Published: Nov. 1, 2009 By

Setting the terms: after the Fire

[1] While it would be problematic to fix a monolithic moment of change from invisibility to visibility in the context of queer citizenship in India, it could be argued that the events following the screening of Fire (1997) performed an important epistemic shift in public perceptions of queer visibility. Even while inadequately locating lesbian desire only in the context of failed heterosexuality, the film’s representation of same-sex attachments between middle-class Indian women forced queer sexual politics in India into the national imaginary in an unprecedented, and at times, violent fashion. At one level, the rioting of the Hindu fundamentalist moral brigade at film screenings generated the usual conversations about the politics of censorship and freedom of speech; but at another level, the film, despite its shortcomings, generated a more useful extra-filmic discourse about the constructed nature of essential “Indianness” and the ideology of compulsory heterosexuality through which such essentialist understandings of national identity were predicated. If homosexuality was not part of “Indian” culture, as some state officials claimed, the film successfully foregrounded that homosexuality was not an import of western decadence, and in fact was quite commensurable with indigenous identity formations.

[2] A few years after the Fire controversy, a less sensational, but equally epistemic event informed the burgeoning LGBT activism in India. In December 2002, NAZ India—a Delhi based NGO (Non-governmental Organization) involved with activism and HIV awareness among the gay and MSM (men who have sex with men) community—filed a Public Interest Litigation in the Delhi High Court in an attempt to read down (as opposed to a complete repeal) Section 377’s criminalization of private consensual sexual acts that went “against the order of nature.” Passed in 1861 while India was still under British rule, the law criminalizes any sexual activity that goes “against the order of nature.” More specifically, the law states:

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 ten years, and shall also be liable to fine.
Explanation—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
Comment—This section is intended to punish the offense of sodomy, buggery and bestiality. The offense consists in a carnal knowledge committed against the order of nature by a person with a man, or in the same unnatural manner with a woman, or by a man or woman in any manner with an animal. (Indian Penal Code, Chap. XVI, Sec. 377, Qted. In Bhaskaran, 15)

[3] The attempt to repeal the archaic law that was introduced by British empire, has received much attention and support from the various NGOs and LGBT (Lesbian, Gay, Bisexual, Transgender) activist groups that have proliferated mainly in various urban centers in the late 90s. While it might seem odd to talk about a ‘history’ of LGBT political activity in India, given its relatively recent emergence and visibility, what is not without significance is the complex interlacing of the cultural, legal, and non-governmental dimensions to activist interventions in the last decade. It would indeed be somewhat simplistic to draw a directly performative relation between the Firecontroversy and the litigation subtending Section 377; and yet, the close temporal proximity between cultural meaning-making and legal intervention warrants a more complex consideration of the relationship between state and non-state centered activisms in the context of sexual citizenship in India. The emergence and rapid increase in the number of Indians (heterosexual, or otherwise) infected with AIDS, has necessitated an approach to queer activism that draws both on an attempt to mobilize a more accountable state to its marginalized populations, but also on the activist energies within cultural and political arenas that exceed the state and the juridical process. For example, the NAZ Foundation, founded in 1994 by Anjali Gopalan, emerged primarily due to state apathy around the spread of AIDS, and focused its energies—independent of state intervention or reliance— on providing medical care and prevention education to queer and other marginalized communities.  At the same time, NAZ made state advocacy a fundamental part of its organizational goals, holding sensitivity training sessions for police officers, and also working closely with groups such as Human Right Law Network and Lawyers Collective. In other words, the advocacy efforts of NAZ around Section 377 were part of a larger investment in human rights, health care, and sexual citizenship.

[4] In this paper, I wish to examine the politics that subtend the repeal of Section 377 through the theoretical framework of what I call the “performativity of statism.”  While the notion of “statism” could be defined broadly in many ways, for the purpose of my argument, the term refers to the recourse to the state—through judicial redress, repeal or litigation—in an attempt to make the legal sphere more accountable to sexual minorities. In arguing for the political potential of statism in the context of repealing India’s version of sodomy laws, this paper will put this epistemic moment of India’s burgeoning LGBT activism into conversation with queer theoretical and postcolonial feminist frameworks that have expressed a political and conceptual wariness of making the state (specifically the legal sphere) the site of redress in the context of sexual citizenship. In other words, this paper will try to answer the question why, despite the theoretical and political problems with a turn to “statism,” that the NAZ foundation’s attempt to repeal Section 377 might offer performative potential.

