recreate violence by producing difference afresh. This essay is based on the following premises. First, it is vital to juxtapose Sections 375/6 and 377 to see their overlap and to deepen our understanding of juridical heteronormativity. All too often, these laws are treated separately in feminist and queer analyses, impeding the ability to lay bare the heteronormative roots of law. In this essay, I would like to take a ‘genderqueer’ approach to show the usefulness of melding queer and feminist approaches. Emerging out of (north) American transgender writings and activism, the term genderqueer is an identity-based political category that encompasses those who transgress the dualities of female and male as well as sexual orientation. While drawing on its critical trajectory, I use the term genderqueer as an analytical tool rather than an identity category. Genderqueer is shorthand for the following foundational premises: gender and sexuality are neither synonymous nor redundant;7 gender and sexuality

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are inextricably interrelated both in the sense of stabilising the normative but also potentially disrupting it;8 although the term gender is theorised primarily within feminist studies and the concept of queer is of the provenance of queer studies, it is necessary to meld the two trajectories and to theorise both sexuality and gender simultaneously and relationally;9 insofar as this genderqueer approach is fully attentive to the relevance of class, religion and other relevant social dimensions, it will yield more sustained and inclusive demands for justice. The second premise guiding this essay is that while the violence inherent in the language and use of Sections 375/6 and 377 necessitated and continues to necessitate the reach for justice, a critical reading of the two movements toward legal reform also forces us to contend with how violence may be refigured in the process. Using the work of French political theorist, Jacques Rancière,10 I speculate on the reasons why these two struggles end up drawing new lines of difference between subjects whose rights need to be secured and those who cannot be included as such. While Rancière’s argument applies more broadly to struggles for equality, it is quite useful to consider the limitations inherent in the move for justice through the domain of law. Third, interdisciplinary approaches and methodologies that, in this case, seek to combine readings of texts with ethnography are crucial to a nuanced analysis and a genderqueer reading of law. Entwined Histories: A GenderQueer Approach Setting: Ministry of Home Affairs, Judicial Division, New Delhi, May 2005. The Director pores over a file, roughly four-five inches thick, green in colour, and tied with a jute cord. ‘Section 377 will be deleted,’ she says. Her response is unexpected. It turns out that she is referring to the 172nd Law Commission review of rape laws. ‘Will the Judicial Division follow the Law Commission’s lead on this?’ I inquire. ‘Yes,’ she confirms; in fact, a sexual assault bill is currently being prepared by the Ministry of Law that will be brought forward in the parliament and which will

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recommend the deletion of Section 377. More surprise. ‘Is this widely known?’ I ask. She looks back at me, neither confirming nor denying. She doesn’t seem to know.

This excerpt is from a meeting with the Director of the Judicial Division of the Home Ministry regarding the Naz 2001 writ against Section 377. The Judicial Division is responsible for drafting legal responses on behalf of the Government of India when challenges to laws are presented, which is why I first visited the Director’s predecessor two years earlier. The government’s responses filed in Delhi High Court and the Supreme Court to the Naz writ are framed by this division. The Director’s categorical statement that Section 377 is recommended to be deleted as part of the sexual assault bill under preparation comes as a surprise. I have spoken to numerous people close to the matters of Section 377 and 375/6 but no one has mentioned the death knell of sodomy law through the reform of rape law. I follow the trail of the unexpected. Quick phone calls to the Delhi office for Lawyer’s Collective, the legal representatives of the Naz writ, to members of PRISM confirm that while people are aware of the several versions of the sexual assault bill, it comes as news that the Ministry of Law is currently working on a sexual assault bill. The trail takes me to the office of parliamentarian Brinda Karat, who says that she is not aware of this. A phone conversation with Kirti Singh, AIDWA, yields neither confirmation nor denial. But then a trip to the AIDWA office produces a memo from the Joint Secretary at the Ministry of Human Resource Development, Department of Women and Child Development. Dated 7 June 2005, the Joint Secretary, Parul Debi Das, confirms a meeting to which AIDWA and a few others are invited that will review various laws affecting women, as per the recommendation of the National Commission for Women. It is meant to be a comprehensive review of laws pertaining to women and Section 375 is on the docket. The trajectories of Sections 375 and 377 are like the double-helix; the strands diverge briefly only to converge again. Section 375 is up for review because it is a law pertaining to women and select women’s

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groups are invited for consultation while others are excluded; this, despite the fact that Saheli, PRISM, and other collectives have taken important stances on previous versions of the sexual assault bill. Groups working toward sodomy law reform are also kept out of the loop. Yet, the convergences in the language and underpinnings of rape law and sodomy law are notable. Rather than proceeding along two separate paths, their shared historical, legal, and ideological underpinnings could present an important challenge to juridical heteronormativity. It is to the convergences between Sections 375/6 and 377 that I turn to in the rest of this section, before returning to the mobilisations for legal reform in the following section. Legal reform of rape law

The campaign to reform rape laws emerged in the aftermath of the 1979 Supreme Court acquittal of two policemen who had raped a young tribal girl, Mathura. The struggle not only continues to unfold, but has pushed the issue of sexual violence to the forefront of the women’s movement in India. The first amendment to rape laws, Criminal Law Amendment 1983, was the result of the campaign and the predecessor to all later amendments, as Flavia Agnes notes. The campaign pivoted on two major issues—to shift the burden of consent from the woman to the accused and to prevent a woman’s past sexual history from being used as evidence. Since then, the need to develop more capacious understandings of sexual violence that go beyond the narrow, conservative definitions of rape are all too apparent. These revised understandings were the thrust of a subsequent 1993 Draft, prepared by a group of 11 lawyers and feminist activists on behalf of the National Commission for Women (NCW), notes Nivedita Menon.11 Using the concept of sexual assault, this 1993 Draft undertook a comprehensive revision of Sections 375 and 376 to expand the definition of rape and what is considered as sexual injury. Menon suggests that the Draft’s points of departure were to redefine the harm of sexual assault from physical damage to the violation of a person’s bodily integrity and to recognise marital rape.

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Although this 1993 Draft did not amend Sections 375 and 376, it became the basis for the writ (No. 33 of 1997) filed by Sakshi, an intervention centre in violence against women, in the Supreme Court. The Sakshi writ was in response to the travesty of what has come to be known as the Jhaku case in which the minor daughter of a government employee was sexually assaulted by her father, but the court took the position that the harm caused her did not fall under the criteria of Section 375. The writ asked for a broadening of the definition of ‘sexual intercourse’ to include a wide range of penetrations, a directive to law enforcement agencies to register cases under Section 375 that were related to the broadened scope of sexual assault, and to ask for law reform. As a result, the Supreme Court ordered (9 August 1999) the Law Commission of India (LCI) to consider whether Sections 375 and 376 could include existing loopholes or to suggest an amendment to the law. LCI consulted three organisations, Sakshi, Intervention for Support Healing Awareness (IFSHA), a non-governmental organisation dealing with issues of sexuality, domestic violence and child abuse, AIDWA, as well as NCW. On 25 March, 2000, the LCI submitted its 172nd Report on Review of Rape Laws12 to the Supreme Court to recommend: a shift from rape to the wider scope of sexual assault; genderneutral language of sexual assault that includes women and men as perpetrators and victims and includes assault against male children; raising the age of the married girl from 15 to 16 years; strengthening the punishment for sexual assault against adults, children and pregnant women perpetrated by people in positions of trust and authority or by multiple perpetrators; deletion of Section 377 since it would no longer be necessary to prosecute sexual assault on children. Points of concurrence and difference emerged between the LCI’s recommendations and those suggested by Sakshi, IFSHA and AIDWA, the most glaring of which is that marital rape was not included in the LCI version. The three women’s organisations, Sakshi, IFSHA and AIDWA countered with the Criminal Law Amendment Bill-2000, which was based on the 1993 Draft. Since then, Sakshi and IFSHA have reoriented

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themselves and do not work on issues of sexual assault any more. In 2002, AIDWA redrafted the jointly-produced 2000 bill into another version (hereafter known as AIDWA-2002 SAB). The AIDWA-2002 SAB is currently in circulation and the Ministry of Law has yet to make its version public. Legal reform of sodomy law

The story of the struggle against Section 377 dates to the early 1990s, goes well beyond the scope of legal reform and is entwined with mobilisation against the rape law. The group, AIDS Bhedbhav Virodhi Andolan (ABVA), initiated a challenge to Section 377 in 1992 by moving a petition for its repeal in the Petitions Committee of Parliament, which remained neglected due to the lack of a Member of Parliament to present it. Another challenge was presented in the 1993 Draft of rape law reform, which included the deletion of Section 377.13 The most recent legal challenge was presented in the Naz writ (Civil Writ Petition No. 7455 of 2001) filed in the Delhi High Court, the verdict of which has decriminalised homosexuality. Legal representation was provided by Lawyer’s Collective HIV/AIDS Unit, under the stewardship of the Director, Anand Grover.14 Since Naz was willing to serve as the petitioner, the case was filed in the Delhi High Court. In contrast to the rape law reform, the position to amend Section 377 was that it is too capacious and its scope needed to be narrowed. The Naz writ petitioned the court to ‘read down’15 Section 377 to exclude same-sex private adult consensual sexual practices from its purview. In place of a bill, public interest litigation was deployed and the Delhi High Court was the primary site of struggle. Unlike the amendment to the rape law in the form of a bill, a change in Section 377 through the Parliament was widely agreed to be unviable. Sexual crimes primarily against women and children may be taken up in the legislature but it offers little space to address sexual violence against queer subjects at the hands of state institutions. Furthermore, and this converges with the narrow heteronormative definition of Section 375, sexual assault committed on boys can only be prosecuted under

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Section 377, which is yet another reason why the Naz writ did not ask to delete Section 377 altogether. The Naz writ emphasised issues of health and of fundamental rights. It argued that Section 377 jeopardises the health of MSM and gay men and thereby their lives by promoting social stigma, abuse by the police and criminalising homosexual acts. Thus, the constitutional validity of Section 377 was challenged on the grounds that it violates fundamental rights guaranteed by the state, namely Article 14 (Equality before Law), Article 15 (Prohibition of Sex Discrimination, argued to include sexual orientation), Article 19 (Fundamental Liberties) and Article 21 (Right to Life and Privacy). Of these, the right to privacy, under the ambit of ordered liberty and individual autonomy, and the violation of right to life, at once protected under Article 21, were emphasised. Sexual relations are among the most private aspects of a person’s life and selfhood, which, according to the writ, this law continually jeopardised even when no harm was done to others. Heteronormative foundations: Consent and gender

Heteronormativity is the corpus of social institutions, structures and cultural discourses that are shaped by and reinforce the reasoning: human beings are made up of males and females; heterosexual intercourse is elemental to the perpetuation of society; the continuation of societies requires that heterosexual intercourse be institutionalised through marriage, family, property rights, education, religion, the state, etc; and that the man-woman unit is the primary and indivisible unit which gives rise to family, kinship, community, and nation.16 The problems with this logic are manifold, not least that the basic unit of society can be thought of differently; for example between mother and child. Further, while heterosexual intercourse is the primary means of reproducing, it does not have to be institutionalised into a heterosexual family and then defended as normal and timeless. Thus, heteronormative reasoning constantly repeats and reinforces normative relationships between notions of biological femaleness or maleness, notions of femininity and masculinity, and heterosexuality.17 This heteronormative reasoning knits together Sections 375 and 377

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and due to space limitations, I will focus on two interrelated aspects: consent and gender. Consent is the lynchpin of the efforts to reform rape law and it is unique to the matter of sexual crimes.18 As noted earlier, redefining consent was one of the major thrusts of the campaign after the Mathura judgement with the aim of shifting the onus of proving consent onto the accused. The feminist struggle is to ensure that if a woman states that she did not consent to sexual acts then the court should presume so. Noting the trend that court judgements are less progressive as rape laws are amended, Agnes19 also observes that positive judgements are issued most typically in cases involving rape of minor girls, with consent being irrelevant, and the inflicting of multiple wounds. This, in turn, speaks volumes about the cultural ambivalence toward adult women’s sexualities that limits judicial perceptions of what counts as sexual violence and who matters as victim. The heteronormative matrix of biology, gender and sexuality reinforces the logic that: female bodies are rapable, women are the sexual property of husbands, and that ‘respectable’ women’s sexuality is channelled toward husbands, while ‘unrespectable’ women’s sexual desire is directed towards other men (the possibility of women’s sexual desire for other women figures all too infrequently compared to men). Since women can be raped, they must be protected by the state, as long as rape is committed in the public realm, as Ratna Kapur20 argues; this is to say, rape law is biased toward sexual violence that occurs outside the realm of the family and especially the marital relationship. Furthermore, as the trend in positive judgements implies, the lack of sufficient injury throws coercion or lack of consent into doubt. The dominant cultural discourse is that no respectable woman would let herself be raped and, indeed, would do everything in her power to prevent it from happening. In other words, nothing less than a heroic struggle (resulting in serious injury, even death) to prevent rape attests to a woman’s respectability or the travesty of her rape. Drawing upon Agnes’s discussion of the ways in which cultural logic coincides with legal decisions in rape case law, it is clear that judicial interpretations

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of Section 375 begin with the deeply troubling assumption that a physically and emotionally intact woman who alleges rape is a contradiction in terms and her lack of consent must be proved. Consent worked contrarily in the case of Section 377. Unlike Section 375, consent was irrelevant to sodomy law. The language of the law did not distil consensual from non-consensual sexual activity, which had to be revised by the Delhi High Court on 2 July 2009 in order to decriminalise homosexuality; in light of this ruling, the general comments attached to the law might be interpreted to mean that Section 377 punishes the offences of (coercive) sodomy, buggery and bestiality. In terms of the case law under Section 377 before it was modified, Suparna Bhaskaran21 observes that when two adult men were involved, the issue of consent was not problematised in the judgements. Consent was just as likely to make the accuser equally liable as allegations of coercion. Speaking of the single case under Section 377 involving a married couple, Bhaskaran compares how a wife’s lack of consent to sodomy served to release her from marriage, whereas an adult man’s consent would make him liable under this law. The heteronormative cultural logic underlying Section 377 worked to privilege sexual intercourse, narrowly understood as between a husband and a wife, while displacing sexual desire and sexual practices among men or among women to the realm of the unnatural and the criminal. Therefore, consent in the case of Section 377 was immaterial, until recently, according to dominant cultural/legal logic. One additional point, the crimes of unnatural sex—(coercive) sodomy, buggery and bestiality—that are still punishable under Section 377, are seen as the crimes of men. Notions of potentially criminal male sexual behaviour work are consistent with the logic that views men/males as sexually active, if aggressive beings. While Sections 377 and 375 are hardly the places to look to for the codification of female/ women’s sexual desires, these laws consistently reinforce notions of women’s heterosexuality and women as subjects to be protected from male proclivities toward sexual aggression, unless they are husbands. If the single case under Section 377 whereby a wife was granted

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divorce on the grounds that her husband forced her into anal sex, mentioned by Bhaskaran, is any indication, then the anxieties related to aberrant sexual practices are more rampant than fears of violent sexual intercourse. In other words, where husbands’ rape of wives are normalised, men’s unnatural sexual practices constitute a breach of the sanctity of marriage. A genderqueer analysis underscores the deeply intertwined legal and ideological trajectories of Sections 375/6 and 377. As Alok Gupta suggests in his essay included in this volume, Sections 375/6 and 377 are clubbed alongside in the Indian Penal Code. Gupta suggests that these laws are in a class by themselves in the Indian Penal Code, the history of which needs to be traced and theorised. For the most part, the struggles for legal reform against Sections 375 and 377 have been waged separately. No doubt, this is partly due to the urgency of court decisions that deny women and girls justice, and the fact that Section 377’s violence, with some exceptions, has been largely kept out of the higher courts. However, the dangers of distilling (heterosexual) women’s issues from queer concerns are manifold. In her writing on the Sexual Offences and Domestic Violence Act in the Bahamas, M. Jacqui Alexander22 shows compellingly how legislation reinvents heterosexuality by creating a subordinate group of lesbians, gay men, sex workers and people living with HIV/AIDS. Her point is to show that heterosexual sex, even when violent toward women, is seen as natural in relation to sex which is defined in negation to it. Through her analysis, Alexander argues that the legislation conflates violent heterosexuality with samesex relations, thereby establishing a continuum of criminality onto which same-sex sexuality is automatically placed. This is the kind of analytical insight that is lost when we separate heterosexual women’s issues from queer issues. Another sobering reminder comes from fieldwork. In July 2003, I interviewed an official in the Delhi Police Commissioner’s office. Even though it had been a year-and-a-half since the Naz writ had named the Delhi Police Commissioner’s office as a respondent, the official said that he wasn’t aware of it. Instead, he deflected the issue

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by focusing on violence against women. Attempting to minimise the injustice of Section 377, he suggested that few people and few such ‘crimes’ fall under its purview. Rather, he repeatedly instructed me to pay attention to Section 376. His position was that (hetero) sexual violence against women is not only more of a social concern but also ought to be of greater interest to me as a (feminist) scholar. This position was echoed by a number of other state representatives throughout the fieldwork. The official’s concerns about violence against presumably heterosexual women are not unimportant but they are troublingly used to pit women’s issues against queer concerns, matters of sexual violence against so-called sexual deviance, gender against sexuality. A genderqueer approach is imperative to shift the terms of what counts as violence as well as justice. Reproducing Difference: Political Mobilisations for Legal Reform

The arena of law poses an aporia on two counts: the extent to which biases inherent in existing laws can be mitigated through law reform; the extent to which legal reform can be the means for social change. The struggles to reform rape and sodomy law attempt to recreate more just laws and see law as an instigator of social change. In her instructive work on women, law and property, Srimati Basu23 notes that over-reliance on law is fundamentally problematic and that legal reform is a better reflector than initiator of redistributive justice. Further, Agnes24 reminds us that since judges are always interpreting rape law, rape could have and has been interpreted progressively even before the hard-won 1983 amendment. For those at the forefront of the campaigns against rape and sodomy law, on the other hand, the authoritative nature and impact of law makes it impossible to not take on the complicated realm of law reform. Indeed, the successful outcome of the Naz PIL has reaffirmed faith in the Indian judiciary for many and proved that law can be both reflector and catalyst of social change. Furthermore, the mobilisation for legal reform especially in

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the case of Section 377 set the stage for numerous coalitions, public discussion and awareness, and eventually a sympathetic judicial verdict. Undoubtedly, law and culture are deeply interrelated but the question is about the terrain, legal or cultural, on which to stage the struggle. Therein lies the aporia. Perhaps the more useful question is not so much whether to undertake it or not, as it is how to do so effectively; in other words, the process of legal reform is crucial here. At a glance, the struggles around rape law and sodomy law are both flawed on this account. One of the significant criticisms against the 172nd LCI report is that three women’s organisations, Sakshi, IFSHA and AIDWA, and the NCW were arbitrarily consulted, while other women’s groups, childrights, queer groups, among others were neglected. The subsequent Criminal Law Amendment Bill-2000, drafted by Sakshi, IFSHA and AIDWA was plagued by the same problem, whereby a crucial issue, with wide-ranging legal and social implications, was raised without wider consultation. The AIDWA-2002 SAB is no different on this account. The review of laws pertaining to women undertaken through the Department of Women and Child Development, further continues to systematically exclude a range of groups and organisations that have a stake and a stance in the reform of rape laws. The AIDWA2002 SAB was circulated in 2006 inviting commentary from groups who have struggled for women’s sexual rights, among other issues, in the Delhi-area. The question of inadequate process cuts to the heart of the criticism of the Naz writ against Section 377 as well. Numerous groups invested in the fight for sexual minority rights were left out of the consultation process. Similar to the rape law reform struggle, the underlying concerns relate to exclusion or token inclusion of groups in a legal challenge, the decision for which would reverberate widely. An informal coalition of lesbian, gay, bisexual, Hijra, sexual rights, transgender rights, kothi, MSM (men who have sex with men) and HIV/AIDS groups addressed a letter, dated 8 January 2002, questioning the process through which the Naz writ was filed. Naz and Lawyer’s Collective disputed this criticism by citing the hosting

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of three open meetings to which a variety of groups from Delhi were invited. The point remains that in a case where many representatives of groups and individuals report that they did not have knowledge about the petition prior to its filing or had heard some vague reports about it, the process appears to have been inadequate. Fraught outcomes: Gender-neutrality, deletion of Section 377, and privacy

The further problem is that process is not unrelated to product. In their struggles toward justice, challenges to Sections 375/6 and 377 in the form of the sexual assault bills or through the Naz writ and the subsequent Delhi High Court decision, unwittingly end up recreating difference. With an eye toward brevity, I will focus on the issues of gender neutrality and privacy in relation to the sexual assault bill and the Naz writ. Among the issues raised by various versions of the sexual assault bill, none is more fraught than the issue of gender neutrality. In the 172nd LCI report and the Criminal Law Amendment 2000 versions, the language is gender-neutral in terms of perpetrators and victims of sexual assault. The implications of gender-neutral sexual assault laws were raised effectively by a number of the groups left out of the consultative process. The national meeting held in Mumbai, 7–9 December 2001, to respond to the recommendations of the 172nd LCI report and the Criminal Law Amendment 2000, was attended by thirty women’s rights, sexuality minority rights, child’s rights and human rights organisations. The group rejected the LCI 172nd report and the Criminal Law Amendment 2000 due to the lack of adequate consultation beyond the three Delhi-based organisations and the concerns with gender neutrality. Gender-neutral language for victims of sexual assault would allow the prosecution of sexual crimes against boys under Sections 375/6, a move which has been widely hailed. However, gender-neutral language in the case of perpetrators poses a threat against women and same-sex sexualities by allowing the possibility of wrongfully prosecuting them. There isn’t a single perspective on gender-neutrality, but the shared concerns are that though legal

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reform is forward-thinking in criminalising cases of same-sex sexual assault, it is likely to exacerbate the legal persecution of sexual minorities.25 Despite the 2 July 2009 Delhi High Court verdict, this fear is not unfounded insofar as there are no laws that make it a crime to harm or discriminate against someone due to their sexual or gender orientation. Insofar as gender-neutral language on sexual assault implies women and men as perpetrators, it implicitly acknowledges same-sex desire, now following on the heels of the Delhi High Court verdict on Section 377 and its forthright statement on the dignity, autonomy and rights of same-sex sexualities. However, instead of seeing same-sex sexuality as a basis for legal and equal personhood, the law would recognise said persons as perpetrators and victims. In a statement, PRISM notes that though women are technically exempt from the purview of Section 377, gender-neutral sexual assault laws would make it possible for women to be prosecuted under the section. This is precisely the point underscored by Tan Beng Hui as she reviews the conundrums of the rape legal reform campaign in Malaysia. Tan argues that it was through its engagement with the state on legislative reform that women’s rights activists learned the dangers of proposals for gender-neutral rape laws. This language widens the scope of the crimes, but also, and here is the rub, state intervention to the detriment of heterosexual women and queer and same-sex sexual subjects. Furthermore, Tan notes that the assumption of women’s rights activists that the Malaysian sodomy law would get repealed once gender-neutral rape laws are in place, was severely flawed and these laws would only have resulted in greater stigmatisation and persecution of consenting adults. Although this is now a moot point, the deletion of Section 377 posed a problem in the recommendations for rape law reform. The 172nd LCI report and the Criminal Law Amendment 2000 each endorsed that Section 377 should be deleted. Once sexual assault against girls, boys and women is adequately covered under sexual assault, there was no apparent reason for Section 377 to be retained as law. In this, the report and the 2000 Amendment took their cues from the 1993 Draft and the position that the state ought to have no interest

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in persecuting adult consenting same-sex sexual activity. But, it was not a foregone conclusion that the version of the sexual assault bill to be presented in parliament would, in fact, recommend the deletion of Section 377. The Chairperson of NCW, Girija Vyas, reportedly said that the deletion was not intended and would be re-examined.26 Similarly, the AIDWA-2002 SAB keeps Section 377 in a revised form to cover coercive same-sex sexual activity, although it retains gender-neutral language.27 Instead of deleting Section 377 altogether, the AIDWA-2002 SAB tries to separate out and criminalise coercive same-sex sexuality. The pressing issue, then, is of gender neutrality in the sexual assault bill, especially so in the aftermath of the decriminalisation of homosexuality. The case of Sri Lanka yields important lessons in this regard. Activists in Sri Lanka have been at the forefront of challenges to sodomy laws in the subcontinent and their attempts to undo Section 365, the Sri Lankan sodomy law, through the legislature rebounded badly. Not only was the attempt unsuccessful but, to make matters far worse, members of parliament voted to expand the scope of the law to include women and worsened the possible penalty.28 In an amendment to the subsection 365A, the language of ‘male persons’ was changed to ‘persons’, thereby expanding the scope of prosecution to include women. Tan offers a similar caution in relation to Malaysia where the efforts to amend Section 377, the Malaysian sodomy law, resulted in the widened scope of the law and the explicit codification of consensual anal and oral sex as illegal. Anticipating the ramifications of a gender-neutral Section 375/6, PRISM raises the following issues in response to the AIDWA-2002 SAB: that the revised version of Section 375/6 opens the door for the harassment of heterosexual and lesbian or bisexual women as perpetrators; that it aims to prosecute violence among queer persons while leaving unexamined the systematic statebased violence against those who do not neatly fall into the binaries of women/men, such as hijras, kothis and transgendered persons. Legal reform intended to better protect women, girls and boys against the trauma of sexual assault cannot help but recreate difference in this reach for justice.

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The language of privacy in the Naz writ draws lines between subjects at the heart of the challenge to Section 377 and those it fails to protect. Although this difference reverberates in the Delhi High Court verdict as well, and much needs to be said about it, I focus here on the Naz PIL. The petition takes the position that Section 377 should exclude adult consensual same-sex activity. According to the petition, individuals are entitled to privacy and autonomy, which includes the right to engage in same-sex sexual acts in private spaces. This directly contradicts the reality that most sexual contact, especially between men, appears to occur within public settings. Parks and urinals are among the public spaces most used by working-class, non-Englishspeaking men, kothis and hijras for sex. On the one hand, the petition’s emphasis on the legal recognition of homosexuality does not account as well for hijras or other queer sexualities that do not easily fit within the rubric of same-sex sexualities. At the same time, the language of privacy further wedges class-based distinctions between the rights of various sexual minorities. Hijras, kothis, working-class MSM and middle-class-based sexual identities of gay and bisexuality fall on either side of this divide. The petition inadvertently foregrounds class privilege. Men without access to same-sex sexual activity in the privacy of a home or a hotel, especially those who are economically marginal, are directly vulnerable to the threat and enforcement of Section 377. Indeed, accounts of state and extra-state violence are told by men/ males from the working classes. The petition foregrounds HIV/AIDS outreach workers and MSM, who are frequently though not always, from less resourced social class backgrounds. But, the language of privacy undermines the degree of protection that a possible amendment to Section 377 would allow these men/males. In effect, the middle-class gay or queer subject comes to stand at the heart of the challenge to Section 377. The language of privacy has generated much consternation among groups and individual members. While some have been critical of this language, for the reasons suggested above, others defend its strategic use. The position taken is that the courts are more likely to rule in favour of same-sex sexual activity as long as it is conducted privately. However, if only private consenting sex

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were to be excluded from the purview of Section 377, consensual or coerced same-sex sexual activity in public would still carry the harsh punishment of up to 10 years’ imprisonment. In contrast, without the provision of privacy, consensual same-sex sexual activity in public would be treated similarly to hetero-sexual activity in public, which means being charged under a different and less harsh section of the Indian Penal Code. The limitations of arguing against Section 377 on the grounds of privacy become further evident when it is considered that marital rape is not recognised as a crime precisely because marriage is seen as a matter of private sexuality. The pressing question, then, is why difference is produced in the struggle for legal justice. Jacques Rancière29 sheds light on this question in an elliptical way. In his account of politics, Rancière argues that politics exists when the principle of equality and the reality of inequality result in the creation of parts of society whereby one part is made of those who are joined together on account of the wrong that is done to them. Nothing is political in and of itself; rather, politics, he argues, begins when the ‘demos’ (unrepresented part of society) seeks to disrupt the order of domination held into place by institutions aimed at protecting status quo, including law. The part that seeks equality is not characterised by positive qualities according to Rancière, such as wealth or virtue, but is made visible through the same system that denies them any positive attributes. In other words, ‘homosexuals’ or ‘women’ are implicitly created as classes as much through Sections 377 and 375 as the struggle to secure justice on their behalf. The problem, however, is that the part that is denied equality seeks its rights from the same system of domination and inequality that constitutes it. For example, guaranteeing the rights of adults to engage in consensual sexual practices and decriminalising homosexuality by arguing that there is indeed such a class of people that is denied equality, lay the groundwork for further protections but also are fraught in many ways. The efforts to politicise same-sex sexuality or (heterosexual) women as targets of violence, constitutes them on the grounds that they share the same properties as those who deny them (presumably, heterosexual men). In the very constitution of this group, in the

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demand that they share and deserve the same properties with those who deny them, lines are drawn anew; Rancière30 refers to this as the partition of the perceptible. These lines are not only between those who deny and those who are denied, but also between those who are denied and those who would weaken arguments for equal rights. The impulse toward legal reform, then, is circumscribed by the fact that the terrain of engagement, of the demands for equal rights and protections, are set within a legal terrain that already privileges some over others. When women’s and queer groups attempt to revise laws such as Sections 375/6 and 377, the very constitution of those denied into ‘women’ or ‘gay’ ends up recreating numerous exclusions—hijras, kothis, forms of violence whereby women are sexually assaulted, not only qua women, but also as bearers of gender, religion and ethnicity, as in the genocide against Muslims in Gujarat in 2002 or the 1984 pogrom against Sikhs in New Delhi. Coda

This essay is not framed as a comprehensive discussion about Sections 375/6 and 377 or the struggles to reform them. Much more needs to be said on these accounts, not least the endorsement of the AIDWA2002 SAB’s move to delete the marital exception in rape law or the strategic recourse to health and right to life that is being denied males/men who have sex with male/men and gay-identified subjects in the Naz writ. Rather, the purpose of this essay is to point to the interconnections between Sections 377 and 375/6 and to make the deeper point about melding gender and queer perspectives, what I call genderqueer as shorthand. The underlying purpose is to develop a more systematic critique of juridical heteronormativity that is undergirded by putative differences between queer and women’s issues. A related purpose is to examine the ways in which struggles for legal reform end up recreating difference and exclusions. Read through the work of Rancière, it is clear that these exclusions are in no small part due to the structural inequalities which are embedded in law as well as other aspects of our social and cultural systems.

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The interrelations between violence and justice go in unexpected directions: if the institutionalisation of violence in law inspires the struggle for justice and even an encouraging judicial verdict, then violence attends the reach for justice as partitions of the perceptible are created. It is a sobering realisation that the hard-fought struggles for legal reform on behalf of women and same-sex sexualities are also the sites for producing difference anew. At the same time, the struggle for legal reform is not inevitably doomed and a review of the struggles around Section 375/6 and 377 is a reminder of the need to be mindful of our tendencies to reproduce difference and exclusion precisely as we reach for justice. A genderqueer understanding promises to make us more vigilant about the ways in which heteronormativity constantly reinforces difference between (heterosexual) women and queers, between violent heterosexuality and notions of sexual deviance, and between gender and sexuality. The conjoined struggles over rape and sodomy law and the participation of a broad range of groups indicate the possibilities of an inclusionary process. Such coalitions may seem to make law reform slower or less efficient, but will likely result in more nuanced and sustained challenges. The struggle is far from over and the possibility of justice through legal reform remains. The sexual assault bill is still to be finalised even as 2 July 2009 represents a watershed in the struggle toward equality and justice. The legal and social terrain has changed irrevocably in light of the Delhi High Court decision on Section 377 and nothing is more poignant than the personal and collective testimonies about the meaning and impact of this decision. Yet, the social and cultural terrain was fluid prior to the verdict. The first government response filed in Delhi High Court in 2003 to the Naz writ coalesced into a nationwide campaign against Section 377. Several national-level meetings were co-organised by Naz and Lawyer’s Collective to gather input from a wide range of groups and to strategise collectively. Several more initiatives, such as the Million Voices Campaign, the National Coalition for Sexual Rights, among others made reform of Section 377 a priority. Public support for the Naz writ, demonstrations in various parts of the country and media campaigns likely set the necessary stage

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for a positive judicial verdict. The struggle against Section 377 will undoubtedly continue for a bit longer and the ambivalences of the Delhi High Court verdict issued on 2 July 2009—in part progressive and in part problematic—will become more apparent. Surely, legal reform is an important indicator of success, but the impact of shared struggles for same-sex sexuality rights among ‘queer’ and ‘women’s groups’, in and outside the courtroom may be the most lasting. Notes 1. A definition of heteronormativity is discussed in the next section of this essay. 2. Agnes, Flavia. 1997, ‘Protecting Women Against Violence? Review of a Decade of Legislation, 1980–89’, in Partha Chatterjee (ed.), State and Politics in India. New Delhi: Oxford University Press, p. 522. 3. In the case of India, see: People’s Union for Civil Liberties. 2003, ‘Human rights violations against Sexual Minorities in India’, URL (consulted November 2005): http://pucl.org/Topics/Gender/2003/sexual-minorities.htm. Also see: Gupta, Alok. 2002, ‘Trends in the Application of Section 377’, in Bina Fernandez (compiled and ed.), Humjinsi: A Resource Book on Lesbian, Gay and Bisexual Rights in India. Mumbai: Indian Centre for Human Rights and Law, pp. 66–74. 4. Narrain, Arvind and Gautam Bhan. 2005, ‘Introduction’, in Arvind Narrain and Gautam Bhan (eds), Because I Have a Voice. New Delhi: Yoda Press, pp. 1–29. 5. Saheli is an autonomous women’s resource and activist centre based in New Delhi. Also based in New Delhi, PRISM is a feminist forum that addresses issues of same-sex sexualities and related concerns. Lesbian and Bisexual Women in Action (LABIA) is a lesbian and bisexual women’s collective located in Mumbai. Forum Against Oppression of Women is a campaign group, also located in Mumbai, that takes up a range of sexual and economic forms of violence against women. Sappho is a Kolkatabased support group for lesbian, bisexual, and transgender women. Based in Bangalore, Alternate Law Forum is an activist and research-based group of lawyers that recognises the practice of law as inherently political and seeks to intervene through a range of legal services, dispute resolution and more. 6. Agnes (see note 2); Basu, Srimati. 2001, She Comes to Take her Rights: Indian Women, Property, and Propriety. New Delhi: Kali for Women; Menon,

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Nivedita. 2004, Recovering Subversion: Feminist Politics Beyond the Law. Urbana, ILL: Permanent Black/University of Illinois Press. 7. Some writings and analyses misleadingly conflate gender and sexuality, implying that they are essentially the same. 8. For example, a normatively appearing lesbian woman is assumed to be and may pass as heterosexual. On the other hand, a ‘masculine’ appearing woman disrupts the norms of not only gender but also sexuality even if she is heterosexually identified. 9. For critical scholarship that has blazed a path by melding the analyses of gender and sexuality, see: Butler, Judith. 1990, Gender Trouble: Feminism and the Subversion of Identity. New York: Routledge; Sedgwick, Eve. 1990, Epistemology of the closet. Berkeley and Los Angeles, California: University of California Press; Vanita, Ruth, (ed.). 2001, Queering India: Same-sex Love and Eroticism in Indian Culture and Society. New York: Routledge. 10. Rancière, Jacques. 1999, Dis-agreement: Politics and Philosophy, translated by Julie Rose. Minneapolis and London: University of Minnesota Press. 11. Menon, Nivedita. 2004, Recovering Subversion: Feminist Politics Beyond the Law. Urbana, ILL: Permanent Black/University of Illinois Press. 12. The full text of this report can be found on the website: http://www. lawcommissionofindia.nic.in/rapelaws.htm. 13. Menon, see note 11. 14. Lawyer’s Collective HIV/AIDS Unit is based in Mumbai; see website http://www.lawyerscollective.org/. 15. Rather than the deletion of the law, the Naz (India) PIL asked that the law be ‘read down’, which is to say instead of asking for the law to be repealed, the petition asked for it to be modified to exclude same-sex adult consensual sex conducted in private from its purview. 16. Butler, Judith. 1990, Gender Trouble: Feminism and the Subversion of Identity. New York: Routledge; Warner, Michael. 1993, ‘Introduction’, in Michael Warner (ed.), Fear of a Queer Planet: Queer Politics and Social Theory. Minneapolis: University of Minnesota Press. 17. Danby, Colin. 2007, ‘Political Economy and the Closet: Heteronormativity in Feminist Economics’, Feminist Economics, Vol. 13, No. 2, pp. 29–53. 18. Menon, see note 11. 19. Agnes, Flavia. 1997, ‘Protecting Women Against Violence? Review of a Decade of Legislation, 1980–89’, in Partha Chatterjee (ed.), State and Politics in India. New Delhi: Oxford University Press. 20. Kapur, Ratna. 2005, Erotic Justice: Law and the New Politics of Postcolonialism. Portland, Oregon: Glass House Press.

