Sexual States: Governance and the Struggle over the Antisodomy Law in India (original) (raw)
2008
By examining discursive struggles around sexuality in contemporary India, I show how and when the legal status of sexuality becomes used by individuals and communities to make political claims about their relations in and to the post-colonial nation-state. The ‘modern’ legal system introduced by British colonial rule installed state regulation of homosexuality and sex work in India. I look at when and how homosexuals and sex workers challenge these regulatory discourses and practices, considering these as post-colonial contestations over the legal and cultural meanings of “tradition” and “modernity.” I ask two primary questions: First, how do the legal and political challenges of these two groups become articulated in the face of local needs and practices and in the context of globalization and transnational concern about HIV/AIDS; and second, what do these challenges reveal in general about state power over how human bodies are used (biopower) in a postcolonial context and in speci...
Recent Changes in Gender & Sexuality Policy in India: A Postcolonial Analysis
Proceedings of the 2nd International Conference on Gender Research (ICGR), 2019
In the past year, several important policy changes regarding gender and sexuality have occurred in India. In the month of September 2018, two pivotal rulings were made by the Supreme Court of India. (1) On September 15, 2018, the Supreme Court overturned Section 377 of the Indian Penal Code (IPC), a relic of the British Penal Code that had outlawed sexual activities deemed to be “acts against the order of nature.” Previously, this had ostensibly criminalized both homosexuality and gender nonconformity. (2) On September 26, 2018, the Supreme Court decriminalized adultery by overturning Section 497 of the IPC. (3) In July 2018, the Lok Sabha, the lower house of the Indian Parliament, passed the Trafficking of Persons bill. If passed in the Rajya Sabha, the upper house of the Indian Parliament, and signed into law, the bill would define new offenses under Section 31 of the IPC as “aggravated forms of trafficking,” punishable with imprisonment for 10 years to life, plus fines of a minimum of 100,000 Rupees. (4) In August 2018, the Transgender Persons Bill passed in the Lok Sabha, but has not yet passed in the Rajya Sabha. This bill would introduce regulations where individuals would need to be medically screened in order to be legally recognized as a third gender person in India. In 2005, India created a new third gender designation (E), distinct from males (M) and females (F), opening the option for people to register under this designation on their passports, voting registration cards, and other legal documents. Taken together, these policy changes mark significant shifts to the ways in which the State in the Indian context regulates gender and sexuality. This paper seeks to review these current policy changes in light of the history of how sex work and gender nonconformity have been regulated in the historical periods before, during and following colonialism.
True Sex and the Law: Prostitution, Sodomy and the Politics of Sexual Minoritization in India
Sexuality Studies Reader, 2013
This chapter offers a schematic analysis of juridical discourses of sexuality in India through a reading of two significant contemporary legal events that occurred within a year of each other. These were the widely discussed 'reading down' of Section 377, the anti-sodomy statute of the Indian Penal Code, in July 2009, and the 'defeat' (or, 'temporary withering'?) of proposed reforms to the Immoral Traffic (Prevention) Act (ITPA), the law that governs transactional sex in India, in December 2008. In bringing these events into the same analytic frame, this chapter aims to outline what is at stake in elaborating the alliances, connections, and points of contact between sex workers' and lesbian, gay, bisexual, transgender, and queer (LGBTQ) organizations and movements, by marking the rubrics and uses of 'privacy' and 'dignity' that contextualize and structure these jurisprudential events.
The LGBT (Lesbian-Gay-Bisexual-Transgender) activism has raised the issue of sexuality and, in particular, alternative sexuality, and argues for its 'normalcy'. The state, on the other hand, has taken exception to such democratisation of 'desire' and has tried to 'discipline' it. The LGBT activism challenges the hegemony of the 'heterosexual' state. This paper explores the issue of sexuality and its alternate forms in India with special reference to the form, content, and spaces of lesbian and gay activism vis-à-vis Section 377 of the Indian Penal Code (IPC); strategies of assertion; and its problematic relation with the women's movements.