[5] I will thus argue that the legislative challenge to Section 377 of the Indian Constitution by activists and Indian NGO organizations will have crucial material effects on the lives of queer citizens in India. In making this argument, I will consider and complicate some of the problems that queer theorists, feminists, and political activists have articulated when sexual citizenship is predicated on the politics of statism or legal change. I illustrate how the attempt to mobilize the legal system within the sexual economies of India, does indeed enable performative interventions in contexts that are not restricted to courtrooms. I will show how it is precisely the performative implications in non-juridical contexts that inform the urgency of the Public Interest Litigation filed by the Naz Foundation against Section 377—mainly, the ways in which anti-sodomy laws prevent the creation of adequate health services, HIV prevention, and condom distribution in prisons. It is in this sense that I am using the term “performativity” in this paper—i.e. an investment in articulating the material effects of legalist intervention. In other words, I wish to theorize the attempt to repeal sodomy laws in India as more than just a limiting of the political to the realm of the legislative but, in fact, as an attempt to engage with the socially constitutive implications of that very law. Such an engagement, I argue, is quite in-keeping with the queer critique of discursive regimes of normality, and hence not necessarily a lapse back into a limited politics of liberalism. In the next section, I will articulate some of the theoretical frameworks and historical conditions that have problematized the return to a political strategy that is predicated on the performativity of statism.

The Trouble with Statism: Limits and Critiques

[6] It should be qualified that I am not arguing for a neat paradigm shift from a critique of statism to a naïve endorsement of its performative potential. In the Indian context, the dangers of over-investing in the state’s accountability to its citizens is complicated by—1) the ways in which the state has failed to offer any form redress or justice to minorities or victims of violence at various historical moments and 2) the fact that the state itself has not only been implicated in, but at the forefront of perpetuating various modes of injustices and brutalities, particularly against women and religious minorities. For example, during the Hindu-Muslim riots in 93, the police not only failed to protect Muslim dominated areas from the rioting of Hindu fundamentalist groups, they actively participated in the rioting. Consequently, despite the findings of the Srikrishna Committee which indicted the Hindutva based Shiva Sena party of inciting communal violence, the Maharashtra government has still to act on its recommendations and punish guilty parties (which includes police officers). The infamous Mathura rape case is another illustration not only of state apathy, but its active participation in perpetuating violence. In 1974, the Supreme Court of India upheld an earlier sessions court verdict acquitting two policemen who raped a 16 year old tribal girl in the compound of the Desai Ganj Police Station in Maharashtra. The decision was informed by the horrifically dubious logic that since Mathura was ‘habituated to sexual intercourse’ to begin with and since she had passively submitted to their advances, the act could not be considered as non-consensual. The case eventually prompted much activism from Women’s groups to change definitions of ‘consent’, eventually culminating in the Criminal Law Amendement Act of 1983, which insisted that the burden to prove consent must be on the accused. The history of legislation in the context of violence against women does not, however, culminate in any triumphant grand narrative. In her essay “Protecting Women against Violence? Review of a Decade of Legislation, 1980-89,” feminist activist and lawyer Flavia Agnes offers her own warnings against feminist activism’s investment in statism. She points out how the campaigns for reform in rape laws that argued for stricter convictions only ultimately meant that judges were more wary of providing convictions. Given this problematic history, it might seem counter-productive to argue for a re-consideration of statism in the context of queer sexual citizenship. The history of legislation informing the women’s movement has certainly produced inadequate responses from the state.

[7] Similarly, the work of Nivedita Menon points to the limits of statism in the context of the feminist movement’s struggle against sexual violence in India. In the essay “Rights, Bodies and the Law: Rethinking Feminist Politics of Justice,” Menon points out that the realm of justice demands a “fixing of identity and meaning” (264) that is counter-productive for a feminist understanding of sexual citizenship. For example, Menon articulates some of the contradictions involved in making the legal sphere the site for political contestation in the context of abortion rights in India. Menon argues that the MTP (Medical Termination of Pregnancy) Act passed in 1971 should not be read as a feminist victory for Indian women; instead, the state co-opted the feminist argument of choice and sexual autonomy as a convenient population control mechanism which resulted in the relatively easy passing of the bill. Consequently, the politics of autonomous choice in India existed in an uneasy co-relation with the material reality of female feticide since abortion was often misused into coercing women to terminate pregnancies after the sex of the child had been determined. Women’s groups pursued further legal action, culminating in the passing of the Prenatal Diagnostic Practices (Regulation and Prevention of Misuse) Act in 1994. Pointing to the political and theoretical complexities of pursuing legal action in this context, Menon states: “At the level of politics is the contradiction involved in pushing for legislation which can restrict the access to abortion itself. Two, at the level of feminist philosophy, if abortion is a right over one’s body, how are feminists to deny this right to women when it comes to the selective abortion of female foetuses?” (279). Menon and various other Indian feminists have pointed to the limits of the Prenatal Diagnostic Practices Act since in effect, it punishes individual women who terminate pregnancies based on the sex of the child, when in actuality such terminations take place within a wider patriarchal social field informed by an ideology of coercion.