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21. Bhaskaran, Suparna. 2002, ‘The Politics of Penetration: Section 377 of the Indian Penal Code’, in Ruth Vanita (ed.), Queering India: Same-sex Love and Eroticism in Indian Culture and Society. New York and London: Routledge, pp. 15–29. 22. Alexander, M. Jacqui. 1991, ‘Redrafting Morality: The Postcolonial State and the Sexual Offences Bill of Trinidad and Tobago’, in Chandra Talpade Mohanty, Ann Russo, and Lourdes Torres (eds), Third World Women and the Politics of Feminism. Bloomington: Indiana University Press, pp. 133–52; Alexander, Jacqui M. 1997, ‘Erotic Autonomy as a Politics of Decolonization: An Anatomy of Feminist and State Practice in the Bahamas Tourist Economy’, in M. Jacqui Alexander and Chandra Talpade Mohanty (eds), Feminist Genealogies, Colonial Legacies, Democratic Futures. New York and London: Routledge, pp. 63–100. 23. Basu, Srimati. 2001, She Comes to Take her Rights: Indian Women, Property, and Propriety. New Delhi: Kali for Women. 24. Agnes, see note 19. 25. Two Mumbai-based organisations, Aanchal and Humsafar Trust, did not share these concerns and endorsed gender-neutral sexual assault laws. 26. Khosla, Asha. 2005, ‘Replace Rape with Sexual Assualt in IPC, says NCW’, Indian Express, 1 November 2005. 27. Any adult person who has sexual intercourse with another adult person against the will and without the consent of the other adult person shall be punishable by imprisonment or either description up to seven years and with fine. Explanation 1: Penetration is necessary to constitute an offence under this section. Explanation 2: Penetration of the anus or mouth by the penis or penetration by an object or part of the body into the anus or vagina is necessary to constitute the sexual intercourse necessary for the offence described in this section. Explanation 3: No consent is obtained for the purpose of the above section if it has been obtained by coercion or under undue influence or if the person giving the consent suffers from intoxication or unsoundness of mind or mistake as to the identity of the offender. 28. See the website www.lines-magazine.org/textmay03/yasmin.htm for the precise language of Sections 365 and 365A. 29. Ranciere, see note 10. 30. Ibid.

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Section III Naz Foundation v. NCR Delhi

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Dignity In and With Naz Upendra Baxi

Prefatory Remarks

The Naz Foundation decision (hereafter Naz1) declaring unconstitutional the Indian Penal Code provision that penalises same-sex relationships as an ‘offence against nature’ is inaugural in many ways. It marks at long last an end to what has been named as the ‘sodometrics’ of the Indian Penal Code and thus invalidates the enactment of Victorian sexual morality into Indian society, law and culture. It expands the frontiers of human liberties and rights. It reaffirms the truth that the promise of justice is best fulfilled when Justices begin to listen to the voices of stigmatised persons and peoples. It emphasises and understands that the creation and perpetuation of stigma by popular sanctions reinforced by legal ones, destroys many an individual lifeproject and has deathly repercussions for the communities of continually discriminated and disadvantaged peoples. Naz is also a prelude to a fuller development towards the undeclared human rights of sexual orientation and conduct; but its significance is not thus exhausted, because in my reading of it, at least it inaugurates a new jurisprudence against the practices of stigmatisation with a promise of multiplier effects in other arenas. Unfortunately for the constitutional idea of India, many a people still constitute the traumatised communities of stigma: for example, the millennially persecuted untouchable peoples, peoples living with disabilities, the variously violated Indian women citizens and persons, ‘menial’ workers, and those ‘subversives’ and ‘dissenters’, to whom political stigma attaches often with fatal impact.

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Neither Their Lordships of the Supreme Court of India (hereafter SCI), who fortunately mandated a fuller examination of the Naz contention,2 nor even Chief Justice A. P. Shah and (Dr) Justice S. Muralidhar of the Delhi High Court, may have consciously intended a new jurisprudence against stigmatisation; yet this is what preciously results. In this sense at least, one may justifiably compare Naz as a much-awaited avatar of the Kesavananda Bharathi decision and its fecund normative progeny. If Kesavananda Bharathi restricts the plenary power of Parliament to amend the constitution in ways inimical to the future of human rights in India, Naz further develops this potential by a new jurisprudence of equality as judicially calibrated orders of emancipation from the state/society co-production of the cultural politics of stigmatisation. The several custodians of the traditions of stigmatisation understandably feel imperilled by all this and are seeking to ‘undo’ this remarkable normative accomplishment. They regard Naz as a constitutional/adjudicative curse. The diverse petitions filed by various assorted cultural and religious groups urging Supreme Court reconsideration, if not reversal, of Naz suggest in a deep irony that Naz justices committed an ‘unnatural’ offence against the values and visions enshrined in a democratic, republican and secular Indian Constitution! Even so, these interlocutions invite a fuller conversation about the constitutional and human rights imbued idea of dignity enunciated in Naz, interspersed with the development of the notion of ‘constitutional morality’. I suggest that we read the Naz decision as ‘dignity-plus’. The Grounds of Naz

Dignity emerges in the narrative judicial strategy as the very ground of Naz. Let us listen carefully to the following statement: At its least, it is clear that the constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society. It recognises a person as a free being who develops his or

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her body and mind as he or she sees fit. At the root of the dignity is the autonomy of the private will and a person’s freedom of choice and of action. Human dignity rests on recognition of the physical and spiritual integrity of the human being, his or her humanity, and his value as a person, irrespective of the utility he can provide to others (Para 26 of the judgement, emphasis added).

Closely read, this statement makes a distinction between the constitutional or juridical idea of dignity (the first sentence) and the moral idea of dignity. These may not always coincide. Thus, the second half of the last sentence explains why the ethical utilitarian conceptions of ‘dignity’ are not constitutionally sanctioned perspectives. Put another way, arguments from consequences may not be allowed to restrict either the ‘value’ or the ‘worth’ of individuals (first sentence) or to deny them their ‘humanity’ (last sentence). If the moral conception of dignity adopted by the third and fourth sentences emanates from a liberal political philosophical perspective on what it may mean to say ‘human’ and ‘having’ human rights, the final sentence seems to depart from it because of the invocation of the ‘spiritual integrity’. I may not elaborate on the implication of this invocation except saying that while ‘spiritual’ notions of dignity may often owe their origins to religious traditions, this may not, nor always ought to be so.3 Further, for the Naz Justices, it is the notion of dignity that speaks to identity as difference. The Court is clear that: In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21. Section 377 IPC denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution. As it stands, Section 377 IPC denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution (Para 48).

The stage shifts here towards a distinct conceptualisation of the constitutional/juridical idea of dignity. Dignity as an international and constitutional human right now becomes ‘the right to live with

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dignity’ and thus an integral aspect of the Article 21 right to life (first sentence). That right is the right to ‘full personhood’ (third sentence) which entails the right to be different—the right to sexuality which defines a ‘core identity’ (second sentence) of a person. Hence the compelling conclusion about Section 377 criminalisation of the right to personhood, construed as a right to chose one’s core identity. The Court further rules: ‘The criminalisation of homosexuality condemns in perpetuity a sizeable section of society and forces them to live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery (Para 52).’ The judicial restoration of a measure of dignity in Naz speaks to practices of collective humiliation imposed by the IPC and variously administered and enforced by standardless use of force by the police and security forces.4 Dignity as a ground of the basic human right of sexual minorities requires that the State and the law shall not reinforce social and cultural prejudice and practices of discrimination directed against these. Practically enormously important as this ruling is, we ought to note a counterfactual scenario in which the miracle of constitutionally sincere and human rights-friendly policing occurs, the argument from the first principles of full personhood will still remain in place. Put another way, the 377 IPC-type interdict will still remain constitutional and human rights offensive. The Naz Justices elaborate the right to live with dignity, as entailing a further development of the right to privacy. Much scholarly criticism remains directed towards this aspect and likewise the review petitions and special leave petitions assail this reasoning as unauthorised by prior precedent. I revisit all this later in this conversation. For the moment, I may only say that any claim to a ‘full personhood’ makes both moral and ethical sense only when intimate relations are liberated from the sovereign public gaze. ‘Privacy’ as a right to live with dignity, means in and with Naz, an amplitude of free choice of lifestyles—or more heavily put, the modes of creating and being in the world of one’s own choosing. Put another way, the right to privacy is an integral

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component of the right to live with dignity; to take it out or away is to diminish the value of dignity, both as a moral and as a juridical idea. At least in my reading, the Naz Justices further develop the notion of ‘constitutional morality’ as based on, as well as reinforcing, the right to dignity. What is novel is not the notion of constitutional morality but rather the scrupulous extension of it by the Naz Justices. Those who take seriously Parts IV and IV-A of the Indian Constitution know full well that these constitute a nearly complete code of constitutional morality. Surely, both the Parts suggest—Part IV for the State and Part IV-A for citizens—thresholds of critical morality by which some actually existing standards of positive morality ought to be judged and where necessary further constitutionally displaced.5 Further, even Part 111 of the Indian Constitution enshrining fundamental rights enacts these thresholds of distinction.6 Recognising thus fully that the immanent constitutional distinction does not detract from the Naz Court’s more nuanced articulation, the Court rightly insists that constitutional morality stands derived from basic constitutional values and may provide ‘a valid justification for restriction of the fundamental rights under Article 21’. Thus, ‘(i)f there is any type of “morality” that can pass the test of compelling state interest, it must be “constitutional” morality and not public morality’ (Para 79). This means that in no event, can ‘moral indignation, howsoever strong’ provide any ‘valid basis for overriding individual’s fundamental rights of dignity and privacy. In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view’ (Para 86). This dimension of ‘dignity-plus’ reasoning, for the moment, only withdraws the state powers to prosecute and indeed persecute sexual minorities. However, if fully upheld by the SCI, Naz remains jurispotent as a future legislative agendum criminalising culture and society based practices of stigmatisation and as providing a charter protecting the dignitarian interests and rights of sexual minorities. Even before Naz, at least some Indian judicial decisions have provided elements of such a charter by providing compensation for the suicide of a hijra in police custody due to police harassment and torture7 and

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by recognising the relationship between a hijra guru and her chela as a valid customary relationship which prevailed over the personal law for the purposes of inheritance.8 The importance of Naz lies in providing a firm foundation and future impetus towards well-considered legislative/law reform moves ahead. Some Further Thoughts on the Idea of Dignity

Understanding the Idea of dignity (hereafter ‘Idea’) is a complex enterprise; it raises a cache of analytic and normative concerns. [A] The definitional or analytic concern: What we may want (or indeed ought) to mean by ‘dignity’—recognition or respect, which raises a distinction between dignity as a virtue of individual conduct,9 and dignity as a virtue of a just society and state.10 [B] The source concern: From where may we derive a secure basis of belief in the Idea—from the Word of God, the Book of Nature, Acts of Ethical Reasoning, the Force of Law, or the Voices of Suffering? The ways in which we prefer to source the Idea will also determine the obligations of respect and recognition towards others. [C] The axiological concern: Is dignity a free-standing value by itself or does it emanate from other values such as liberty, equality and fraternity? Is it a derivative or a source value? [D] The translation concern: the passage of the Idea from religion to ethics and from both these into laws, constitutions and international human rights declarations, treaties and related obligations. [E] And more specifically, the juridification concern: To what extent may dignity be thought of as a matrix for all human rights or is it merely one human right amongst many? [F] The scope concerns: Concerns about the range of duty-bearers— which individual and collective rational, social, and moral agents, may be said to owe the duties of dignity? [G] The hermeneutic dimensions: What labours of interpretation thus stand entailed? And specifically, when meanings given to dignity are in conflict, who may determine The Meaning? Whose voice may be counted (at least for the time being) as ‘authoritative’ and why so?

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Difficult as this range of concerns remains, any reading of Naz should be informed by the ways in which the learned Justices have striven to respond to the Idea. No doubt, they offer a juridification of the Idea via a careful and creative recourse to comparative law and jurisprudence.11 If [G] is ever to be fully addressed, Naz critics have to, at the very least, work as hard as the Justices whom they seek to criticise; unfortunately, as I demonstrate in the ensuing sections, this is simply not the case. As concerns [B]–[E], Naz Justices (as already noted) provide ‘dignity-plus’ as adequate response. Wisely, Their Lordships refrain from addressing [F]—they leave for future judicial and legislative development the question of how far ‘non-state’ actors may stand fully addressed by the obligations of dignity. The germinal importance of Naz lies precisely in a more nuanced addressal of the future jurisprudence of dignity as speaking not just further to forms of governance of sexuality, but also to conditions of indignity produced by the ‘political’ Indian State and its laws, at odds with the normatively ordained constitutional idea of India. Put another way, Naz provides—more than any other judicial performance in India—a fuller justification for ungrudging respect for the Idea at ‘non-state’ sites: the family, factory and allied workplaces (in sum, the variegated sites constituted by the ‘free’ market economy), and related other public spheres. It is for this reason that I now briefly turn to problems posed by [E]—juridification of the Idea. Naz fully accepts and owns the affirmation of dignity in the Universal Declaration of Human Rights (UDHR), which majestically says that all humans have inherent dignity because of the fact that they are born as such. This ‘birth metaphor’ is the cornerstone of contemporary human rights. This elemental Idea of the UDHR—preciously persuasive by its insistence that all humans, regardless of national origins, race, caste, colour, sex, and even deeds, have an equal right to dignity—has in turn generated a wide-ranging United Nations normative and institutional progeny. Yet it is clear that the juridical idea derives from (although not always endorsed by) the moral idea of dignity. Because of this, the juridical

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remains open, roughly at least, to the same sort of contemporary criticism that extends to the secular/ethical presentation of the Idea. The UDHR ‘born’ humans stand tautologically privileged: we have dignity because we are born human and to be born human is to have dignity! Avoidance of this tautology leads to a search for some complex statements of the Idea, going beyond the religionbased narratives deriving ‘dignity’ from the Word or the Will of God and articulated increasingly in secular/ethical terms, and thus also presenting a collision of the secular/ethical ‘moral’ Idea with the religion-based ethic of dignity. The appeals against Naz to the Supreme Court of India (analysed in the ensuing section) present an instance of this collision and so do some criticisms of the Idea from the standpoint of contemporary bioethics (to which we turn shortly). All this poses a range of ontological concerns—clearly at work (and to echo Heidegger) is the distinction between the ‘ontological’ and the ‘ontic’. Human beings are different from all other living creatures and objects in Nature on the one hand and on the other hand, from things/ artefacts made by humans. Obligations of inherent dignity attach to the former but not to the latter. Why so? One response is provided by the view that the obligations of dignity are owed to humans because they possess the capacity for moral judgement as well as the twin faculties of reason and will. The Idea extends to persons (such as children and persons suffering from severe physical or psychic impairment) who have the potential for these capabilities and attributes.12 The difficulties which attend this genre of construction of a human person have led to immense contestation. First, were we to construct the idea of being a person as also including the capability to suffer, do ‘animals’ count as non-human animal persons, now exemplified by the theory and movement for ‘animal’ rights; and if so, how far?13 Second, why is the case that moral pluralism14 may not personify things and objects in nature as suggested profoundly by deep ecology/ environment theory and movements—for example, the protection of the endangered species, lifeforms signified by biodiversity, and in a more complex mode via the current discourse on ‘climate change’?

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Third, how far may the Idea extend to the claims of ‘inherent dignity’ of artificial legal persons, such as the ‘state’ and ‘corporate’ lifeforms created by its law? One way of reading the post-Westphalian international law regimes is to say that all states as personifications of their peoples are entitled to equal dignity.15 Fourth, what obligations of dignity may extend to non-state but state-like actors, especially multinational corporations and allied business entities? How far may the so-called forms and practices of ‘corporate’ good governance extend beyond outlawing hostile discrimination against same-sex relationships to further orders of violation of the Idea?16 All this sets a further stage for dignity-critics (‘dig-crits’, hereafter). Of course the Idea has been under constant criticism ever since Immanuel Kant,17 but some contemporary dig-crits find, in different ways, the Idea puzzling, and some even castigate the Idea as too indeterminate to be ‘useless’,18 ‘redundant’ and ‘reactionary’. Although I believe that the dignity-plus Naz discourse provides elements of a near-complete answer to this indictment, we need to look at it briefly. The claim that ‘dignity’ is a ‘reactionary’ notion comes from some practitioners of bioethics. In part this is a reaction against ‘theocon’ bioethics, as Steven Pinker names it.19 The Idea stands presented because its applications to the fields of scientific research have the potential of unreasonably regulating, or unconscionably prohibiting, it.20 Some religion-based conceptions of dignity collide with the secular, as is well known, when they insist that a foetus is an embryonic person from the moment of ‘its’ conception and on the impermissibility of non-adult stem cell research that seems to threaten future advances in therapeutic human cloning. Disregarding here the theological concerns, however, this indictment may not go so far as to suggest unregulated technoscience as the only, even supreme, moral good there is.21 The indictment of ‘uselessness’ based on the range of indeterminate meanings of the Idea, seeks to prove too much, indeed! There is no doubt that the notion of dignity is an ‘essentially contested concept’. Some notable critics of the Idea suggest that because of

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this, it is also a ‘vacuous’ concept.22 However, contestation over the meaning of concepts is not the same ‘thing’ as ‘vacuousness’.23 Further, the confusion here lies in the inability of distinguishing meaning of the Idea from its uses/usages; at any rate dig-crits seem unaware of, or choose to ignore, the logic of ‘fuzzy’ concepts. To put the matter rather summarily, if vacuousness is a state of affairs in which attributions of meaning to a concept remain either analytically or ethically unintelligible, this assuredly is not the case with ‘dignity’, as in the present context, Naz so well illustrates. This brings us to a final indictment of ‘redundancy’ which needs to be taken seriously. The question is just this: Why talk about ‘dignity’ at all when other values such as autonomy, liberty and equality may equally do? Does the dignity-talk with all its variant Kantian understandings24 tend to detract from a proper understanding of autonomy, liberty, and equality? Put another way, if the range of obligations of respect arising from these three values/virtues is not thought adequate, what may the Idea add to it? These questions, obviously in need of a more nuanced formulation, have generated many approaches, which I explore in a forthcoming work.25 I may not, in the confines of this conversation, attend to this objection save saying that respect for these related values is not fatal to the Idea, if we were to recall that the barbaric other of dignity is humiliation—an experience of the horror of violation of one’s self in ways that render these related values insensible. It is in this context (even in the contexts of bioethics) that we need to turn to a defence of dignity, inviting fuller attention to two conceptions of human dignity—as ‘constraint’ and as ‘empowerment’, developed notably by Professor Roger Brownsword, as he says ‘at least in Europe’, via bioethics which addresses anew the very notion of being and remaining human and having human rights. He suggests that while dignity can be seen as constraint on state and regulatory public action, dignity as empowerment goes beyond and ‘essentially makes a triple demand in the name of respect for human dignity, namely: ‘(i) respect for one’s capacity as an agent to make one’s own free choices; (ii) respect for the choices so made; and (iii) respect for one’s need to

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have a context and conditions in which one can operate as a source of free and informed choice.’26 Surely then, one way of reading Naz is to say that it respects the first two forms of dignity as respect. However, as concerns the third element or aspect, Naz Justices tread cautiously in determining the ‘context’ and ‘conditions’ in the languages of the zones of ‘privacy’ as a principled form of respect; thus authorising consensual forms of adult same-sex sexuality in the ‘private’ though not in the ‘public’ spheres. LGBT dignity thus becomes a closeted virtue for state- and ‘civil’ society-sponsored notions of tolerance. While in the given context, Naz Justices present a wise accommodation of their ‘dignity-plus’ reasoning, it falls short of the idea of dignity as ‘empowerment’. Fully granting this, one may say without a fear of overstatement that the enunciation of Naz provides forms of diverse symbolic empowerment as well for the Indian future of theory and movement towards an emergent human right to be different. Opposition to Naz

Though there has been an overall enthusiastic response from the LGBT communities, human rights and social movement activist constituencies, and a good reception on the mass media, Naz has understandably evoked hostile reception from many religious leaders and organisations who find it unacceptable and some are leading petitioners before the SCI. The response of state managers and political actors to Naz is more complex, as with all law reform issues considered politically sensitive. Naz would not have occurred at all if these actors had not teased to infinity even in arriving at the threshold of much-needed law reform measures. This, by now, is a standard cost-effective strategy adopted by the elected public officials (and not just India) aimed at avoiding divisive (and spiralling) social and public order costs. Those who now seek Naz reversal via recourse to the SCI wish to disrupt that very strategy!

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[1] [2] [3] [4] [5]

[6]

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Some leading religious groups and activists maintain that Naz: Overall ‘hurts’ their religious sentiment, in particular by describing the 377 IPC prohibition as an archaic residue of Victorian sexual ethic and morals; Questions the authority of the sacred/scriptural texts and traditions; Encourages ‘sinful’ conduct (via the recognition of privacy right) of members of faith communities and disobedience of religious prescriptions and proscriptions; Endangers, as it were, the ‘Holy Family’, that is the institution of heterosexual family, as conceived by dominant religious traditions; Remains heavily fraught with individual and social health consequences and impacts, especially of the HIV-AIDS, not entirely within the means of the Indian state, law and social resources to fully combat; Opens the floodgates of immorality and any affirmation of Naz by the SCI, would not merely erode the core dogma of the dominant religious traditions but also ‘drown’ all conceptions of decency and morality.

These arguments deserve a dignity of discourse, even as one may entirely disagree with them as I indeed do. Allow me then to proceed briefly to attend to each of the foregoing propositions. Proposition [1] is justified if it suggests that judicial opinionwriting ought to fully avoid hurting diversely affected ‘religious’ sentiments. Maybe the Naz Justices, in castigating the ‘Victorian’ lineages of Section 377, did not fully respect religious sentiments of some ancient faith communities. However if the proposition were to extend beyond the question of opinion-writing judicial styles as contesting adjudicatory leadership and power to decide contentious issues, this argument fails to persuade. By the same token, propositions [2] and [3] advance what may be called the ‘fragility’ argument. Neither Naz, nor its affirmation by the SCI, may take away or affect in any manner, the interpretation of

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canonical texts, or impair any core religious dogma. Nor would Naz as upheld by SCI encourage ‘sinful’ conduct by members of faith. To still insist that Naz, when fully affirmed by the SCI would have the impact of shaking the foundations of faiths is to acknowledge that they are so fragile that they constantly need reinforcement by the state-law combine, which is in fact contrary to the ‘nature’ of the very claims made by the petitioners on review. Proposition [4] is complex because it is capable of an absolutist dogmatic statement elevating social arrangements of the norms of heterosexuality, to the status of divine commandments unchangeable by human law or justice. However, alternate interpretations of the canonical text also remain at hand and even dogmas change. With utmost deference to faith-communities one may say that the world’s religious traditions do not authorise a univocal reading of the idea of ‘Holy Family’. Proposition [5] concerns the epidemiology of Naz; put another way, its probable impacts on the human right to health. Naz Justices attended to it most carefully, especially in light of expert evidence and materials canvassed before it. If, on the other hand, the argument here at all concerns the endangerment of meta-spiritual conceptions of human health as well being, it is difficult to see how the SCI, on review, may justifiably respond to all this! Proposition [6]—the floodgates-type argument even when taken seriously, furnishes no ground for the review of Naz. Naz in no way mandates or urges devout members of faith communities to privilege or practice same-sex affinities, conduct or relationships; nor does it invite the faithful to confront the canon and dogma of their preferred faiths. Curiously altogether, the review/appeal petitioners now before the SCI remain rather colonially ‘mimetic’ in urging that the English, perhaps even the British discourse concerning the Wolfenden Committee recommendations (urging decriminalisation of samesex relationships) ought now to provide the best guide there for a review of the decision!27 At any rate, the ‘floodgates’ argument fully and impertinently disregards within-religious-traditions acts/ways of reading the canonical word of the Scriptures as wrongly elevating above all else the regimes of heterosexuality as a sovereign norm.

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Reading closely most of the review petitions, I get a sense that these remain, at the end of the day, ‘animated’ by the argument of fear. Professor Sydney Hook once described this argument as follows: you must not let the state put fluoride in public water drinking systems, lest this may also authorise it at an uncertain future date to inject cyanide! Is Naz then, to be considered as a thin edge of constitutional wedge such as may authorise further depredations against an Article 25-type right to freedom of conscience and religion? Will de-criminalising adult same-sex relationships lead to a collapse of entire religious traditions? Would any future affirmation of individual and associational rights of LGBT to participate in the public sphere, eventually extend to challenging their exclusion from the religious sphere—whether in terms of equality of worship, or even ordination to ecclesiastical offices? All one may say in response is that review/appeals before the SCI do not, however, provide a site for pronouncing on imagined future developments. In this regard, and to say the least, the review petitions remain entirely fanciful, mischievous and vexatious, and in complete denial of the fundamental duty of all Indian citizens under Article 51-A to respect the ‘composite culture of India’ and to develop ‘scientific temper’, and the ‘spirit’ of ‘critical’ enquiry and reform. As citizenjustices equally bound by this code of duties, at least they ought to offer strict scrutiny of such excessively generalised grounds for Naz reversal. Some ‘Scholarly’ Criticisms28

‘Scholarly’ criticism in India, distinguished from other kinds of informed and concerned media or citizen commentation,29 consists in exposing infirmities in the legal reasoning as manifested in the text of a judicial decision. Analytically, this genre seeks to clarify what the Justices actually decided (the meaning dimension of a judgement); doctrinally, it asks whether an instant judgement stands authorised by prior precedents (the authority dimension of a judgement). There are other ways of reading judicial decisions as yet nascent in India.

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I may here only mention a few such ways: the political economy ways which (summarily put here) contrasts the logics of legality with those of legitimacy; cultural ways (both law as culture and cultures of law, including the genre of law and literature and media studies) which seek to locate shifts in values, beliefs, and sentiments; and (broadly put) the sociological dimension, concerned with understanding judicial texts as a site of struggle by diverse social actors with differential power quotients recourse to adjudicatory leadership30 for the production of contending multiple/multiplex social meanings. I engage here with the analytical and doctrinal readings of Naz without diminishing one bit alternate ways of reading judicial texts. Never before has an Indian Law Review rushed to print in the wake of a judicial decision, as has the NUJS Law Review (200931). The Review contributions, for the most part, suggest that Naz Justices have erred, at times egregiously, in the understanding/application of the authoritative SCI decisions. In the main, ‘scholarly’ criticism of Naz contests the location and scope of the associated right to ‘privacy’ as dignity as a basis for adjudicative action. It thus finds little support for the Naz articulation of the right to live with dignity in the Constitution, and decisional law of the SCI. It is further said by most legal contributors to the Review, that Naz Justices failed to arrive at a constitutionally correct reading of equality-based grounds (Articles 14 and 15) or ‘privacy’ grounds as an aspect of personal liberty (Article 21) or even the rights to freedom (under Article 19). In the main, the critics argue that Naz does not accord well with prior lines of ‘precedent’ especially in its approach to the component dignity right to privacy.32 My esteemed friend Professor Mahendra P. Singh sets the stage for the doctrinal critique. He goes the farthest in saying, in effect, that the decision in itself is unconstitutional, if only because it either expansively reads or transgressively misreads the SCI enunciation of a right to privacy. More acutely, Singh insists that Naz Justices further ignore the SCI reticence in extending the dignity/privacy duo as providing adequate ground for invalidating provisions of the Indian Penal Code.33 Accordingly, Singh concludes that the Naz Justices erred even

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in reading down Section 377 IPC; rather they should have exercised a ‘weak form’ of review ‘by asking Parliament to re-examine Section 377 in the light of new developments in law as already suggested by the Law Commission’, and this too without making any observation even concerning the potential ‘unconstitutionality’ of that Section; what is more, he urges, that even the SCI, on review, ought to so fully proceed.’34 It would require another type of conversation to more fully state and confront such argumentation. For the present moment, however the following general remarks should suffice: [A] Most scholarly critics of Naz fail to appreciate the distinction between the ‘everyday’ (the quotidian) and the ‘exceptional’ adjudicative moment. Naz is an exceptional moment at one level because the SCI directed (in 2006) the Delhi High Court to examine all the petitions and issues raised but not fully heard by it, on the grounds of standing; in this sense it is a kind of delegated judicial decision! Naz is exceptional because, with it, adjudicative leadership begins ways of subjecting a centennial-plus old Indian Penal Code to the rigours of a new history of constitutional interpretation.35 A question of some importance thus is: ‘How may scholarly critics then approach the “exceptional” moment?’ [B] An appeal to any hierarchical perspective that denies or diminishes the creative role of the High Courts is both constitutionally offensive and incredible. The perspective may be said to be relevant when a single and clear binding precedent exists, where the High Courts have no choice but to follow the SCI—a rarest of the rare circumstance, indeed since the SCI itself so often repudiates the doctrine of stare decisis36! However, Naz justices proceed on the basis of their understanding that no controlling precedent was at hand in interpreting ‘privacy’ as an essential component of the right to dignity. [C] In saying that this was an egregious error, the doctrinal critics ought at least to distinguish between two kinds of rights—rights scripted in the constitutional text and those created/invented by judicial interpretation. The right to privacy as an aspect of dignity right

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is a judicially invented constitutional right. Because of this, the question of consistency with SCI precedents does not arise in the same way as for the constitutionally scripted rights. [D] Indeterminacy gets characteristically attached to the judicial enunciation of new rights and further to the judicial interpretation of this enunciation; judicially invented constitutional and human rights norms and standards remains always a work-in-progress. This means that while sometimes apt for interpretations of the scripted rights, this is never fully so in the case of judicially invented rights. [E] Socially responsive criticism of justice (or judging the judges) ought itself to be accountable. To welcome the outcome but to heavily fault the judicial reasoning is of course a standard academic practice. Thus, as concerns Naz, most critics are unwilling to decry its progressive outcome, while variously nibbling away at the grounds of the decision. This might be an acceptable practice for the final judicial decision of the Apex Court but not so for a decision that has to be further considered by it on appeal/review. This at least signifies a minimal respect towards an ethic of scholarly criticism, if only because, as happens now with most Review contributors, is the manifestation of an ambivalent attitude towards Naz. They do not clearly tell us whether judicial reasoning in Naz manifestly warrants its reversal by the SCI. What may these critics say in a scenario where the SCI were to uphold (and as I think it ought to) Naz? Their ‘natural right’ to judge the judges will still remain in place though devastatingly bereft of the juridical Father-figuration of ‘authoritative’ law-saying (‘precedent’). Doctrinal criticism has, of course, its own standards of an ethic of writing. Unfortunately, the Naz critics fail to articulate these; worse still, their ‘critique’ (to use a heavy word here) now provides an arsenal for those who urge the SCI to reverse Naz. To abruptly conclude this conversation, may I express a hope that the Supreme Court of India, on appeal, will accord greater dignity of discourse to Naz than thus far offered by its scholarly critics? The Court now faces its highest challenge on Naz review: Their Lordships have the choice to articulate in all its plenitude the notion of a right to dignity, or to renege from their own collectively well-worked-

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out jurisprudence of human rights under the Indian Constitution. I hope that Their Lordships will privilege the overall constitutionally clear and compelling logic of the Naz Justices. Doing otherwise will imperil the future of human rights in and for India and, with that, also the constitutional idea of India, if only because the judicial combat against humiliation and stigma remains so recent and such a fragile constitutional endeavour. Notes 1. Naz Foundation v. Government of New Capital Territory of Delhi and Others, Delhi Law Times Vol. 160 (2009) 277. 2. Special Leave Petition (SLP) filed against the Suresh Kumar Koushal & Another v. Naz Foundation & others, Special Leave Petition No. 15436 of 2009 is the first Special Leave Petition (SLP) filed against the Naz judgement. Since then fourteen other parties have also filed SLPs challenging the judgement. They are: Apostolic Churches Alliance through its Bishop v. Naz Foundation; Bhim Singh v. Naz Foundation; B. Krishna Bhat v. Naz Foundation; B.P. Singhal v. Naz Foundation; S.D. Pratinidhi Sabha v. Naz Foundation; Delhi Commission for Protection of Child Rights v. Naz Foundation; Ram Murti v. Government of NCT of Delhi; Krantikari Manuvadi Morcha Party v. Naz Foundation; Raza Academy v. Naz Foundation; Tamil Nadu Muslim Munnetra Kazhagam v. Naz Foundation; Utkal Christian Council v. Naz Foundation; Joint Action Kannur v. Naz Foundation; All India Muslim Personal Law Board v. Naz Foundation; Joint Action Kannur v. Naz Foundation. 3. I cannot help recalling that for Mohandas (Gandhi), the understanding of dignity consists in a principled deference towards the other, especially the suffering and vulnerable other. Dignity is, in his way of thinking, inconsistent with violent predation in any form—social, economic, cultural or political. Respect for dignity thus is an individual and societal virtue, not just a matter of the desire of the ruled to make the wielders of state and police powers legally answerable, or even responsible. For Mohandas the question of dignity stood framed in the conjoined terms of ‘civilising’ the modern State and its law as an affair of just governance, distinguished from just governance (that is, coercive state and law arrangements); it is this distinction that marks among the most significant meanings of his protean notion of Swaraj. Thus, for example, when Mohandas sought to educate us about the ‘dignity of work’ as a core component of the idea of dignity, he not merely

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assailed the millennial obnoxious Indian practices of untouchability—the Hindu religion and ritual-based social apartheid—but also suggested that distinctions and rewards based on the nature of work—manual and mental labour—are unjustified in any imagery of an egalitarian Swaraj. For the Aristotle of Atisudras, (as I fondly name Bhim Rao Ambedkar), the protection of dignitarian interests constituted a paramount obligation of a decent postcolonial state. Ambedkar strove to translate this into a virtue of state and governance action in the writing of the Indian Constitution. He did this primarily thus—and variously via Article 17 (abolishing untouchability), Articles 23/24 (forced labour in all its forms), making both these as constitutional crimes and offences, and further, via his complex insistence on reservations for the millennially humiliated peoples in legislatures, civil services, and spheres of education. For Ambedkar, dignity was a redemptive struggle virtue—that is an ethic of everyday resistance demanding resistance to practices of humiliation by social, state, and state-like actors. For both Mohandas and Ambedkar, and despite many a crucial difference between them, dignity as a value made sense primarily by the determined reversal of its other—humiliation. See: Guru, Gopal (ed.) 2009, Humiliation: Claims and Contexts. Delhi: Oxford University Press. Further, protection and promotion of dignitary interests was for both a matter of group or collective dignitarian interests and rights. Unfortunately, neither Mohandas nor Ambedkar are studied in India and elsewhere in development of the discourse of dignity as counter-humiliation. 4. Narrain, Arvind. 2004, Queer: Despised Sexualities, Law and Social Change. Bangalore: Books for Change. 5. We all of course remain indebted to Professor H. L. A. Hart for this germinal distinction. 6. I may not here explore here the power of Parliament to impose ‘reasonable restrictions’, for example, on Article 19 rights to freedoms and the ongoing encrustations of judicial interpretation, save to point out that what may count as ‘reasonable restriction’ may not be disinvested from dignitary interests and rights considerations. Further, even those rights that are not otherwise subject to this practice and doctrine, entail a fullest advertence to standards of critical constitutional morality. In my view, this is also in particular reference to Article 25 (enshrining the fundamental rights to conscience and religion) may be limited, inter alia, on the grounds of ‘morality’. Surely, the standards for that morality are derived from legislative and adjudicative reading the Indian Constitution as a whole and not from a fragmentary reading of it. 7. Jayalakshmi v. State of Tamil Nadu, (2007) 4 MLJ 849.

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8. Illyas and Others v. Badshah, alias Kamla, AIR 1990 MP 334. 9. See: Meyer, Michael J. 1989, ‘Rights and Self-Control’, Ethics, Vol. 99, No. 3, pp. 520–534. 10. See, for example: Waldron, Jeremy. 2009, ‘Dignity, Rank, and Rights: The 2009 Tanner Lectures at UC Berkeley’, Public Law & Legal Theory Research Paper Series, Paper No. 09-50, New York University Law School. 11. The decision is replete with discussions on landmark decisions in the old and new British Commonwealth and the US—an aspect worth exploring in itself. 12. Naz formulates this rather stirringly well in Para 26 quoted earlier, although its development of the notion of full personhood must be read in the specific context of the decision. 13. See as to all this, the themes and literature in: Baxi, Upendra. (in print, 2010), ‘Animal Rights as Companion Human Rights’, The 19th I. P. Desai Memorial Lecture, Centre for Social Studies, Surat. 14. See: Stone, Christopher D. 1977, Earth and Other Ethics: The Case for Moral Pluralism. New York: Harper & Row. 15. This is now a contested notion in this age of two ‘terror’ wars—the war of and on ‘terror’: I seek to grasp this in Chapter 5 of my work Human Rights in a Posthuman Word: Critical Essays (Delhi: Oxford University Press, 2007, 2011, 4th impression.) See also: Baxi, Upendra. 2009, ‘Translating Terror: Siting Truth, Justice, and Rights amidst the Two “Terror’’ Wars’, in Esperazna BIielsa and Christopher W. Hughes (ed.), Globalization, Political Violence, and Translation. New York: Palgrave-Macmillan, pp. 45–71. 16. See: Baxi, Upendra. 2008 (3rd edition.), The Future of Human Rights. Delhi: Oxford University Press, Chapters 8, 9;. See further: Grear, Anna. 2010, Redirecting Human Rights: Facing the Challenges of Corporate Legal Humanity. London: Palgrave McMillan. 17. See: McCrudden, Christopher. 2008, ‘Human Dignity and Judicial Interpretation of Human Rights’, The European Journal of International Law, Vol. 19, No. 4, pp. 651– 661. 18. See: Macklin, R. 2003, ‘Dignity is a Useless Concept’, British Medical Journal, Vol. 327, pp. 1419 –1420. 19. See: Pinker, Steven. 2008, ‘The Stupidity of Dignity’, The New Republic, 28 May. Pinker describes as a cardinal sin of theocon bioethics that seeks to impose ‘a Catholic agenda on a secular democracy and using “dignity” to condemn anything that gives someone the creeps.’ 20. See: Cochrane, Alasdair. 2010, ‘Undignified Bioethics’, Bioethics, Vol. 24, No. 5, pp. 234–241.