2019
This piece of writing relates to a significant effort in the realm of sexuality politics – the attempts made by civil society in India to seek the decriminalization of sodomy (Section 377 of the Indian Penal Code) through the judicial system. It is written as a firsthand account of occurrences from my vantage point, as the person who managed Lawyers Collective HIV/AIDS Unit (LCHAU), the non-profit lawyers group that strategized, drafted and filed the public interest litigation (PIL) on behalf of Naz Foundation (India) Trust in 2001, conducted the civil society mobilization that occurred in the long journey to the hearing of the case in 2008 climaxing in the victorious Delhi High Court judgment of 2009, and revived that mobilization in 2017 when the case was reaching its conclusive stage in the Indian Supreme Court. My unique position as the queer person in LCHAU (and on behalf of Naz India) who was the bridge with the larger queer community provided me the privilege to participate i...
Advances in Social Sciences Research Journal, 2016
This paper explores the legal mobilisation in India against section 377, the anti-sodomy legislation originally introduced by the British. The first part explores the legal mobilisation as experienced by sexual and gender minority activists themselves. In the second part, some themes that have emerged as important are discussed in light of existing research and literature on sexual and reproductive rights lawfare. While the initial decision to litigate was controversial, Indian activists now seem to agree that the impact of litigation has been overall positive. Factors that help explain the Indian case include the particular Indian institution of Public Interest Litigation, engagement on the wider social arena in parallel with the judicial, and positive media attention. Moreover, decriminalization may have been rather easy for everyone in the LGBT/queer community to rally around, regardless of ideological position. In an increasingly polarized India some tensions within the community may become more toxic, however.
sexuality, caste, governmentality: contests over ‘gender’ in India
This article tracks the journeys made by the term ‘gender’ in India. From its beginnings in the 1970s as a feminist contribution to public discourse, destabilizing the biological category of ‘sex’, we find that gender has taken two distinct forms since the 1990s. On the one hand, gender as an analytical category is being used to challenge the notion of ‘woman’ as the subject of feminist politics. This challenge comes from the politics of caste and sexuality. On the other hand, gender is mobilized by the state to perform a role in discourses of development, to achieve exactly the opposite effect; that is, gender becomes a synonym for ‘women’. Thus, the first trend threatens to dissolve, and the second to domesticate, the subject of feminist politics. This article explores the implications of both journeys in terms of a feminist horizon.
Against the backdrop of the phenomenal successes of governance feminism in the US, Israel and internationally, this paper will consider governance feminism in the post- colonial context of India. In particular, the chapter uses the wide-ranging law reforms on rape and trafficking in India in the wake of the rape and murder of a Delhi student in December 2012 to make two arguments. First, that Anglo-American governance feminism has a rather limited and contingent influence on postcolonial feminism. Second, that a mapping of Indian feminist interventions on the law of rape over the past three decades suggests that Indian feminism displays key characteristics of governance feminism. Viewing the 2013 reforms as the culmination of decades of feminist lobbying of the state for rape law reform, this paper argues that Indian governance feminism is deeply committed to a highly gendered understanding of sexual violence. Further, that Indian feminism has increasingly resorted to the use of the criminal law to address sexual violence even as its historical suspicion of postcolonial state power has reduced considerably and is now mostly evident in its opposition to the death penalty for rapists. This paper thus tells a highly contextual story of fragmentation, partial reception, partial rejection, and the local production of feminist ideas and stances towards governance. It provides answers, in the Indian framework, to the key questions around governance feminism.
Health and Human Rights, 2004
In this era of the rise of the Hindu Right (Hindutva), sexuality is being defined and articulated by activist communities in two distinct ways-both as an identity concern and as a health concern. What are the implications and the ramifications of Hindutva for those working to protect the sexual health and human rights of vulnerable populations as weil as for those who are putting forward concerns based on sexual identity? Are the two concerns separate, or do they intersect? This article uses concrete case studies to analyze the effects that Hindutva has had on sexuality and human rights in India. It makes the point that the "queer" in the Indian context becomes the target of Hindutva's political project, thereby necessitating a rethinking of strategy. These examples clearly demonstrate a larger point: namely that, in a state that criminalizes sodomy, work on health and sexuality must address the surrounding legal and political context.
Sexual Property: Staging Rape and Marriage in Indian Law and Feminist Theory
Because prerogative power appears to its subjects as not just the power to violate but also the power to protect-quintessentially the power of the police-it is quite difficult to challenge from a feminist perspective. The prerogative of the state, whether expressed as the intervention of the police or as incessantly changing criteria for welfare benefits, is often all that stands between women and rape, women and starvation, women and dependence upon brutal mates, in short, women and unattenuated male prerogative.