[8] In a similar vein, Arvind Narrain, who works for the Alternative Law Forum in Bangalore, argues about the limits of making Section 377 the focus of queer activism in India. In his essay “No Shortcuts to Queer Utopia: Sodomy, Law and Social Change,” Narrain points to the analytical distinction between legal change and social justice, arguing that the “law fails to deliver justice until and unless there has been preceding work in building a movement” (260). Narrian points to the importance of drawing on the lessons of the feminist movement in order to avoid making the law the end point of queer politics in India.

[9] In a different context, the arguments of Narrain and Menon find resonance with much of queer theory’s critique of state-centered political action. In fact, it could be argued that queer theory as a political and philosophical framework is predicated on a suspicion of the liberal state as an adequate site of political action. Thus critiquing the mainstream LGBT movement in the US, and its turn to the state for marriage rights, Michael Warner remarks: “The turn back to a state-oriented politics in the American gay movement, always a danger in the public-sphere discourse environment, represents a real loss of insight and action in the dominant circles of lesbian and gay organizing” (223). In other words, if queer politics is informed by an ethic of sexual autonomy, then appealing to the state for rights only serves to reiterate the dominance of the state over marginalized populations.

[10] Similarly, in Left Legalism/Left Critique Wendy Brown and Janet Halley explore the performative effects of the left’s strategic engagement with the law. Their project seeks to explore, in their words, the conflict “between state-centered left legalism, on the one hand, and left theoretical critiques of the state, the law, and identity, on the other” (4). The state-centered informed legalism is informed by an implicit faith in the changeability of the system via state redress and legal machinery. On the other hand, the left critique of statism is concerned with the ways in which the call for state protection merely enhances the regulatory power of the state; ultimately such a reiteration of the state’s control over citizenship only enforces a larger structural violence by restricting the political imagination to regulatory jurisprudence. For instance, from the perspective of state centered left legalism, the ability to file for asylum on the basis of sexual orientation offers legal recourse and redress against nationally sponsored compulsory heterosexuality.  A critique of statism, however, would foreground the normalizing effects of asylum as a political strategy. Filing for gay asylum inevitably reiterates essentialist and minoritarian notions of identity since it mandates the fixity and immutability of identity, as was the case for Cuban gay men who were attempting to immigrate into the US. They not only had to “prove” their homosexuality, but also had to repudiate their country of origin as repressive and backward, thus warranting asylum into the golden gates of the first world. Grappling with the tensions between these two positions, Brown and Halley thus pose the following questions:

How might left legalism convert into liberal legalism? How or when does legalism sap the political substance from a highly politicized issue or event? How do desires to transform identity unwittingly become projects that instantiate identity? When do strategies of redress become techniques of domination? (4)

Both Halley and Brown are careful not to completely dismiss legalistic projects as merely liberal or beyond the realm of the redeemable. And yet, the terms used to describe legal strategies are almost always markedly negative.  For instance, the political energies invested in legalism threaten to “defang the left,” “saturating it with anti-intellectualism” (5) and producing “unintended regulatory effects” (14).

[11] It is not without significance that the arguments of Menon, Agnes, and Narrain are quite in-keeping with queer theory’s suspicion of state-centered politics. The challenge to Section 377, has in part, been fuelled by legislative histories in the US, and the challenges to sodomy laws through landmark cases such as Bowers Vs Hardwick and Lawrence Vs Texas. The critiques of statism offered by Indian feminists and queer activists are certainly not blindly imitating the theoretical logic of their western counterparts. But in re-visiting the critiques of statism offered in the Indian context, it might be useful to critically examine queer theory’s relation to the state—i.e. to re-visit the queer critique of liberalism that in the U.S context has been dominated by debates around gay marriage and the military. These two issues have so heavily saturated the political field, that in many ways the military and marriage often become the only contexts in which state redress is theorized. As a result, the queer critique of mainstreaming informing the U.S. LGBT movement in the context of marriage and the military overdetermines almost any other political question that articulates itself via the politics of legal or state redress. Thus the logic of queer critique can often follow something like this: since the call for gay marriage and inclusion of gays in the military represents a limited and assimilationist vision of queer politics, rights discourse in general lapses back into an ideology of liberalism that forecloses a more radical critique of the field of normalization. The above characterization of queer theory is admittedly quite reductive—and yet, there is a possibility that a field which has performed some of the most insightful deconstructive interventions into dualistic modes of thought, could be in danger of lapsing back into its own version of binary thinking: between state and non-state centered interventions, courtrooms and streets, legal and extralegal, rights and resistance.