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21. Assuming further, that in the constitutional Indian future, the regulation or prohibition of genomic or even nanotech research and application on the ground of dignity were to be considered as ‘reactionary’, the best answer lies in its development of the Idea as dignity, plus towards which Naz marks an important beginning. 22. See: Bagaric, Mirko and James Allan. 2006, ‘The Vacuous Concept of Dignity’, Journal of Human Rights, Vol. 5, No. 2, pp. 257–270. 23. See: Grover, Sonja. 2009, ‘A response to Bagaric and Allan’s “The Vacuous Concept of Dignity”, The International Journal of Human Rights, Vol. 13, No. 4, pp. 615–622. 24. There are various versions of Kant’s notion of dignity. See especially: Pfordeten, Dietmar Von der. 2009, ‘ On the Dignity of Man in Kant’, The Royal Institute of Philosophy, Philosophy, Vol. 84. 25. See: Baxi, Upendra. Dignity, Democracy, and Difference (forthcoming, 2011). 26. Brownsword, Roger. 2003, ‘An Interest in Human Dignity as the Basis for Genomic Torts’, Washburn Law Journal, Vol. 42, p. 416; See also: Beyleveld, Deryck and Roger Brownsword (ed.). 2001, Human Dignity in Bioethics and Biolaw. Oxford: Oxford University Press; Baxi, Upendra. 2008, ‘Review of Francesco Francioni (ed.), ‘Biotechnologies and International Human Rights’, Law and Politics Book Review, Vol. 18, No. 2, pp.119–127. 27. Lord Devlin said on the one hand that public morality is a ‘cement’ of society and on the other also compared it with the ‘spider’s web’, so delicate that pulling it in any direction would entail entire social collapse! Professor H. L. A. Hart, as we know, fully contested these metaphors and claims. 28. The contribution or impact that the law academics may make to styles of adjudication, if not on actual results, is perhaps the least studied aspect of the development of contemporary Indian jurisprudence. Recently, Judge Richard Posner provided a fascinating overview of this relationship as concerns the US: Posner, Richard. 2010, How Judges Think. Cambridge, London: Harvard University Press. 29. In contrast to commentation offered by non-lawpersons—for eg. persons in the mass media, human rights and social movement activist folks, religious and spiritual leaders, and interested political actors. For the most part, their criticism is directed towards the outcome measured in terms of expectations of justice, rather than the process of legal reasoning. 30. See as to this notion: Baxi, Upendra. ‘Public and Insurgent Reason— Adjudicatory Leadership in a Hyper-globalizing World’, in Stephen Gill (ed.), The Crisis of Global Leadership. Cambridge: Cambridge University Press (forthcoming, 2011).

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31. See the Special Issue: Sexual Orientation and the Law, 2 NUJS L. Rev. 2009 (hereafter cited as the Review). 32. See Vikram Raghavan, ‘Negotiating the Remarkable and Nebulous in Naz’, Review 398 at 402–406. 33. Mahendra P Singh, ‘Decriminalisation of Homosexuality and the Constitution,’ Review 361 at 366–372. 34. Ibid., p. 380. 35. This ‘new history’, consists in the invocation by Naz Justices of the ‘soft’ standards and norms of international human rights law such as the UN Human Rights Committee and the Yogakarata Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity. Some NUJS Law Review critics question this, and in my considered opinion entirely erroneously, if only because international human rights law inthe-making may not be ignored by Indian Justices (under Article 51 of the Indian Constitution which urges the state to ‘foster respect for international law.’ The SCI has at several critical adjudicative moments, and notably via the opinions of Justice K. Ramaswamy (with the approval of his Brethren) thus invoked the plenitude of the UN Right to Development as furnishing a standard for judicial interpretation and adjudicative leadership. See my Preface to S. Japhet, Chitra Balakrishnan, and Usha Rao Banerjee (eds), Casements with a View: Reading the Judgments of K. Ramaswamy J. Analysis of the Supreme Court Cases of K. Ramaswamy J. 1989–1997 (forthcoming 2011). 36. See as to this: 1991, ‘The travails of Stare Decisis in India’, in A. R. Blackshield (ed.), Legal Change: Essays in Honour of Julius Stone. Sydney: Butterworth.

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A New Language of Morality: From the Trial of Nowshirwan to the Judgement in Naz Foundation Arvind Narrain

Introduction Clauses 361 and 362 (the predecessor provisions to Sec 377 of the IPC) relate to offences respecting which it is desirable that as little as possible be said...we are unwilling to insert either in the text or in the notes anything which could give rise to public discussion on this revolting subject, as we are decidedly of the opinion that the injury which could be done to the morals of the community by such discussion would more than compensate for any benefits which might be derived from legislative measures framed with greatest precision. Lord Macaulay1 The offence is one under Section 377 IPC, which implies sexual perversity. No force appears to have been used. Neither the notions of permissive society nor the fact that in some countries homosexuality has ceased to be an offence has influenced our thinking. Fazal Rab Choudary v. State of Bihar2 A state that recognises difference does not mean a state without morality or one without a point of view. It does not banish concepts of right and wrong, nor envisage a world without good and evil. It is impartial in its dealings with people and groups, but is not neutral in its value system. The Constitution certainly does not debar the state from enforcing morality.

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Indeed, the Bill of Rights is nothing if not a document founded on deep political morality. What is central to the character and functioning of the state, however, is that the dictates of the morality which it enforces, and the limits to which it may go, are to be found in the text and spirit of the Constitution itself. J. Albie Sachs National Coalition for Gay and Lesbian Equality v. Ministry of Justice and others3 In our view, Indian Constitutional law does not permit that statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual. C. J. Shah Naz Foundation v. Union of India and others4

The decision in Naz Foundation v. Union of India5 marks the culmination of a very important journey in Indian law. For the first time in Indian judicial history, LGBT persons were looked at not within the frame of criminality or pathology but rather from within the framework of dignity. The shift or transition is itself remarkable when one considers the history of the interpretation of Section 377 by the judiciary. The historic ‘injustice’ of the law lay not only in sanctioning arbitrary state action against LGBT persons, but more fundamentally in setting in place a regime of citizenship wherein the lives and loves of LGBT persons were consistently read within the framework of ‘unnatural sexual acts’. The question of love or intimacy, desire or longing, was always reduced in the judicial register to ‘carnal intercourse against the order of nature’. Though emotions such as love formed a part of the history of samesex desiring people in colonial India, this history remains untold. The judicial archive hints at the possibility of recovering a counter history of love, by reading within the interstices and gaps of decided case law. To recover the lost history of love, this essay will focus on the story of Nowshirwan Irani who was persecuted in Sind in the year 1932,

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for having a consenting relationship with Ratansi. Nowshirwan stands in for a subaltern Oscar Wilde, an unwitting and largely unknown martyr who symbolised in his person the trials and tribulations of LGBT persons for over 158 years. The history of persecution in colonial India of homosexual desire did not change with the coming into force of the Constitution. Instead what marked a moment of azaadi for LGBT persons in India was the re-interpretation of the fundamental rights by C. J. Shah and J. Muralidhar in 2009. The shift in what the Constitution was to mean for LGBT persons was signalled by the Justices in the oral arguments where for the first time, the judicial attitude to homosexuality changed. By showing empathy for LBGT suffering and by refusing to think and talk about homosexuality merely within terms of ‘excess’ and ‘societal degeneration’, the Justices gave a new vocabulary to the law in which to talk about homosexual expression. The language the Justices evolved was the notion of ‘constitutional morality’, which was an advance in the way morality has been thought of in law. Morality as seen from the words of Lord Macaulay was a justification for the very enactment of Section 377 and the Judges turned the notion of morality upside down by concluding that constitutional morality requires that Section 377 be read down. Constitutional morality requires that the values of the right to form intimate relationships be protected and that freedom from persecution by the law be guaranteed to LGBT persons. This essay will explore the paradigm shift from societal morality to constitutional morality, from carnal intercourse to a right to intimacy, and from the tribulations of a Nowshirwan to the celebrations which greeted the Naz Foundation judgement. Nowshirwan Irani: A Subaltern Oscar Wilde? I never came across anyone in whom the moral sense was dominant who was not heartless, cruel, vindictive, log-stupid and entirely lacking in the smallest sense of humanity. Moral people, as they are termed,

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are simple beasts. I would sooner have fifty unnatural vices than one unnatural virtue. It is unnatural virtue that makes the world, for those who suffer, such a permanent Hell. Oscar Wilde6 Another requirement of mine, was that these personages themselves be obscure, that nothing would have prepared them for any notoriety, that they would not have been endowed with any of the established and recognized nobilities—those of birth, fortune, saintliness, heroism or genius; that they would have belonged to those billions of existences destined to pass away without a trace; that in their misfortunes, their passions, their loves and hatreds, there would be something grey and ordinary in comparison with what is usually deemed worthy of being recounted; that nonetheless they be propelled by a violence, an energy, an excess expressed in the malice, vileness, baseness, obstinacy or illfortune this gave them in the eyes of their fellows and in proportion to its very mediocrity—a sort of appalling or pitiful grandeur. Michel Foucault 7

If there is one provision in the Indian Penal Code seemingly furthest from the language of love and intimacy, it seems to be Section 377. With its focus on ‘carnal intercourse against the order of nature’ and its requirement of ‘penetration sufficient to constitute an offence’, there seems little possibility that the dry judicial record can actually speak of emotions like love and longing. The case law interpretation under Section 377 has by and large focussed on non-consensual sex between adults and children and the judiciary has been quick to characterise homosexuals and homosexuality as something to ‘be abhorred by civil society’, ‘unnatural’, ‘animal like’, ‘sexual perversity’ and ‘despicable specimen of humanity’. While it may be true that the majority of reported cases under the provision have to do with non-consensual sex, there is a hidden narrative of couples who have engaged in consensual intimacy and been subjected to the persecution of the law. If one reads from within the silent spaces in the judgement, one can see the use of Section 377 to persecute homosexual intimacy. A look into the judicial archive

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finds three appellate court decisions in which the protagonists are consenting young men.8 One of these cases, the case of Nowshirwan Irani, will be examined more closely to get a sense of the forbidden archive of desire which remains a part of the untold history of Section 377. In a reported decision from Sind in 1935, Nowshirwan Irani, a young Irani shopkeeper was charged with having committed an offence under Section 377 with a young lad aged around 18 called Ratansi. The prosecution story is that Ratansi visited the hotel of the appellant and had tea there. Nowshirwan asked Ratansi why he had not come to the hotel for sometime and Rantansi replied that he had no occasion for it. He then went to the pier to take a boat, but on finding that he had no money came back to Masjid Street where he saw Nowshirwan standing on the road a little distance from the hotel. Nowshirwan asked Ratansi to come to his house and when he did, he locked the door and started taking liberties with the youngster who resented the overtures and wanted to go away. Nowshirwan removed his trousers, loosened the trousers of Ratansi and made the lad sit on top of his organ. Ratansi got up from his lap, but in the meantime Nowshirwan had spent himself, wiped his organ and put on his pants. The reason this incident came to light was that a police officer, Solomon, along with his friend Gulubuddin, saw the incident through the keyhole, marched in and took both Ratansi and Nowshirwan to the police station. The judge was not convinced by the story of the prosecution that Ratansi had been subject to forcible carnal intercourse by Nowshirwan. The judge was of the opinion that Ratansi had been made to pose as a complainant and hence made hopelessly discrepant statements. The judge was not prepared to rely on the evidence of Solomon and Gulubuddin, the two eyewitnesses whose conduct he found strange. Further, the medical evidence could neither prove forcible sexual intercourse (the prosecution story) nor did it prove an attempt to commit the act of sodomy. In the opinion of the judge, ‘as the appellant had not even if we take the worst view against him gone

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beyond a certain stage of lascivious companionship, I do not think he deserves to be convicted for any of the offences with which he was charged or could have been charged.’ The story of Nowshirwan and Ratansi seems to be a story of sexual desire acting itself out between two men of different class backgrounds. The limited material present in the appellate decision gives us a clue that even the judge was convinced as to the consensual nature of the relationship. As the judge notes, ‘[m]oreover the medical evidence militates against the story of a forcible connexion on the cot, the appellant who is a fairly hefty young man having intercourse in the manner stated originally. There is not the slightest symptom of violence on the hind part of the lad.’ He concludes that ‘[i]f he was in the house of the accused behind locked doors, I have not the slightest hesitation in believing that he had gone there voluntarily.’ The story of desire secreted within the judicial narrative seems to be that Nowshirwan and Ratansi knew each other and that Nowshirwan made the first move on that fateful day. He asked Ratansi why he had not come to the hotel for sometime. Rantansi after finishing his tea, left the hotel only to come back in the same direction. When he came back, Nowshirwan was waiting on the road and asked him to come to his house. They seemed to have some sort of pre-arranged code by which they signalled to each other the desire to meet and subsequently they went to Nowshirwan’s room. However due to a misfortune of an over-zealous policeman or a policeman with a grudge, what should have been an intimate act between two consenting parties in their bedroom, became a public scandal. A consenting act between two men is sought to be twisted by the prosecution into a story of Ratansi being forced into having sex with Nowshirwan. Ratansi is coerced by the demands of those around him to pose as a complainant against the very person with whom he had earlier had a consenting sexual relationship. The fact that it is a consenting relationship does nothing to exculpate Ratansi from ironically becoming a victim of judicial ire. There is indeed a special fury reserved by the judge for Ratansi.

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In the judge’s words, Ratansi ‘appears to be a despicable specimen of humanity. On his own admission he is addicted to the vice of a catamite. The doctor who has examined him is of the opinion that the lad must have been used frequently for unnatural carnal intercourse.’ In the course of appreciating the medical evidence, the judge notes, ‘[t]here was not the slightest symptom of violence on the hind part of the lad’. Thus the story of an encounter between two people of the same sex who desire each other, gets reduced in the judicial reading to the act of a perverse failed sexual connection. The use of terms like ‘animal like’ and ‘despicable’ places the sexual act within the framework of moral abhorrence. One has to read the silence in the judicial text to hazard a guess as to the nature of the intimacy between Nowshirwan and Ratansi. The two knew each other and had possibly met before in Nowshirwan’s room. Nowshirwan’s room might possibly have been a space where the coercive heterosexism of the outside world could be forgotten for the brief time which Nowshirwan and Ratansi spent with each other. That brief time they spent together might possibly have been a duration when they imagined a world not yet born and a time yet to come, when their desire would be accepted without a murmur. This imaginative realm of impossible desires is what is rudely interrupted when the policeman, Solomon spies through the key hole. One can guess that their meetings might have been noticed on earlier occasions by Solomon, hence alerting him to take action on that eventful day in 1935 Sind when Nowshirwan met Ratansi with such disastrous consequences. Solomon stands in for the willed heterosexism of the larger world or what Oscar Wilde would have called the ‘unnatural virtue’ in which the world abounds, which will give no space for any expression of intimacy that challenges its own laws. It is this fragile experiment of creating a ‘little community of love’9 outside the bounds of law’s strictures and society’s norms, which is set upon by society in the form of Solomon and then given the judicial imprimatur of a ‘failed sexual connection’. The tragic

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story of Nowshirwan and Ratansi speaks to the absence of a certain vocabulary. The language of love and intimacy, longing and desire, and the expression of spontaneous bodily affection find no safe habitation within the terms of the law. What law does is to degrade this act of experimental creation of new forms of intimacy. The language of law has an impoverishing effect as it strips the physical act of its rich emotional connotations and reduces the act of human intimacy to a ‘perverse failed sexual connection.’ By stripping the act of sex of its multiple meanings, it produces Nowshirwan as a subject of the criminal law. One could re-read Nowshirwan and Ratansi as unwitting frontiersmen in the history of the battle against Section 377 and also among its first recorded tragic victims. In another register, Nowshirwan and Ratansi stand in for Oscar Wilde and Lord Alfred Douglas, with Ratansi being forced to stand in as witness not just against Nowshirwan but also being forced to deny a part of his own being in terms of his own part in creating that ‘little community of love’. Just as Oscar Wilde was betrayed by Alfred Douglas who described his lover as ‘the greatest force for evil that has appeared in Europe during the last three hundred and fifty years’,10 so too Nowshirwan, in his hour of greatest need, is betrayed by Ratansi who becomes the complainant against him. The story of Nowshirwan, and Ratansi exemplifies the perversities of a law that turns lover against lover and converts the act of intimacy into the crime of carnal intercourse. Nowshirwan’s story remains emblematic of the ethical and moral poverty of the judicial discourse even as it grappled with homosexual expression for over 158 years. It is important to note that in spite of the coming into force of the Indian Constitution with the language of equality, non discrimination, dignity, the judiciary continued to characterise homosexuality with terms such as ‘unnatural’, ‘perversity of mind’, ‘immoral’ and ‘animal like’. The ethical language of rights was never seen fit to apply to LGBT persons. The first time the judiciary moved outside the range of responses outlined above was 158 years after the coming into force of the Indian Penal Code and 59 years after the coming into force of the Indian Constitution. The

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occasion happened to be the hearing of Naz Foundation v. Union of India and others. The Changed Social Context: From Nowshirwan to the Naz Foundation

The social context in the late 1990s and the beginning of the new century is dramatically different from the time Nowshirwan happened to be persecuted. The norms which straitjacketed the expression of Nowshirwan and Ratansi and the law which deemed Nowshirwan a criminal were beginning to be questioned. This practice of questioning the set ways of the heterosexist world began with the emergence of the queer struggle with its insistence on problematising norms of gender and sexuality. It is this context of an emerging community far less isolated than the world which Nowshirwan and Ratansi tried to create way ahead of their times, which underpins any engagement with Section 377 in the contemporary era. In simple terms, when people like Nowshirwan are arrested under the law in contemporary times, it becomes a concern of people beyond the network of family and friends. Queer people across the country rally together and begin to support those who are subjected to the law’s persecution. Thus the stories of those who are arrested under Section 377, be it the arrest of gay men in Lucknow (in 2006) or the arrest of HIV/AIDs workers in Lucknow (in 2001), become part of a contemporary history of the struggle against Section 377. This stands in stark contrast to the persecution of unknown frontiersmen such as Nowshirwan and Ratansi and others like them in earlier times. The bringing together of the stories of Nowshirwan and Ratansi and those persecuted under the law in contemporary times culminated in a legal challenge to very same law. The petition challenging Section 377 was filed by Lawyers Collective on behalf of Naz Foundation before the Delhi High Court in 2001. The petition challenged the constitutional validity of Section 377 and made an argument for Section 377 to exclude the criminalisation of same-sex acts between consenting adults in private. The petition in technical terms asks for

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the statute to be ‘read down’ to exclude the criminalisation of samesex acts between consenting adults in private so as to limit the use of Section 377 to cases of child sexual abuse. The petition itself though filed by a single NGO, gradually began to represent the entire community. This process of making a ‘public interest litigation’ truly ‘public’ began by Lawyers Collective and Naz Foundation hosting a series of meetings on different stages of the petition. Over the next seven years, this process of continuous consultation with the community contributed towards making Section 377 a more politicised issue. The key stages of the petition included the affidavit filed by the Union of India (Home Ministry) which indicated that the Government would stand by the law, the affidavit filed by the National AIDS Control Organization (NACO) which in effect said that Section 377 impedes HIV/AIDS efforts, and the impleadment of Joint Action Kannur (JACK, an organisation which denied that HIV causes AIDS), and B. P. Singhal (a former BJP Member of Parliament, representing the opinion of the Hindu right wing that homosexuality was against Indian culture) into the petition. This process of discussion fed back into the community, fuelling feelings of outrage and indignation, hope and despair, and anger and fear, as each stage of the petition unleashed a torrent of emotions. The periodic meetings were thus a way in which the activist community was kept deeply involved in developments and continued to respond to the changing scenario. What particularly tilted the balance was the impleadment of B. P. Singhal into the petition. Suddenly the scales seemed to have tilted with Naz appearing increasingly isolated among the cacophony of voices opposing the petition. It seemed that a range of forces were coming together to protect what the community saw as a patently unjust law. In a meeting called by Lawyers Collective to discuss this development, it was proposed that some queer groups should also implead themselves within the petition so as to support the petitioner. It was with the birth of this idea that Voices Against 377 (A Delhi-based coalition of child rights, women’s rights and LGBT groups) decided to implead themselves within the petition to support

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the petitioner. The key emphasis of Voices was the rights of LGBT persons while Naz, because of its status as an organisation working on HIV/AIDS, would continue to emphasise on how Section 377 impeded HIV/AIDS interventions and hence the right to health of LGBT persons. There were enormous delays spanning a sum total of seven years when the case was initially dismissed by the Delhi High Court, appealed in the Supreme Court and finally sent back to the Delhi High Court. Initially, the Delhi High Court dismissed the petition just as it was gathering steam on the ground that the petitioner Naz Foundation was not affected by Section 377 and hence had no ‘locus standi’ to challenge it. However when the dismissal was challenged before the Supreme Court, the Supreme Court sent the case back to the Delhi High Court to be heard expeditiously. Ever since the petition was filed by Naz Foundation in 2001, it gathered greater public support both in terms of public opinion as well as within the sphere of the courtroom. It was in September 2008 that after a long wait, the matter was finally posted for final arguments before a Bench comprising Chief Justice Shah11 and Justice Muralidhar12 of the Delhi High Court. The Final Arguments Before the Delhi High Court: Empathy, Dignity and Group Sex

By the time the matter was posted for final arguments in September 2008, seven years after the petition was initially filed, the key difference was that it had become far more a part of the issues which defined contemporary India. There was a real buzz both in terms of the media coverage as well as an eager anticipation with respect to the final hearings. The court itself during the hearings was attended by community members who closely followed each twist in the arguments and each response by the judges. The proceedings themselves as they unfolded were covered extensively and widely by the media and the community was also kept updated by daily minutes of the hearings which were posted on community online forums.13

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The petitioner’s core argument centered on the right to health and how Section 377 impeded HIV/AIDS interventions. The arguments were substantiated by case studies particularly of Lucknow (2001),14 when Section 377 was used to target a HIV/AIDS intervention with the men having sex with men (MSM) community. So Section 377, far from being justified by a compelling state interest, actually was an impediment to achieving the right to health of a particularly vulnerable section of the population. The core argument of Voices Against 377 was that ‘Section 377 is a law which impinges on the dignity of an individual, not in a nebulous sense, but affecting the core of the identity of a person.... Sexual orientation and gender identity are part of the core of the identity of LGBT persons. You cannot take this away....’ They argued that ‘[m]orality is insufficient reason [to retain the law] in a case like this where you are criminalizing a category and affecting a person in all aspects of their lives, from the time the person wakes up to the time they sleep.’ The core argument of the Government of India astonishingly was that if Section 377 was read down to exclude consenting sex acts between adults in private, it would affect the right to health of society.15 The Counsel representing the Union of India was the Additional Solicitor General, Mr P. P. Malhotra. He cited various studies to show that homosexuality caused a very serious health problem. Citing one study he said: [T]he sexual activity enjoyed by homosexuals results in bacterial infections, and even cancer. There are activities like golden showers, and insertion of objects into the rectum which cause oral and anal cancer. A study of homosexual practices shows 37% enjoyed sodomitical activities and 23% enjoyed water sports.

Referring to notions of decency and morality, the ASG noted: [I]n our country it is immoral on the face of it. Society has a fundamental right to save itself from AIDS. This right is far greater than any right of the less than 1% who are in this programme. The health of society should

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be considered and it is the greatest health hazard for this country. If permitted it is bound to have enormous impact on society as young people will then say that the High Court has permitted it.

B. P. Singhal made a strong submission that Section 377 was against Indian morality. In the words of his counsel, homosexuality was ‘a perverted kind of sex […] in the name of thrill, enjoyment and fun the young shall walk into the trap of homosexual addiction. The tragic aspect of this is that alcohol, drug and disease are the natural concomitants of homosexual activity.’ He submitted that he ‘was on morality, the joint family structure’ and that ‘we must not import evils from the west. We have traditional values and we must go by that. It would affect the institution of marriage and if women get doubt about what their husbands are doing, there will be a flood of cases of divorce.’ JACK’s counsel submitted that there was ‘no scientific evidence that HIV causes AIDS’, that a ‘change in this provision would mean that all marriage laws would have to be changed’, and that ‘under Sections 269 and 277 of the IPC anyway any intentional spreading of an infectious disease would be an offence’. JACK’s counsel then asserted that Naz did not come to court with clean hands and was part of an international network which was using HIV/AIDS to push an agenda. Judicial empathy: Listening to LGBT voices.

The court in the post liberalisation era has not been a hospitable space or indeed the last refuge of what the Supreme Court had characterised as the ‘oppressed and the bewildered’. In fact the court has been positively hostile to a whole range of applicants right from slum dwellers to all sections of organised labour. So it was with a great deal of trepidation that queer activists awaited the hearing. How would the judges indeed understand complex issues of sexuality and rights? How indeed would we be able to persuade them that this was an issue of rights? Should we not have learnt from the experience of Public Interest Litigation in the 90s and stayed away from the court as any guarantor of rights? These were some of the thoughts circulating like a nervous eddy through the queer community.

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The judicial response has generally been subject to analysis in terms of the reasoned argument and the decided case. In contrast, little attention has been paid to the gamut of responses by judges on a day-to-day basis in courts. As Lawrence Liang notes: Witnessing the courts functioning on a day to day basis also allows you to uncover another secret archive, an archive of humiliation and power. It is said that seventy percent of our communication is non verbal and this must be true of legal communication as well. The secret archive that interests me consists not of well reasoned judgments or even the unreasonable admonishment of the courts, but the various symbolic signs and gestures that accompany them. An incomplete index of the archive includes the stare, the smirk, the haughty laugh, the raised eyebrow, the indifferent yawn, the disdainful smile and the patronizing nod amongst many others.16

In this secret archive of what Liang correctly characterises as ‘humiliation and power’, what emerged almost as a complete surprise was another index of responses, which can rightly be characterised as standing in for the quality of judicial empathy. What came through the questions and comments of the judges was not an intention to humiliate but instead a strong sense of empathy for the suffering of LGBT persons. C. J. Shah communicated this judicial empathy in ample measure and took judicial notice of the social discourse of homophobia by saying that we all know what kind of sneers and mockery this issue is treated with in society. To substantiate this point, he narrated the moving instance of a boy who was subjected to jibes and sneers because of his sexuality and so was unable to take his exam. It was only after a judicial intervention that he was allowed to take his exam without harassment and in C. J. Shah’s words, ‘he thankfully passed.’ If one were to abstract three important moments in the courtroom arguments spanning over 11 days: The first important moment was when the counsel for Naz, Mr. Anand Grover read the opinion of Albie Sachs in National Coalition for Gay and Lesbian Equality v. Minister of Justice.17 This decision by the

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South African Constitutional Court ruled that the offence of sodomy violated the right to equality and dignity and struck it down. J. Sachs’ passionately argued concurring opinion was in particular animated by the high ideals of the South African Constitution and exceeded the staid limits of conventional judicial prose in its ability to evoke empathy. It conveyed with an intensity and power the extent of injustice perpetrated by an anti-sodomy law. As J. Sachs powerfully noted: In the case of gays, history and experience teach us that the scarring comes not from poverty or powerlessness, but from invisibility. It is the tainting of desire, it is the attribution of perversity and shame to spontaneous bodily affection, it is the prohibition of the expression of love, it is the denial of full moral citizenship in society because you are what you are, that impinges on the dignity and self-worth of a group.18

The judges were visibly moved by J. Sachs’ opinion and conferred among themselves. C. J. Shah wished that the Additional Solicitor General (ASG) had been in court to listen to J. Sachs’ opinion. Almost subtly, you could sense that the burden had shifted from the counsel to the judges. They now had to contend with the weighty presence of J. Sachs and the burden of history when they wrote their judgement. In case there were any doubts on this point, Voices Against 377 submitted an outline of submissions which argued: This case ranks with other great constitutional challenges that liberated people condemned by their race or gender to live lives as second class citizens, such as Mabo v. Queensland19 (where the High Court of Australia declared that the aboriginal peoples of Australia had title to lands prior to colonisation), Brown v. Board of Education,20 (where the United States Supreme Court held that segregated schools in the several states are unconstitutional in violation of the 14th Amendment) and Loving v. Virginia,21 (where the United States Supreme Court held that laws that prohibit marriage between blacks and whites were unconstitutional).22

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The second important moment was when the judges zoned in on what they saw as the core argument for retaining Section 377, public morality. They asked the counsel for Voices Against 377 how he would respond to the public morality justification for retaining Section 377. Mr Shyam Divan’s response on behalf of Voices Against 377 was: Any law or statutory provision that denies a person’s dignity and criminalises his or her core identity violates Article 21 of the Constitution. Section 377 operates to criminalise, stigmatise, and treat as ‘unapprehended felons’ homosexual males. The provision targets individuals whose orientation may have formed before they attained majority. It criminalises individuals upon attaining majority, for no fault of the person and only because he is being himself. Article 21 absolutely proscribes any law that denies an individual the core of his identity and it is submitted that no justification, not even an argument of ‘compelling State interest’ can sanction a statute that destroys the dignity of an estimated 25 lakh individuals.23 This argument that the state cannot plead ‘compelling state interest’ when the core value of dignity is at stake, seemed to resonate deeply with the judges with them repeatedly asking the ASG to respond to what they characterised as ‘a very strong argument on dignity.’

The third important moment was the series of exchanges between the judges and the ASG and the counsel for B. P. Singhal and JACK. In contrast to the evident empathy with which the judges heard both Naz and Voices Against 377, the ASG as well as the counsels for JACK and BP Singhal were subject to questions which showed the judicial impatience with the nature of arguments and hinted at the deep structure of their judicial sympathies. I will just highlight one such exchange: At one particularly funny moment, counsel for B. P. Singhal, Mr. Sharma, referred to R. V. Brown,24 which was a decision of the House of Lords in which they had ruled that consensual sadomasochistic practices between adults were not entitled to protection on grounds of privacy to make the point that ‘homosexuals enjoy group sex and even enjoy committing violence. This is sexual perversity and when they were consenting adults, criminal acts warranting prose-

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cution were committed in the course of such perversity.’ He said that ‘it was disconcerting to see tendency of homosexuals to indulge in group sex’. Chief Justice Shah noted: [W]hen the R.v. Brown judgement was delivered, sodomy was not a crime in the UK. So even if Section 377 is read down and homosexual acts between consenting adults do not amount to an offence under Section 377, it would still be an offence if grievous hurt is inflicted on the passive partner even if the partner has consented to it.

Chief Justice Shah then inquired about the relevance of the judgement. Mr. Sharma responded that the ‘anus is not designed by nature for any intercourse and if the penis enters the rectum, victim is found to get injury.’ The activity itself causes bodily harm. Chief Justice Shah asked whether the submission that this act itself causes injury because it is unnatural or is likely to cause injury, had been argued before; whether in any culture, western or oriental, in several countries where the ban has been lifted, in WHO Reports, had anyone argued that the act itself causes injury? Could Brown actually be forced to the logical conclusion that sex between two males itself is a cause of injury? Why had this submission never been raised before any court till now? Mr. Sharma continued to read from Brown to make the point that ‘drink and drugs are employed to obtain consent and increase enthusiasm, there is genital torture on anus, testis, blood letting. Burning of penis...’ Mr. Anand Grover intervened to say that Brown was to do with violence and dealt with a fact situation not contemplated by Wolfenden and that this was recognised by the judgement itself. Counsel for B. P. Singhal continued to read from this judgement to make the point that ‘homosexuals enjoy group sex and even enjoy committing violence. This is sexual perversity and criminal acts warranting prosecution were committed in the course of such perversity.’ He said that ‘it was disconcerting to see tendency of homosexuals to indulge in group sex’. C. J. Shah sharply interjected

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to ask if it was based on personal knowledge that Mr Sharma knew that homosexuals enjoy group sex. What the three moments extracted above demonstrate is that the judges in the course of the hearings, showed sensitivity not only to instances of brutal violence but equally to the more subtle language of discrimination and this made the court proceedings, for the brief duration of the hearings, a magical space. LGBT persons who were so used to the sneers and jeers of society suddenly felt that they were not only being heard but also respected. The judges just through the art of empathetic listening restored dignity to a section of society on whom the Government seemed intent on pouring nothing but contempt and scorn. These judges did something unique. They spoke about sex without a sneer and for the first time in recorded judicial history of the Indian courts, managed to actually talk about homosexual sex within the context of intimacy and love. The discourse of love and affection, intimacy and longing became a part of the judicial register and displaced the relentless focus on the stripped down homosexual act as a threat to civilisation at its very roots. The conflation of homosexuality with excess through the focus on group sex, was challenged by the nature of judicial questioning, and the discourse about homosexuality was linked to contexts of emotion and feeling. A new path was being forged in learning to talk about the intimacy which Nowshirwan and Ratansi had shared, within the terms of the law. For the first time it seemed possible to see Nowshirwan and Ratansi and many others like them in terms other than the basely carnal, and for opening up that possibility, one should credit the empathetic listening which C. J. Shah and J. Muralidhar demonstrated. The Judgement in Naz Foundation v. Union of India: A New Language of Morality

While the judgement of Naz Foundation v. Union of India deserves to be studied from many perspectives,25 this final section will focus on the judicial use of the term ‘constitutional morality’. The question of morality has been central to the concerns around Section 377 and was

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sought to be addressed by different parties in the Naz Foundation case. Both the Union of India as well as intervenors such as B. P. Singhal and JACK constantly sought to make the point that reading down the section would destroy society’s morals. The judges too were deeply troubled by the question of morality and constantly sought to get the parties to respond to the question of morality as ground for retaining Section 377. The way the judgement dealt with the question of morality was by introducing the term ‘constitutional morality’ which became the term on which the rest of the judgement hinged. To understand the key role that the notion of ‘constitutional morality’ played in the judgement, it is important to contextualise the debates on the LGBT rights and morality which were played out historically and which formed a part of the debates before the Delhi High Court. The very origin of the law has its historical roots in a notion of morality which emerged from a Judeo-Christian sensibility. It can be traced historically to a time when there was no separation between law and morality, and law was meant to reflect a religious morality. Thus the offence of sodomy, for which the initial punishment was death penalty, was a part of Canon law which became in turn a part of English Law and finally ended up on the statute of the Indian Penal Code. This notion of law and morality as an integrated system, was first challenged by the Wolfenden Committee Report in 1957 which was set up to examine the criminalisation of homosexuality. The Report in its recommendations made a strong argument for the decriminalisation of consenting same-sex acts between adults in private. As the Wolfenden Committee famously noted: It is not, in our view, the function of the law to intervene in the private lives of citizens....Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality, which is, in brief and in crude terms, not the law’s business.26

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The recommendations of the Wolfenden Committee Report in turn became the subject matter of one of the most famous legal debates in history between Lord Devlin and Prof. H. L. A. Hart, which has remained a staple of legal education around the world, ever since it first took place.27 Lord Patrick Devlin articulated the classic defence of why homosexuality should continue to remain a criminal offence. In his view, even if homosexuality was a private immorality, it should continue to be punished as Devlin argued that homosexuality was an attack upon a ‘society’s constitutive morality’. In his view, a society’s existence depended upon the maintenance of shared political and moral values. To maintain those values and in fact to ensure societal survival, it was essential that even a private immorality like homosexuality should continue to remain a criminal offence. It was as a counter to Devlin’s statement that Prof. H. L. A. Hart articulated the classic defense of the Wolfenden Committee Recommendations. Hart, following from Mill’s defence of liberty argued that the basis of the criminal law lies in preventing harm to others. There is no basis in Hart’s philosophy for the law to actually intervene to legislate a public morality. Hart argued that there is no empirical evidence for the proposition that if law did not support a public morality, society would collapse. If such was indeed the case, we should assume that there can be no change in societal morality as any change in social morality becomes equated to a collapse of societal morality. In effect, Hart offered a resounding defence of the core recommendation of the Wolfenden Committee, that ‘there must remain a realm of private morality, which is, in brief and in crude terms, not the law’s business’.28 The impact of Hart’s thinking in India cannot be underestimated. Every student of law and jurisprudence has had to contend with his thinking. So every student of law encounters homosexuality and the defence of decriminalisation through the Hart-Devlin debates. Legal academic circles and in particular jurisprudence professors will still swear by Hart’s work as the acme of positivist jurisprudence. Academically minded judges too have cited Hart in the judgements of the Indian High Courts and Supreme Courts. In short, in a difficult

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terrain of a complete lack of exposure to the discourse of homosexual rights, the work of H. L. A. Hart provides a remarkably useful starting point for speaking to judges, lawyers and legal academics in a language that they not only know, but have been taught to venerate. Such being the case, the Naz judgement could have been well justified in making the argument for the decriminalisation of homosexuality, based on Hart’s position that it was not the law’s business to regulate a zone of private morality. Such an understanding would have been sufficient to achieve the result of reading down Section 377 to exclude consensual sex between adults from the ambit of criminalisation. However, the judges chose to tread a more ambitious path. The judges begin by referencing Dr. Ambedkar, who in the Constituent Assembly had noted: ‘Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic.’29 They went on to state: Popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjective notions of right and wrong. If there is any type of ‘morality’ that can pass the test of compelling state interest, it must be ‘constitutional’ morality and not public morality.30

They added that ‘[m]oral indignation, howsoever strong, is not a valid basis for overriding individual’s fundamental rights of dignity and privacy. In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.’31 What the judges did by articulating the notion of constitutional morality was to change the terms within which homosexual expression had been thought of by the judiciary. From the first tentative steps

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when Hart and Wolfenden had made space within the law for ‘private immorality’, now homosexual expression was to be seen as not just something which needs to be ‘tolerated’ but rather as something which needs to be protected, as protecting the expression of homosexuality goes to the heart of the meaning of the freedoms guaranteed under the Indian Constitution. In a reversal of the terms of the debate, it became ‘moral’ to protect LGBT rights and ‘immoral’ to criminalise people on grounds of their sexuality. To protect what Devlin might have called ‘society’s constitutive morality’ and the judges called ‘constitutional morality’, it became essential to ensure that LGBT expression was protected. Constitutional morality in the judges’ reading requires that LGBT persons are treated as equal citizens of India, that they cannot be discriminated against on grounds of their sexual orientation and that their right to express themselves through their intimate choices of who their partner is be fully respected. It’s only when the dignity of LGBT persons is respected that the Indian Constitution lives up to its foundational promise. Taken one step further, constitutional morality also requires the court to play the role of a counter majoritarian institution which takes upon itself the responsibility of protecting constitutionally entrenched rights, regardless of what the majority may believe. In the judges’ fitting conclusion: If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracised.32

The theme of ‘constitutional morality’ thus brings about a paradigm shift in the way the law thinks about LGBT persons. Protecting the rights of LGBT persons is not only about guaranteeing a despised

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minority their rightful place in the constitutional shade, but it equally speaks to the vision of the kind of country we all want to live in and what it means for the majority. Indian law seems to have traversed the journey from Nowshirwan to the Naz Foundation, from persecution for intimacy to making some space for the ‘little communities of love’. However, the victory still remains fragile and needs to be nurtured and safeguarded.33 One of the hopes of what the Naz judgement could portend is best articulated by the judge who was one of the inspirations for the judges in Naz Foundation, J. Albie Sachs. Sachs, looking to the future of a South Africa post decriminalisation of homosexual expression noted: ‘It leads me to hope that the emancipatory effects of the elimination of institutionalised prejudice against gays and lesbians will encourage amongst the heterosexual population a greater sensitivity to the variability of the human kind.’34 Notes 1. Report on the Indian Penal Code, c.f. Dhagamwar, Vasudha. 1992, Law, Power and Justice. New Delhi: Sage Publications, p.117. 2. (1982) 3SCC 9. 3. National Coalition For Gay and Lesbian Equality v. Minister of Justice, [1998] {12} PCLR 1517 at para 81. 4. www.lawyerscollective.org/node/1003 (accessed on 20 Aug 2009). 5. Ibid. 6. This is from a letter written by Oscar Wilde after his imprisonment for two years for committing acts of gross indecency. See: Toibin, Colm. 2003, Love in a Dark Time. London: Picador, p. 84. 7. Foucault, Michel. 1994, Power. London: Penguin, p.160. 8. The three obscure couples whose lives take on a kind of ‘pitiful grandeur’ by mere virtue of having the misfortune to get prosecuted under Section 377, are Minawalla and Tajmahomed (AIR 1935 Sind 78), Nowshirwan Irani and Ratansi (AIR 1934 Sind 206), and Ratan Mia and Abdul Nur (1988) Cr.L.J. 980. 9. Liang, Lawrence and Siddharth Narrain. 2009, ‘Striving for Magic in the City of Words’, Himal Southasian, available at www.himalmag.com/Magicin-the-city-of-words-nw3197.html (accessed on 28 Aug 2009).

