Decriminalising S.377 Will Not End Homophobia & Transphobia: Interview With Oishik Sircar & Dipika Jain

The Indian Supreme Court referred the curative petitions to reopen its 2013 decision in Suresh Kumar Kaushal v Naz Foundation to a five-Judge Constitution Bench in February this year. With the current chief justice retiring in January next year, and the next chief justice also having a very limited tenure of seven months, there is considerable uncertainty, and anxiety about when the Constitution Bench would be set up, and whether it could answer the principal plea of the petitioners to recognise their sexual freedom, in the near future.

The issue of guaranteeing freedom for India’s sexually marginalised– even if they constitute the “minuscule” minority as the Kaushal Bench chose to call them in order to justify its decision, not to decriminalise Section 377 IPC – seems to have, in the meantime, significantly influenced culture and politics, even while freezing its legal dimension. But this interface between law and cultures of activism has its not-so-apparent nexus with the neoliberal economy and state policies, which remains to be explored, and studied.

Oishik Sircar and Dipika Jain, as editors of the new book, New Intimacies and Old Desires: Law, Culture and Queer Politics in Neoliberal Times, to be brought out by Zubaan Academic, attempt precisely this.

The book was the subject of discussion at the recently concluded 4^th LASSnet International Conference, held in New Delhi from December 10 to 12.

Ahead of publication, the book has already attracted advance praise from Prof.Janet Halley, Royall Professor of Law, Harvard Law School, according to whom, it will help us live in a world in which emancipatory and erotic longings are strong enough to face the conflicts they engage and produce.

To Halley, the book acknowledges that queer theory and activism have lived into an era in which gay rights can be human rights, in which states and corporations make themselves look good by promoting same-sex equality and marriage, and in which SOGI [Sexual Orientation and Gender Identity] joins feminism as a normative project with some real political leverage.

Ratna Kapur, visiting professor of Law, Queen Mary, University of London, in her praise, says that the book opens up space for the exploration of sexuality, sexual subjects and gender formations that are no longer tethered to de-historicized and outmoded political frameworks.

Sircar and Jain, who teach at Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, answer Livelaw’s questions in this interview on the book, as well as the concerns it raises.

LL: To begin with, are the terms “queer” and “LGBT” used synonymously in the book, or is there a special reason why “queer” is used in the title, as well as in the text, to describe the sexual minority?

OS & DJ: There is a common sensical equivalence between the terms queer and LGBT. However, this equivalence is restricted to the question of identity only. In this book the term queer is deployed not only as identity, but also as politics, discourse, theory, method and ethic. In other words, queer for us as editors, and the contributing authors, is a way of seeing and doing things. It is an interpretive lens. So it does not just describe a ‘sexual minority’, rather it works against a minoritising politics.

Queer theory enables us to read politics in a particular way. This way of reading can be called queering. As we quote J.K. Gibson Graham in our introduction, queering means “reading for difference rather than dominance.”

So thinking about queer as theory and method offers possibilities that go beyond identity politics. For example, it allows for a queering of heteronormative institutions like the state, family, marriage, the university, the judiciary.

It opens up space to look for the internal contradictions within these institutions rather than characterising them as only good or only bad. Queer theory for us is a theory of disruption – it unsettles notions of purity.

There is another way in which queer is understood in this volume, which is as a practice of ethics. The work of disrupting pure politics is being done by the authors from particular place/s – which is say from within a university, a disciplinary location, a familial arrangement. So the authors are located within the systems and institutions that they critique. This practice of critique demands a self-reflexive ethical accounting of your own complicities.

Evan as queer has become a shorthand for referring to the LGBTI community, we are cautious of deploying queer as a term and idea with universal currency. The word has historical antecedents in homosexual dissidence and practices of protesting police violence particularly in the USA. It carries the inspirational charge of reclaiming languages of humiliation and disgust to make them a part of a vocabulary of sexual liberation and celebration.

Similarly, queer theory as a body of knowledge began primarily with the works of US-based academics like Judith Butler and Eve Sedgewick. We remain attentive to the fact that queer politics and theory, thus, cannot be extrapolated unproblematically to speak to conditions and experiences in other parts of the world, especially the non-West.

It is for this reason that the authors in the book creatively hybridize queer theory by bringing it into conversation with postcolonial and anti-colonial thought, feminist theory, critical jurisprudence, disability studies and Marxism.

LL: The blurb of your book declares that new intimacies between queer sexuality and neoliberalism that celebrate modernity and the birth of the liberated sexual citizen, are in fact, reproducing the old colonial desire of civilizing the native.

Why do you think queer sexuality and neoliberalism are inconsistent with each other? There is reason to believe that neoliberalism’s endorsement of the rights of the sexual minorities may help to shift public opinion in their favour, and thus influence the Supreme Court’s decision too, which cannot but take note of the shift in public opinion after Kaushal.