Section 377 and the Politics of Statism

[12] An argument for the performativity of statism need not be resolved in terms of binary thinking or some easy recourse to strategic essentialism. Given this problematic relation to statism articulated by Indian feminists and queer theorists, it might seem counter-productive to argue for a re-consideration of statism in the context of queer sexual citizenship. The history of legislation informing the women’s movement in India has certainly produced inadequate responses from the state—but to argue for a similar trajectory in relation to the repeal of sodomy laws is predicated, firstly, on the assumption that the performative effects of feminist struggle have already been witnessed and terminated in the above discussed aporias. Such a politics of finality abruptly ends the feminist political terrain, foreclosing the potential effects of such interventions in the future. Secondly, even while carefully gleaning insights from the histories and lessons of feminist legal intervention, it might be myopic to fix the implications of the challenge to Section 377 in advance.

[13] In her essay “Describing the Body: The Writing of Sex and Gender Identity for the Contemporary Bengali Woman,” Srimati Basu points out that while the women’s movement in India has addressed a range of issues such as sexual violence and reproductive rights, “there has been little discussion of the politics of the sexual body and the sexual woman per se” (146). The focus on the politics of sexual violence as opposed to more affirmative dimensions of sexual citizenship is not so much an absence or a “drawback” of the women’s movement, as much as a historical necessity. Consequently, the effects of the AIDS crisis complicate any autonomous demand for a politics of sexual freedom that is not mediated by an attention to protection and prevention. It is in the context of the burgeoning AIDS crisis that the state retains a centrality for political action and accountability—not only for adequate health care, but to also to prevent multinational pharmaceutical companies from patenting drugs in order to make larger profits from AIDS medicines. For example, Swiss pharmaceutical multinational company, Novartis has been trying to secure patent rights to medicines that are sold by generic Indian companies at much cheaper rates. In 2005 various Indian drug companies filed an opposition to the patent application of Novartis with the Chennai High Court.

[14] However, even while the LGBT movement in India can usefully draw on the feminist struggle with the legal system, there are analytical and political differences between the women’s movement and LGBT struggles that might be useful to consider. Feminist critiques of the state have been necessitated by the ways in which the demand for protective legislation has ultimately worked against the best interests of women in India.  But in the context of Section 377, the demand for reading down has not been made with the illusion or the expectation that the state acts as protector.  While LGBT Indians certainly cannot be under the illusion that court systems are benevolent allies or sympathetic protectors—routine police brutality against hijras and blackmail threats to gay men caught cruising is prevalent but undocumented—they also cannot afford to relinquish the court systems as a map of contestation. If statism need notculminate in a neat teleology that is the end point of politics, what are the political possibilities that could emerge? What is lost from the political field when statism is conceptualized only as a politics of fulfillment? Could statism represent a mode of political thinking that is capable of imagining more democratic futures? In grappling with these questions, I wish to suggest that the repeal of Section 377 could enable crucial interventions in non-legalistic contexts; and finally, I wish to point to the ways in which the complexities of postcolonial sexual citizenship might require a re-thinking of queer critique that is predicated on a wariness of the state as the site of political action.

[15] Though by no means does it exhaust the political terrain around sexual citizenship in India, a critical look at the developing conversations and interventions around Section 377 might begin to grapple with some of the questions above. Unlike Bowers Vs Hardwick (1986) and Lawrence Vs Texas (2003)—the two landmark court cases in the US—the attempts to challenge sodomy laws in India have not mobilized around individual cases involving specific citizens. The reading down of the law as opposed to an outright case for repeal was strategically made owing to the fact that Section 377 is routinely used in India to prosecute cases involving sex abuse against children, since there are no laws in India specifically pertaining to the prosecution of child abuse. The language of Section 377, however, makes it even insufficient to grapple with the complexity of child abuse since it inadequately focuses on penetrative sexual acts (which, of course, do not do justice to the material reality of child abuse).