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10. Murray, Douglas. 2000, Bosie. London: Sceptre, p. 221. Though it should be noted that this statement was made much after the three trials of Oscar Wilde. During the trial and its immediate aftermath, Lord Alfred Douglas stood by Oscar Wilde. He was the only one of Oscar Wilde’s friends to stay back in London during the trial, even though there was the threat of arrest. He also petitioned the authorities to release Oscar Wilde. As Murray notes: ‘Unlike Wilde’s other friends, Douglas worked for him tirelessly, never giving up hope that he might be able to change if not the sentence, at least other people’s attitude to to it’ (p. 92). 11. Henceforth referred to as C. J. Shah. 12. Henceforth referred to as J. Muralidhar. 13. Quotations from the proceedings of the Delhi High Court are taken from the transcript of the proceedings. The transcripts do provide a rough idea of the way the proceedings went before the Delhi High Court, however they are not a verbatim transcript of all that transpired before the Court. It is available at www.altlawforum.org (accessed on 10 September, 2009). 14. See: Human Rights Watch Report. 2002, ‘Epidemic of Abuse: Police Harassment of HIV/AIDS Outreach Workers in India’, Vol. 14, No. 5(C), p. 19. This Report was cited by the petitioners in their written arguments. 15. It should be noted that the affidavits filed by the Union of India were contradictory to the Home Ministry making the case that the law was required to keep in place a societal morality and NACO making the argument that the law hampered HIV/AIDS interventions. 16. Liang, Lawrence. 2007, ‘Devastating Looks: Smirks, Quirks and Judicial Authority’, available at http://kafila.org/2007/05/04/devastating-lookssmirks-quirks-and-judicial-authority/ (accessed on 10 January 2009). 17. National Coalition For Gay and Lesbian Equality v. Minister of Justice, [1998] {12} PCLR 1517. 18. Ibid., para 127. 19. (1992) 175 CLR 1. 20. 344 U.S. 1 (1952). 21. 388 U.S. 1 (1967). 22. See ‘Outline of Arguments on behalf of Voices Against 377’, para 12.4, submitted in Naz Foundation v. Union of India,Writ Petition no. 7455 of 2001. cf. Narrain, Arvind et al. 2009, The Right that Dares to Speak its Name. Bangalore: Alternative Law Forum, pp. 29–47. 23. Ibid., para 9.2 and 9.3. 24. [1993] 2 All ER 75. 25. To do a synoptic listing of the innovative approaches taken forward by the Naz judgement:

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1) It redefines privacy as not just being about the place but also about the person, i.e. that the right to privacy is also about the protection afforded to decisions about one’s intimate life. 2) It reads sexual orientation as an analogous ground of discrimination to sex and thereby opens out the possibility that the prohibited grounds under Art 15 could move beyond the specifically listed grounds. It also notes that the protection of Art 15 extends not only to discrimination by the state but also to discrimination by civil society. 3) It links sexuality and identity and makes the case that though Section 377 may be facially neutral in its operation, it ends up targetting LGBT persons and hence violates the equal protection clause in Art 14. 4) It also makes the point that the judiciary is not bound to defer to the legislature when it comes to the question of fundamental rights and has a sovereign role in protecting unpopular minorities from unconstitutional actions. See: Narrain, Arvind et al. 2009, The Right that Dares to Speak its Name. Bangalore: Alternative Law Forum. 26. Wolfenden Committee report, 1957, para 24. 27. See: Devlin, Patrick. 1987, The Enforcement of Morals. London: Oxford University Press; Hart, H. L. A. Law, Liberty, Morality. Stanford: Standford Univeristy Press. 28. Wolfenden Committee report, 1957, para 24. 29. Naz Foundation v. Union of India and others, para 79, available at www. lawyerscollective.org/node/1003 (accessed on 20.08.09). 30. Ibid. 31. Ibid., para 86. 32. Ibid., para 130. 33. At the time of writing, the judgement is being appealed in the Supreme Court by a number of parties. 34. National Coalition For Gay and Lesbian Equality v. Minister of Justice, [1998] {12} PCLR 1517 at para 138.

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Reading Swaraj into Article 15: A New Deal for all Minorities Tarunabh Khaitan1

Introduction Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion. Nehru, as quoted in the Naz Foundation case2

The brouhaha over it notwithstanding, the least surprising thing about the Delhi High Court’s verdict in Naz Foundation v. Union of India is the result of the case: that law has no business in the bedroom of consenting adults engaging in an activity that harms no one.3 Even the mere words of Article 14 (right to equality) and Article 21 (right to life and liberty, which has been read to include the right to privacy) of the Constitution and existing jurisprudence under these Articles would have sufficed to reach this result. When faced with this issue, constitutional courts worldwide have almost invariably given the same answer.4 Given the liberal, secular and egalitarian Constitution of India, it is the opposite result that would have surprised constitutional lawyers. The magic of the human spirit and of a nation’s passion lie not so much in the result of the judgement (welcome though it is) as in its progressive reinterpretation of certain constitutional provisions, especially that of Article 15, even though it was not strictly necessary to reach this result. In this essay, I will show that Naz Foundation, by

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granting unprecedented constitutional protection, represents a new deal for all minorities. It may be noted that I use the term ‘minorities’ interchangeably with all vulnerable groups, i.e. groups whose members’ autonomy is compromised owing to their membership of the group. Apart from numerical strength, other facets of vulnerability include political vulnerability (often disclosed by the level of representation in political institutions), social vulnerability (indicated by the degree of social prejudice and negative stereotypes prevalent against a group), and economic vulnerability (inferred from wealth, income, land and house ownership, occupation, education and other material indicators). A person need not check all these boxes—vulnerability even in a single dimension can be debilitating. In contemporary India, Muslims, women, tribals, hijras, dalits, people from the North-Eastern states, gays and disabled persons are minorities in this sense. Article 155 prohibits discrimination on grounds such as religion, race, caste and sex. Until recently, it had remained a largely sterile provision, subsumed entirely by the general guarantee of equality under Article 146 and rarely given the distinct importance that it deserves. Four key innovations under Article 15 in this judgement have given it a new lease of life: i) Reading in of unspecified ‘analogous’ grounds into Article 15; ii) Requirement of strict judicial scrutiny of any laws infringing upon Article 15; iii) Extension of the protection of the Article to discrimination by private bodies (‘horizontal’ effect); and iv) Substantive protection from discrimination with the prohibition of indirect discrimination and harassment. These innovations will provide unprecedented constitutional protection from discrimination to all minorities. As the subsequent discussions will clarify, Naz Foundation certainly did not pioneer all of these ideas. Most of them have their roots in precedents set by the Supreme Court and other High Courts. But, in Naz, the Court did recognise the common thread running through these precedents, pulled

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these progressive strands together, labelled them with terminology consistent with comparative jurisprudence and anchored them to the principled bedrock of personal autonomy. Surely all of this qualifies as ‘innovation’. Section 2 of this essay discusses the normative demands of swaraj or personal autonomy in the context of the right to freedom from discrimination contained in Article 15. Sections 3–6 discuss the aforementioned innovations respectively. The emerging robust antidiscrimination jurisprudence is an assertion of the classical judicial role as a counter-majoritarian institution, which is briefly explained in Section 7. Swaraj: The Foundational Principle Behind Article 15 Recall the face of the poorest and the weakest man whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him.... Will it restore him to a control over his own life and destiny? In other words, will it lead to swaraj for the hungry and spiritually starving millions?7

Swaraj, or autonomy, inspired the freedom struggle against colonial rule and is a foundational principle of our constitution. ‘The ideal of personal autonomy is the vision of people controlling, to some degree, their own destiny, fashioning it through successive decisions throughout their lives.’8 Autonomy is a matter of degree. Significantly, autonomous persons ‘are not merely rational agents who can choose between options after evaluating relevant information, but agents who can in addition adopt personal projects, develop relationships, and accept commitments to causes, through which their personal integrity and sense of dignity and self-respect are made concrete.’9 Autonomous beings have an adequate range of valuable life options available to them. The primary duty of the state is to secure swaraj for all its citizens. Systematic discrimination diminishes the quality of our lives by denying us access to an adequate range of valuable options, in all the things that matter most in our lives: housing, jobs, education, healthcare and partners.

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The High Court in Naz Foundation recognised the importance of this principle in our constitutional scheme and held that ‘personal autonomy is inherent in the grounds mentioned in Article 15’.10 In doing so, the Court was merely following the precedent set in Anuj Garg, where the Supreme Court held the value that underpins Article 15’s prohibition on sex discrimination to be the right to autonomy and self-determination.11 Amongst the grounds mentioned therein, race, caste, sex and place of birth are grounds over which most of us do not have any effective control. On the other hand, religion is a fundamental choice, also protected by other constitutional rights (such as Article 25). These two strands inherent in the grounds in Article 15, namely immutable status and fundamental choice, share a common foundation in personal autonomy. It is perhaps best to quote John Gardner to explain this point: Discrimination on the basis of our immutable status tends to deny us [an autonomous] life. Its result is that our further choices are constrained not mainly by our own choices, but by the choices of others. Because these choices of others are based on our immutable status, our own choices can make no difference to them.... And discrimination on the ground of fundamental choices can be wrongful by the same token. To lead an autonomous life we need an adequate range of valuable options throughout that life…. there are some particular valuable options that each of us should have irrespective of our other choices. Where a particular choice is a choice between valuable options which ought to be available to people whatever else they may choose, it is a fundamental choice. Where there is discrimination against people based on their fundamental choices it tends to skew those choices by making one or more of the valuable options from which they must choose more painful or burdensome than others.12

This common foundation also suggests that something like paedophilia will never become a protected ground because it violates the autonomy of others (i.e. children). Immutable status and fundamental choice were drawn from comparative jurisprudence and explicitly recognised in Naz Foundation as factors affecting personal autonomy.13 Grounding the right against discrimination in personal autonomy is

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crucial to justify the four innovations that followed. Before we move on to consider them, it must be remembered that immutable status and fundamental choice are only shorthand tools to determine whether personal autonomy is involved. There may be cases where neither of these categories is satisfied, and yet personal autonomy may be in question. Dogmatic application of these tools may create essentialised boxes of personal identity which may exclude those who don’t fit in, a concern queer rights activists are only too familiar with. In particular, the phrase ‘immutable status’ has an unhappy history of being seen as opposed to, rather than complimentary to, fundamental choice. It has been used in some US decisions to deny protection by saying that a given characteristic is not immutable. Justice Rehnquist, for example, held that citizenship is different from a ‘condition such as illegitimacy, national origin, or race, which cannot be altered by an individual .... There is nothing in the record indicating that their status as aliens cannot be changed by their affirmative acts’.14 What he did not ask was whether a choice of citizenship amounts to a fundamental choice an individual is entitled to make in keeping with her personal autonomy. It may be that it isn’t, but the judge wrongly believed that mutability of the characteristic was sufficient reason to dispose of the case. Attempts must be made in difficult cases to answer the question directly—does discrimination on this ground have the potential to impair the personal autonomy of an individual? The answer, in the context of sexual orientation and gender identity, has widely been held to be in the affirmative.15 Who is Protected?: Analogous Grounds

Suggesting that the grounds in Article 15 are bound by a common thread (personal autonomy) gives rise to a problem. Article 15 has a closed list of five specified grounds—religion, race, caste, sex and place of birth. But surely there are other grounds, such as HIV-status, pregnancy, gender identity, language, sexual orientation, disability, etc., which are also effectively immutable or entail a fundamental choice. Until now, discrimination on the basis of these unspecified

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analogous grounds has been challenged under Article 14, often successfully.16 However, with the ruling that a restriction of the right under Article 15 will be subject to a higher ‘strict scrutiny’ standard (rather than the deferential scrutiny that is conducted under Article 14),17 it may make a difference to the outcome of some cases if they fall under Article 15 or merely Article 14. To resolve this anomaly, the Delhi High Court ruled that the heightened protection of strict scrutiny under Article 15 will also be available to those grounds ‘that are not specified in Article 15 but are analogous to those specified therein ... those which have the potential to impair the personal autonomy of an individual.’18 Therefore, even though grounds such as disability and pregnancy are not specified in Article 15, they now have its protection. Notice that the High Court had already held that ‘sex’, a specified ground, includes ‘sexual orientation’,19 and that ‘discrimination on the basis of sexual orientation is itself grounded in stereotypical judgements and generalisations about the conduct of either sex.’20 Thus, Section 377 discriminated on the grounds of sex itself. Opening up the scope of Article 15 to other analogous grounds (like disability) was not critical for the result of the case. Yet, given this ruling, all autonomy-related grounds can now claim the special protection of Article 15. Admittedly, such a reading is difficult to sustain if one adopts a strictly textual approach to constitutional interpretation. The Naz Court drew upon the well-settled doctrine of Indian constitutional law that the appropriate method of constitutional interpretation is purposive, rather than strict textualism or originalism.21 As the Court rightly held, ‘personal autonomy is inherent in the grounds in Article 15. The grounds that are not specified in Article 15 but are analogous to those specified therein, will be those which have the potential to impair the personal autonomy of an individual.’22 As an exercise of purposive interpretation, this reading is justified. How Much Protection?: Strict Scrutiny

The second key aspect of the judgement is the reaffirmation of ‘strict scrutiny’ as the appropriate standard of review under Article 15. Strict

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scrutiny is an extremely demanding standard which requires the court to presume that a discriminatory law is invalid unless the State can prove that the impugned law was enacted in the pursuit of a compelling state interest, with minimal interference with the right in question, in the absence of any alternative, and was proportionate.23 Until recently, all that the state needed to prove was that the discrimination was ‘reasonable’ under Article 14, which is a relatively hands-off standard of review.24 Traditionally, the test employed for deciding whether there is any discrimination on a specified ground under article 15 has been exactly the same for an unspecified ground under Article 14, which is to see whether the classification made on the said ground satisfies the reasonableness review. There was no special status given to discrimination on Article 15 grounds like sex or caste. This situation appeared to change with the Supreme Court decision in Anuj Garg, which applied strict scrutiny to a law that discriminated on the grounds of sex.25 This should have been a clear precedent for the High Court to follow, except that another Supreme Court judgement in Ashoka Thakur refused to apply strict scrutiny to an affirmative action measure challenged as discriminatory on the basis of caste.26 Garg was decided after the conclusion of hearings in Thakur but before the judgement was delivered in the latter, so neither court had the benefit of reading the other judgement. The legal position after these seemingly conflicting decisions was unclear. The Naz Court rightly held: On a harmonious construction of the two judgments, the Supreme Court must be interpreted to have laid down that the principle of ‘strict scrutiny’ would not apply to affirmative action under Article 15(5) but a measure that disadvantages a vulnerable group defined on the basis of a characteristic that relates to personal autonomy must be subject to strict scrutiny.27

Indeed, the Supreme Court itself tried to clear the air on the issue in a case decided subsequent to Naz Foundation by reading Thakur’s refusal to apply strict scrutiny narrowly.28 Some questions remain on the implications of strict scrutiny on personal laws. The matter is only of tangential relevance in this essay, but a quick observation is merited.

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Many aspects of personal laws will not survive even the deferential reasonableness review under Article 14. However, a regrettable line of precedents suggests that at least some aspects of personal laws are immune to a constitutional challenge.29 Unless these precedents are overruled, personal laws cannot be subject to reasonableness review, much less strict scrutiny.30 This diversion aside, it may be noted that the discussion on strict scrutiny was not important for the result in this case. The Naz Court was clear that ‘… a provision of law branding one section of people as criminal based wholly on the State’s moral disapproval of that class goes counter to the equality guaranteed under Articles 14 and 15 under any standard of review.’31 Thus, even the deferential ‘reasonableness review’ would have sufficed. The main benefit of this higher standard of review will be reaped in future cases by all vulnerable minorities. Protection From Whom?: Horizontal Effect

The third important constitutional innovation under Article 15 is the pronouncement by the High Court that it provides protection from discrimination perpetuated not only by the state (‘vertical’ effect) but also by private bodies (‘horizontal’ effect): Article 15(2) incorporates the notion of horizontal application of rights. In other words, it even prohibits discrimination of one citizen by another in matters of access to public spaces. In our view, discrimination on the ground of sexual orientation is impermissible even on the horizontal application of the right enshrined under Article 15.32

As the Court rightly suggests, the seeks of horizontality lie in the words of Article 15(2) itself, which reads: No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

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Indeed, even though the Naz Court does not cite it explicitly, the horizontal effect of Article 15 was already established by the Supreme Court in Vishaka v. State of Rajasthan.33 The case involved a class action against sexual harassment of women in the work place. Faced with a legislative vacuum, the Court laid down guidelines to deal with sexual harassment in the workplace, which applied to public as well as private employers, thereby giving horizontal effect to the right to be free from harassment.34 Horizontal effect of fundamental rights makes people nervous, for reasons normative as well as pragmatic. Normatively, it is one thing to say that the state shall not discriminate, but quite another to suggest that a private individual shall not discriminate.35 A democratic state has the burden of being able to justify all its actions and therefore, very stringent anti-discrimination obligations can be imposed on the state. An individual, however, herself is a bearer of rights. Any restriction on her, including the demand that she should refrain from discriminating, requires justification. In relatively public aspects of life, such as housing, employment, health, education, access to goods and services, etc., such a justification is forthcoming.36 However, there will be some aspects of individual conduct, say the choice of friends and partners, which must be out of bounds for law, howsoever reprehensible we may find the idea of refusing to make friends with people of a certain caste or religion. The normative worry is relatively easier to take care of by imposing appropriate limits to the scope of anti-discrimination law in its application to private persons. The second pragmatic worry about horizontal effect is this: constitutional courts tend to have limited jurisdictions to keep their case-load manageable. Under Articles 32 and 226 of the Constitution, one can directly approach the Supreme Court or a High Court for the violation of any fundamental right. Now, if there is a fundamental right against discrimination by a private person, there is a danger of the constitutional courts being swamped by complaints. Thus we meet the infamous ‘floodgates’ argument—that giving horizontal effect to fundamental rights will open the floodgates to an amount of litigation that our courts are ill-equipped to handle.

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This worry, however, is misplaced. It assumes that direct horizontal effect is the only way to give horizontal effect to a right—i.e. ‘an independent cause of action against private parties for breach of constitutionally protected rights’.37 However, several fundamental rights, such as the right to education or the right to information, need a specialised enforcement mechanism set-up by a statute.38 In the absence of such statutory framework, a constitutional court could wear its law-making hat and give indirect horizontal effect to the right. This merely requires that ‘the judiciary ought to apply and develop principles of common law in a manner consistent with the fundamental values enshrined in the constitution.’39 Indeed, this is exactly what the Supreme Court did with regard to sexual harassment in Vishaka. Similarly, in the case of In Re: Destruction of Public and Private Properties, the Supreme Court created a tort of destruction of public and private property, giving indirect horizontal effect to the fundamental rights involved.40 It follows, therefore, that if a litigant approaches a constitutional court complaining of discrimination by a private housing society on the grounds of religion and no legislation exists to deal with the issue (as was the case in Zoroastrian Co-operative Housing Society v. District Registrar),41 the appropriate judicial response would have been to give indirect horizontal effect to the right against discrimination and recognise a tort against discrimination. The Supreme Court’s dismissal of the petition in Zoroastrian Society case was therefore wrong.42 Vishaka and In Re: Destruction cases suggest that indirect horizontal effect is already a part of our constitutional jurisprudence. Naz Foundation only makes this explicit, even though the case was strictly concerned with vertical discrimination. Substantive Protection: Indirect Discrimination and Harassment

Finally, the judgement recognises that discrimination includes not just direct discrimination but also indirect discrimination and harassment.43 Direct discrimination occurs when a provision unfairly differentiates on the basis of a protected ground on the face of it.

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Indirect discrimination occurs when a superficially non-discriminatory measure has a disproportionate impact on a vulnerable group. Indirect discrimination was clearly at issue in Naz Foundation. On the face of it, Section 377 outlawed all sex that wasn’t peno-vaginal. It therefore criminalised anal and oral sex between heterosexual couples as much as it did between homosexual couples. Despite this facial neutrality, the impact of criminalisation largely affected gay men and women alone because all the sex acts they can possibly perform are nonpeno-vaginal. Thus, Section 377 discriminated indirectly against gay people. The petitioners in the case had also made out a strong case of harassment of gays, lesbians and especially hijras by police as well as goondas.44 This recognition of indirect discrimination and harassment is a move away from a formal guarantee of non-discrimination to a more substantive protection of personal autonomy. After all, it matters little to the victim what form discrimination takes—all three forms can be equally debilitating. Several other examples of indirect discrimination can be noticed in the Indian context. A housing society that only rents to vegetarians disproportionately impacts upon certain religious and caste groups. Under the interpretation of Article 15 in Naz Foundation, such indirect discrimination will be unconstitutional. Another example can be seen in the recent case of National Insurance Co. Ltd. v. Deepika.45 In this case relating to accident insurance claims, a legal provision provided that the income of a non-earning spouse is to be calculated as one-third of that of the earning spouse. The judge lamented the fact that this provision did not take into account the economic worth of the home-maker, who is usually a woman.46 Again, we are faced with an example of a facially-neutral law which disproportionately affects one group (in this case, women). Thus, the move towards a substantive protection of personal autonomy by prohibiting not just direct discrimination but also indirect discrimination and harassment is welcome. Any legislation giving effect to the right against discrimination must incorporate this development.47

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Separation of Powers and the Proper Judicial Role

Since anti-discrimination laws are usually relied upon by minorities, a final word on the counter-majoritarian role of the judiciary espoused in Naz Foundation is useful. The Court held: Thus popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. If there is any type of ‘morality’ that can pass the test of compelling state interest, it must be ‘constitutional’ morality and not public morality. This aspect of constitutional morality was strongly insisted upon by Dr. Ambedkar in the Constituent Assembly.48

This is the classic formulation of the role of courts as counter-majoritarian institutions which have a special role in protecting vulnerable groups.49 It was famously expressed in Carolene Products, where Justice Stone of the US Supreme Court said that ‘prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.’50 This counter-majoritarian theme in Naz Foundation was borrowed from Anuj Garg, where the Supreme Court had expressed a similar sentiment: [T]he issue of biological difference between sexes gathers an overtone of societal conditions so much so that the real differences are pronounced by the oppressive cultural norms of the time. This combination of biological and social determinants may find expression in popular legislative mandate. Such legislations definitely deserve deeper judicial scrutiny. It is for the court to review that the majoritarian impulses rooted in moralistic tradition do not impinge upon individual autonomy. This is the backdrop of deeper judicial scrutiny of such legislations world over.51

At least three cases since Naz Foundation have reaffirmed this countermajoritarian role of the judiciary: Santosh Bariyar v. State of Maharashtra,52

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Influence Lifestyle Stores v. Government of Tamil Nadu,53 and CPIO, Supreme Court v. Subhash Chandra Agarwal.54 Conclusion

The Naz Court has invoked the swaraj-driven spirit of the Constitution and crafted a remarkably progressive jurisprudence on anti-discrimination law. Article 15 is set to become one of the key constitutional guarantors of personal autonomy for vulnerable minorities. It may seem that this judgement does not obviously benefit Hemanshu, who is Hindu, English-educated, Male, Able-bodied, North-Indian, Straight, Hindi-speaking and Upper-caste. But should Hemanshu lose his legs in an accident or get posted in a non-Hindi speaking/non-Hindu-majority area, he too will be protected. The Court has recognised that pluralist societies rarely have permanent majorities or minorities. The Constitution stands for the principle of minority protection, whoever they might happen to be. Notes 1. This article was first published in 2009 in NUJS Law Review, Vol. 2, No.3. 2. Naz Foundation v. Union of India 160 (2009) DLT 277 [129]. 3. The High Court read down Section 377 of the Indian Penal Code 1860 to exclude private consensual sex between adults from its ambit. Section 377 reads thus: Unnatural offences: 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 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 offense described in this section. For a historical account of the provision, see: Human Rights Watch. 2008, ‘This Alien Legacy: The Origins of “Sodomy” Laws in British Colonialism’, available at www.hrw.org/en/reports/2008/12/17/alien-legacy-0. For a review of the report, see: Bubb, Alexander. 2009, ‘Blustering Sahibs and Section 377’, Economic and Political Weekly, Vol. 44, No. 35, p. 25. 4. See Dudgeon v. United Kingdom [(1981) 4 EHRR 149 (European Court of Human Rights)]; Toonen v. Australia [Communication No. 488/1992, U.N.

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Doc CCPR/C/50/D/488/1992 (1994) (UN Human Rights Committee)]; National Coalition for Gay and Lesbian Equality v. Minister of Justice [1999 (1) SA 6 (Constitutional Court of South Africa)]; McCoskar v. The State [2005] FJHC 500 (High Court of Fiji)]; Leung TC William Roy v. Secretary for Justice [(2006) HKEC 578 (High Court of Hong Kong)]; Sunil Babu Pant v. Government of Nepal [Writ No. 917 of the year 2064 (BS) (2007) (Supreme Court of Nepal)]. The US Supreme Court overruled an earlier decision to hold that criminalisation of consensual homosexual acts is unconstitutional—Lawrence v. Texas [539 US 558 2472 (123 S Ct 2472)]. The sole surviving exception appears to be the judgement of the Supreme Court of Zimbabwe in Banana v. State [8 BHRC 345 (2000)] where a majority of three judges to two upheld the constitutionality of an anti-sodomy law. 5. Article 15: 1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. 2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. 3) Nothing in this article shall prevent the State from making any special provision for women and children. 4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. 5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30. 6. Article 14: ‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.’ 7. Pyarelal. 1958. ‘Gandhi’s Talisman’, Mahatma Gandhi: Last Phase Vol. II. Ahmedabad: Navjivan. 8. Raz, J. 1986, The Morality of Freedom. Oxford: Clarendon Press, p. 369.

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9. Ibid., p. 154. 10. Naz, p. 112. 11. Garg, pp. 33, 41. Again, at p. 45: ‘personal freedom is a fundamental tenet....’ 12. Gardner, J. 1998, ‘On the Ground of Her Sex(Uality)’, Oxford Journal of Legal Studies, Vol. 18, pp. 167, 170–1 (emphasis added). 13. Naz, pp. 102–3. 14. Sugarman v. Dougall (Justice Rehnquist’s Dissent) 413 US 634, 657, 93 S.Ct. 2861, 2865 (1973). 15. See generally: Wintemute, R. 1995, Sexual Orientation and Human Rights: The United States Constitution, the European Convention, and the Canadian Charter. Oxford: Clarendon Press. 16. See, for example: Ranjit Kuman Rajak v. State Bank of India, 2009 (5) Bom C R 227 for disability discrimination; and MX v. ZY, AIR 1997 Bom 406 for HIV-status discrimination. 17. See next section, ‘How Much Protection?: Strict Scrutiny’. 18. Naz, p. 112. 19. Ibid., pp. 100, 104. 20. Ibid., p. 99. 21. Ibid., p. 114: ‘A constitutional provision must be construed, not in a narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the constitutional provision does not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems.’ Maneka Gandhi v. Union of India, AIR 1978 SC 587 was a watershed case in this regard, followed subsequently by numerous other cases. See also: Barak, Aharon. 2005, Purposive Interpretation in Law (Sary Bashi, transl.). Princeton: Princeton University Press. On originalism, see: Goldford, D. J. 2005, The American Constitution and the Debate over Originalism. New Yok: Cambridge University Press. 22. Naz, p. 112. 23. For a detailed exploration of the strict scrutiny debate in the Indian context, see: Khaitan, Tarunabh. 2008, ‘Beyond Reasonableness—A Rigorous Standard of Review for Article 15 Infringement’, Journal of the Indian Law Institute, Vol. 50, No. 2, p. 177. 24. A reasonableness test usually requires a demonstration of an intelligible differentia in the classification, and a rational nexus between the classification and the object sought to be achieved. 25. Garg, pp. 47, 50. 26. Ashoka Thakur v. Union of India, (2008) 6 SCC 1.

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27. Naz, p. 111. 28. Subhash Chandra v. Delhi Subordinate Services Selection Board, (2009) 11 SCALE 278, 43. 29. State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84; endorsed by the Supreme Court in Ahmedabad Women’s Action Group v. Union of India (AIR 1997, 3 SCC 573). 30. See generally: Bhattacharjee, A. M. 1996, Matrimonial Laws and the Constitution. Calcutta: Eastern Law House; Khaitan, Tarunabh. 2001, ‘Personal Laws and the Constitution—the Judicial Dilemma’, Central India Law Quarterly, Vol. 14, No. 4, p. 521. 31. Naz, p. 113. 32. Ibid., p. 104. 33. AIR 1997 SC 3011. 34. Vishaka, p. 16. 35. See: Bamforth, Nicholas. 1997, ‘The Public Law-Private Law Divide: A Comparitive and Philosophical Approach’, in Leyland, P. and T. Woods (eds), Administrative Law Facing the Future: Old Constraints and New Horizons. London: Blackstone, Chapter 6. 36. See, for example: Gardner, J. 1998, ‘On the Ground of Her Sex(uality)’, Oxford Journal of Legal Studies, Vol. 18, p. 167. 37. Hunt, Murray. 1998, ‘The “horizontal effect” of the Human Rights Act’, Public Law, Vol. 423, p. 428. 38. See, for example, the Right to Information Act 2005 and the Right to Education Act 2009. Indeed, a Bill to set up an Equal Opportunity Commission to tackle horizontal discrimination is already under consideration. See generally: Menon, Madhava. 2008, ‘Equal Opportunity Commission: What, Why and How?’, submitted to the Ministry of Minority Affairs, Government of India, available at http://minorityaffairs.gov.in/newsite/reports/eoc_wwh/ eoc_wwh.pdf; Khaitan, Tarunabh. 2008, ‘Transcending Reservations—A Paradigm Shift in the Debate on Equality’, Economic and Political Weekly, 20 September, p. 8. 39. Hunt, see note 37, p. 430. See also: Bamforth, N. 2001, ‘The True “Horizontal Effect” of the Human Rights Act 1998’, Law Quarterly Review, Vol. 117, p. 34; Bamforth, N. 2003, ‘A Constitutional Basis for Anti-discrimination Protection?’, Law Quarterly Review, Vol. 119, p. 215; Bamforth, N., M. Malik and C. O’Cinneide., Discrimination Law: Theory and Context (Text and Materials). London: Sweet & Maxwell, p. 9. 40. (2009) 5 SCC 212. 41. AIR 2005 SC 2306.

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42. See generally: Khaitan, Tarunabh. 2008, ‘Discrimination by Housing Societies: Possible Legal Responses’, Indian Muslims, 17 December 2008, available at http://indianmuslims.in/discrimination-by-housing-societiespossible-legal-responses. 43. Naz, p. 93. Direct and indirect discrimination should not be confused with direct and indirect horizontal effect. 44. Ibid., pp. 21-22. See also, PUCL Report on the Human Rights Violations against Sexual Minorities in India (Bangalore 2001), available at www.pucl. org/Topics/Gender/2003/sexual-minorities.pdf; and PUCL Report on Human Rights Violations against the Transgender Community (Bangalore 2003), available at http://ai.eecs.umich.edu/people/conway/TS/PUCL/ PUCL%20Report.html. 45. National Insurance Co. Ltd. v. Deepika, (2009) 6 MLJ 1005. 46. Ibid., p. 10. 47. This demand is echoed by the Centre for the Study of Social Exclusion in its Open Letter to the Minister of Minority Affairs on the Equal Opportunity Commission Bill, available at www.nls.ac.in/csse/E_O_C.htm. 48. Naz, p. 79. 49. See generally: Ely, J. H. 1980, Democracy and Distrust: A Theory of Judicial Review. London: Harvard University Press. 50. United States v. Carolene Products 304 US 144, 153, 58 S.Ct. 778, 784 (1938), see note 4. 51. Garg, p. 39. 52. (2009) 6 SCC 498: ‘The constitutional role of the judiciary also mandates taking a perspective on individual rights at a higher pedestal than majoritarian aspirations. To that extent we play a countermajoritarian role.’, p. 89. 53. C.S.NO.251 OF 2009 (Madras High Court), available at http://docs. google.com/View?id=dg5pxzvr_544q42v6g2 : ‘It is for the court to review that the majoritarian impulses rooted in moralistic tradition do not impinge upon individual autonomy. This is the backdrop of deeper judicial scrutiny of such legislations world over’, p. 41. 54. W.P. (C) 288/2009 (Delhi High Court), available at http://judicialreforms. org/files/Asset%20declaration%20judgement.pdf: ‘judges do not decide cases by dictates of popularly held notions of right and wrong. Indeed a crucial part of the judge’s mandate is to uphold those fundamental values upon which society organises itself; here, if the judge were to follow transient “popular” notions of justice, the guarantees of individual freedoms, entrenched in the Constitution, would be rendered meaningless’ (p. 44).