OS & DJ: The book emerged out of the concerns about how queer rights were being mobilized by states, corporations and the military to serve the Islamophobic ends of the war on terror, and that neoliberalism was enabling elite queer subjects to fashion themselves in ways that exacerbated capitalism’s exploits.

These twin concerns were already being explored in the important works of queer theory scholars like Lisa Duggan in her book The Twilight of Equality: Neoliberalism, Cultural Politics and the Attack on Democracy (2004), and Jasbir K. Puar in her book Terrorist Assemblages: Homonationalism in Queer Times (2007). We were especially interested in thinking about the role of law in this, especially because most struggles for queer people are almost always singularly predicated on the law – either demanding the decriminalization of anti-sodomy laws, or demanding marriage equality through law reform.

Works by queer-feminist legal scholars like Janet Halley, Brenda Cossman, Ratna Kapur and Rahul Rao were already mapping the ways in which law was being deployed and reimagined in these projects that masked conservatism (racism and Islamophobia) under the cloak of queer progressivism (decriminalization and marriage equality). Law lends authority to this practice of masking, and makes the militaristic and corporatist pursuits of neoliberalism legitimate.

So in a sense, the book challenges the understanding that neoliberalism and queer sexuality are antithetical. Rather, we have tried to demonstrate the new intimacies between them. Our argument is that when we pay attention to these new intimacies, we see that these are not aberrant, rather they are a continuation of the old desires that marked the colonial enterprise. If colonialism sought justification through its mission to civilize the native by offering to train them in the practices of the empire, neoliberalism seeks justification through its promise of making citizens out of queers by training them in the practices of consumerism. Both colonialism and neoliberalism mask their violence through these seductive projections of freedom.

So it doesn’t remain a surprise that soon after the Kaushal judgment was out you had major corporate brands advertising their products with the queer consumer in mind. On the face of it this might be a good thing. It might indeed change public opinion.

But it does raise questions about which public? Why is the market, which is only interested in profit, suddenly turning so benevolent? If market forces lead to the galvanizing of public opinion against 377, that will mark a nexus between capitalism and sexual rights.

But will this market be interested in those poor, Dalit, Adivasi queers who are not their preferred consumers? Is the market then interested in sexual rights for all queer subjects, or only those who can buy their products and project a particular lifestyle?

So even as we continue our legal fight against 377, at every stage of this fight there is a need to remain cautious about how this fight can get co-opted by conservative and neoliberal forces. So here it is not just the capitalist market that the book’s chapters are concerned about, but also the religious right, and the military.

LL: The curative petitions in the Supreme Court show that queer rights groups continue to believe in the law, despite the setback they suffered in Kaushal. You have observed in the Introduction that the “very body of knowledge” – I suppose you refer to the legal knowledge here – legitimises violence against them. Can one describe their belief in the law as one of hope, which keeps their struggles alive?

OS & DJ: Both of us were interveners as part of a group of law professors in the Supreme Court when Kaushal was being heard. So we believe in the legal struggle against 377 as well, and cannot undermine the immense possibilities that the Naz judgment opened up for anti-discrimination jurisprudence in India.

However, the law is a strange beast. It both oppresses and emancipates. It is an arm of the state that can be used against the state, but in such use it can also strengthen the very state that oppresses. No one knows this better than the feminist movement in India, particularly with regard to the law reform campaigns on sexual and gender-based violence.

From Mathura to Jyoti Singh Pandey – the women’s movements’ struggles have won us extremely important amendments to the criminal law. Yet each of these amendments have also reinforced a new kind of conservative morality. So there is a lesson to be learnt from this feminist wisdom in our fight against 377.

There is also enough evidence from other parts of the world about the gap between decriminalization of sodomy and ending homophobia and transphobia. These are not necessarily coextensive, or causal.

South Africa, the world’s first country to have included an anti-discrimination clause on the ground of sexual orientation, is a case in point where the lives of back queer people continue to be worse off than white queers.

It is only an intersectional analysis of the experiences of homophobia – combining it with experiences of racism, sexism, casteism, indigeneity, Islamophobia and poverty for instance – that can help us better understand the role that decriminalization, as a moment in every queer struggle’s rite of passage, plays.

A singular focus on the legal struggle for decriminalization, thus, might be a myopic way to strategize. We feel there is much to be learnt about such strategizing from the sex workers’ movements in India, who have never let their struggle against the Immoral Traffic Prevention Act that criminalizes their right to livelihood become the sole focus of their activism.

LL: The period between Naz and Kaushal decisions is what one could call, the celebratory moment for India’s sexual minorities. Were they cautious and contemplative about the slippery slopes in their strategies during this period and after? What, according to you, are the slippery slopes in their strategies?

OS & DJ: Naz was a landmark victory not just for the queer movement, but also for anti-discrimination jurisprudence in India. It put into powerful prose an extremely important aspect of our constitutional culture that had not been done before – the ethos of Constitutional Morality.