[16] Thus the NAZ petition focused on the criminalization of consensual sexual activity between adults under the aegis of Section 377. In 2003, the Delhi High Court consisting of Chief Justice B.C. Patel and Justice Badar Durrez Ahmed responded to the PIL filed by NAZ by dismissing it on purely technical grounds. The judges claimed that since NAZ did not represent an individual petitioner or plaintiff who had been prosecuted or harmed under Section 377, that it had nolocus standi in the case under consideration. According to the High Court, the matter was not considered one that merited “public interest.”  The legal technicality that informed their dismissal also became the occasion to express moral concern—the various instances where Section 377 was used to prosecute child molesters became reason enough for the High Court to foreground its importance and continuing legitimacy. Consequently, it also expressed concern that a reading down of Section 377 would “open the floodgates of delinquent behaviour.”  (The Times of India, Sept 3, 2004). The NAZ foundation subsequently filed a Special Leave Petition with the Supreme Court to contest the High Court decision, and in 2006 the Supreme Court overruled the High Court verdict; in doing so the Supreme Court reinstated the matter as one that warranted “public interest,” but the petition remains under subjudice at this time.

[17] The legal developments subtending Section 377, have not, of course, emerged suddenly or in a vacuum. In 1994, Tihar Jail in Delhi was embroiled in a public controversy when it refused to distribute condoms to prisoners on grounds that such an action would encourage criminal homosexual behavior. If in a US context, as John D’Emilio has argued, it is a break from the dependence on the family unit as means of production that informed the emergence of gay identity, it could be argued that in the Indian context, it is the AIDS crisis that compelled an awareness of alternative sexual “identities” (even while those who engage in homosexual behavior, as is the case with the MSM community, do not necessarily identify as gay). The Tihar controversy foregrounded the ways in which the state’s moral condemnation of homosexuality took precedence over safe sex initiatives and HIV prevention. In many cases it is not the actual act of sodomy which is persecuted, but what Alok Gupta describes as its “appearance” or “likelihood” (4820). Thus the relative absence of actual contemporary cases when consenting adults have been prosecuted under Section 377 is not cause for gay-affirmative optimism—in fact, it is precisely because of the inability to enforce such an archaic penal code that a guilty-by-association method is the predominant and arbitrary mode of persecution. For example, in 2001, responding to complaints about cruising in a park in Lucknow, the police arrested among others, several activists from Bharosa, an NGO that was actively involved in HIV prevention with the MSM community. The police also extended their raid to the NAZ Foundation, where they seized informational material and tools that were considered “pornographic.” Apart from Section 377, the activists were also charged with selling sexually explicit materials, and the indecent representation of women. The Chief Judicial Magistrate in the case denied bail to the accused on two separate occasions, commenting that they were “polluting” Indian culture by encouraging sodomy. (Rajalakshmi, Frontline).

Section 377 and the Politics of Colonial History

[18] The dubious but familiar logic that homosexuality corrupts “authentic” Indian culture and is an influence of the decadent west is ironic, given the fact that Section 377 of the Indian Penal Code is a remnant of the British colonial legacy (if at all, making homophobia a western import). Thus even while Foucault’s genealogy of sexuality is germane to a Euro-centric context, his contention that the homosexual became a species in the 19th century is quite apposite in the Indian context since discourse around sexual behavior traveled to India through the British. Under governor-general Lord Macaulay, the British set up various law commissions in 1833 in order to codify Indian law under colonial rule, replacing the fluidity of pre-colonial Indian legal traditions. The institutionalization of law commissions culminated in the passing of the Indian Penal Code in 1860, which in turn codified Section 377. Justifying the colonial institutionalization of law, Macaulay famously remarked: “I believe that no country ever stood so much in need of a code of laws as India, and I believe also that there never was a country in which the want might be so easily supplied” (Bhaskaran, 20). It is in the context of colonial history that the relationship between the state and the legal system requires some clarification. While there is an important analytical distinction between the two, the codification of the colonial legal system illustrates how it was in the interests of the British to collapse the two. Borrowing Ranjit Guha’s terms, legal theorist Upendra Baxi describes the law in India under the British as the “state’s emissary . . . bearing the hegemonic insignia of a colonial state” (249). Thus the operations of the modern legal system in postcolonial India need to be contextualized in relation to this collapse between the state and law; a genealogical re-thinking reveals how the co-option of law by the state was very much in keeping with the imperialist interests of the British civilizing mission. Thus Baxi remarks how the “appropriation of the law to the state… made possible the churlish, Eurocentric British boast that India knew no law, that colonized nations had a notion of authority but not oflegality…” (252).