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Navigating the Noteworthy and Nebulous in Naz Vikram Raghavan

Few, if any, cases have been so closely followed, and their judgements as keenly awaited as Naz Foundation v. Government of the National Capital Territory.1 The verdict was eagerly anticipated, not just by lawyers and commentators, but also by activists and a broad crosssection of ordinary people.2 Acutely aware of the case’s importance, Chief Justice A. P. Shah and Justice S. Murlidhar of the Delhi High Court did not disappoint. Their stirring conclusion that Section 377 is unconstitutional for criminalising consensual adult sex is set within the elegant tapestry of an aesthetically spun judgement, exquisitely embroidered with careful reasoning and copious citations. The Naz bench displayed great courage and craftsmanship in fashioning a historic decision heard loud and clear, not only in India, but across the world. Naz’s beauty is that it skillfully mixes originalism, rarely invoked by Indian courts, with pragmatism in constitutional interpretation. It is a product of considerable strategising, deep thinking and extensive research. At the same time, the judges have displayed great humanism, sensitivity and empathy—qualities so rarely on display in Blackstonian legal monasteries. The decision’s artful prose, which seems almost poetic in several places, is tempered by a subtle undercurrent of judicial humility and modesty. Its cadences bear the nostalgic influences of Chinnappa Reddy’s compassion and Bhagwati’s powerful argumentation without the distraction of Krishna Iyer’s bombast.

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At its core, Naz is an emphatic reiteration of the vision of India’s founders to establish a catholic, inclusive and tolerant republic. Mindful of the bitter and shameful legacies of Indian history, the founders were especially unwilling to countenance social exclusion. This is evident from, among other things, the unprecedented constitutional prohibition on ‘untouchability’ in Article 17.3 Without explicitly saying so, Naz extends the command of Article 17 to abolish new avatars of disability based on sexual identity. And in so doing, this decision is a reminder that the Indian constitution is a vibrant, living document and its broad protections must be dynamically interpreted to new situations and challenges. Symbolically as well as substantively, Naz constitutes a radical change in Indian constitutional jurisprudence. It fundamentally alters the relationship between a large disenfranchised yet mostly silent and dispersed minority, and the hegemonic state. For this reason, it genuinely qualifies for that often gratuitously misused epithet of legal writing: ‘a landmark judgement’. Yet, like all landmark judgements, Naz has its strengths, weaknesses and controversial points. To crudely adopt local imagery, the decision embodies the Red Fort’s majesty and rampart grandeur as well as Old Delhi’s confusing maze of crowded bazaars, streets and alleys. In assessing this bewildering landscape, I will marvel at Naz’s monumental achievements as well as analyse its not-so-glamorous elements.4 Structural and Technical Aspects

As a threshold matter, first, a few technical quibbles about Naz’s format and style. Almost 19 pages of the opinion’s electronic version contain a rambling regurgitation of the counsels’ legal arguments. This section was included because the bench uncritically adopted that standard template for Indian judgements which insists on an elaborate summary of arguments before the issues are discussed. Such summaries are invariably tedious to read and can be misleading since

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they are largely constructed from the judges’ notes and recollections of counsels’ submissions during oral arguments. Most serious readers of judicial decisions readily ignore such summaries and most probably did so with Naz. Second, although opinions are divided under convenient headings to facilitate easy reading, each heading has the same font with no numbering scheme or outline to indicate how one relates to another. This makes it difficult to identify where one section ends and the other begins. Moreover, the text is so evenly formatted that in many places it is hard to determine whether a sentence represents the bench’s own words or is a verbatim quote from another authority. Third, the decision suffers from some taxonomical confusion about what to call those who are attracted to the same sex as their own. Discussing the petitioners’ standing in an early section, the judgement refers to Naz Foundation’s work with the ‘gay community or individuals described as “men who have sex with men”’.5 It then proceeds to state that ‘for sake of convenient reference’ it would use the expressions ‘homosexuals’ or ‘gay persons’ or ‘gay community’. Now, it does not seem particularly convenient to substitute three terms for two. But, more importantly, where do these definitions leave lesbians, bisexuals and transgendered persons? Are they subsumed within ‘homosexuals’ or ‘gay persons’? And what about those men who aren’t conventionally bisexual or homosexual, and yet, aren’t straight either because they have casual sex with men? Are they to be regarded as homosexuals or gay persons under the High Court’s definition?6 Fourth, as the bench correctly notes, a ‘rather peculiar feature’ of the case involved the Home Ministry and Health Ministry filing separate and contradictory affidavits, even though they are both Central Government agencies.7 Yet, the judgement goes on to accept the Home Ministry’s affidavit and arguments as the Union of India’s position without providing any explanation for doing so. The choice may have been obvious to the court, but it should have been revealed to the general public.

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Reliance on Legislative History, Prior Decisions, and Foreign Materials

The introductory part of the judgement includes a brief section on Section 377’s legal history. This section is largely taken from Naz Foundation’s original writ petition with one important omission.8 The judgement pointedly ignores a critical paragraph in which the Foundation argued that the enactment of Section 377 ‘was contrary to then existing Indian traditions, which did not treat sodomy as a crime’.9 Perhaps, the judges felt that an examination of this issue would take them down the slippery road of interpreting religious and spiritual sources—a journey fraught with potential for controversy, as Chief Justice Chandrachud discovered after his Shah Bano decision.10 It would have also required the judges to accept, deny or at least comment on the petitioners’ loaded submission that Section 377 was based on ‘traditional Judeo-Christian moral and ethical standards’. Accepting such a submission, even if substantiated by historical evidence, could have made Naz appear unnecessarily divisive.11 Laconically observing that the ‘Penal Code was drafted by Macaulay and introduced in 1861 in British India’, the judgement fails to mention anything about the statute’s colourful legislative history. For instance, it could have referred to Macaulay’s decision to refrain from appending any guidance notes or illustrations to Section 377, disregarding the practice he followed for other provisions of the Penal Code.12 The bench could have also included, if it was so inclined, other historical nuggets such as the fact that repeat offenders under Section 377 could be whipped under the now-repealed Whipping Act (No. 6 of 1864) in addition to being imprisoned. In this respect, Naz is disappointing as an inquiry into Section 377’s Victorian background and its anachronistic assumptions about sexuality would have been especially useful to assessing the statute’s relevance, if any, in contemporary times.13 Naz’s discussion of Section 377’s case-law is incomplete. Although the judgement briefly discusses the leading cases, it does not tell us

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whether all or any of them involved same-sex conduct. Instead, after discussing their underlying holdings, Naz argues that the ‘tests’ for attracting Section 377 have changed from ‘the non procreative to imitative to sexual perversity’.14 If Naz intended to use the term ‘tests’ as a moniker for ‘standards’, the parenthetical information it supplies about each of the cases isn’t particularly helpful; the parentheticals imply that the courts have produced varying assessments about Section 377’s objective or intent. They do not reveal the existence of shifting standards for sustaining a conviction. Reflecting the Indian judiciary’s growing cosmopolitanism, Naz cites a large number of international and comparative constitutional sources. However, unlike other contemporary decisions, the foreign citations in Naz are not just ornaments or serial lights that make the decision sparkle.15 Rather, Naz is among a handful of recent Indian decisions that actually rely on foreign precedents to shape an imaginative outcome relevant to the local context. Naz’s foreign references include materials from the usual suspects, the United States and the United Kingdom, as well as decisions from unlikely places, such as Hong Kong, Fiji and Nepal. Those latter decisions are particularly important because they remind the cynic that gay rights aren’t some luxurious Western construct. Moreover, the reference dates of various online sources cited in Naz reveal that the judges continued to research the issues long after the case had been reserved for judgement. Yet, precisely because it includes so much material, Naz appears like an over-decked Christmas tree with decorations obscuring most of the green representing its own holdings. In some places, Naz seems like the work of magpies: no shred of information seems to be too obscure for inclusion in its great kitchen sink of ideas. It is surely the first Indian case to actually cite a webcast! A fairly unique dimension of Naz is that it takes cognizance of general statements by the prime minister, health minister and solicitor general about Section 377 and men having sex with men. It suggests that those statements represent the government’s position on the subject even though they were not made in or with respect to the Naz proceedings. In so doing, Naz formulates an estoppel-like

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doctrine that regards statements of high constitutional functionaries as unilateral declarations of government policy.16 Naz also relies on several international ‘soft-law’ sources such as the ‘Yogyakarta Principles’ and the ‘London Declaration of Principles on Equality’ to argue that there is an emerging norm of international law on sexual orientation. Yet, as appealing as these principles might be, they lack the ‘bite’ of ‘hard’ international law for they have been adopted by very few states. They are not general principles of international law, much less are they statements of customary international law. A Right to Privacy Unfurled and Unhinged

Naz dodges through the Supreme Court’s line of inconsistent decisions on privacy to forcefully assert that the Constitution protects a fundamental right to privacy. That by itself would have been a noteworthy constitutional milestone. But Naz travels much further. It unhinges privacy from its traditional moorings by insisting that privacy is linked to ‘persons’ and not places. In so doing, Naz articulates a unique nonspatial and portable understanding of privacy that extends beyond the home, bedroom, (or, perhaps, in this case, the closet?).17 This subtle but skillful piece of legal reasoning is Naz’s most attractive feature. Notwithstanding what happens on appeal, it is this feature of Naz that will ensure that it is frequently cited for many years to come before courts and in classrooms. Even so, Naz’s constitutional analysis is suboptimal and its lofty holding on privacy is significantly undercut by the actual relief it offers. Naz’s section on privacy opens with its discussion of the Supreme Court’s decision in Kharak Singh.18 In that case, the court had struck down a state regulation which permitted police surveillance of a criminal suspect. Speaking for the majority, Justice Ayyangar held that ‘the right to privacy is not a guaranteed right under our constitution’.19 Yet, he found the regulation unconstitutional for violating what he considered to be a ‘common law right to privacy’.20 Justice Ayyangar suggested that this common-law right could be derived from the phrase ‘personal liberty’. But he was unwilling to concede that it

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was a fundamental right. In a separate opinion, Justice Subba Rao emphatically argued that the Constitution does protect a fundamental right to privacy as an essential ingredient of personal liberty under Article.21 After a perfunctory review of Kharak Singh’s key holdings, Naz inaccurately reported that the Kharak Singh majority ‘did not go into the question’ of whether the police surveillance ‘violated the right to privacy’. Even more puzzling is Naz’s blithe observation, after referring to Justice Subba Rao’s separate opinion, that ‘in effect, all seven learned judges [in Kharak Singh] held that “right to privacy” was part of the “right to life” in Article 21’.22 The High Court does not explain the basis for this sweeping finding, and even the most liberal reading of Kharak Singh does not support such a conclusion.23 Naz appears to have simply lifted this sentence, without proper attribution, from the Supreme Court’s embarrassingly bad decision in Canara Bank. Naz then discusses Gobind,24 Justice Mathew’s maverick decision in which he moved Kharak Singh’s goalposts on privacy much farther than even Justice Subba Rao.25 Adopting Justice Douglas’s reasoning from the Griswold decision,26 Justice Mathew argued that the right to privacy could be derived from a number of specified rights and the totality of the constitutional scheme. In other words, he found that the right to privacy was a derivative or penumbral right that emanated from the shadows cast by other fundamental rights, including the freedoms of speech and movement in Article 19. Justice Mathew’s discovery of a penumbral right to privacy has been subsequently criticised by commentators.27 Perhaps anticipating that criticism, Justice Mathew included a cautionary note that the right to privacy ‘will have to go through a process of case-by-case development’.28 This cautionary note was emphatically reiterated in Rajagopal, the Supreme Court’s next major decision on privacy, and repeated in Naz. Curiously, however, Naz omits any mention of the cautionary note when discussing Rajagopal, focussing instead on the decision’s core holding that privacy is implicit in Article 21. Naz then arrives at Canara Bank. In that Supreme Court decision, after a breezy survey of Kharak Singh and other precedents, Justice

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Lahoti had concluded that the right to privacy had been accepted as ‘implicit in our Constitution’. Naz happily adopts this conclusion and the rest of Canara Bank’s shoddy analysis. While it is certainly true that Canara Bank was a binding precedent, Naz could have undertaken a more rigorous privacy analysis without simply cutting and pasting from Canara Bank. This is not unreasonable to demand from a bench which demonstrates great skill in cherry-picking among conflicting Supreme Court decisions, regarding the strict scrutiny test discussed below. After holding that the Constitution protects a fundamental right to privacy, Naz proceeds to articulate the delocalised understanding of privacy discussed earlier. It then poignantly recognises that ‘[a] person cannot leave behind his sense of gender or sexual orientation at home’.29 It then intriguingly adds: ‘privacy allows persons to develop human relations without interference from the outside community or from the State’ (emphasis added). This proposition is overbroad, and its inclusion was both gratuitous and distracting. Can anyone reasonably argue, especially in the Indian context, that the state must forbear from regulating all forms of human relations? After all, even the most ardent libertarian would concede that the state can and must act to prevent minors from being exploited by adults. And what if the human relations in a private space result in non-consensual sexual intercourse, domestic violence, or marital rape? Surely, the state can step in to regulate such behaviour? Naz’s substantive commentary on privacy ends with the observation that Section 377 denies a gay person the right to full-personhood, which is implicit under Article 21 of the Constitution. Presumably, this is because Section 377 violates the penumbral fundamental right to privacy. Yet, the thickness of this important conclusion is substantially undercut by the decision’s operative conclusion.30 According to that conclusion, Section 377 is unconstitutional ‘insofar as it criminalises consensual sexual acts of adults in private’ (emphasis added). One cynical, but plausible, way to interpret this conclusion is that, in reality, Naz only prohibits prosecutions of sexual acts between consenting adults in a private dwelling or establishment. Under this

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interpretation, Section 377 may still be freely applied to prosecute ‘non-private’ conduct between adults in a public place. Such a result would be particularly unfortunate because most documented instances of police intimidation and harassment of gays, including the celebrated case of the Lucknow Four, involve conduct in public parks. In some sense, the substantial disconnect between Naz’s soaring rhetoric on the concept of privacy and its parsimonious operative finding regarding Section 377 illustrates the limitations of using privacy as a doctrine to challenge morality-based legislation.31 At first blush, privacy is a convenient and tempting shield to prevent the government from intruding into gays’ bedrooms. But it does not protect them when they leave their homes and affirm their bonds (even in the most benign manner) in public. Relying on privacy can be especially problematic in the Indian context because the ‘private’ of many Indian gays is often a shared public space. Fearful of family censure, neighbourhood condemnation and the absence of a completely private dwelling, many gays are forced to bond in long shadows or dark corners of parks and beaches.32 For them, Naz’s operative conclusion does not seem to be a particularly liberating and emancipating holding. A Bold Reprise of Substantive Due Process

By declaring that the Constitution protects a fundamental right to privacy and invoking it to partially invalidate Section 377, Naz stages a dramatic revival of substantive due-process reasoning. Perhaps in this respect, Naz is the Son or Daughter of Maneka33 because the former is an unmistakable progeny of the latter. After all, it was in Maneka that the Supreme Court, fighting the real and imagined ghosts of Gopalan,34 endorsed the use of substantive due-process to embellish the Constitution’s fundamental rights and freedoms. An American doctrine, substantive due-process is invoked by courts to expand existing textual provisions to accommodate new and un-enumerated rights.35 In the 32 years since Maneka was handed down, the Supreme Court has expanded the scope of Article 21 to include a whole host of new rights, such as education, health, and shelter, in cases such

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as Unnikrishnan.36 However, most of those ‘new’ rights are socioeconomic in nature and already find expression in one form or the other among the Constitution’s Directive Principles. Moreover, the underlying cases (with the exception of Unnikrishnan) in which these rights were ‘discovered’ did not require the courts to set aside or invalidate any central or state statutes. If Naz remains undisturbed or is affirmed by the Supreme Court, it will be only the third time, by my reckoning, that an Indian court has used substantive due-process reasoning to invalidate a statute for transgressing a penumbral fundamental right. The only other decisions to use substantive due-process in this manner are Mithu,37 where the Supreme Court struck down mandatory death sentences under Section 303 of the Penal Code for life convicts who commit murder, and Canara Bank, where the Court invalidated an Andhra Pradesh statute for violating banking secrecy.38 This is certainly a major development for Indian courts which have generally avoided the use of substantive due-process to invalidate legislative enactments.39 Dignity and Autonomy

Naz’s emphasis on recognising individual dignity and the autonomy of personal choice and action is an important constitutional outcome.40 Moreover, by reprising Gobind’s link between privacy and dignity and joining them at the hip, the High Court created a pair of Siamese twins on whose broad shoulders rest its findings regarding the unconstitutionality of Section 377. However, the High Court’s discussion of dignity seems hurried and incomplete. For instance, Naz could have reflected a bit more on the reference in the Constitution’s preamble to the ‘dignity of the individual’, a phrase borrowed directly from the Irish Constitution. It is also surprising that Naz does not cite Kharak Singh in its dignity discussion for it was that case that first established a direct link between privacy and individual dignity.41 So profound was Kharak Singh’s linkage between privacy and dignity that it was subsequently reproduced in full as a block quote in Gobind. Yet, Naz curiously omits any reference to it.

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It is also a bit of a puzzle why Naz did not utilise the solid hook of ‘personal liberty’ in Article 21 to hang its holding on personal autonomy. Although Justice Ayyangar was unprepared to articulate a fundamental right to privacy in Kharak Singh, he profoundly expanded the scope of personal liberty protected by the Constitution. In attempting to overcome the dubious legacy of Gopalan, Justice Ayyangar held that personal liberty was a ‘compendious term’ which included within itself all varieties of personal liberties other than those already enumerated in Article 19 (1). In other words, personal liberty in Article 21 includes all those residual liberties that aren’t specifically protected by the Constitution’s textual guarantees, notably those in Article 19. Relying on Kharak Singh, the Court in Satwant Singh42 went even further and held that liberty under the Indian Constitution ‘bears the same comprehensive meaning’ as is given to that term by the 5th and 14th Amendments to the United States Constitution.43 If Satwant Singh is correct, then it is legitimate to adopt the US Supreme Court’s decisions on the meaning of liberty. One of those decisions is Casey,44 where the Supreme Court recognised that liberty includes a right to bodily integrity. In other words, persons have a protected right to retain control over their bodies without governmental interference.45 This would appear to be a more practical manifestation of Naz’s personal autonomy principle, and one that is founded on a much stronger basis in Article 21. The ‘Compelling State Interest’ Standard

According to Naz, any law which infringes the conjoint fundamental right to dignity (privacy) must satisfy a ‘compelling state interest’ in order to survive. It correctly attributes this standard to Justice Mathew’s opinion in Gobind. It then travels beyond Gobind to argue that the enforcement of public morality is not a compelling state interest to justify invading the privacy of adult homosexuals engaged in consensual sex.46 To paraphrase Justice Mathew’s own words in Keshavananda, ‘I have tried, like Jacob of the Old Testament, to wrestle

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all the night with the angel.’47 This is why Naz relied on the absence of a ‘compelling state interest’ to partially invalidate Section 377. One can hardly quarrel with Naz’s general proposition that enforcement of morality is not a compelling state interest, much less an important or even marginal interest. However, Naz’s use of ‘compelling state interest’ was neither necessary nor consistent with the arc of Indian precedent. It is true that Justice Mathew first proposed and used the ‘compelling state interest’ standard in Gobind to determine whether the regulations at issue in that case passed constitutional muster. But his example has rarely been followed in any subsequent cases. It should be pointed out that the ‘compelling state interest’ standard, which Justice Mathew enthusiastically adopted in Gobind, is part of the US Supreme Court’s strict scrutiny test to screen restrictions on fundamental rights. That test was judicially developed largely because the American Constitution provides little textual guidance on what restrictions can be imposed on fundamental rights. In India, the situation is rather different because the Constitution has ‘in-house’ rules consisting of specific grounds on which ‘reasonable’ restrictions can be imposed on most fundamental rights. It is one thing to refer to foreign precedents to expand the meaning of a fundamental right; it is quite another to borrow standards for how that right can be restricted from another jurisdiction with a very different analytical frameworks for resolving constitutional questions.48 Aside from Gobind, it is difficult to find any major decision that either affirms or applies the ‘compelling state interest’ standard. Rather, as Naz itself acknowledges, after Maneka any interference with life or personal liberty ‘must be right and just and fair and not arbitrary, fanciful, or oppressive’.49 This ‘just, fair, and reasonable’ standard has been the generally applicable benchmark to assess governmental action for the past three decades now. One way to reconcile the apparent internal contradiction in Naz would be to apply both Maneka and Gobind together. In others words, every governmental action that violates a fundamental right must henceforth satisfy Maneka’s test of ‘just, fair, and reasonable’ as well as Gobind’s requirement of furthering a ‘compelling state interest’. If this interpretation of Naz is

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correct, Naz effects a rather radical restatement of our constitutional law. Another way to resolve this conundrum would be to apply the Gobind + Maneka formula only to restrictions on penumbral rights which are not expressly recognised in the constitutional text. Restrictions on codified rights, on the other hand, would only have to meet the Maneka standard of reasonableness. This solution would imply a higher constitutional bar for actions affecting penumbral rights than those actions that affect textual rights. Such an outcome would be irrational since penumbral rights are, in fact, derivatives of textual rights and do not behoove greater protection. Constitutional Morality

Even the most cynical reviewer of Naz will marvel at the way in which the bench rebutted the government’s argument that Section 377 is a legitimate manifestation of morality. Rejecting the respondents’ contention that public disapproval reflects an underlying moral condemnation of homosexuality, Naz brilliantly posits that it is ‘constitutional morality’ rather than popular morality that is the controlling benchmark.50 The idea of a controlling ‘constitutional morality’ is a logical extension of the bench’s secular approach to constitutional adjudication, discussed earlier. Moreover, Naz adroitly redirects the morality argument back at the government by deftly reasoning that stigmatising and criminalising homosexuals is against constitutional morality. Although Naz’s substitution of constitutional morality for popular morality is an impressive restatement of the constitutional doctrine, it is hardly a silver bullet for constitutional adjudication. One only has to consider the spaghetti bowl of inconsistent Supreme Court decisions regarding the constitutional status of liquor trade.51 Some of India’s most enlightened justices have tied themselves up in knots over this issue largely because of its underlying moral implications. It is also important to clarify that Naz does not outlaw all forms of moralitybased legislation or governmental action. Rather, the decision suggests that mere public disapproval of a practice or behaviour is an inadequate reason to restrict it.

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Implied Desuetude of Section 377

A key element of the Additional Solicitor General’s defence of Section 377 was that the provision was hardly ever enforced against gays. Naz initially rejected this contention as contrary to evidence and testimony proffered by the petitioner.52 But, later in its opinion, the High Court returned to the argument, only to turn tables on the government. In fact, the admitted case of the Union of India that Section 377 of the IPC had generally been used in cases of sexual abuse or child abuse, and conversely that it had hardly ever been used in cases of consenting adults, shows that criminalisation of adult same-sex conduct does not serve any public interest.53 Naz reasons that if Section 377 has not been used to prosecute adult same-sex conduct, then why should such conduct continue to be proscribed? In other words, if a statutory provision has fallen into disuse then why bother maintaining it? Although Naz does not refer to it, there is an old common-law doctrine called ‘desuetude’ that supports this reasoning.54 This doctrine has, in fact, been recognised by the Indian Supreme Court in Municipal Corporation v. Bharat Forge.55 After discussing the scope of the doctrine in English law, the court ruled: Though in India the doctrine of desuetude does not appear to have been used so far to hold that any statute has stood repealed because of this process, we find no objection in principle to apply this doctrine to our statutes as well. This is for the reason that a citizen should know whether, despite a statute having been in disuse for long duration and instead a contrary practice being in use, he is still required to act as per the ‘dead letter.’ We would think it would advance the cause of justice to accept the application of doctrine of desuetude in our country also. Our soil is ready to accept this principle; indeed, there is need for its implantation, because persons residing in free India, who have assured fundamental rights including what has been stated in Article 21, must be protected from their being, say, prosecuted and punished for violation of a law which has become ‘dead letter’. A new path is, therefore, required to be laid and trodden.

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It is unclear why the petitioners did not use desuetude as a ground to attack Section 377. Perhaps it was because the petitioners were not confident that they could satisfy all the elements of the doctrine. In fact, Justice Murlidhar apparently explored the idea that Section 377 suffers from desuetude during the oral argument.56 But for whatever reason, the issue never made it to the opinion. For desuetude to exist, the statute in question must have been in disuse for a substantial period of time and some contrary practice must have evolved during this period. One could argue that these elements are satisfied with respect to Section 377 in the context of consenting same-sex adults, especially if the Additional Solicitor General’s position is accepted. Finally, if the admitting bench’s comments are any indication, the Supreme Court might be tempted to adopt a desuetudetype approach to Naz on appeal. Admitting the appeal from the High Court’s decision, the Chief Justice of India reportedly observed that no one had been prosecuted for ‘gay sex’ under Section 377.57 The Equality Detour

Naz’s discussion of equality is its Achilles’ heel. From a purely tactical perspective, it is unclear why Naz even bothered addressing equality. It had already determined that Section 377 violated the penumbral fundamental right of equality—dignity. That finding provided a sturdy milestone to tie and sink the unconstitutional provision. In fact, the judges declined to deal with the Foundation’s argument that Section 377 violated citizens’ Article 19 freedoms because they were already convinced that the provision was unconstitutional. Could not the same approach have been taken with respect to their equality arguments? As a textual matter, Section 377 proscribes sexual acts involving carnal intercourse that are considered ‘unnatural’ irrespective of whether they involve same-sex or opposite sex partners. Case law under the section shows that it has been used in prosecutions involving oral sex and anal sex. There is ample evidence to suggest that anal sex is not an exclusive homosexual preserve; many heterosexual couples routinely engage in it. And oral sex is commonly practiced by both

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same-sex and opposite-sex partners. Naz readily concedes this facial neutrality of Section 377.58 Even so, the bench points out that the ‘sexual acts, which are criminalized are associated more closely with one class of persons, namely the homosexuals as a class’ 59. To bolster its reasoning that Section 377 is hostile to gays, the bench cites Justice O’Connor’s Lawrence opinion, criticising the underlying statute in that case for singling out homosexuals as a class. But what Naz fails to mention is that the Lawrence statute only proscribed homosexual conduct; it was even called the ‘Texas Homosexual Conduct Statute’. This rendered it an easy target for Justice O’Connor, who wrote a narrowly tailored concurring opinion without joining the majority view.60 One entirely agrees with Naz that Section 377 ‘does end up unfairly targeting a particular community’. There is no question that Section 377 has a profoundly disparate and invidious impact on gays. However, one is skeptical about whether this argument will prevail before a cynical Supreme Court bench. There do not appear to be many cases in which a facially neutral law has been successfully challenged because it is enforced in a discriminatory manner. Witness what happened in Rathinam with respect to Section 309 of the IPC which criminalises an attempt to commit suicide. Initially, the Bombay High Court struck down Section 309 on the ground of equal protection. It found that the provision did not provide adequate guidance and was susceptible to arbitrary application. However, the Andhra Pradesh High Court took a contrary view. The Supreme Court agreed with the Andhra Pradesh High Court, both in Rathinam as well as in Gian Kaur (which overruled Rathinam). Justices in both cases rejected the challenge to Section 309 on grounds of equal protection. The Dynamite and Dicta of Non-Discrimination

One must applaud Naz’s precedent-setting conclusion that sexual orientation is a valid anti-discrimination marker under Article 15 (1).61 This part of the opinion is intricately reasoned with the help of international and comparative materials. It is difficult to dispute

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the logical consistency in the idea that sex, as a prohibited marker, must also include the analogous ground of sexual orientation. If this conclusion is sustained by the Supreme Court, it has the potential to fundamentally reorder the Indian legal system. If sexual orientation is now included as one of these prohibited grounds, codified personal laws including those that define marriage as being between a man and woman are in constitutional jeopardy. Naz went on a ‘frolic of its own’ by declaring that Article 15 (2), the Constitution’s public-access provision, proscribes ‘horizontal discrimination’ on the grounds of sexual orientation.62 This was a completely unnecessary observation that had nothing to do with the underlying case. It is true that gays face a great deal of harassment and discrimination in matters such as housing and employment.63 But that was not the point of this case. Naz Foundation’s writ petition principally focused on the misuse of Section 377 by law-enforcement agencies. It did not raise the issue of private discrimination by non-state actors, nor was this issue addressed during oral arguments. Therefore, Naz misdirected itself to address a non-issue, and consequently its observations regarding Article 15 (2) are only in the nature of obiter dicta. Strict Scrutiny

It is difficult to understand why Naz invoked the American doctrine of strict scrutiny to invalidate Section 377. As Naz itself admits,64 the use of strict scrutiny has been decisively rejected by the Supreme Court rather recently in the Ashok Kumar Thakur case.65 Yet, Naz insists that it can still apply strict scrutiny, relying on the Supreme Court decision in the Anuj Garg case,66 which predated Ashok Kumar Thakur and applied that standard. Adopting a ‘harmonious construction’ of Ashok Kumar Thakur and Anuj Garg, Naz concludes that strict scrutiny does not apply to affirmative action, but it can be used to assess disadvantaging measures targeting a vulnerable group based on personal characteristics. Naz’s reasoning on this issue seems disingenuous for several reasons: First, Anuj Garg was a decision of a two-judge bench while Ashok Kumar Thakur was a constitution bench decision. Second, Ashok

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Kumar Thakur was the later decision, handed down several months after Anuj Garg and ordinarily the subsequent larger bench decision should carry more weight than an earlier decision from a smaller bench. Third, there is nothing in Ashok Kumar Thakur to indicate that its disapproval of strict scrutiny was restricted to affirmative action. Fourth, how do we reconcile Naz’s acute distinction between affirmative action and other cases with John Vallamattom?67 This particular 2003 Supreme Court decision did not involve affirmative action. Yet, Justice Khare, who wrote the leading judgement for the Court, expressed his skepticism about applying strict scrutiny in India. One has the same concerns about using strict scrutiny with respect to equality and equal protection claims as one does about using the ‘compelling state interest’ standard to assess penumbral right violations. The two American doctrines are, in a sense, two sides of the same coin. Strict scrutiny requires the showing of a compelling state interest in order for a suspect classification to be upheld. In fact, courts in the USA developed the strict scrutiny standard as a tool to distinguish between legitimate and illegitimate classifications. Such a standard was especially necessary because their Constitution does not contain any anti-discrimination provisions like Articles 15 and 16 of the Indian Constitution. In contrast, the Indian Supreme Court has generally applied rational-basis review to evaluate most classifications.68 From a tactical perspective, the Naz bench could have applied this widely accepted and uncontroverted test to Section 377 and concluded, based on the evidence, that Section 377 flunked it. This would have been a better strategy than subjecting Section 377 to a more stringent test whose invocation is likely to be seriously disputed in the Supreme Court appeal. Royappa Non-Arbitrariness and Section 377

There is one dimension of equality jurisprudence, barely discussed in Naz, which could be particularly useful in defending Naz’s findings on equality before the Supreme Court. It is the so-called ‘new doctrine’

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of equality that the Supreme Court announced in its much-cited decision, E.P. Royappa v. Tamil Nadu.69 In that case, the Supreme Court held that ‘equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other to the whim and caprice of an absolute monarch.’ Arbitrariness as a dimension of equality has radically transformed Indian equality jurisprudence. And despite the cavils of its critics,70 Royappa non-arbitrariness is now a deeply embedded concept of Indian constitutional and administrative law. It has emerged as the key litmus test to evaluate all kinds of governmental action. Royappa non-arbitrariness is an especially potent saber when combined with the requirement of reasonableness that Maneka demands of state action. As Justice Bhagwati put it, Maneka and Royappa’s key teachings of reasonableness and non-arbitrariness ‘pervade the entire constitutional scheme’ and form a golden thread that runs through the Constitution’s whole fabric.71 Although Section 377 is facially neutral, there is clear and convincing evidence that the provision had been used to harass and intimidate those with same-sex attraction. One reason why Section 377 has been so frequently misused is that it is unaccompanied by any textual guidance. It has no illustrations or notes like other sections of the IPC, reflecting Macaulay’s personal repugnance for what he believed was deviant behaviour. Moreover, the statute’s principal yardstick for culpability is the antique and opaque phrase ‘against the order of nature’. This phrase has resulted in significantly inconsistent interpretations, as the case law reveals. It also vests law-enforcement agencies with unbridled discretion which has been seriously abused. Taking these facts together, a persuasive argument could be made that Section 377 is both arbitrary and unreasonable and consequently unable to pass constitutional muster under the Royappa + Maneka formula. Indeed, the formula has been previously used by the Supreme Court to declare an IPC provision unconstitutional. A constitution bench in Mithu struck down Section 303 of the IPC because it was ‘arbitrary beyond the bounds of all reason’. Interestingly, Naz refers to the Royappa non-arbitrariness in its general survey of Indian equality principles.72 However, Naz curiously refrains from invoking Royappa

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when applying those principles to Section 377, relying instead on the statute’s unreasonable classification. Severability

Naz’s use of the severability-in-application doctrine is certainly a creative extension of the Supreme Court’s decision in Chamarbaugwala.73 However, it is important to note that the severability rule was applied in Chamarbaugwala to a statute that was unconstitutional for reasons of legislative competence rather than violations of any fundamental rights. Be that as it may, Naz skillfully and pragmatically invoked Chamarbaugwala to retain Section 377 on the statute book. *** Naz gives new meaning to identity politics in India. Dominant political and legal conceptions of identity focus on groups traditionally knitted together by religious, caste, or linguistic ties. By acknowledging the distinct status of persons whose only common bond is sexual orientation and addressing them as a collective (actually using the term ‘LGBT’), Naz recognises the emergence of new social identities while carefully sidestepping lingering concerns about their elite roots and urban biases. In so doing, Naz, unlike any other decision before it, has the unique potential to diminish popular but irrational moral condemnation of stigmatised groups.74 Witness the headlines in the Indian press reporting the decision: ‘It is OK to be Gay’, ‘Sexual Equality’, ‘Gay and Finally Legal’ and ‘Sexual Revolution in India’. It is for this reason, perhaps, that some commentators have argued that Naz is India’s Roe moment.75 Indeed, the mass publicity and fanfare heralding the decision present a rare opportunity for activists to reshape public opinion and influence a wider social debate about gay rights.76 This is especially important as gays and other disaffected groups cannot only rely on courts to advance their civil rights agenda. They must build new political coalitions and engage the legislative process.77

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Finally, the decision bolsters the Delhi High Court’s reputation for being India’s most important constitutional court apart from the Supreme Court. In recent years, the High Court has produced some innovative decisions that push the boundaries of our constitutional jurisprudence.78 Naz is the latest milestone in the Delhi High Court’s impressive track record and it is a demonstration that one does not always need to depend on the Supreme Court for constitutional salvation. Notes This essay is for Kavya Mathias, my niece and godchild, whose antics and innocent patois constantly entertain us. I’m very grateful to Michael Gee, Anil Kalhan, Sunil Khilnani, Arvind Narrain, Frank Pasquale, Arun Thiruvengadam, V. Venkatesan and Ben Yong for their comments and insights. This essay is written entirely in my personal capacity. It does not reflect the views or policies of my employer, the World Bank Group. 1. 160 Delhi Law Times 277 (2009). Paragraph references to Naz in this article from the decision’s electronic version on the Delhi High Court’s website. 2. See: Bharadwaj, Kajal. 2009, ‘Reforming Macaulay’, Asian Age, 5 July 2009 (describing the eagerness and anxiety with which activists awaited the judgement). 3. It is interesting that the term ‘untouchability’ is left undefined by the Constitution. See generally: Galanter, Marc. 1972, ‘The Abolition of Disabilities: Untouchability and the Law’, in J. Michael Mahar’s (ed.), The Untouchables in Contemporary India. Tucson: University of Arizona Press, pp. 227, 243. In the absence of any textual evidence, it is difficult to argue that Article 17 targets only caste-based disabilities or exclusion. See: Bhattacharjee, A. M. 1997, Equality, Liberty, and Property. Calcutta: Eastern Book House, p. 5. 4. At the same time, I should emphasise that this essay does not purport to discuss every facet of Naz, such as its observations on the right to health, due to space and thematic limitations. 5. Naz, 160 Delhi Law Times at paragraph 6. 6. The confusion over nomenclature is further compounded in subsequent parts of the judgement that simply ignore the earlier definitions. For instance, para 50 refers to the ‘MSM and [the] gay community’, and para 52 mentions

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‘MSM’, ‘lesbians’ and ‘transgenders’, while para 61 reverts to the phrase ‘MSM and [the] gay community’. 7. Naz, 160 Delhi Law Times at paragraph 7. 8. Petition of the Naz Foundation (hereafter ‘Naz Foundation Petition’) filed in Naz Foundation v. Government of National Capital Territory, Delhi, Writ Petition (Civil) No. 7455 of 2001 (High Court of Delhi), at paragraphs 21–24. 9. This paragraph was based on an important collection of essays on same-sex attraction. See: Vanita, Ruth and Saleem Kidwai (ed.). 2001, Same-Sex Love in India: Readings from Literature and History. New York: Palgrave. 10. See: Mohammed Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945: (1985) 2 SCC 556. 11. In this respect, Naz is strikingly different from other substantive due-process cases, such as Rathinam, its closest relative in some respects. In articulating a right to die under the Constitution, Justice Hansaria cited several religious and spiritual sources and pointed out that Mahatma Gandhi and Acharya Vinobe Bhave undertook fasts unto death. See: P. Rathinam and Nagbhusan Patnaik v. Union of India AIR 1994 SC 1844: (1994) 3 SCC 394 at paragraphs 66 and 79–81. In contrast, Naz is content with citing only the secular icons of our past, Nehru and Ambedkar. Their personal views on homosexuality remain publicly unknown, but their political philosophy would appear to tolerate it. 12. Macaulay was apparently motivated by his puritanical belief that Section 377 involved ‘an odious class of offences [about which] as little as possible should be said.’ See: Katyal, Sonia K. 2006, ‘Sexuality and Sovereignty: the Global Limits and Possibilities of Lawrence’, William and Mary Bill of Rights Law Journal, Vol. 14, pp. 1429, 1452. 13. On this score, Naz stands in stark contrast to Lawrence, a case that Naz relies on extensively, which contained an extensive discussion of legal history. See: Lawrence v. Texas, 539 US 558, 568-571 (2003). 14. Naz, 160 Delhi Law Times at paragraph 4. 15. For an extensive critique of the Supreme Court’s use of foreign law, see: Smith, Adam M. 2006, ‘Making Itself at Home: Understanding Foreign Law in Domestic Jurisprudence—The Indian Case’, Berkeley Journal of International Law, Vol. 24, p. 218. 16. In the Nuclear Tests Case, the International Court of Justice concluded that the French President’s statements on atmospheric nuclear tests in the Pacific could establish an international legal obligation for France. See: Nuclear Tests (Australia v. France), 1974 ICJ 253; Nuclear Tests (New Zealand v. France), 1974 ICJ 457.

