Law Like Love: Queer Perspectives on Law

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