[19] Not surprisingly, the British codification of law meant that in the realm of sexuality, Christian moral codes towards sex and purity entered the realm of state politics in India. While the rhetoric of “unnaturalness” as Ruth Vanita points out in Queering India has specifically Judeo-Christian roots, (3) the anti-colonial and post-independence need to assert a masculinist nationalism only continued to legitimate the discourse around “natural” and “unnatural” subjects to secure its own ideological interests. In her essay “The Politics of Penetration: Section 377 of the Indian Penal Code,” Suparna Bhaskaran documents a series of court cases in both pre and post-colonial India that attempted to control “unnatural offences.” One of the most detailed illustrations that Bhaskaran describes, conspicuous for the elaborate account of “unnatural” sex acts, is the relatively recent case of Brother John Anthony Vs the Madras High Court (1992). The case against Anthony, a warden of a high school accused of having sex with minors, becomes occasion for the judge to describe in meticulous detail, an elaborate taxonomy of sexual deviance, including sadism, bestiality, buggery and sodomy.  What follows is an even more detailed analysis of the various different sex acts that could come under the purview of Section 377, even if it does not involve sodomy in a traditional sense. He thus describes penetration as a process where a “visiting organism is enveloped at least partially by the visited organism”(20) Thus oral sex is included under the purview of unnatural acts since it involved the “insertion of the penis of the petitioner into the mouth of the victim boy…up to the point of semen into mouth” (21) The judge’s description in this account is a classical illustration of Foucault’s hypothesis that far from being repressed, a taxonomy and discourse around sexuality is elaborately discussed and carefully produced. Thus even while Macaulay insists that “public discussion on this revolting subject” should be erased due to the “the injury which could be done to the morals of the community,” (qted. in Narrain, Queer, 36) the legal courts produce an elaborate public discussion that seeks to map perverse and “unnatural” acts on to particular identities and persons.

[20] But if the law in colonial India could only function as the “state’s emissary” that sought to control its “revolting subjects” what does that say for the “post” in postcolonialism? In his analysis of the place of law in subaltern studies, Upendra Baxi comments on the conspicuous absence of “an agenda of alternative legality and the potential for rupture” (248) in sub-altern historiography (the same critique, of course, has been levelled at Foucault’s analysis of power and knowledge production).  Baxi thus inquires:

To what does one ascribe the collapse of law from a whole range of associated practices in redoing and recreating history? Why is the alternative perspective of study and history so comfortable with disregard of the law? (249)

Baxi’s questions hint at the importance of articulating an alternative understanding of jurisprudence that is not always already recuperated by the state. While it would be myopic and ahistorical to assert a notion of legality that is completely outside the state’s jurisdiction, their inevitable collapse not only repeats the colonial legacy without any difference, it also forecloses the performative effects of a radical legalism.

Beyond “Fictional Identities”: Section 377 and the Politics of Performativity

[21] Any notion of radical legalism undoubtedly has to grapple with what Janet Halley calls the “crudely essentialist notion of how the class of homosexuals is established” in the context of state jurisprudence. This is evident in both colonial and postcolonial India when national anxieties surrounding “unnatural” offences attempt to inquire into the criminal nature of the sodomite as a person—Macaulay’s “revolting subject”—as opposed to any investment in whether the sex act is consensual or not. Thus Halley’s arguments about the conflation of act and identity in the context of Bowers Vs Hardwick, is equally apposite in the Indian context:

If criminal or criminalizable sodomy is the inevitable consequence or the essential characteristic of homosexual identity, then the class of homosexuals is coterminous with a class of criminals or at least of persons whose shared behavior is criminalizable. (1724)

Since the essentialization (and consequent criminalization) of homosexual identity marks the limits of radical legalism, it becomes all the more imperative to examine the conditions that mark legalism’s enabling possibilities. Halley’s concern is quite emblematic of queer theory’s general suspicion of rights-based discourse in which minority identities get interpellated in oppressive and state-sanctioned contexts, and are consequently rendered fixed and immutable in time. But this critique is also heavily steeped in the context of US individualism, which, as Michael Warner points out, “sports a heavily identitarian culture” and therefore “supercharges any form of sexuality by tying it to the individual’s expressive capacities” (213).

[22] Similarly, in her essay “Suffering the Paradox of Rights,” Wendy Brown points out that when act functions as a metonym for identity in the context of sodomy laws, “homosexuals appear to be prosecuted not for the kind of sex they are having but for being associated with a kind of sex that heterosexuality disavows in order to mark its distance from homosexuality” (429). Thus for Brown, such an act-identity conflation is predicated on the privileging of a “fictional identity” that obscures the privilege of heterosexuals who might also indulge in particular sex acts without experiencing any of the stigma, since the mark of stigma is conveniently mapped on to the body of the perverse subject. But as the Indian situation illustrates, the interventions to mobilize the legal sphere in the context of Section 377 do not axiomatically get articulated in the terms of an identitarian framework. As mentioned previously, the PIL filed by NAZ against the law was not attached to an individual petitioner (ironically, grounds for its initial dismissal) but conceptualized in broader terms, as an archaic law that impedes activism around HIV prevention:

Naz India’s efforts in sensitizing the government to different issues related to the epidemic include the amendment of Section 377 of the Indian penal code commonly known as the ‘Anti sodomy Law’. This act criminalizes same sex sexual behavior irrespective of the consent of the people involved thereby proving to be one of the most significant barriers in effective HIV/AIDS interventions with sexual minorities. (Naz India website)

The language above, from the mission statement of Naz Foundation’s advocacy section does not, to use Brown’s terms, necessarily shore up a “fictional identity”—instead, identity becomes the performative effect of a broader engagement with the political field of sexual citizenship. Of course, there are dangers in making HIV prevention the “face” of queer activism in that it precludes a more affirmative engagement with the state for a wide range of material benefits (a fact that has not been lost on Dalit and SC/ST communities in their demand for job quotas and affirmative action compensations from the state). But the privileging of HIV intervention over any sort of monolithic identitarian or expressive claim also signals a more radical and strategic engagement with the legal sphere that is as invested in performativity as it is with any rights-based claim for protection from the state.  Thus legalism in this context need not necessarily lapse into liberalism or the much dreaded “statism”—instead, the engagement within the legal sphere is imbricated in material contexts that have profound implications in spaces that have little to do with the legal arena (even while they are not outside the law or exceed its scope in any simple sense). Part of the feminist and queer theoretical suspicion towards the culture of identitarianism is informed by what Menon calls the “individualist thrust” (270) and Brown refers to as the “unintended regulatory effects” of legalism (14).

[23] But in its anticipation of unintended regulatory effects—what Sedgwick has critiqued as queer theory’s “hermeneutic of suspicion” which insists that “bad news be always already known” (130)—the critique of legalism forecloses an attention to the material conditions that enable more reparative performative interventions. In other words, the reading down of Section 377 would have crucial implications on the everyday operations of HIV prevention activism and even something as fundamentally basic as condom distribution in jails which is prevented since it ostensibly promotes “criminal” behavior. Significantly, in 2006, a government body group, NACO (National Aids Control Organization) submitted an affidavit before the High Court, supporting the PIL filed by the NAZ foundation. This suggests that even government bodies are being forced to grapple with the recognition that HIV prevention must attend to a wide range of vulnerable populations—kothis, sex workers, hijras, and MSM communities—who have little or no access to safer sex information and who cannot be classified into the identity category of “homosexuals” in any simple sense of the term.  Thus rather than shoring up fictional identities, the recourse to legalism in the context of Section 377 has the potential to forge crucial coalitions between these various groups. Indeed, the NAZ Foundation in New Delhi does active outreach and support group work to both MSM communities (for whom act and identity are always already fractured) and kothi sex workers whose queer identities are more visibly mapped on to their bodies.  Thus the legal interventions subtending Section 377 have little or nothing to do with liberating the expressive capacity of sexual minorities in India; legalism is more invested in enabling performative effects in wider political spheres whose implications are not limited to the realm of jurisprudence.

[24] The performativity of legalism in this context is implicated in a valuable political paradox—even while the law becomes a crucial site of intervention, legal victory is not the end point or even the primary goal. In fact, whether or not the High Court rules in favor of the NAZ petition might be beside the point. Legal failure in this instance, might still offer pedagogical potential. In an essay entitled “Notes on Diva Citizenship,” Lauren Berlant analyzes the case of Anita Hill’s sexual harassment claim against Clarence Thomas as an illustration of what she calls “the pedagogy of failed teaching” (242).  For Berlant, Hill’s failure to receive justice was exemplary of a national failure—in refusing to protect the sexual dignity of Hill, the legal system inadvertently articulated the exclusions on which national and sexual citizenship were predicated – it became, according to Berlant a performing of “unfreedom” (246).  Thus Berlant remarks: “Despite her failure to convince the Senate about Thomas and his alleged proclivities, Hill’s testimony turned into an act of national pedagogy that still generates commentary, controversy, and political struggle: an act of Diva Citizenship” (227). Similarly, the demand for a reading down of Section 377, regardless of outcome, might be one such example of “diva citizenship”— performing the “controversy” and “commentary” that mobilizes questions of sexual citizenship in India into the public sphere. Legal intervention in this context cannot be dismissed as merely liberal.  In fact it is the neo-liberalist logic of market capitalism and free trade that revels in the “beyond state” ideology. Minimal state intervention is thus quite conducive to the operations of a market that can function unchecked without any concept of accountability. Thus while any political investment in legalism must take into account the regulatory implications of the state, the critique of statism must also grapple with how the logic of capitalism might be the ultimate beneficiary by removing state accountability from the map of contestation.