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17. Naz relied on the Supreme Court’s opinion in Canara Bank for this proposition. See: District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496; Canara Bank, in turn, relied on the U.S. Supreme Court’s decision in Katz v. United States, (1967) 389 US 347. Ibid., para 29. 18. Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295. 19. Ibid., para 19. 20. Ibid. 21. See: Setalvad, M.C. 1967, The Indian Constitution: 1950–1965. Bombay: Bombay University Press, p. 14 (arguing that Justice Subba Rao actually dissented in the case). 22. Naz, 160 Delhi Law Times at paragraph 35. 23. See Bhattacharjee, note 3, pp. 107–112 (Kharak Singh does not support a penumbral right to privacy in the Constitution). 24. Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148. For criticism of Gobind, see: Nussbaum, Martha. 2001, ‘India: Implementing Sex Equality Through Law’, Chicago Journal of International Law, Vol. 2, pp. 35, 59 (the judgement was a needless invocation of privacy and has patriarchal overtones), cf.: Nariman, Fali S. 1977, ‘The Right to be Let Alone—A Fundamental Right’, Indian Advocate, 17 Vol. 17, pp. 80, 81 (privacy rose Phoenix-like from the ashes in Gobind). 25. For a favourable review, see: Thiruvengadam, Arun K. 2006, The Common Illumination of our House?: Foreign Judicial Decisions and Competing Approaches to Constitutional Adjudication, pp. 200–206. Unpublished JSD dissertation submitted to New York University School of Law. 26. Griswold v. Connecticut, 381 US 479. In this case, the US Supreme Court invalidated a statute that prohibited contraceptive use because it violated the ‘right to marital privacy’. Although such a right is not expressed recognised in the American Constitution, Justice Douglas located it in the ‘penumbras’ and ‘emanations’ of other constitutional guarantees. 27. See, e.g. Bhattacharjee, note 3. 28. Gobind, (1975) 2 SCC at paragraph 28. 29. Naz, 160 Delhi Law Times at paragraph 47. It is unclear, however, whether this sentence is the High Court’s own words or simply a quote from another source. 30. Naz, 160 Delhi Law Times at paragraph 132. 31. For an extensive critique of privacy as a means to advance gender justice, see: Nussbaum, Martha. 2004, ‘Sex Equality, Liberty, and Privacy: A Comparative Approach to the Feminist Critique’, in Zoya Hassan, E. Sridharan, and R. Sudarshan (eds), India’s Living Constitution: Ideas, Practices, Controversies. London: Anthem Press, p. 242.

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32. There is also a class dimension to linking same-sex conduct with privacy. Those with no homes or are unable to use their homes are denied the ability to meaningfully engage in such conduct. See Nussbaum, note 31, p. 257. 33. Maneka Gandhi v. Union of India, AIR 1978 SC 598. 34. A. K. Gopalan v. State of Madras, AIR 1950 SC 27: (1950) 1 SCR 88. 35. For an incisive reading of Maneka and its treatment of due process, see: Barnum, David G. 1988, ‘Article 21 and Policy Making Role of Courts in India: An American Perspective’, Journal of the Indian Law Institute, Vol. 30, No. 1, pp. 19, 31. 36. J. P. Unnikrishnan v. State of Andhra Pradesh, AIR 1993 SC 2178: (1993) 1 SCC 645. 37. AIR 1983 SC 473. 38. Rathinam also invoked substantive due-process to invalidate the Penal Code’s proscription of suicide attempts. However, Rathinam was later overruled by a constitution bench in Gian Kaur. Gian Kaur v. State of Punjab, AIR SC 1257: (1996) 2 SCC 648. On Rathinam’s use of substantive due process, see: Pande, B. B. 1994, ‘Right to Life or Death? For Bharat Both Cannot be “Right”’ 4 SCC 19 (J.). 39. See: Andhyarujina, T. N. 2000, ‘Evolution of Due Process of Law by the Supreme Court in Supreme But Not Infallible’, in B. N. Kirpal et al. (eds), Essays in Honour of the Supreme Court of India. Delhi: Oxford University Press, pp. 193, 210. 40. Naz, 160 Delhi Law Times at paragraph 26. 41. Kharak Singh, AIR 1963 SC at paragraph 15. 42. Satwant Singh Sawhney v. Assistant Passport Officer, AIR 1967 SC 1836. 43. Ibid., paragraph 51. 44. Planned Parenthood v. Casey, 505 US 833 (1992). 45. Mohr, Richard. 2004, ‘The Shag-A-Delic Supreme Court: ‘Anal Sex’, ‘Mystery’, ‘Destiny’, and the ‘Transcendent’, in Lawrence v. Texas’, Cardozo Women’s Law Journal, Vol. 10, pp. 365, 380–381 (arguing that Lawrence should have adopted Casey’s bodily control principle because such control is part and parcel of human agency). 46. Naz, 160 Delhi Law Times at paragraph 75. 47. (1994) 4 SCC 19. Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461 at paragraph 1761. 48. In fairness to the Naz bench, Justice Mathew was a fairly consistent advocate for applying varying standards of judicial review depending on the subject involved. For instance, in Ambica Mills, he argued that laws regulating economic activity should ‘be viewed differently’ from laws that concern freedom of speech and religion, voting, procreation, or criminal procedure.

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State of Gujarat v. Ambica Mills, AIR 1974 SC 1300. He would defer to legislative wisdom on economic laws and exercise greater vigilance in other areas. Of course, Justice Mathew’s deference on economic matters was in the context of India’s flirtation with socialism during the 1970s. 49. Naz, 160 Delhi Law Times at paragraph 25. 50. Petitioner’s counsel must share the credit for this innovative formulation inspired by a South African constitutional decision. But the Naz bench placed the formulation on a much firmer pedestal by shrewdly invoking that indisputable subaltern icon, B. R. Ambedkar. Naz cites Ambedkar’s speech to the Constituent Assembly in November 1948, in which he extolled the need for greater constitutional morality. What Naz fails to mention is that Ambedkar’s discussion of constitutional morality had nothing to do with fundamental rights or civil liberties. Rather, Ambedkar was defending the Assembly’s heavy borrowing from the Government of India Act 1935 for what he called ‘details of administration’. See: VII Constituent Assembly Debates 38. In fact, Ambedkar may have quite possibly been using the term ‘constitutional morality’ to refer to unwritten constitutional conventions and rules in the manner that the English legal historian, Maitland, used that term. See: Maitland, F. 1965, Constitutional History of England. Cambridge: Cambridge University Press, p. 398 (describing constitutional conventions as ‘rules of constitutional morality’). 51. See generally: Datar, Arvind. 2009, ‘Privilege, Police Power And Res Extra Commercium—Glaring Conceptual Errors’, National Law School of India Review, Vol. 21, p. 133. 52. Naz, 160 Delhi Law Times at paragraph 74. There is an another important, but unaddressed, reason for not accepting the Additional Solicitor General’s argument. Under our federal scheme of governance, it is the state governments that control police and law-enforcement agencies and make decisions about criminal prosecutions. The central government has very little direct role in determining whether or not to prosecute a case under Section 377. The Additional Solicitor General was not representing any state in the Naz proceedings; in fact, the states were not even parties to the case. Consequently, the High Court could not have relied on the Additional Solicitor General’s statement regarding the enforcement of Section 377 because he lacked the authority to make it. 53. Naz, 160 Delhi Law Times at paragraph 86. 54. See: Bhatt, Jitendra N. 2004, ‘Dynamics and Dimensions of Doctrine of Desuetude’, 4 SCC 21 (J.). 55. (1995) 3 SCC 434.

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56. See: Narrain, Arvind and Marcus Eldridge (eds). 2009, The Right that Dares to Speak its Name. Bangalore: Alternative Law Forum. 57. See: ‘Supreme Court Takes Up Petition Against Gay Sex’, The Hindu, 10 July 2009. 58. Naz, 160 Delhi Law Times at paragraph 94. 59. Ibid. 60. In fact, Justice O’Connor remained unrepentant for her previous opinion in Bowers, where the underlying statute, like Section 377, applied to both samesex and opposite-sex conduct. See Bowers v. Hardwick, 478 US 186 (1986). Justice Kennedy’s majority opinion in Lawrence did not directly address equal protection. The judge concluded that, if the court were to hold the statute invalid under the US Constitution’s equal protection clause, some might argue that a differently drawn prohibition, which targeted both same-sex and different-sex conduct, is justifiable. See: Lawrence, 539 US at 575. 61. Article 15 (1) makes it illegal for the State to discriminate ‘on grounds only’ of sex, place of birth, race, caste, or religion. 62. Naz, 160 Delhi Law Times at paragraph 104. Article 15 (2) desegregates Indian public spaces that were historically closed to lower castes and untouchables. The article prohibits access restrictions in shops, public restaurants, hotels, and places of public entertainment based on religion, race, caste, sex, or place of birth. Article 15 (2) also forbids usage restrictions for wells, tanks, bathing ghats, roads, and places of public resort that are either maintained wholly or partly out of state funds or dedicated for the general public’s use. 63. See generally: The Right that Dares to Speak its Name (see note 56), pp. 17–18. In Lawrence, Justice Kennedy conceded that when homosexual conduct is made criminal by the state, that declaration in and of itself is an invitation to subject homosexuals to private discrimination. See: Lawrence, 539 US at 558. 64. Naz, 160 Delhi Law Times at paragraph 110. 65. Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1. 66. AIR 2008 SC 663: (2008) 3 SCC 1. 67. John Vallamattom v. Union of India, AIR 2003 SC 2902. In this case, the court invalidated Section 118 of the Indian Succession Act, which forbade Indian Christians from making so-called death-bed charitable dispositions. Ironically, both Anuj Garg and Naz cite John Vallamattom, but fail to mention its position on strict scrutiny. See: Anuj Garg, (2008) 3 SCC at paragraphs 28 and 33 and Naz, 160 Delhi Law Times at paragraph 105. 68. See: Sorabjee, Soli J. 1990, ‘Equality in the United States and India’, in Louis Henkin and Albert J. Rosenthal (eds), Constitutionalism and Rights:

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The Influence of the United States Constitution Abroad. New York: Columbia University Press, pp. 94, 103. 69. AIR 1974 SC 555: (1974) 4 SCC 3. 70. See: Seervai, H. M. 1991, 1 Constitutional Law of India. Bombay: Tripathi, pp. 438; and Kapur, Ratna and Brenda Cossman. 1996, Subversive Sites: Feminist Engagements with Law in India. Bombay: Sage Publications, p. 224. 71. Ajay Hasia v. Khalid Mujib, (1981) 2 SCR 79. 72. Naz, 160 Delhi Law Times at paragraphs 89 and 90. 73. R. M. D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628. Ironically, the court in this case advocated caution in the use of American precedents. 74. Stigma against gays is widely prevalent even among urban middle classes who are considered to be socially progressive. See, e.g. ‘The Rainbow Schism’, Hindustan Times, 13 August 2009 (according to a recent survey, 62% of respondents think homosexuality is a disease; 80% believe that same-sex relationships are against Indian culture and over 90% say they have no gay friends). 75. See: Liang, Lawrence and Siddharth Narrain. 2009, ‘Striving for Magic in the City of Words’, Himal Southasian, August 2009. 76. See, e.g.: Thomas, Shibu and Kshitij Bisen. 2009, ‘Rallying to Change Mindsets, Dispel Phobia’, Times of India, 18 August 2009 (reporting on changing attitudes in the context of Mumbai’s gay pride parade). 77. There are some encouraging signs that this is happening. See, e.g.: ‘Transgenders to Enter Politics’, The Hindu, 7 September 2009 (Group of transgender persons decide to contest elections to secure greater rights). 78. Two notable gems are Maqbool Fida Hussain v. Raj Kumar Pandey, 2008 (6) Del. 533 (decrying misuse of obcenity prosecutions) and Justice and Parents Forum for Meaningful Education v. Union of India, AIR 2001 Del. 212 (affirming constitutional rights of children and outlawing corporal punishment in Delhi schools). Chief Justice Shah and Justice Murlidhar, who comprised the Naz bench, also recently dismissed a petition, which wanted a reality television programme banned for its sexual content. Refusing to take the case, the Chief Justice reportedly observed that Indian culture ‘is not so fragile’ as to be affected by a single programme. See: Mitta, Manoj 2009, ‘Moment of Truth for Moral Police?’, Times of India, 2 August.

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Section IV Re-thinking Family Law

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Queer Women and the Law in India Priyadarshini Thangarajah and Ponni Arasu

Introduction

This essay is written with two related yet different purposes in mind. While being an attempt to record the history vis-à-vis the law of a specific group in contemporary India—the categorisation of which will be explained shortly—it is also an attempt to use a case study to critically analyse the role of law in social change. Specifically, it looks at the strengths and the weaknesses of identity/community-based legal lobbying and the nature of the change desired in that process. When speaking of any queer person in India or in most other countries of South Asia the oft remembered law is Section 377 of the Indian Penal Code (IPC), the colonial sodomy law of 1860. The experiences with the law of queer persons, however, extend way beyond this particular section of the penal code as do the implications vis-à-vis the legal status of queer people.1 This essay will review the experiences of queer women with Indian law and their position in the campaigns/struggles around the same. Before we begin, it is important to define what we mean by the term ‘queer women’. Politically, the word ‘queer’ is often used among some activists in India to mean any person who questions dominant norms of gender and sexuality. While the strength of this definition lies in its potential inclusivity, the need to state more exclusive and categorical identity ‘tags’, as it were, are important in many contexts such as those described in this essay. Thus, by ‘queer women’ we are referring to individuals with vaginas who are only/also attracted to

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people of the same gender as their own. The names these people may call themselves are spread across a broad spectrum, some more defined and acknowledged than others. The word ‘queer’ as an overarching term, however, is still useful in this particular essay as it is not often homosexual or bisexual sexual acts/behaviour that one is referring to in terms of legal changes but an assertion and acknowledgement of an identity based on the same that becomes a threat. The sexual act, though till very recently criminalised in India, will still be tolerated if committed in silence, in the private sphere and in a way that does not hinder the normative processes in a woman’s life such as marriage, childbirth, etc. The public political identities of lesbians/bisexuals or queer women are the potent threats to the hegemonic patriarchal norms that govern all our lives. Further, any behavioural term such as ‘lesbian’, ‘bisexual’ and so on will not and can not capture the whole array of sexual practices, gender performances and identities that the women in this essay exhibit. Thus, one is left with the need for an inclusive term. In terms of carefully choosing a language of theorisation, ‘queer’ in this context is rather useful. We would also like to establish at the very outset that the women referred to in this essay are not just queer but belong to specific regions, religions, castes and classes. These identities also have a profound impact on their struggles. The exact nature of the impact cannot be pinned down but it is significant to remember a larger political framework of intersectionality of identities and thus struggles. We will return intermittently to this point. The experiences of queer people who are seen socially as men and their counterparts who are socially seen as women are—expectedly— very different. As we know, queer men, by virtue of being male often have the freedom of movement and access to the public sphere in India and other South Asian countries. Further, this interaction of men with the public sphere is the norm necessitated by employment, for instance, which is a significant aspect of normative masculinity. This access to the public sphere then provides freedom for men to live their lives with their various preferences and identities—however deviant they may be—for certain periods or moments in their lives. This access

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might even be a pressure rather than a privilege for some. Further, the experiences of queer men vis-à-vis the law cannot be described with a single sweeping statement but may be said to be nuanced and based on a range of factors such as gendered inhabiting of public/private spaces, as well as caste, class, region, ability and religion. The relative lack of access for women to the public sphere and the segregated female space has also meant freedom for some men for activities such as samesex sexual activity. Segregated spaces of any kind—male or female— provide the quintessential space for same-sex sexual activity, which is the fortunate fallout of silence and invisibility. On the other hand, with regard to women, the awareness of one’s body, of sexual pleasure and even pain is often not allowed. For men there exists a culture of sexual talk and exposure. However limited, factually wrong and sometimes offensive (to some) that this exposure might be, it is seen as ‘part of growing up’ for boys. Women are not attributed any knowledge of or freedom to explore their own bodies, leave alone those of others. It is for this reason that same-sex sexual activity among women is often a huge threat and is seen as a significant ‘aberration’ from accepted notions of women’s sexuality. Myths such as ‘only men masturbate’ and so on are part of this differential status of sexual speech in the lives of men and women. The purpose of making this differentiation between experiences of queer people of different genders is to illustrate the complexity of homophobia and discrimination, which cannot always be illustrated by broad brush strokes but are nuanced by a range of factors other than sexual orientation. Further, it is not to set up a hierarchy of oppressions and violence, which is an unproductive and theoretically unsound exercise in this context, but to complicate them. Given this background, queer women, like many heterosexual women who choose their own partners (irrespective of caste, class, religion, race, ability and region) and/or choose to engage in sexual activity before or outside of wedlock and so on, challenge patriarchal structures in significant ways. While some parts of the struggles of women who assert their own sexual identities—heterosexual, homosexual or bisexual—are shared, queer-identified women

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have significantly different experiences. This is due to a number of reasons. First, they shake the very basis of heteronormativity, which is the need for a man in an intimate, interdependent or sometimes just compulsorily dependant relationship. Second, the structure of family is challenged significantly as these women then engage in sexual activity which does not and cannot result in procreation. Third, and most significantly, queer women engage in activities that give them sexual pleasure. Sexual pleasure, a ‘luxury’ not allowed to women as a whole (illustrated very clearly by the not-so-popular status of the clitoris internationally) is the basis of same-sex sexual activity between women, thus making it a serious threat to heteronormative structures. Experiences with the Law

An argument that can be made based on case law is that queer women have to first face the repercussions of being women, legally and socially. The very fact that a woman wishes to and sometimes demands that she live outside the natal home and not in the ‘custody’ of another man, namely the husband and/or his family, is in itself a significant threat. The idea that she might want to live with another woman then adds fuel to fire. In terms of the legal status of queer men and women, there are significant differences as well as some shared struggles. Section 377 is used against queer men and women as a threat. In many cases, the police do not want to make arrests but use it as a threat. This is common to queer men and women although some queer men (of a particular class) face it much more due to their prominence in public spaces as compared to women. Similarly, the use of (il)legal status as a threat within the private sphere is vastly different for queer men and women. There are various other laws, however, that are often used either as threats or most often for filing cases against queer women by their own families and others.

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Laws that are not Section 377

Apart from Section 377, there are a number of laws in the Indian Penal Code which have had a direct impact on the lives of queer women. These laws include: Section 340—wrongful confinement,2 Section 361—kidnapping3 and Section 362—abduction,4 Section 366— compelling a woman to marry,5 Section 3686—wrongful concealment or confinement of an already kidnapped person, and Habeas Corpus writs, among many others. A case which saw an interesting judgement took place in Delhi in early 2006. A lesbian couple approached queer rights groups in Delhi. One of them had left home due to which the parents had filed a kidnapping charge against the other woman under Section 366 of the IPC.7 Eventually the charge was nullified based on the statement of the woman who had run away from home that she was not forced but had left out of her own will and volition. As this was celebrated by all the activists and lawyers involved as a victory, we chose for that moment to forget to ignore the fact that any reference to the lesbian relationship between the two women was avoided by all those involved. The line of argument was to prove the woman’s adult status while covering up and even denying her lesbian identity in the courtroom. This is a classic example of the difficulties faced in even recording cases that might have involved queer women. This is one of the many cases where the legal adulthood of the women in question has been highlighted to ensure their rights while their lesbian identity has been consciously invisibilised. The ‘adulthood defence’,8 as we may call it, then emerges as a comment on notions of ‘citizenship’ and ‘sexual citizenship’,9 and more particularly, has an intrinsic relationship with adulthood, which needs to be explored in the queer context. In many ‘runaway’ lesbian cases, adult women have found themselves charged with offences of kidnapping and abduction. For example, in one such case in Kerala, one of the two women was charged with abduction and the parents also filed a report at the police station saying their daughter was missing. What is interesting

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to note here is that the magistrate heard the case and sent the two adult women back to the custody of their parents only to be treated for mental illness. Yet in an antithetical verdict, also in Kerala, in a case where the parents of one of the girls filed an application under the Writ of Habeas Corpus, the magistrate decreed that the two women could live by themselves or together if they chose to do so as they were adults and could not be placed under the custody of anybody.10 Adulthood then always remains a precarious strength, though no certain guarantor in protecting women. The writ of Habeas Corpus is used to secure the release of a person who has been detained unlawfully or without legal justification. Habeas Corpus may also be issued when a person complains of illegal custody or detention by a private person. When conflicting claims are made for the custody of an infant, the court can enquire into these claims and award the custody to the proper person.11 In the context of Habeas Corpus involving men, where it is filed against the detention in state institutions, it is a grievance redressal mechanism. In the case of women, however, who wish and choose to live with chosen partners who might be men (of an unacceptable nature as per caste, class, religion, character, etc.) or women, it is a repressive mechanism. It is significant to note that the court in the first place would allow parents to file a writ of Habeas Corpus against their adult daughter’s ‘lover’ and that it would then hear it and grant custody to the parents when the daughter clearly states that she does not wish to live with them. In some instances where the court has not granted custody to the parents, it has taken the role of parens patriae and placed the women in question in shelters and kept the two women apart. Let us remember that in the case of heterosexual couples, it is still easier for the male lover to reunite with the woman. The unacknowledged nature of homosexual relationships makes the case harder for same-sex couples. In the case of two women—let us call them R and N—in Kerala, they did receive a positive judgement from the court that ruled that they can live with each other. However, the parents of both women were asked to facilitate this process. The parents intercepted the execution of the judgement, separated the women, and physically

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and emotionally tortured them. N, after having escaped confinement in her house, filed a Habeas Corpus petition to find R. This petition however was immediately dismissed on the grounds that N had no locus standi.12 This is an erratic dismissal based entirely on the notion that a woman who is not a family member cannot file for custody of another woman, and that a woman cannot file for the custody of any human being who is not related to her ‘by blood’.13 It is also shows the limited reach of the law in the private sphere in many instances, especially when it involves women. A simplistic analysis of the law as an overarching empowering or oppressive institution then needs to be re-assessed. This we shall return to later. In another case, two women, S and J, fought a legal battle to protect their right to live together. This case took place with an open acknowledgement by both, of their relationship as lovers. The gender identity of one of the women—as one who dresses and lives as a ‘man’—was both a weakness and a strength. In court, the question emerged as to whether this person was a man or a woman. This case is significant in the context of this discussion as it was one of the few where the exact nature of the relationship between the two women was known to all those involved—the women, their parents, the lawyers and the court. Given all these circumstances, the women were allowed to live with each other on the grounds that they were adults.14 On the contrary, Shahzina and Shumail from Lahore, Pakistan are another case in point. In this case, the couple, one of whom, Shumail, was a female-to-male transgender, were charged with purgery and sentenced to three years in jail. The court released the couple saying that there was nothing illegal about two women living together. The judgement, although unrelated to the earlier purgery charge, freed the women nevertheless. What ought to be noted here is that Shumail, who had gone through surgery and was also identified as a man in court, was not accepted as being one by the court. As women, they could thus so easily be charged with purgery although the case was about their relationship and not about their gender identities.

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The utter confusion in court spaces when it comes to cases involving two women is highlighted in the following case. In Jalgaon, Bombay, two women were long-term lovers and neighbours. Both were also married to men and had children. They decided to approach the local police authority to get married. The police in turn questioned the women and eventually put them in prison along with the husband of one of the women who had come looking for them. They were all eventually let off. The couple in question seemed to have approached the police due to the notion of ‘authority’ in society where the lack of parental support has often meant seeking support from state structures such as the police. This case is perhaps also inspired by Bollywood cinema—which itself claims to be ‘partially inspired by real lives’— where a number of heterosexual couples who are not accepted by their families turn to police structures where their right to marry is upheld. Extending this notion of the rights of these couples, the Jalgaon women seem to have expected a similar ‘right to marry’ that the police would uphold. The police on the other hand, completely perplexed by the scenario, not only made completely illegal arrests of the women and the husband, but also subjected the women to medical scrutiny to detect fingerprints inside their vaginas as proof of sexual activity between the two women.15 This is yet another instance which cries out for a more nuanced analysis of the perceptions of the law and its reactions to members of communities who necessarily engage with it from a discriminatory position. In another case in Bombay, a woman who was involved in a lesbian relationship was threatened by her mother and brother-in-law with the help of the police using Section 377 of the IPC. Although no action was pursued, this threat was strong enough to cause substantial emotional harm to the woman in question. This as we may note is one of the few cases where Section 377 was directly quoted.16 Here too, the law was not used to file a case but to threaten the woman so that she would get out of her relationship. As a queer activist, Shalini, from Bombay put it. ‘It was used in the exact manner that it is supposed to—for moral policing.’ This process is common to both queer men and women—the threat of Section 377 as the ‘curing

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mechanism’. The recent judgement, we hope, will at least begin to change this situation in the long run. The threat is now weakened if not completely obliterated. Conclusions

The legal lobbying around Section 377 within the ambit of sexuality rights has been of enormous political and symbolic significance. In terms of ground realities, however, it is a much more complicated sociolegal battle. In the case of women, among others, the struggles and the impact of law must be nuanced. Legal changes and their significantly public nature with regard to case law have a very different impact on women as compared to men. In general, positively empowering laws that provide redressal mechanisms for women in cases of violence, or within other institutions such as marriage and the workplace, have had a pronounced impact on women’s lives. Comparatively, legal changes that undo discrimination without providing legal rights explicitly, such as the decriminalising of adult consensual same-sex activity, have little impact for women. This is due to a number of reasons. First, at the ground level, the police harassment based on Section 377 is targeted largely towards those seen to be ‘men’ in society and who belong to a particular class. The changes in this law have little impact on women as is the case with some ‘men’ of privileged classes. Second, as a result of the association of Section 377 with sodomy law, it has often been related to men rather than women. The history of the law in terms of cases and its place in the public imagination over time, has also largely involved sex between men rather than between women. The perception of the law and the battles against it are also then seen as being primarily male. The significance of this battle in the lives of women often perplexes many, including some within the queer communities and struggles. We can use this analysis also as a basis to take a critical look at the role of law in social change. This can be articulated through a two-pronged approach. First, the centrality attributed to legal change in processes of social change can be questioned, as has been

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argued in myriad contexts within processes of social change. Second, this centrality given to and visibility of legal battles may (and often does) leave out certain communities/identities as the law per se has invisibilised them. Further, the public nature of the law as mentioned earlier, in many ways, structures forms of dissent. It thus follows that the struggles of queer women are not often the material for posters of queer struggles in India as they are not part of the public eye of the law; women also have relatively less privilege to be openly identified as queer. Having said that, one must clarify that what we are suggesting is not a simplistic inclusion of queer women in the law or in the struggles against the same, but the use of their stories to question both the law and the expressed dissent. We must be conscious that the structures of oppressions that are being questioned in many ways also configure the dissent. The life of Section 377 will invariably decide who is involved and/or is affected by the protest against it. We must be wary of internalising, in our struggles, the exclusions and inclusions necessitated by the structures we oppose. One is also not suggesting that varied forms of dissent and struggle do not thrive. We are, however, critiquing the popular representation and perception of queer struggles in India. This questioning emerges not from a fear of difference within the movements—which in our opinion is nothing but a strength—but as a word of caution from the perspective of long-term social change. The enormous significance of the campaign against Section 377 at this historical moment is beyond doubt. However, from a broader perspective, we must be conscious that struggles that are of real and symbolic significance for one community/identity are only a speck in the universe of political struggles based on an alternative worldview. Legal battles are an even smaller aspect of social change especially when they are not simultaneously analysed and critiqued. In this context, recognising the significance of the Habeas Corpus writ, for example, in the lives of queer women is an excellent strategy to establish solidarity with various other struggles of women. This solidarity need not be just a strategic alliance. It could imply a broader political dialogue which might or might not mean consensus, but it would strengthen the different yet shared struggles of various women.

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With regard to the queer struggles across the South Asian region, there is a need to constantly re-emphasise and cherish the existence of the whole array of diverse forms of struggles. While some are shared, others need to be different. Exclusive spaces of support and sharing for men, women, gay men, hijras, lesbian and bisexual women, etc., are of enormous value within their particular scope and nature. Having said that, we need to always be conscious and critical of their purpose and impact. Our shared struggle, in many ways, can sometimes take the form of strategic alliances on specific instances and/or issues. At most other times, it might mean a larger political articulation of ‘queerness’, which is the dream of a world where persons and communities have the right to question norms of gender and sexuality and make their choices. This we see as a desirable larger politics which includes identity-based articulations only in specific and hopefully short-lived moments as strategy. Rights of identities and communities may seem to be the beginning, middle and end of many social struggles but we must move beyond this frame. We must acknowledge and remember that no philosophy of social change is about or for any one group of people. We argue that we need to be critical of a few things we often taken for granted in academic and activist work around issues of gender and sexuality. First is the simplistic clubbing together that is ‘LGBT’. We have to remember that the selection of alphabets is not exhaustive and never will be, given the vibrancy of human experience. And second, the alphabets are not equals but are part of a social hierarchy and some within them are, at times, invisibilised. Further, we need to be critical of addressing sexuality issues from the vantage point of sexual identities alone and try to evolve a language that is complex, including various aspects that affect our lives, of which sexuality is a part. The ghettoisation of any one kind of politics in both academics and activism, we argue, has to be countered effectively. In India, while we are still at the initial stages of activism, academic writing and public discourse on the whole gamut of issues of sexuality, we are struggling to highlight the differences and diversity in our struggles as a strength and a formidable force against simplistic

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arguments couched in the language of rights of specific communities and people, which in the long run might (as they often have in the past) leave oppressive and hegemonic systems unshattered if not untouched. Given the recent judgement and the possible spaces it may open up within the public sphere and within queer spaces themselves, hopefully, now we can move on from our significant yet minimal struggle against the sodomy law to the larger questions that we can address and act upon with self-criticism and vibrance. Now is the time to raise these questions and begin to evolve a language to articulate them effectively. Notes 1. In 2009, Section 377 of the Indian Penal Code was read down in a landmark judgement by the Delhi High Court. This judgement makes a constitutional rights-based argument and has had a profound impact on the legal status of LGBT persons in India. While the judgement is being challenged in the Supreme Court, this significant victory nonetheless gives LGBT persons the right to inhabit the public sphere as equals as opposed to their former criminalised status. This volume includes a number of other essays that discuss this recent development in detail. 2. Wrongful confinement: Whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said ‘wrongfully to confine’ that person. 3. Kidnapping from lawful guardianship: Whoever takes or entices any minor under [1] sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. 4. Abduction: Whoever by force compels, or by any deceitful means induces any person to go from any place, is said to abduct that person. 5. Kidnapping, abducting or inducing woman to compel her marriage, etc.: Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or

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seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely she will be, forced or seduced to illicit intercourse with another person shall be punished as aforesaid]. 6. Wrongfully concealing or keeping in confinement, kidnapped or abducted person: Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person. 7. This was a case filed at the Delhi High Court in the year 2006. 8. Emerged as a useful term in conversation with Arvind Narrain. 9. http://www.altlawforum.org/education/the-illegal-citizen/module-onsexual-citizenship. 10. Interview with R and R; Trissur; August 2006. 11. Article 226; Constitution of India. 12. Locus standi in legal language refers to the status of the person filing the case, which should be one where it must be clear that such person is affected by the said act and thus has the right to ask for recourse within the law in this regard. In the absence of such a status the court may declare that the person has no ‘locus standi’ and thus their request for legal recourse can be turned down or nullified. 13. Interview with R and N; Trissur; August 2006. 14. Interview with S and J; Trissur; August 2006. 15. Interview with LABIA (Lesbians and Bisexuals in Action); Bombay; September 2006. 16. Ibid.

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Democratising Marriage: Consent, Custom and the Law Ruth Vanita

There is a popular Urdu saying, ‘Miya biwi razi, toh kya karega qazi?’ (When husband and wife consent, what can the judge do?) This refers to the fact that marriage worldwide is conceived of primarily as an agreement between two individuals. As a Christian historian of marriage wrote in 1905, ‘What is actually essential for marriage…is a very simple form of mutual consent.’1 Episcopalian Bishop John Shelby Spong referred to this fact when he wrote, ‘The church does not in fact, marry anyone. People marry each other.’2 In Muslim marriage, the basic ceremony consists of the officiant (any Muslim male) asking the bride and groom if they consent to the marriage. When they say they do, the marriage becomes valid. In Christian marriage as well as many forms of civil marriage today, including marriage under the Special Marriage Act, the basic formula is asking the question: ‘Do you take so-and-so to be your husband/wife?’ Consent is crucial; everything else is inessential ceremony. Hindu law also recognises marriage by mutual consent as valid. Ancient Hindu law lists two to 12 types of marriage, some more socially approved than others, but all valid. Eight types are listed in later texts. Among these types, the gandharva vivaha is marriage by mutual consent. Gandharva marriage requires no parental consent, no rituals, no officiant and no witnesses. Shakuntala and Dushyanta’s is perhaps the most famous marriage of this type.

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Of the eight ancient forms, two have survived and are widely understood in India today—family-arranged marriage and gandharva marriage. The term gandharva vivaha is now used to mean a marriage based on individual choice, or a ‘love marriage’. There are many examples in Hindi cinema of a couple exchanging garlands with each other or the man putting sindoor on the woman’s hair-part, without witnesses or officiant; the film communicates to spectators that this is a gandharva marriage. When two policewomen, Leela Namdeo and Urmila Srivastava married each other in 1987 in a Hindu ceremony and were thrown out of the police force, their story made national headlines and one article termed their marriage a gandharva marriage.3 Marriage and the State

Many people wrongly assume that the State has always regulated marriages. Even in the West, the State’s takeover of marriages is relatively recent. In medieval Europe, the Church did not perform marriages nor did the State validate them. Marriage was considered a secular arrangement though instituted by God; celibacy, considered a higher state, was the province of the Church. Priests did not perform weddings; they simply blessed them as they did other secular undertakings, such as sowing of crops or opening of workshops. In the 13th century, Pope Innocent III decreed that both spouses’ free consent is the sole essence of marriage. Marriages were celebrated by the exchange of vows, outside of church premises. In canon law, a verbal contract in the present tense between a male of 14 or older and a female of 12 or older, witnessed by two persons, was a marriage.4 A priest’s blessing could be sought but was not essential to validate the marriage. A man and woman who lived together and were acknowledged by the community as spouses, were considered common-law spouses and accrued the responsibilities and rights of marriage. Under pressure from influential families in medieval Europe, the priest’s blessing at the church door gradually became a blessing at the altar inside the church. This developed into the newly-weds taking

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the sacrament together. From the 13th century onward, the Church increasingly began to take control of people’s sexual lives. Thus began the gradual move to the priest performing a wedding ceremony and recording it in a church register. This is the origin of the modern practice of the State registering marriages. Royal and aristocratic weddings were arranged as political alliances, but the State had little to do with ordinary people’s weddings. When Henry VIII broke away from the Roman Church, primarily because he wanted to control marriage law, he became the head of both the British State and the Anglican Church. From the so-called Reformation onwards, governments began to increasingly assert control over marriages but the Church still retained primary control. The State’s gradual takeover of marriage in Europe reached its consummation in France after the Revolution. In 1792, the Republic decided that the only marriages that would be considered valid would be civil ceremonies performed and registered by a government officer. The religious ceremony, if any, was irrelevant to the legality of marriage and had to be performed after, not before, the civil ceremony. Most Western democracies imitated this law, and the Indian Special Marriage Act too is modelled on it. Thus, marriage by mutual consent, a truly ancient form of marriage, has been supplanted in the West by a two-centuries-old law, which gives absolute control to the State. Customary Law and Indian Marriage

Indian democracy, although in most respects very similar to Western democracy, provides an alternative and less authoritarian model as far as marriage is concerned. In Western countries, a marriage is valid only after the State issues a license, that is, gives permission for the marriage to take place. In India, a religious marriage is legal even if the marriage is not registered and the couple does not obtain a licence. This means that virtually any Hindu priest or scholar in any temple or home can marry two Hindus and any Muslim can marry two Muslims anywhere.5

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Under the Hindu Marriage Act, the state recognises any Hindu marriage as legal that is ‘solemnized in accordance with the customary rites and ceremonies of either party thereto’.6 A Muslim marriage is a contract, not a sacrament. Indian Muslim marriages do not have to be registered with the state nor does a licence have to be obtained. Individuals of any religion can contract a civil marriage under the Special Marriage Act, 1954, for which they do need a licence. The vast majority of married Indians today have not registered their marriages (or separations or remarriages) with the government, yet they are legally married, by customary ceremonies. Is State Control More Democratic?