Every legal victory is also an opportunity for contemplation. A chink in Naz’s armour, as it were, was one of the three grounds on which 377 was read down. This was privacy. Now the strategy to use the privacy argument was informed both by a limited, but settled standard in Indian law where privacy had already been read into Article 21 (Kharak Singh v UP being an instance), and a pretty robust body of international human rights jurisprudence on the right to privacy being applied to challenge sodomy laws (Toonen v Tasmania being an instance).

At a symbolic level this claim is important. Who has what kind of sex with whom within their private space is no business of the law, and the state ought to protect such a right.

At a material level though, not everyone has access to the private space. Those who do, despite the existence of 377, can continue to have whatever kind of sex with whoever they want to. For those queer people who do not have the privilege of access to a private space – especially the poor – will continue to remain vulnerable to the violence of 377 even after adult, consensual and private sex is decriminalized.

Moreover, the public violence against Hijras, for example, is carried out not only through the use of 377, but a whole gamut of public decency laws, which will continue to exist. In another way, the demand for the right to privacy reinforces the public/ private divide that the feminist movement has argued against for so long. If private sex is decriminalized, non-heteronormative sex will effectively be domesticated.

So while privacy is strategically an important argument, it is one whose consequences might not yield the desired result, even after decriminalization. The good thing is, that within the queer movement, there is a very productive debate around this issue.

LL: There are 15 chapters in the book, written by different authors, focussing on different themes. Can you throw some light on how some of these chapters may be relevant to the queer movement in India?

OS & DJ: This project has two parts. This first part is the current edited collection which has a global focus. The second part will be another edited collection which focuses specifically on India. Both these collections are concerned with the issues we have outlined above.

The chapters in the current volume are written by scholar-activists from several countries, and from an eclectic range of disciplines, all of whom are engaging with law from their own disciplinary locations. The volume carries the works of very established and relatively younger scholars.

This cohabitation was a deliberate attempt at our end as editors to curate the volume in a way that it contributes to a more shared and non-hierarchical practice of critical queer legal scholarship.

We have authors from South Africa/ USA (Neville Hoad), Canada (Marc Epprecht, Ummni Khan, Stu Marvel), Australia (Dianne Otto, Fiona Kumari Campbell), Taiwan (Josephine Ho), Philippines/ Canada (Carolina Ruiz Austria), Germany/ Thailand (Jin Haritaworn), India (Ani Maitra), India/ Canada (Nishant Upadhyay), Israel (Aeyal Gross), Bosnia and Herzegovina (Vanja Hamzic), Lebanon (Sami Zeidan), USA/ India (Jasbir K. Puar), Uruguay (Paulo Ravecca).

The aim was to offer as wide a range of perspectives as possible about how the language of rights is being deployed through law in achieving queer rights, and how this practice of deployment is furthering the inequalities of neoliberalism. As the chapters show, this violence manifests itself particularly through racism and Islamophibia. The contestations between religion and secularism have emerged as a central area of engagement in this process.

In global queer politics ‘homonationalism’ and ‘pinkwashing’ are mobilizations that all the chapters critique. Homonationalism, a term made popular by Jasbir Puar, describes a condition where queer solidarity is preconditioned by performances of nationalism. Puar in her book described this in the post September 11 context in USA.

Pinkwashing refers to state policies that project the achievement of queer rights as a way to mask the state’s violence against other minorities. This term has been especially used to characterise how Israel uses its record of protecting queer rights to mask its military occupation of Palestine.

These emerging trends in queer politics in most parts of the world will find resonances in India as well. Though the particular conditions and experiences might not be identical, we actually see the emergence of right wing queers who pride themselves for being capitalist and Hindu. They believe that Hindu India was open to same sex desires but after ‘Muslim invasions’ it turned homophobic. That 377 is a colonial relic does not necessarily feature in their scheme of things.

We feel the BJP’s position on 377 is not very different. Since coming to power we have heard quite a few BJP leaders, including Arun Jaitley as the finance minister, speaking publicly in support of decriminalization. If the Sangh Parivaar is able to figure out a strategy through which the decriminalization of 377 can Hinduize India’s sexual pasts by turning the Muslim outsider as homophobic, and thus regressive, they might just do it.

Using a similar logic, if queers become good for the economy (as a 2015 World Bank Report on India has recommended) that would be additional reason for the BJP to decriminalize 377. The state would thus be interested in decriminalization only if it has worked out how queers can be made to be capitalists and nationalists.

What we also must bear in mind is that the very state that might decriminalize 377 to live up to a certain standard of modernity, will continue its military occupation of Kashmir, and use unbridled violence against Manipuris, and peasants. Decriminalization in such a scenario might well become India’s pinkwashing moment.

Scholars and activists like Ashley Tellis, Aniruddha Datta and Ratna Kapur have been alerting us about this for a while now. The second volume that we are editing now (titled Desire and its Discontents: New Queer Politics in Neoliberal India, to be published by Zubaan in 2017), will offer an in depth analysis of many of these issues in the Indian context.

This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation.