Section 377 and the "Trouble with Statism": Legal Intervention and Queer Performativity in Contemporary India

By Shahani, Nishant | Genders, December 2009 | Go to article overview

Section 377 and the "Trouble with Statism": Legal Intervention and Queer Performativity in Contemporary India


Shahani, Nishant, Genders


Setting the terms: after the Fire

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

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

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

[3] The attempt to repeal the archaic law that was introduced by British empire, has received much attention and support from the various NGOs and LGBT (Lesbian, Gay, Bisexual, Transgender) activist groups that have proliferated mainly in various urban centers in the late 90s. While it might seem odd to talk about a 'history' of LGBT political activity in India, given its relatively recent emergence and visibility, what is not without significance is the complex interlacing of the cultural, legal, and non-governmental dimensions to activist interventions in the last decade. It would indeed be somewhat simplistic to draw a directly performative relation between the Fire controversy and the litigation subtending Section 377; and yet, the close temporal proximity between cultural meaning-making and legal intervention warrants a more complex consideration of the relationship between state and non-state centered activisms in the context of sexual citizenship in India. The emergence and rapid increase in the number of Indians (heterosexual, or otherwise) infected with AIDS, has necessitated an approach to queer activism that draws both on an attempt to mobilize a more accountable state to its marginalized populations, but also on the activist energies within cultural and political arenas that exceed the state and the juridical process. …

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