Many educated Indians consider the validation of customary forms of marriage backward and divisive. There is a strong movement afoot, supported by political parties and women’s organisations, both on the Right and the Left, to pass a uniform civil code, erasing differences in marriage practices between Hindus and non-Hindus, as well as among Hindus.7 Women’s organisations also want to make the registration of marriages with the government compulsory; one effect of this would be to undermine the role of custom in marriage ceremonies. Women’s organisations argue that many Indian communities are patriarchal as are their customs, so State regulation of marriage would protect women. In my view, the Indian law’s recognition of custom, although it does generate problems, as any system does, is nevertheless valuable because it retains a balance between a centralised State and localised communities. It ensures that the State does not have the exclusive right to define marriage and thereby render some people un-marriageable. While communities are patriarchal, so is the State—in fact, the nationstate is arguably the most powerful patriarchal force in existence today. State control of marriages is often considered more ‘democratic’, but this is so only if one defines democracy as the imposition of majority norms on every individual. If individual liberty and community norms

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are elements of democracy, then balancing State control with these is more democratic. What the opponents of custom forget is that all law originates in custom. Muslim and Christian laws are to some extent fixed by written texts that claim to conform to a holy book. Even so, there are major variations, for example, Muslim Sunnis argue that Mutaa or temporary marriage was valid at one time but is no longer so, while some Muslim Shias argue that it is still valid. Indian law recognises this difference, and upholds the validity of Mutaa marriage among Shias. The role of custom is most clearly apparent today in Hindu law. This is because Hindus still retain a vast diversity that most other religions have lost. All ancient Hindu law books state that custom is powerful and overrides texts. Although different schools of Hindu family law, such as the Mitakshara and the Dayabhaga, are based on different interpretations of sacred texts, commentators repeatedly state that custom and approved usage override written texts.8 The British attempt to make Indian law uniform by dividing it on the basis of religion, so that Hindus were governed by Hindu law, Muslims by Muslim law, and Christians by Christian law, erased the eclectic mix that actually existed in the practices of many communities. For example, the Khojas of Maharashtra had converted to Islam about 400 years back, yet they continued to follow Hindu rules in matters of inheritance. But in 1937, under the British rule, the Muslim Personal Law (Shariat) Application Act was passed, bringing all Muslims, including the Khojas, under its purview.9 But even the British were compelled to recognise the importance of custom in Hindu law because Hinduism has no one holy book that overrules other holy books. In 1868, the Privy Council ruled: ‘Under the Hindu system of law, clear proof of usage will outweigh the written text of the law.’10 In the 1950s, the Indian government continued the process of making laws uniform by passing laws to regulate and reform Hindu marriage, divorce and other family matters. There was widespread opposition to this codification, primarily on the grounds that it would erase the diversity of customary practices that had the force of law

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among different Hindu communities. In deference to this diversity, the government built limited recognition of custom into family law. However, states and modern organisations in general and governments in particular tend to be uncomfortable with diversity. The postReformation nationalist State and political parties function on the assumption that left to themselves, people tend to be backward and anarchic, hence the State’s imposition of uniformity is desirable in the interests of nationalism and modernity. Socially versus Legally Recognised Marriages

On 27 April 2001, two women, Jaya Varma, 25, and Tanuja Chouhan, 32, got married in a Hindu ceremony at the Mahamaya temple in Ambikapur, Bihar. ‘The couple took the traditional vows as a priest chanted the mantras. They went around the sacred fire seven times to solemnize their marriage.’11 At the same ceremony, Jaya’s sister was also married, to a man. Although Jaya’s sister’s marriage is validated by the Indian State and Jaya’s is not, Jaya’s family and community and the Hindu priest validated both equally. About a hundred people were present at the reception. Jaya’s entire family was present. The wedding ceremony was performed according to the customs of the community, and was thus arguably valid under the Hindu Marriage Act. However, a week after the ceremony, when Jaya and Tanuja went to get their marriage registered, registrar Maninder Kaur Dwivedi gave them a hearing but refused to register the marriage. Thus, some same-sex weddings, performed according to community customs, are recognised by some Indian communities as valid, even though the State does not recognise them. Since Hindu priests, unlike Muslim and Christian officiants, generally do not document weddings in writing, disputes may arise as to whether a marriage was really a ‘marriage’. In cases of bigamy, a man often denies the validity of one of his marriages.12 Judges examine evidence like photographs and testimonies of priests, witnesses and guests, to figure out if the wedding took place according to the

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community’s customs. The general principle seems to be one of common sense: if it looks like a wedding, if it is seen and understood to be a wedding, it is a wedding. Who Defines ‘Custom’ and ‘Community’?

Custom, being fluid and constantly changing, is notoriously difficult to define. Indian courts have sometimes defined custom as prevailing from ‘time immemorial’, but have modified this to ‘longstanding’ practice. Hindu custom, even within the same local community, is far from uniform. A Hindu wedding could be anything from exchange of garlands or applying sindoor (rituals often performed by samesex couples who elope together) to an elaborate three-day series of rituals. From the 19th century onwards, some Hindu communities began trying to render their customs uniform. Powerful communities such as the Agarwals, Kayasthas and Lingayats formed nationwide bodies, whose leaders met and decided what their customs were. Upwardly mobile communities gradually changed their customs to conform to upper class and caste practices. New groups, such as the Arya Samaj, also defined themselves as communities and formulated new practices that they defined as legal ‘customs’. The anti-Brahmin movement in Tamil Nadu, south India, instituted a new type of marriage known as ‘self-respect marriage’. In 1967, the Tamil Nadu government passed a law recognising any marriage performed by the groom tying a tali (wedding pendant) on the bride in the presence of witnesses, as valid.13 But community members do not always change their customs to conform to leaders’ views. When questioned in court, community members give widely divergent accounts of the customs. Courts tend to recognise a custom as valid if it is mentioned in several cases over a period of time. If a group that defines itself as a community performs a ritual repeatedly over a period of time, it may convince the courts that this ritual has become a custom.

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At least one Hindu scholar, Pandit Shailendra Shri Sheshnarayan Ji Vaidyaka, has argued that gay people could be seen as constituting a separate community. When questioned about same-sex marriage at the Kumbha Mela in 2004 by Hinduism Today reporter Rajiv Malik, he said, ‘Whatever is done in a hidden manner becomes a wrong act and is treated as a sin. But whatever is done openly does invite criticism for some time but ultimately gains acceptance. Why not give them the liberty to live in their own way, if they are going to do it anyway? After all, we have kinnars, eunuchs, who have been accepted by the society. Similarly these people can also be accepted. Like we have a kinnarsamaj, eunuch society, we can have a gay samaj.’14 If several same-sex weddings take place in a Hindu community or, alternatively, if gay people who are Hindus conduct several samesex weddings over a period of time in a particular region, samesex marriage could come to be legally defined as customary in that region. Residues of Custom in the West

Even in the West, residues of customary religious marriage remain, and have been used to pressure the State into granting legal recognition. This happened in a path-breaking case in Toronto. Under the Ontario Marriage Act, any couple must be granted a marriage licence if any church, following ancient tradition, reads their marriage banns for three consecutive Sundays prior to the wedding. In 2001, the Metropolitan Community Church in Toronto read the banns and married two men, Kevin Bourassa and Joe Varnell, and two women, the Vautours. The couples then filed a case asking the State to register their marriages. The Court of Appeal ordered the province to register the marriages. Ontario began issuing marriage licences to same-sex couples in June 2003 and the Government of Canada later legalised same-sex marriage.15 The government’s recognition of a church ceremony as sufficient to entitle a couple to legal recognition of their marriage is similar to the Indian government’s recognition of a customary religious ceremony

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as sufficient to constitute a legal marriage. Common-law marriage, recognised in many parts of Europe and North America, is another residue of custom. Who Decides What Marriage Is?

Democracy is often misunderstood as defined simply by majority opinion. In fact, modern parliamentary democracy, including the Indian democracy, has evolved with in-built checks and balances to protect minorities (including minorities of opinion) and dissenting individuals from majority tyranny. In marriage and family matters, minority groups have often suffered majority tyranny. In such situations, minority communities may recognise marriages that the State does not. This happens even in the West but on a much larger scale in India. For example, British law prohibits bigamy and most Muslims in UK disapprove of it, yet some Muslim bigamous marriages have taken place in mosques of UK. These weddings do not have any validity according to British law, but they are valid as per Muslim law and the community. Similarly, in India, after the State changed the Hindu law in 1955, Hindu bigamous marriages, which used to be legal, have become illegal. Yet some do take place and the second wife often enjoys the status of wife in the community rather than of mistress. At first glance, it might seem that all marriages recognised by communities but not by the State must be bad for women and backward-looking. However, this is not true. Historically and even today, many communities are ahead of the State in their willingness to recognise unions that the State refuses to validate. Take the example of religious minorities. Prior to 1753, the British government did not recognise any marriages that had not been performed by the Anglican Church. Therefore, Quaker and Jewish marriages were not recognised as legal. This is because the State recognised only one religion as legitimate—that of the Anglican Church.

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But Quakers and Jews did marry and considered themselves married. Were these marriages or not? They were married in the eyes of their own communities and of other enlightened people, but not in the eyes of the State. Looking back today, we would say that these unions were marriages, even though the State did not recognise them. A similar question arose in India when the 19th-century reformist sect, the Brahmo Samaj, began performing a simplified Hindu wedding ceremony. In 1868 a court declared these marriages invalid, because orthodox Hindu leaders did not consider the Brahmo Samajis Hindus. To remedy the situation, the first civil marriage law in India, the Special Marriage Act, was passed in 1872. It created a huge controversy; those arguing in its favour pointed out that since so many forms of Hindu marriage already existed, the Act was just adding another one.16 The federal government of USA’s current refusal to recognise same-sex marriages performed by ministers and rabbis or by civil officials in Massachusetts or California, and the Indian government’s refusal to recognise same-sex marriages performed by Hindu priests, places these marriages in a situation analogous to that of Quaker and Jewish marriages in the 18th century and the Brahmo marriages between 1868 and 1872. The federal government of USA, because it is secular, cannot explicitly base its refusal on a particular interpretation of Christianity. But in fact it is a religious objection that forms the basis of the government’s opposition to same-sex marriage. US government officials justify their refusal by referring to God as well as to Judeo-Christian tradition. It is clear that their interpretation of God and JudeoChristian tradition differs from those of many Christian ministers and Jewish rabbis who perform same-sex weddings in the US. Like Christian priests, Hindu priests too vary in their approaches to marriage. A Hindu Shaiva priest I spoke to in 2002 said that he knew that other priests in his lineage would be shocked by his officiating at the marriage of two women. Having thought about it, however, he had become convinced that it was the right thing to do, because

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marriage is a union of spirits and Hindu texts clearly state that the spirit is neither male nor female. Can ‘Bride’ and ‘Groom’ be of the Same Sex?

The Hindu Marriage Act states, ‘A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled.’17 The list of conditions prohibits bigamy, insanity, marriage before the age of 21 for the groom and 18 for the bride, and certain forms of biological relationship between the two, unless these forms are permitted by community customs. The gender of the ‘two Hindus’ is not stated. However, gender is assumed and appears in the third requirement: ‘the bridegroom has completed the age of twenty-one and the bride the age of eighteen at the time of the marriage.’ The terms ‘bride’ and ‘groom’ appear many times thereafter in the Act. Most people would assume that a bride is biologically female and a groom male. But this is not the only possible understanding of who a bride is and who a groom. In most of the lesbian weddings reported in India over the last two decades, one woman presented herself as the groom and the other presented herself as the bride. Several couples performed the rite of the groom by putting sindoor in the bride’s hairparting. Some biologically female grooms undergo or say they intend to undergo a sex-change operation. Others have no such intention but have short hair and wear shirts and trousers. When two women in India publicly claim the right to marry (as opposed to privately marrying each other in death) they seem to rest this claim in part on their presentation of themselves as a couple in which one woman is the bride and the other the groom, even though both are female. The degree to which the families and the community accept this claim often appears to be inseparable from the degree to which they accept the marriage. When Neeru and Meenu married in Faridabad in 1993, Neeru used the male alias, Dinesh Sharma, and dressed like a man. However, she is biologically female. Her family got her married to a man, but

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she left him after a few days. In the case of the two policewomen who married in 1987, Urmila always dressed in shirt and trousers and had short hair, while Leela wore a sari and jewellery when off-duty, and had long hair. In photographs, Urmila looks like a boyish girl rather than a man. Her family referred to her as a female and by her female name, yet they treated Leela like a daughter-in-law, saying that they had a responsibility to look after her. Some communities are thus able to integrate female-female marriage into their interpretation of Hindu law, by recognising one woman as the groom and the other as the bride. This, however, does not always work. Raju, who married childhood friend Mala in December 2004, had short hair, wore jeans and leather jackets, and had a male-sounding name while Mala wore red bangles, a symbol of marriage. After their marriage, which was conducted by a Hindu priest in Delhi, they returned to their hometown, Amritsar, where Raju told reporters, ‘We have vowed to live together for the rest of our lives as husband and wife.’ Mala threatened to commit suicide if they were forcibly separated, and said, ‘I have left my family for her.’18 But their families and neighbours remained extremely hostile and boycotted them, so they had to go into hiding. This social pressure was in part responsible for the couple’s separation later. Can a Woman be a Groom?

The conflicting ideas that gender makes both women brides, while the requirements of marriage make them bride and groom, appear in the caption of one story about the Leela-Urmila wedding: ‘Bride Grooms Bride’.19 An important Hindu interpretation of same-sex relationships, expressed by several priests and teachers, is that same-sex lovers were cross-sex lovers or spouses in a former life. In that case, the groom, though biologically female, may be perceived as male in spirit. If two persons experience their performance of bride and groom deeply and seriously as the truth of their life, can the State or the

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community prevent them from doing so? Attempts to interfere with people’s self-view comes with a high price tag—the large number of joint suicides by female couples testifies to this. Higher- and Lower-status Marriages

Before the British codified marriage laws, Indian communities ranked marriages using different terms to distinguish higher from lower status marriages. This system provided some recognition to lower-status unions such as second marriages, which now have no legal validity. Among Shia Muslims, mutaa marriages generally have a lower status than nikah. Among Hindus, remarriages of widows and divorced women had and still have a lower social status. Ancient texts refer to a remarried woman as a punarbhu. Although she was a wife (vadhu) for practical and inheritance purposes, she did not have the ritual and social status of a first wife (grihapatni).20 Even in USA, remarriage after divorce often has a lower social status than a first-time marriage. Several celebrities in India have high-profile bigamous marriages, which are not legal, but are socially recognised. Classical dancer Raja Reddy married his wife Radha’s sister and lives with both women and their children. Film stars Dharmendra and Hema Malini married and had a child, even though he already had a wife. Civil unions and domestic partnerships in countries like France and Germany, hailed by some gay activists as ‘radical alternatives’ to marriage are in fact nothing but lower-status marriages in the sense that they confer some but not all of the State-bestowed benefits that civil marriage does. If they conferred all the same benefits they would merely be marriages by another name. Socially, both in the West and in India, even when families and communities recognise same-sex non-legal unions as marriages, residual heterosexism ensures that they rarely accord a same-sex couple the same status as a cross-sex couple. The difference in status appears in subtle ways, such as the amount of financial assistance parents give, the type of gifts given and the way the partners are introduced.

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Same-Sex Marriage not Illegal

Can the democratic State prevent people from entering into same-sex unions or punish them for doing so? Unlike bigamy, same-sex marriages are not punishable in India or the West. Even in societies such as those in USA before 2003 or in India today, where certain same-sex sexual acts are illegal21, same-sex marriage is not illegal because marriage is not equivalent to the performance of any sexual act.22 Even the police seem to recognise this distinction. When two Muslim men, Harfan, 28, the groom, and Mustafa, 22, the bride, got married in Garhmukteshwar, Ghaziabad in 2004, Harfan’s relatives handed both men to the police, but the police refused to arrest them, because while sodomy is a crime in Indian law, same-sex marriage is not. The report ends, ‘[T]his controversy does not seem to have deterred the couple that plans to live together as man and wife.’23 Similarly, when two Nepalese women textile workers, Sita Malla, 24, and Rupa Shrestha, 16, got married in August 1998, they were arrested but later released because ‘although same-sex marriage may offend some social expectations, it’s not actually illegal.’24 Transsexual and Hijra Marriages

Indian law on sex change is confused and unclear. Hijras often have great trouble in declaring themselves female when obtaining government documents like passports. At least one person in India has tried to legally challenge a transsexual marriage on the grounds that the union could not result in procreation; in 1987, Tarulata, 33, underwent a sex-change operation and became a man, taking the name Tarunkumar. He then married Lila Chavda, 23, in a civil and a religious ceremony in December 1989. Lila’s father, Muljibhai Chavda, went to the Gujarat High Court, asking for the marriage to be annulled on the grounds that Tarunkumar can neither have ‘natural’ sexual intercourse nor procreate. The procreation argument, often used against same-sex marriage, is a red herring—nothing in any marriage law prevents people above

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the reproductive age or women who have had hysterectomies from marrying. In fact, Indian courts have ruled that a woman’s infertility is not a ground for divorce. Muljibhai’s lawyer argued, ‘Even an impotent Hindu male can marry because impotency is no bar to his marriage. In this case Tarunkumar was not a Hindu male at the time of his birth.’25 He also invoked the anti-sodomy law, claiming that this was a lesbian relationship. In fact, Muljhibhai had no legal standing to ask for the marriage to be nullified, since under the Hindu Marriage Act only the spouses or guardians of a minor spouse can present such a petition. Yet, the court issued notices to the Registrar of Marriages and to the doctor who performed the sex-change operation, asking them why the petition should not be admitted. Tarunkumar and Lila claimed that Lila’s father was upset because in his community the groom’s family is supposed to pay dowry to the bride’s family (the reverse of the mainstream practice where the bride’s family pays dowry to the groom’s family), and Tarunkumar had not paid him dowry. The couple was quoted as saying, ‘Even if the court declares our marriage null and void, we shall continue to live together because we are emotionally attached to each other.’26 This statement emphasises the way same-sex unions exist in the interstices of the law—neither recognised nor criminalised. In 2002, Durga Ghosh, a 33-year-old hijra, married Gourab Roy, an 18-year-old boy, at a Kali temple in Orissa.27 The Registrar of Marriages did not object to the sex of the bride but to the age of the groom. He refused to register the marriage because the boy was under 21, the minimum age of marriage for men. Under the Hindu Marriage Act, if the spouses continue to live together and neither of them nullifies the marriage, it becomes valid when the groom turns 21. Conclusion

If registration of marriage is made compulsory, it will not stop samesex couples from marrying. In the West, same-sex couples have been marrying in non-legal ceremonies, including religious ceremonies,

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for decades, and the increasing frequency and acceptability of such weddings (the New York Times has been carrying reports of such unions in its weekly bulletin of marriages for some years now) has compelled governments and courts to take cognizance of gay people’s right to legal protection for their unions. Travelling down this road will also, sooner or later, inevitably lead to same-sex couples challenging the constitutionality of denying same-sex couples the right to marry. However, enforcing registration of marriage will undermine India’s uniquely respectful approach to diversity, and the unique opportunity we have to add same-sex marriage to this diversity without going through protracted legal battles—simply by recognising the marriages that are already taking place by customary ceremonies. Notes 1. Lacey, T. A. 1912, Marriage in Church and State. London: Robert Scott, p. 44. 2. Sullivan, Andrew. 1997, Same-Sex Marriage, Pro and Con. New York: Random House, p. 67. 3. Anu and Giti. 1993, ‘Inverting Tradition: The Marriage of Lila and Urmila’, in Rakesh Ratti (ed.), A Lotus of Another Color: An Unfolding of the South Asian Gay and Lesbian Experience. Boston: Alyson Publications, pp. 81–84. 4. Stone, Lawrence. 1992, Uncertain Unions: Marriage in England 1660-1753. Oxford: Oxford University Press, p. 17. 5. A Muslim can enter into a valid nikah with a Jew or Christian too. 6. Mitra, S. K. 2000, Hindu Law. Delhi: Orient Publishing Co., p. 645. 7. While feminists want to free Muslim women from supposedly oppressive practices such as polygamy, some Hindus see the retention of polygamy in Muslim law as evidence of the government’s unfair pandering to the Muslim vote-bank. One solution is internal reform by Muslims, which is beginning to happen. See: Sardar, Ziauddin. 2004, ‘Can Islam Change?’ New Statesman, 13 September. 8. Mitra, see note 6, pp. 1–7. 9. Ibid., pp. 16, 17. 10. Ibid., p. 1. 11. Gupta, Suchandana. 2001, ‘Husband at Home, in Sari at Work’, The Telegraph, Calcutta, 29 May.

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12. Bigamy is one of the main reasons many feminists want to make marriage registration compulsory. Their assumption is that polygamy is always bad for women who are coerced or deceived into it. While this is true in many cases, bigamy also persists among educated, working women, who often see it as being in their own interests, for example, among some Mormon sects in USA. A recent TV series ‘Big Love’ explores the complexity of polygamy. 13. Duncan, J. and M. Derrett. 1978, The Death of a Marriage Law. New Delhi: Vikas, p. 32 14. Malik, Rajiv. 2004, ‘Discussions on Dharma’, Hinduism Today, OctoberNovember-December, pp. 30, 31. 15. For the legal history in Canada, see: Alderson, Kevin and Kathleen Lahey. 2004, Same-Sex Marriage: The Personal and the Political. Toronto: Insomniac Press. 16. Basu, Monmayee. 2001, Hindu Women and Marriage Law. Delhi: Oxford University Press, pp. 40–4. 17. Mitra, see note 6, p. 644. 18. Rataul, Dharmendra. 2004, ‘Even death can’t do us apart’, Indian Express, 11 December. 19. Savvy, 21 February 1988. 20. Dhar, Sudarshan and M. K. Dhar. 1986, Evolution of Hindu Family Law. Delhi: Deputy Publications, pp. 162–76. 21. See page xxx in Introduction. 22. See: Strasser, Mark. 1997, Legally Wed. Ithaca: Cornell University Press, pp. 70–1, for an elaboration of this argument. 23. ‘Gay youths thwarted after entering into wedlock’, 1 March 2004, available at ushome.rediff.com/news/2004/mar/01up.htm. It appears that Harfan, already married to a woman, was making ingenious use of his right to remarry, as he tried to move Mustafa into the house along with his female wife. 24. www.gaylawnet.com/news/1998/pa980709.htm#lesbians_wed. 25. Mahupkar, Uday. 1990, ‘Gender Jam: Case of a Curious Marriage’, India Today, 15 April, p. 10. 26. Ibid. 27. Asian Age, 29 September 2002.

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Liberating Marriage: Same-Sex Unions and the Law in India Thomas John

Introduction

The institutions of marriage and family are often considered central to society. Children are commonly brought up with specific social ideals of marriage and family that involve finding a partner of the opposite sex, settling into a stable, monogamous relationship legitimised by marriage, and having one or more children. Marriage is also frequently seen as a religious institution rather than strictly a civil one, with a religious ceremony often completing the religious and legal requirements for a valid marriage (although the religious aspect may include a number of rituals that are irrelevant to the legal aspect of marriage). For this reason, conventional notions of marriage as being between one man and one woman from the same race, religion or caste have been upheld for years in both legal and social attitudes, and the preservation of ‘the sanctity of marriage’ has been used several times in the past to justify attitudes that were considered discriminatory by those seeking legal and social reform. Interracial, inter-religious and inter-caste marriages, for example, were often opposed on religious grounds and the legal protection granted to these marriages can be said to represent a shift away from the purely religious view of marriage. Thus, while religious conservatives may favour a more restrictive view of marriage, the legal concept of marriage has expanded over the years to the extent that even unmarried cohabiting partners are given certain rights normally associated with marriage in some countries.

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Where, then, do same-sex marriages stand in this scenario? While same-sex unions are hardly a novel concept, with stories of such unions abounding in areas as diverse as Italy, Nigeria and India, they have not been given exactly the same status as opposite-sex marriages.1 Matters are further complicated by the religious connotations of the word ‘marriage’ as many cannot separate the legal status of married persons from the religious implications of marriage as a sacrament, thus providing a roadblock to same-sex marriage in the form of the perceived condemnation of homosexuality present in many interpretations of the world’s major religions. In India, ‘personal laws’ specific to each religion spell out the marriage laws applicable to each religion’s followers. Same-sex marriage thus becomes a religious issue for many of its opponents, not just a legal one, with the result that the conversion of the ‘private’ nature of a romantic relationship into the ‘public’ status of marriage becomes the subject of a debate involving such concepts as religious freedom, the separation of church and state, and the relation between law and morality. The last of these concepts is especially important when understanding the rationale behind laws that criminalise intimate contact between two persons of the same gender, which is again a supposedly ‘personal’ act in the private sphere of an individual upon which many countries have seen fit to legislate. It is not surprising, then, that activists campaigning for LGBT (lesbian, gay, bisexual and transgender) rights often fight to overturn the criminalisation of intimate contact between members of the same sex before arguing for the legal recognition of same-sex relationships. Challenging traditional notions of ‘marriage’ may then open the door for further activism to allow partners in such relationships to adopt children with equal parental rights for each partner, thus challenging traditional notions of ‘family’. It is this progression that worries those who seek to defend ‘sodomy’2 laws: while sodomy laws themselves are often impractical to enforce rigorously, they create a concept of homosexuals as a criminal class that prevents any possible expansion of the institutions of marriage and family to include them.3 In India, Section 377 of the Indian Penal Code, 1860 (IPC) has served this function by providing a tool for police harassment of sexual minorities, although

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actual prosecutions have been rare.4 However, not all activists seek to follow this progression. Radical strands of LGBT theory reject the institution of marriage, arguing that there is no need for same-sex couples to imitate opposite-sex couples by creating families mimicking those conventionally formed by heterosexuals.5 Pro-marriage activism can be justified with the argument that the right should be available to all people regardless of sexual orientation, and that it should be left to the individual to decide whether or not to avail of this option. Rather than impeding the liberation of LGBT people by forcing them into a heterosexual institution, the legalisation of same-sex marriage liberates LGBT people by giving them the option to do as they please. Opposition to same-sex marriage and the condemnation of homosexuality in general have taken various forms: religious, legal and social. In the wake of the Delhi High Court’s recent decision in Naz Foundation v. Government of NCT of Delhi,6 the active legal condemnation has been removed (pending the decision of the Supreme Court, before which appeals have been filed at the time of writing), leaving only social and religious opposition. The existence of the non-religious Special Marriage Act, 1954 (SMA) in addition to religion-specific personal laws for marriage, however, is the first step towards liberating the institution of marriage from these considerations, as the SMA does away with the need for a marriage to be approved or recognised by a particular religion. In this respect the concept of some oppositesex marriages being ‘civil unions’ that are given the same status as any marriage conducted by a religious official is not unfamiliar—they are not given a separate name or put in a separate category, but are recognised as marriages under the SMA. In this context, a challenge to the SMA based on the fundamental rights enshrined in the Constitution of India would ideally initiate reform to extend it further to same-sex unions, although in practice this is hardly a simple or easy process. In addition to the nature of legal reform required in India for same-sex relationships to be legitimised, there is also the more immediate question of what happens when an Indian enters into a union with a foreign same-sex partner which is recognised by the law of the partner’s home country. Would such a union be recognised in

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India or in other countries besides the country which sanctioned the union, and what is it recognised as? The nature of the legal regime surrounding the institutions of marriage and family in India also requires examination. The social and legal differences between the Indian and Western treatments of these institutions can have considerable impact on the likelihood and nature of the legal reform required in order to allow same-sex relationships any sort of legitimacy in India. This essay attempts to examine these issues and understand how the Indian legal system can best grapple with their social and legal ramifications. Part II discusses the institutions of family, religion and what ‘marriage’ means; Part III discusses the current legal position in India and how it affects the status of same-sex unions; Part IV examines the recognition of foreign civil partnerships and same-sex marriages; and Part V attempts to sum up the current position and put forward suggestions for reform. Family, Religion and the Concept of Marriage

Social psychologist Richard Nisbett drew a distinction between Eastern and Western concepts of family in his book Geography of Thought. He holds that ‘the typical modern Westerner subscribes to a variant of John Stuart Mill’s “harm principle”—that an individual is free to do as she pleases as long as she does no harm to anyone else’, while Asians do not operate on this premise, subordinating the interests of the individual to those of the family.7 While this is an excessively broad generalisation, remembering the different attitudes to individualism is useful in understanding India, a country in which arranged marriages and joint families are still very much a part of many people’s lives: the individualism that accompanies ideas such as the right to keep one’s personal life private does not sit well with the family-oriented approach to choosing a life partner that still dominates most of Indian society (although one could argue that globalisation is causing a shift towards individualism, especially in urban areas). Thus, it is not surprising for a person coming out as gay, lesbian or bisexual to receive responses such as ‘Indian society won’t accept this. You must change because

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Indian society won’t tolerate it.’8 Thus, coming out can be seen as disruptive of family peace simply by virtue of the individualistic nature of the act. Nonetheless, this presents a peculiar problem: if Western equality discourses mandate that same-sex marriage is necessary because any two people in love should have the freedom to marry, what is the Indian response? After all, the very basis of an arranged marriage is that the two people have not found each other through a romantic attachment, but rather through a strategic matchmaking process engaged in by the two families concerned. This is complicated further by the understanding of marriage as a sacrament in India: as mentioned earlier, marriage laws are not uniform throughout India, but rather are governed by a catena of ‘personal laws’ (laws specific to various religions in India). The law under which a marriage occurs normally depends on the religion of the two people getting married. Thus, a Hindu couple would be married under the Hindu Marriage Act, a Christian couple would need to satisfy the provisions of the Indian Christian Marriage Act, and so on. Thus, unlike Belgium or the Netherlands, where only state officials have the right to marry couples, with the role of religious officials being limited to any subsequent religious ceremony the couple may choose to have,9 in India a wedding is a religious ceremony in most cases, regardless of which religion the couple belongs to.10 However, the SMA, which permits, inter alia, inter-religious marriages, takes a civil rather than a religious view towards marriage (by putting the responsibility for solemnising the marriage on the Marriage Officer rather than on a religious official, for example). This responds to the need for solemnisation of marriage outside the normal parameters of the personal laws, which presume that both parties to the marriage are of the same religion. The issue over whether a marriage is civil or religious in nature (and whether a same-sex marriage can therefore be recognised by law without religious approval) has been avoided in some countries by allowing other ways of recognising same-sex unions without using the name ‘marriage’ for them. For example, the Nordic countries (Norway, Finland, Sweden, Denmark and Iceland) grant same-sex couples the

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option to become ‘registered partners’, carrying most of the rights that same-sex couples are given upon marriage in the Netherlands or Belgium. The effect of the creation of a separate category for same-sex couples is that opposite-sex couples can get married by either religious or state officials in the Nordic countries, whereas same-sex couples can enter into a registered partnership only in a civil ceremony.11 The United Kingdom’s Civil Partnership Act of 2005 does much the same thing, extending most of the rights and duties of marriage to same-sex couples willing to enter into a ‘civil partnership’. Other countries, such as France and Germany, provide more limited rights in their alternatives to marriage, excluding such rights as the presumption of paternity, certain aspects of tax law, statutory survivors’ pensions and adoption. The French Pacte Civil de Solidarité (PACS) goes as far as to deprive same-sex partners of the rights to citizenship and intestate inheritance that are automatically granted to spouses around the world.12 Thus, rather than a strict dichotomy between nations that permit same-sex marriage and those that do not, the fight for the legalisation of same-sex unions has resulted in a massive grey area of countries that grant special categories of unions designed specifically to deprive same-sex couples of the name or rights of marriage. Thus, couples may enter India claiming to be bound by all sorts of ‘unions’ or ‘partnerships’ that Indian law does not recognise or understand, without the Indian legislature having made any efforts to explicitly create any rights outside of opposite-sex marriage. Same-Sex Unions and Indian Law

The main obstacle to a credible demand for the legalisation of samesex unions in India in the past has been Section 377 of the Indian Penal Code, which criminalises ‘carnal intercourse against the order of nature with any man, woman or animal’. Like most of the IPC, Section 377 was enacted by the British during colonial rule and has been enforceable law since 1860. As an order passed on a writ petition questioning an Act’s constitutionality is valid throughout India,13 the Delhi High Court’s decision in the Naz Foundation case has the effect

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of decriminalising same-sex sexual acts between men throughout the country unless its decision on the constitutionality of the provision is overridden by the Supreme Court of India. However, the damage caused by a century and a half of this section’s existence will take a lot longer to undo. Section 377 has had a considerable effect on same-sex couples in India. Although female same-sex couples cannot technically commit this offence,14 both men and women in same-sex relationships have been subjected to harassment, as the mere existence of the law is often used by law enforcement agencies to threaten people who they perceive to be homosexual.15 This is despite the fact that the law criminalises conduct, not status, and there is even a provision in Section 388 of the IPC which imposes an especially high punishment for a person who wrongfully threatens to have another charged under Section 377. As one author put it, ‘[S]odomy laws convert all gay men and lesbians into presumptive felons based on their sexual orientation, a status. Gay citizens are consequently treated as criminals without any proof of conduct… this conflation of status and conduct is both legally improper and factually inapt.’16 In this context, it is not surprising that Indian marriage laws continue to operate on the presumption that marriage is reserved exclusively for opposite-sex couples. Although none of India’s personal laws define marriage explicitly, there is a clear heterosexist bias: for example, section 5 of the Hindu Marriage Act states, inter alia, that a marriage may be solemnised between ‘any two Hindus’ if ‘the bridegroom has completed the age of twentyone years and the bride the age of eighteen years at the time of the marriage’, although the terms ‘bride’ and ‘bridegroom’ are not defined. Section 60 of the Indian Christian Marriage Act reflects a similar underlying assumption in slightly less direct language, requiring that ‘the age of the man intending to be married shall not be under twenty-one years, and the age of the woman intending to be married shall not be under eighteen years’.17 The understanding of marriage as being a heterosexual institution is underscored by the condemnation of homosexuality implicit in many interpretations of India’s major religions, although some theologians insist that the

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perception that religions such as Christianity and Hinduism forbid homosexuality is the result of mistranslation, misinterpretation and/ or misunderstanding of the role of certain scriptures in the lives of the followers of these religions.18 Thus, if one continues to treat marriage as a religious institution rather than a civil one, same-sex marriage does not seem to have a place in the personal laws as they stand today, nor does reform seem possible. However, the personal laws do permit recognition of customary marriages, which is a necessary provision to take into account the number of marriages that are performed all over India within communities for whom their customary rituals have traditionally been all that is required for a valid marriage. In those communities, the idea of obtaining a marriage licence would be unknown, and requiring a licence for a marriage to be held valid would result in the invalidation of a massive number of marriages despite the intention behind them being clear to the parties to the marriage and to their community or communities. It has been argued that same-sex marriages that are solemnised with the customary rites and ceremonies of a local community19 should therefore be held to be valid, in much the same way that the performance of a church ceremony is often considered sufficient for marriage.20 Article 14 of the Constitution of India assures all persons equality before law and equal protection of the law. It can be contended that the lack of adequate provisions allowing for marriage between people of the same sex puts them in a situation where they are not on the same footing as two people of opposite sexes, thus violating Article 14. Amnesty International’s inclusion of sexual orientation in its notion of ‘sex’ for the purpose of defining discrimination on the basis of sex in their 2001 report on violence against sexual minorities, as well as the successful use of Article 14 in the Naz Foundation case, could provide grounds for a challenge to marriage laws claiming discrimination on the basis of sexual orientation. Nepal’s Supreme Court held, in a public interest litigation filed by the Blue Diamond Society in April 2007 and decided in December of the same year that sexual minorities ought to have the same rights as heterosexual men and women using Article 12 of the Nepalese Constitution, which is similar to the Indian

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Constitution in its understanding of personal liberty. The Court also issued a directive to form a seven-member committee to conduct a study of international practices concerning same-sex marriage and make recommendations, based on which the Nepalese government is to make the appropriate law.21 However, in the controversial decision of State of Bombay v. Narasu Appa Mali,22 the Bombay High Court distinguished personal laws from other laws since they are grounded in religion rather than purely legislative enactments, hence exempting them from challenge on grounds of violation of fundamental rights. Although this decision has attracted criticism, it is yet to be overturned, which would act as an obstacle to any challenge to the personal laws for breaching fundamental rights under the Constitution of India. However, as mentioned earlier, Indian law does not restrict itself to a purely religious view of marriage. The SMA provides for divorce, inter-religious marriages and other situations not covered in the personal laws, with the result that many scenarios considered impermissible in various religions (such as inter-religious marriage for a Zoroastrian or divorce for certain sects of Christians) are legally sanctioned and facilitated by this Act. The result of this is that people now have the ability to choose whether they wish to see their wedding as primarily religious (falling under the appropriate personal law) or civil (falling under the SMA), since the SMA clearly permits ‘any two persons’ to enter into a marriage without requiring that they be unable to marry under the personal laws. Thus, more than ever, the SMA presents itself as the best alternative to the religion-based understandings of marriage and family presented in India’s personal laws. The fact that the SMA has space for marriages that would not be permitted under any of the religious laws is a step forward in understanding that the legal status of marriage has nothing to do with religious approval or whether a religious official is willing to officiate the ceremony. Inter-caste and inter-religious marriages are thus now perfectly legal regardless of whether there is a religious ceremony accompanying them and any two people of the opposite sex who choose to get married can do so regardless of any social or religious sanctions that may result from such a union.