[25] If legalism has the potential to open up possibilities in contexts that do not directly fall under the aegis of the law, it could, of course, be argued that the regulatory effects of legalism could also inform these very contexts. Thus in thinking of sexual citizenship in light of jurisprudence in India, it might be necessary to conceptualize, what Upendra Baxi has called a “human rights friendly yet human rightswary narrative” (3). The refusal to choose an either/or “solution” between state and non-state centered interventions is, in fact, quite in keeping with the deconstruction of dualistic thinking that queer theory has come to champion. An investment in the performative potential of legalism thus does not axiomatically preclude a more self-reflexive consideration of the law’s regulatory potential. For instance, at a recent forum  entitled “Between Queer Ethics and Sexual Morality” organized by Bangalore based group, Alternative Law Forum, several activists have expressed concern over the ways in which the PIL filed by NAZ focuses too narrowly onprivate consensual same-sex acts. Historically, Section 377 has been most often used by the state to prosecute and harass those kinds of behavior that are perceived as “public”—men cruising in parks, or hijras and kothis involved in sex work. Hence the exclusive focus on private sex acts, further marginalizes some of the most vulnerable sections of the queer community in India.  But, as I have pointed out earlier, the functioning of Section 377 collapses all conventional distinctions between private and public (since tangible proof of the sex act is not a requirement for prosecution). In fact,  lesbian Indian women— who, unlike queer men, have limited access to any kind of ‘public’ sphere—are equally vulnerable to harassment. Suparna Bhaskaran has pointed to the dubious assumption that lesbians in India are unaffected by Section 377 because of the law’s emphasis on penetration (which problematically assumes that lesbian sex can never involve penetration). Even while the most visible and common target of Section 377 has been men who have sex with other men in public places, there is a danger in interpreting the notion of “public” in all too literal terms. There have been several documented cases where women who have expressed a desire to get married to each other have been threatened with arrest under the aegis of Section 377. In February 2005, news reports, for example, have highlighted the case of two lesbians, Raju and Mala who fled their homes in Amritsar for New Delhi in order to get married. Their families tried to have them arrested and they were detained by courts. In the same month, Pooja and Sarita, a lesbian couple in Bihar also tried to elope. Pooja, however, was arrested on charges of abduction since Sarita was only 19 years of age.

[26] I have thus tried to suggest that in the context of sexual citizenship in India, wariness about legalism cannot come at the cost of engagement with the law. Wendy Brown has argued that a radical notion of law can be performed only when legalism is viewed as a series of “mutable, contestable entries into complex discursive and distributive systems” rather than a monolithic imposition of justice that ends all political discourse (13). I have argued that the legal interventions subtending the reading down of Section 377 perform precisely such a mutable contestation into the realm of sexual citizenship. These interventions do not end in a politics of fulfillment at the level of the legal—in fact, they enable crucial performative effects in extra-legal domains.   For those invested in improving the lives of sexual and gender minorities in India, there is certainly an awareness of the risk in over-estimating the state’s liberatory potential. But statism in this context is hardly an appeal to the law as remedy or solution—in fact it is an engagement with the law, precisely in an attempt to perform a degree of autonomy from it. Legalism then, does not inevitably translate into liberalism, but can paradoxically open up political possibilities within and beyond the law.

[27] I have thus tried to argue that despite the theoretical and historical limits of statism, it would be politically myopic to foreclose its political potential in the context of sexual citizenship in India. InExcitable Speech, Judith Butler has pointed out that “theoretical positions are always appropriated and deployed in political contexts that expose something or the strategic value of such theories” (20).  I have tried to show how the sexual economies of India expose some of the limits and enabling possibilities of queer theoretical frameworks. If performativity, as Butler has suggested, is to be theorized through an understanding of “productive constraints,” (Bodies that Matter, xi) the engagement with statism in the Indian context is implicated in constitutive history that, as the women’s movement illustrates, has limited the political field to the constraints of jurisprudence. But repetition without a difference need not mark a determinist finality of the political imagination. If performativity is informed by historical limits, it also marks the opening of democratic possibilities that cannot always be predicted in advance. In the context of sexual citizenship in India, the legal reading down of Section 377 not only performs a symbolic contestation of heteronormative colonial law, it also enables more queer affirmative modes of political activism to circulate within a national imaginary that has been ideologically constructed as a anti-queer.

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