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If personal marriage laws are not required for a man and a woman to enter into a valid marriage, then the SMA should be able to enable any two consenting unmarried adults to enter into a marriage recognised by law. However, there is (unsurprisingly) a catch: the requirement under Section 4(c) that ‘the male… [must have] completed the age of twenty-one years and the female the age of eighteen years’ resembles the Indian Christian Marriage Act’s couching of a heterosexist bias in slightly indirect language.23 Using Article 14 of the Constitution of India, however, one could argue that, as the State cannot discriminate between people on the basis of gender, it should not refuse to perform a marriage on the basis of the gender of the people wishing to get married.24 One could argue that the fight for the legalisation of same-sex unions stems from a need to legitimise the economic and emotional interdependence of people in same-sex relationships rather than to legitimise their sexual activity. Same-sex unions between women have been reported from various parts of India, although, in the absence of a law providing for equal marriage rights, couples have resorted to a number of alternatives, including entering into a maitri karar (quasilegal friendship contract) and exchanging garlands in a temple—all in search of some sort of public legitimacy for their unions.25 There was even a recent case in Jharkhand in which the family of one woman demanded dowry from the family of her ‘wife’ and the resulting conflict drove the couple apart!26 The purpose of the attempt to legalise same-sex unions would thus be not to allow same-sex couples to have ‘legitimate’ sex within the confines of a marital relationship, but rather to deal with emotional, economic and legal considerations such as social recognition, intestate succession, tax benefits and being treated as the next of kin for the purpose of hospital visits. Thus the key point in a discussion of whether or not same-sex unions should be legalised should not be the legality or illegality of the consummation of such unions, but rather whether or not the economic and emotional interdependence in these relationships—and the socio-economic and civil rights associated with them—merits recognition by law. The case of Lisa Pond is an example of what happens if a state feels that

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same-sex relationships do not merit such recognition: in 2007, Pond collapsed with an aneurysm while on a holiday in Florida with her partner of eighteen years, Janice Langbehn, and their children. The Miami hospital to which Pond was admitted refused to allow Langbehn to be at her partner’s bedside. Langbehn was told she was in an ‘antigay’ state and city and was prevented from being by Pond’s side as she died. Langbehn’s subsequent lawsuit was dismissed by a federal judge in 2009 on the grounds that a hospital trauma centre has no legal obligation to allow visitors.27 This brings us to our next problem: until Indian law permits the performance of same-sex marriages, are same-sex couples validly married in other jurisdictions doomed to share the fate of Janice Langbehn and Lisa Pond should such a situation occur while they are on Indian soil? And what happens if the union is not a marriage, but one of the many alternate civil union arrangements permitted in many countries? Recognising Foreign Partnerships

An important problem for countries that have legalised various forms of same-sex unions is the question of what to do when one or both parties to the union are not citizens of that country. Some countries, such as Spain and South Africa, have revised their immigration policies to put same-sex unions on the same footing as opposite-sex marriages when deciding immigration questions such as whether or not a person’s same-sex partner should be allowed into the country using the visa requirements that would apply to an opposite-sex spouse. However, many other countries, such as Germany, France, New Zealand and Portugal, have chosen to give such relationships a different status and recognised that in immigration. Still others, such as Israel and Brazil, have recognised them in the immigration system alone without doing so in national law.28 The capacity of an Indian to enter into a same-sex union with a partner in, say, the United Kingdom, seems unaffected by traditional English principles of private international law. Although, according to Dicey and Morris, ‘a marriage is (normally) invalid when

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either of the parties lacks, according to the law of his or her antenuptial domicile, the capacity to marry the other’,29 there is a national-bias exception that ‘[t]he validity of a marriage celebrated in England between persons of whom the one has an English, and the other a foreign, domicile is not affected by any incapacity which, though existing under the law of such foreign domicile, does not exist under the law of England.’30 (Indian private international law principles follow the English ones to a considerable extent, especially since there is a dearth of case law on the point.) The term ‘incapacity’ takes on particular significance when one notes that in the 1973 case of Jones v. Hallahan,31 the highest court of the state of Kentucky in the USA denied two women a constitutional right to marry with the observation: ‘It appears to us that appellants are prevented from marrying, not by the statutes of Kentucky or the refusal of the County Court Clerk of Jefferson County to issue them a license, but rather by their own incapability of entering into a marriage as that term is defined.’32 If partners of the same sex suffer from an ‘incapacity’ or ‘incapability’ to marry but get married anyway in another country (in which that incapacity presumably does not exist), what happens to the validity of their marriage if they visit or reside in a country in which same-sex marriage is not recognised? Take, for example, Indian fashion designer Wendell Rodricks and his French partner Jérome Marrel, who entered into a civil union under the Pacte Civil de Solidarité in 2003, conducted in India by a French consular official.33 What would be the status of the two men as ‘next of kin’ to each other under Indian law in case of the death or hospitalisation of one of them, for instance? Denmark, which was the first country to accord any rights of marriage to same-sex couples when it enacted its Registered Partnership Act in 1989, initially recognised only unions registered in Denmark, but amended its law in 1999 to recognise partnerships registered in Sweden, Iceland and Norway under the new Section 2(2), with authority being given to the Minister of Justice to recognise unions from other countries with laws equivalent to those of Denmark.34 While India fortunately lacks a statute along the lines of the USA’s Defense of Marriage Act35 expressly defining marriage

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as opposite-sex in nature and prohibiting the recognition of same-sex unions from other jurisdictions, one could argue that such a provision is not necessary given the continued presence of Section 377 of the IPC and the heterosexist presumptions in marriage laws discussed earlier. Cardozo, J. in Loucks v. Standard Oil Co. of New York,36 deciding a dispute in which a New Yorker was run down and killed in Massachusetts as a result of the negligence of the employees of a New York corporation, held that a suit could lie under the appropriate Massachusetts statute, saying: We are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home. Similarity of legislation has indeed this importance: its presence shows beyond question that the foreign statute does not offend the local policy. But its absence does not prove the contrary…. The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness. They do not close their doors unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal. This test applied, there is nothing in the Massachusetts statute that outrages the public policy of New York.37

Applying this to a situation in which, for example, a woman claims inheritance rights arising from the intestate death of her female partner through a union under the law of a foreign country, one could therefore conclude that, in the absence of any evidence of such a violation, the woman should be entitled to such rights: however, if presented with such an argument, an Indian court could well decide that a ‘prevalent conception of good morals’ has been violated and deny such rights, using the common-law principle that a court can refuse to enforce or recognise a right, power, capacity, disability or legal relationship arising out of a foreign country’s law if doing so would be inconsistent with the fundamental public policy of the law of the court’s home country.38 It is therefore important to examine the analogous case of In re Dalip Singh Bir’s Estate,39 in which the Californian District Court of Appeal was asked to settle a dispute between the two widows of

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a man who had entered into a polygamous marriage with them and the administrator of his estate. Mr Bir’s wives claimed that they had entered into this marriage legally in British India over 50 years earlier and that in India they would be entitled to share equally in the estate; however, Mr Bir had died in San Joaquin County, California, and California law contained penal legislation against polygamous marriages. The court reversed the decision of the trial court that recognition of the two marriages was against California’s public policy and held that the property ought to be divided equally between the wives, who were the only interested parties.40 Thus, the court was able to ensure that no injustice was done to either wife without actually recognising polygamous marriages in California. Returning to the example of the woman whose female partner died intestate, it would seem that an Indian court, applying the same principle of private international law, would have to award inheritance rights to her as a matter of equity—if Mr Bir’s wives were protected despite the existence of a penal provision regarding polygamous marriages, why should they not be awarded in this case, where there is no law against two women living conjugally? The Indian statute governing marriages solemnised in foreign countries is the Foreign Marriage Act, 1969, which governs all marriages entered into outside India, where at least one partner is a citizen of India. It is intended to be ‘a piece of comprehensive legislation’ on the subject.41 The Statement of Objects and Reasons in the Act states that one of the reasons for the legislation was the ‘considerable uncertainty on the subject, as the existing legislation touches only the fringes of the subject and the matter is governed by principles of private international law which are by no means well-settled, and which cannot readily be applied to a country such as ours in which different marriage laws apply to different communities.’ Thus, it would seem that the Act supersedes common law principles of private international law on the subject. However, we run into a familiar problem here: while Section 17(1)(a) prescribes as a condition that the marriage be ‘duly solemnised in a foreign country in accordance with the law of that country between parties of whom one at least

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was a citizen of India’, the conditions in Section 4, which are required in order to satisfy Section 17(2), include the requirement that ‘the bridegroom has completed the age of twenty-one years and bride the age of eighteen years at the time of the marriage.’ A liberal construction of this phrase would give it a meaning akin to the words of the Parsi Marriage & Divorce Act, stating simply that any male should be over 21 years of age and any female should be over 18 years of age at the time of the marriage in order for it to satisfy Section 4. However, even if one does not take such an interpretation, it is still possible to argue that, at the time the Act was enacted, same-sex marriage was not legal in other countries and the condition was worded thus only because a same-sex marriage could not have been envisaged by the legislature at the time.42 Since the Foreign Marriage Act does not define marriage, nor does it expressly require an opposite-sex union elsewhere in the Act, it is therefore possible to argue that a same-sex marriage validly entered into in a foreign jurisdiction should be recognised in India where at least one partner is Indian. In a situation where neither partner is Indian, the rules of private international law would apply, opening up the public policy exception, which can be combated by using the reasoning discussed earlier. That said, after almost 150 years of homophobia being entrenched in the law, it remains to be seen whether an Indian court will actually accept such an interpretation, especially if confronted with a British civil partnership or a French PACS. Conclusion

The 21st century has seen the world go from not having a single country allow legally recognised same-sex unions to a situation where there are countries that put such unions on exactly the same footing as opposite-sex marriage, countries that refuse legitimacy completely and countries that take a multitude of positions in between, based on concerns about whether or not the concept of marriage should be expanded to include two people of the same sex. The feasibility of expanding the concept of marriage in family-centric India looks very

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likely to depend upon the ability to separate its religious from its civil aspects—something that worked very well with inter-religious marriages, as shown by the enactment of the SMA. While amending the personal laws relating to marriage is likely to be perceived as interference with the religious institution of marriage, same-sex unions can be legalised by the amendment of the SMA, either by legislative intervention or by a challenge to its constitutionality using the Indian courts. The SMA deals with marriage as a civil institution rather than a religious one and thus puts the responsibility for its solemnisation in the hands of governmental officials rather than religious ones, much like the situation in the Netherlands and Belgium. Such an amendment would only need to take the form of a slight rewording of section 4(c) to: ‘neither party is below twenty-one years of age, if male, or eighteen years of age, if female’, along the lines of section 3(1)(c) of the Parsi Marriage and Divorce Act. A similar amendment to Section 4 of the Foreign Marriage Act is also needed, to forestall any confusion on the matter of recognition. Of course, it is key that the Supreme Court uphold the Delhi High Court’s reading of Section 377 to exclude consensual homosexual activity. By legalising such activity, the argument that foreign samesex unions should not be recognised as a matter of public policy ceases to hold water, and this would also prevent any contentions that samesex marriages may involve a criminal form of consummation. Thus, as with all issues dealing with LGBT rights in India, the reading down of Section 377 of the IPC is key to the change in social and legal attitudes necessary to recognise and legalise same-sex marriages, both Indian and foreign. If there ceases to be a law perceived as criminalising homosexuality, homophobic social attitudes will cease to have the apparent legal sanction that they do at present. While it would be naïve to believe that this would immediately change Indian society’s opinion of those who do not fit the traditional notions of ‘marriage’ and ‘family’, it certainly seems less likely that social attitudes will change sufficiently to create a groundswell of support for same-sex marriage if the Supreme Court permits Section 377 to remain on the statute books, thus enabling law enforcement agencies to harass sexual

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minorities with impunity. Furthermore, given that inter-religious and inter-caste marriages were made legal in India and the SMA permitted these despite religious and social opposition, there is no reason why this should not extend to the legalisation of same-sex marriages as the law should not concern itself with any potential religious or social condemnation of such unions. All that is needed is the political will to do this—after all, India is the same country that had leaders such as Dr B. R. Ambedkar espousing the cause of inter-caste marriages at a time when such marriages carried severe social sanctions and routinely resulted in ostracism for the parties to the marriage. Same-sex unions should be treated in the same way: whether or not there is religious or social approval of such unions should not be a factor in granting them the status of marriage. As more and more nations legislate in favour of same-sex couples, it is becoming increasingly incongruous that the world’s largest democracy continues to ignore the rights and interests of its own people, and allows for such a massive infringement of their civil liberties. There are two options available for the legalisation of samesex marriage: either the SMA amendment suggested earlier, or the creation of an entirely new category of civil union along the lines of the UK’s Civil Partnership Act, depending on how comfortable the legislature is with allowing same-sex couples the title of marriage. In either case, an amendment to the Foreign Marriage Act would be advisable in order to prevent same-sex couples from being uncertain about the validity of their unions when they cross the border into India, while opposite-sex couples remain safe in the knowledge that their marriages are recognised. If such legalisation does not take place, a constitutional challenge to the SMA seems inevitable, as the judiciary would then have the power to do what the legislature is unwilling to do and extend the SMA to same-sex unions. In this regard, India would do well to follow the examples of South Africa, which was the first nation to constitutionally prohibit discrimination on the basis of sexual orientation, and Nepal, which now looks likely to become the first nation in the subcontinent to enact laws protecting sexual minorities rather than discriminating against them. However, if it comes to that,

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it will not be the first battle between a liberal judiciary and a relatively conservative legislature. For example, although California’s Supreme Court had ruled that same-sex couples can marry, the 2008 California General Election ballot included an initiative measure commonly referred to as Proposition 8 which amended California’s Constitution to only recognise opposite-sex marriage. While one hopes that India will not come to such a stage, it is worth remembering that, while the power of the Indian judiciary can be of great help if only advocates for same-sex marriage can get it on their side by using the arguments of equality and privacy that already exist in the Indian Constitution, there is still quite a way to go before the necessary legal reform is undertaken and is then not undone by the Indian legislature or judiciary. In the meantime, LGBT people in India are still deprived of the civil and socio-economic rights that their heterosexual counterparts can take for granted, and both the institution of marriage and the unions of LGBT people continue to await their liberation. Notes The author thanks Tarunabh Khaitan for his help with the research for Part IV of this essay, and Olivia Rainford, Stephen Shea and Maximilian Reuby for their feedback and insight. An earlier version of this essay was published as ‘If Love Knows No Boundaries, What About Marriage? A Study of Same-Sex Marriage in Twenty-First-Century India’, in C. P. Nandini (ed.), Same Sex Marriages: An Overview. 2008, Hyderabad: Amicus Books. The views expressed in this article are of the author alone and not necessarily of any affiliated organisation. 1. See: Eskridge Jr., William N. 1993, ‘A History of Same-Sex Marriage’, Virginia Law Review, Vol. 79, October 1993, p. 1419; Vanita, Ruth & Saleem Kidwai. 2001, Same-Sex Love in India: Readings from Literature and History. London: Palgrave Macmillan. 2. Sodomy is one of the terms often used to refer to same-sex sexual intercourse in a legal context. Etymologically this is derived from the name Sodom, a city mentioned in the Bible as having been destroyed by God for its arrogance, haughtiness and inhospitable nature, and from the belief (contested by several Biblical scholars) that same-sex sexual activity between men was one of the practices which resulted in God’s decision to destroy it. However,

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same-sex sexual activity is not mentioned in Jesus Christ’s explanation for its destruction, and the Bible does not offer any other evidence to support this interpretation. See Ezekiel 16:49–50. 3. In Lawrence v. Texas, Justice O’Connor of the United States Supreme Court argued in her concurring opinion that, while the sodomy law in the state of Texas fell foul of the Equal Protection Clause, Texas could not assert a ‘legitimate state interest… such as national security or preserving the traditional institution of marriage… [as] other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.’ This was criticised by Justice Scalia in his dissenting opinion, in which he argued that Justice O’Connor’s reasoning ‘leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples… [as] preserving the institution of marriage is just a kinder way of describing the state’s moral disapproval of same-sex couples’ (emphasis in original). Lawrence v. Texas, 539 U.S. 558, 601 (2003). See generally: R. Leslie, Christopher. 2000, ‘Creating Criminals: The Injuries Inflicted By “Unenforced” Sodomy Laws’, Harvard Civil Rights-Civil Liberties Review, Vol. 35, No. 1, p. 103. 4. As Christopher Leslie puts it, ‘[b]y creating a criminal class, sodomy laws stigmatize gay men and lesbians, which weighs heavily on their psyche. By labeling gay men and lesbians as criminals, sodomy laws make gay individuals target for physical violence in the form of gay bashing, sometimes perpetrated as de facto enforcement of sodomy laws. Sodomy laws encourage the abuse of gay citizens by both private individuals and police officers… [because] sodomy laws convert all gay men and lesbians into presumptive felons based on their sexual orientation, a status. Gay citizens are consequently treated as criminals without any proof of conduct… [T]his conflation of status and conduct is both legally improper and factually inapt.’ Leslie, see note 3, pp. 104–5. See generally: ‘People’s Union for Civil Liberties-Karnataka, Human Rights Violations Against Sexuality Minorities in India: A PUCL-K Fact-Finding Report About Bangalore’ (2001); Gupta, Alok. 2001, ‘The History and Trends in the Aplication of the Anti-Sodomy Law in the Indian Courts’, The Lawyers Collective, Vol. 16, No. 7, p. 9. 5. This is not a new debate; in 1970, American activist Carl Wittman denounced ‘the sham of American marriage’ and criticised what he perceived as a ‘mimicry of straight society’. He argued, ‘Gay marriages will have the same problems as straight ones except… [that] the usual legitimacy and pressures which keep straight marriages together are absent, e.g. kids, what parents think, what neighbors say. To accept that happiness comes through finding a groovy spouse and settling down, showing the world that “we’re just the

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same as you” is avoiding the real issues, and is an expression of self-hatred.’ This was in stark contrast to more assimilationist activists such as Frank Kameny, who claimed that homosexuality was not really very different from heterosexuality at all, arguing that ‘homosexuals are simply another of the minority groups which make up a nation, not different, as such, from religious, ethnic, so-called racial, and other minorities’. Carl Wittman’s ‘A Gay Manifesto’, (pp. 380, 382–83) and Franklin Kameny’s ‘Gay Is Good’, (pp. 367, 373) in Mark Blasius and Shane Phelan (eds), We Are Everywhere: A Historical Sourcebook of Gay and Lesbian Politics. 1997, New York: Routledge. 6. A bench of the Delhi High Court consisting of Shah C. J. and Muralidhar J. held that Section 377 violated the fundamental rights guaranteed by the Constitution of India insofar as it criminalised the private consensual sexual acts of adults, but did not say that the entire section should be treated as struck off the books. This is known as ‘reading down’. Repealing the section altogether would be problematic because India lacks a law that addresses child sexual abuse and Section 377 is the only penal provision that criminalises sexual assault that is not rape. The 172nd Report of the Law Commission of India recommended the repeal of Section 377 along with the enactment of a suitable sexual assault law to cover situations not currently covered by Section 375, which deals with rape but only covers penile-vaginal rape in its current interpretation. 7. Romero, Victor C. 2005, ‘Asians, Gay Marriage, and Immigration: Family Unification at a Crossroads’, Indiana International & Comparative Law Review, Vol. 15, pp. 337, 338–39. 8. Saria, Vaibhav. 2005, ‘I Am Out And Here’s Why’, in Arvind Narrain & Gautam Bhan (eds), Because I Have A Voice: Queer Politics in India. New Delhi: Yoda Press, pp. 267, 268. Saria’s account of his own coming out and his bafflement by his family’s reaction is a classic case of this dichotomy: his family wants him to conform to the Indian concept of a family, whereas his account accuses his mother (who uttered the words quoted here) of stripping him of his ‘individuality’ and criticises the Indian middle-class ‘family’ ideal as a mere façade in which he does not wish to participate. 9. Waaldijk, Kees. 2004, ‘Others May Follow: The Introduction of Marriage, Quasi-Marriage, and Semi-Marriage for Same-Sex Couples in European Countries’, New England Law Review, Vol. 28, pp. 569, 573, 581. 10. For example, the saptapadi, a religious ritual, is considered to be crucial to the validity of a Hindu marriage where the customary rites and ceremonies followed include it. Hindu Marriage Act, 1955, § 7. 11. Waaldijk, see note 9, pp. 585–87. 12. Ibid.

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13. Kusum Ingots v. Union of India, WP(C) No. 7455/2001, Delhi High Court (2 July 2009). 14. Khanu v. Emperor, AIR 1925 Sind 286. 15. See note 4 and accompanying text. 16. Leslie, see note 3, pp. 104–5. 17. On the other hand, the Parsi Marriage and Divorce Act, 1936 does not actually state that a marriage must consist of a bride and a bridegroom, with section 3(1)(c) merely stating that no marriage shall be valid ‘in the case of any Parsi… who, if a male, has not completed twenty one years of age, and if a female has not completed eighteen years of age.’ 18. See, for instance: Narrain, Arvind. 2004, Queer: Despised Sexuality, Law and Social Change. Bangalore: Books for Change, pp. 36–37, 39–41, 50–52 (discussing Hinduism, Islam and Christianity respectively); ReligiousTolerance. org, The Zoroastrian Faith and Homosexuality, available at http://www. religioustolerance.org/hom_zor.htm (discussing Zoroastrianism). 19. See notes 25–26 and accompanying text. 20. Vanita, Ruth. 2005. Love’s Rite: Same-sex Marriage in India and the West. New Delhi: Penguin, pp. 48–58. A similar argument has in fact been brought up in the context of polygamy and could also arise in the context of what to do in a situation where one of the parties to a marriage undergoes gender reassignment surgery but neither party wishes to dissolve the marriage. See: Vanita, Ruth. 2005, Love’s Rite: Same-sex Marriage in India and the West. New York: Palgrave Macmillan, pp. 30, 61. 21. Roy, Anirban. ‘Nepal Supreme Court Directs Govt to Safeguard Gay Rights’, available at http://www.hindustantimes.com/StoryPage/StoryPage. aspx?id=25142e5f-789f-41b9-ba79-1441857b40e6&&Headline=SC+direc ts+Govt+to+safeguard+gay+rights. 22. A.I.R. 1952 Bom. 84. 23. Furthermore, Section 4(b)(ii) requires that neither party ‘though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children’ [emphasis added]. While classifying homosexuality as a mental disorder lacks scientific backing as merely being gay or lesbian has been found not to be a mental health issue, it is yet to be seen whether this section could be used against same-sex couples, although such a discussion would probably be academic at best given the existence of section 4(c). For a brief discussion of the classification of homosexuality as a mental disorder in America, see American Psychological Association, ‘Answers to Your Questions for a Better Understanding of Sexual Orientation and Homosexuality’, available at http://www.apa.org/topics/sorientation.html#ishomo.

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24. It may be argued that this could be extended to the legalisation of polygamy. In that case the traditional response that the rights of the first spouse are affected by the second marriage could then be used to argue that there is a compelling interest to prevent married persons from entering into subsequent marriages to prevent harm to their existing spouses. The validity of this variety of argument is not the subject of this discussion as there are no existing spouses whose interests would be affected in the case of two unmarried same-sex partners entering into a union. 25. Narrain, see note 18, pp. 79–81. 26. ‘Dowry Now Plagues a Same-Sex Marriage’, Vijay Times (Bangalore edition), 3 August 2005, p. 1. 27. Rothaus, Steve. 2009, ‘Lesbian’s Case against Jackson Memorial Hospital Tossed’, Miami Herald, 30 September, 2009, available at http://www. miamiherald.com/news/miami-dade/story/1258772.html; Parker-Pope, Tara. ‘No Visiting Rights for Hospital Trauma Patients’, available at http:// well.blogs.nytimes.com/2009/09/30/no-visiting-rights-for-hospitalpatients. 28. ‘Family, Unvalued: Discrimination, Denial and the Fate of Binational SameSex Couples Under U.S. Law’, Human Rights Watch, available at http://hrw. org/reports/2006/us0506/FamilyUnvalued.pdf, p. 10. 29. Collins et al. (ed.) 2000, Dicey and Morris on the Conflict of Laws, Vol. 2 (13th edition), Rule 68, p. 672. London: Sweet and Maxwell. 30. Ibid., pp. 685–86 (Exception 3). There is also a further exception (Exception 5), which says that a marriage will not be invalid ‘on account of any incapacity which, though imposed by the law of the domicile of both or either of the parties, is penal, discriminatory or otherwise contrary to public policy’ (Ibid., p. 688). 31. 501 S.W.2d 588 (Ky, 1973). 32. Ibid., p. 589. 33. See: Noronha, Frederick. ‘Gay Wedding Puts Spotlight on Indian Laws’, available at http://www.sodomylaws.org/world/india/innews14.htm. 34. See: Merin, Yuval. 2002, Equality for Same-Sex Couples: The Legal Recognition of Gay Partnerships in Europe and the United States. Chicago: University of Chicago Press, pp. 77–8. 35. 1 U.S.C. § 7. The Act was enacted in the context of the federal nature of the United States, as it permits states or other political subdivisions within the USA to refuse to recognise a same-sex union, even if the union has been concluded or recognised in another part of the USA and prevents the federal government from recognising same-sex or polygamous marriages for any purpose at all.

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36. 224 N.Y. 99 (1918). 37. Ibid., p. 111. 38. See: Dicey & Morris, Vol. 2, see note 29, p. 81 (Rule 2); Story, Joseph. 1952, Commentaries on the Conflict of Laws § 38 (4th ed. 1952). 39. 83 Cal. App. 2d 256 (1948). 40. Such scenarios also seem possible in English law, which treats some potentially polygamous marriages as de facto monogamous, and will recognise actually polygamous marriages for most purposes provided that it is valid under each party’s antenuptial domicile (lex domicilii) and valid with regard to form in the place where the marriage took place (lex loci celebrationis). See: Martin, Jorge. 1994, ‘English Polygamy Law and the Danish Registered Partnership Act: A Case for the Consistent Treatment of Foreign Polygamous Marriages and Danish Same-Sex Marriages in England’, Cornell International Law Journal, Vol. 27, No. 419, pp. 425–37. 41. Abdul Rahim v. Padma, A.I.R. 1982 Bom. 341, 350–51. 42. This reasoning is in consonance with the common law principles of statutory interpretation: in the British case of R v. Fellows, for example, an image stored on a computer disc was considered to be an ‘indecent photograph’ under the Protection of Children Act 1978 (which criminalised the taking or distribution of indecent photographs of children under the age of sixteen years) even before its amendment notwithstanding that such technology could not have been envisaged at the time of the statute’s enactment. Similarly, in R v. Ireland, the psychiatric injury caused by blank telephone calls and other acts such as following the victim and sending menacing notes was included in the offences of assault and bodily harm under the Offences Against the Person Act, 1861 in the UK considering the modern medical correlation between psychiatric injury and the body. R v. Fellows, [1997] 2 All ER 548; R v. Ireland, [1998] 1 Cr. App. R. 177.

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Possession is 9/10ths of the Body: Law, Land and Hijra Identity Mayur Suresh

Introduction: Two Stories of Property

In this essay, I want to tell two stories about property. The first story pertains to what is ubiquitously known and what I will refer to as the ‘Property Case’. It is about a fairly sizeable portion of property, about 15 plots located in the Itwari Tori area of a town called Sagar in Madhya Pradesh. The case’s narrative is as follows: One Munnilal, who was a eunuch, succeeded to this property upon the death of her guru, Guru Nasiban. Munnilal had her own chela, Badshah, whose ‘hijra name’ was Kamla. Upon the death of Munnilal, the property including house no.s 359 to 374 came into dispute. One Abdul Gafoor, who by all accounts was not a hijra, claimed ownership of the houses on the basis of a will dated 28 November 1956, executed by Munnilal. Twenty years later, on 19 September 1977, this Abdul Gafoor attempted to sell the property in question to one Illyas. However, Kamla filed a suit before the First Additional District Judge, claiming that Abdul Gafoor did not have proper title to the property in the first place and hence could not legally transfer the houses to Illyas. She argued before the Court that ‘eunuchs are a class by themselves and follow guru-chela system under which the property in the hands of guru passes on to his chela.’ She argued that a guru in the community cannot transfer the property to anyone outside the community. The trial court apparently agreed, pronouncing a verdict

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in favour of Kamla. Illyas, the purchaser of the properties, filed an appeal before the High Court of Madhya Pradesh, whose judgement1 we’ll come to in a bit. In the second story, property doesn’t play the role of protagonist as it does in the first. It lurks instead in the background through most of the plot but emerges, however, at a key, decisive, moment. This is the story of the election of Kamla—‘Daughter of Guru Nihora’— as the Mayor of the municipality of Katni, a small town in Madhya Pradesh.2 On 2 December 1999, elections for the post of mayor of Katni were held. The post, however, is one that is reserved for women. Kamla filed her nomination papers for this post, claiming herself to be a woman. In the elections held on 22 December 1999, Kamla won 23,315 votes, beating her nearest rival by a margin of over 2,000 votes. The election of Kamla as mayor of Katni was challenged before the District Judge of Katni. The argument was that Kamla was a hijra, i.e., only a ‘castrated man’ and therefore not legally a woman. Kamla refused to undergo any medical tests to determine her ‘true’ gender. Without this test, the trial court reached the conclusion that Kamla was actually a hijra, i.e., a castrated man, arguing that she inherited property from her hijra Guru, Guru Nihora, and since only a hijra can inherit from a hijra, Kamla, was therefore a hijra, and not, properly, a woman. This case will be referred to as the ‘Mayor of Katni case’. Always, Already Gendered: ‘Third’ Sex Analyses

In most legal accounts of hijra identity, the hijra is marked predominantly by gender. From colonial times (with the enactment of the Criminal Tribes Act by which it was a crime for a man to dress up as a woman) to the contemporary (when hijras are talked about as the third sex and we celebrate the inclusion of the ‘T’ box next to the ‘M’ and ‘F’ boxes on Election Commission identity cards or Passport forms), the hijra appears as that which is always already and only gendered. In narratives of state violence as well, hijras emerge as those who are marked solely on account of their ‘divergent’ gender identity.

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For example, there has been some scholarship on the 1897 amendment to the Criminal Tribes Act of 1871, which was titled ‘An Act for the Registration of Criminal Tribes and Eunuchs’. Under the provisions of this statute, a eunuch was ‘deemed to include all members of the male sex who admit themselves, or on medical inspection clearly appear, to be impotent’. Commenting on the provisions of this Act, a report by the Peoples’ Union for Civil Liberties (Karnataka) states: Being a eunuch was itself a criminal enterprise, with surveillance being the everyday reality. The surveillance mechanism criminalised the quotidian reality of a eunuch’s existence by making its manifest sign, i.e., cross-dressing a criminal offence. Further, the ways in which eunuchs earned their livelihood, i.e., singing and dancing, was criminalised. Thus, every aspect of the eunuch’s existence was subject to surveillance, premised on the threat of criminal action. The police thus became an overt and overwhelming presence in the lives of eunuchs. Further, the very concept of personhood of eunuchs was done away with through disentitling them from basic rights such as making a gift or adopting a son.3

But as Gayatri Reddy points out, a ‘third gender’ view has tended to preclude an examination of the other aspects of the hijra identity, be it religion, class or social structure.4 Commenting upon ethnographic and anthropological work on hijras, she argues that hijras in these writings occupy a place that challenges the gender binary of male/ female. Hijras emerge immediately gendered as the third alternative to being either man or woman. She argues that such an approach ‘tends to effectively separate the domain of sexuality from that of political economy and the analysis of other axes of identity, thereby limiting its usefulness as an articulation of the complexity of everyday life.’ She continues: Rather than prying open the sex/gender arena, third-sex studies have reiterated the somewhat tautological and static terms of the debate by re-inscribing the division of Western (historicised) versus non-Western (somewhat ahistorical) sex/gender systems, and reified the study of sexuality rather than emphasising its articulation with other axes of identity and modes of practice.5

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Using the two cases narrated above, I hope to examine the relationship of identity to the idea of property. If property is key to understanding the family and family law, how does one understand notions of lineage and family that are not premised on consanguinity or marriage? I ask that we take the link between identity and property seriously, not merely in Lockean or Hegelian terms—that property is an extension of the self—but also in the sense that property is a marker of identity and carries identity down generations. Finally, I ask, if identity is contingent and constructed, what implications does this have upon notions of property? Property’s Lineage

In 1884, Friedrich Engels wrote The Origin of the Family, Private Property and the State in which he theorised the relationship between the emergence of and the link between private property and the institution of the family. In that text, he begins to elaborate on the question of the monogamous family and the freedom to enter or to refuse to enter into a relationship of marriage and its link to property. According to Engels, bourgeois law dictates the rules for relationships and inheritances. As such, two partners, even when their marriage is not arranged, will always have the preservation of inheritance in mind and as such will never be entirely free to choose their partner. Property, therefore, remains the fundamental axis around which the institution of the family forms. The monogamous family according to Engels, ‘is based on the supremacy of the man, the express purpose being to produce children of undisputed paternity; such paternity is demanded because these children are later to come into their father’s property as his natural heirs.’6 While not always obvious, family law is also fundamentally concerned with the question of property.7 It prescribes who may legitimately make a claim membership of the family and therefore stake a claim upon its property. Laws of succession and inheritance are more explicitly centred around the questions of property and are concerned with establishing lineage, paternity and determining who may be considered as proper heirs.

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Family law is also crucially concerned with ensuring the proper family survives. Therefore, husbands must maintain and take care of wives and their children, wives must perform all their domestic duties. Sons must take care of their elderly parents and have an obligation to ensure that their sisters are married. Family law is also therefore concerned with the proper use of the family property and places obligations upon that property. The questions that confront us in the Property Case are these: how does one determine a ‘proper’ heir where there are no bonds of blood or ties of marriage? What are the terms by which one establishes one’s self as a legitimate heir to hijra property? What are the obligations of a younger hijra, a chela to her elder, or guru? In short, how does a hijra family and lineage come to be created? In her book, Gayatri Reddy states that ‘family’ for hijras was defined primarily in terms of other hijras (especially a guru’s lineage) and relationships with other hijras (and kothis) rather than the natal family or ‘husbands’ and their kin. Crucial to this understanding of family is an idea of caring that is centred principally through a temporal (and spatial) dimension of ‘being there’ rather than established through ‘blood’ and marriage. She argues that similar to gay kinship ideologies in the United States, constructions of ‘family’ among hijras appear to invert the relationship of biology with permanence by presenting their chosen lineage as the ‘most reliable and enduring of kinship relations’.8 A newly initiated hijra is expected to put a rit in a particular hijra house, establishing a hijra lineage and kinship community. At this ceremony, the hijra is also supposed to be assigned a guru. This custom is given legal significance of establishing lineage that can be seen in the tantalising snippets of hijra customs narrated in the Mayor of Katni case. In arguing that Kamla is a hijra and not therefore a woman, the Petitioners in the Mayor of Katni case argue: [A]s per the rites and customs of Hijrah [sic] community only a ‘chela’ is entitled for the Gaddi and Waldiat (parentage) of Guru. According to

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this rite, Respondent No. 1 received Waldiat of Guru-Nihora. Before 1993, Nihora was recognized as Guru of Hijrah Sangh, Katni. After his death, Respondent No. 1 was made Guru and therefore Respondent No. 1 was called Kamla, son of Nihora….The community of Hijrah after the death of their Guru, a unanimous decision (Panch faisla) by Panch of Hijrah community for appointment of Gaddidar/Khilafa, was taken that the Respondent No. 1 was appointed as successor Gaddidar after death of Guru Nihora.

Just to make it official, a further argument follows: ‘This information was published in the evening daily newspaper of Madhya Pradesh of wide circulation in Katni, Madhya Pradesh, issue dated 12.12.1993 by the community of Hijrah....’ According to Reddy: The Guru-chela relationship is the most important bond among hijras and is necessarily central to hijra conceptions of family. It is a mutually beneficial, reciprocal relationship entailing both social and economic obligations and responsibilities for both parties... although clearly hierarchical, with seniority among hijras (as a principle of both social organisation and social control) being reckoned through the unequal power structure of gurus and chelas, this relationship is a mutually beneficial, reciprocal one. Chelas are expected to be obedient, respectful and loyal and to serve their gurus well by catering to all their domestic needs. In exchange for their chelas’ services and earnings, gurus are required to look after their health and well being, treat them fairly and provide them with clothes and food and give them the necessary training and knowledge about hijra customs and manners to permit their rise and seniority….9