by Priya Prasad
From roughly the mid-eighteenth century to Independence in 1947, British colonialism sought to reclassify the Indian subcontinent under its own terms. As Indian political theorist Partha Chatterjee states in “Colonialism, Nationalism, and Colonialized Women,” an essential feature in the rationale for British domination was the criticism of the “barbaric” social customs of the Indian people, believed to be sanctioned by their religious traditions.[1] This became a rallying point as nationalist discourse took up the “problem” of Indian tradition, a tradition already defined and codified by the British, by providing a solution: separating the “domain of culture into two spheres—the material and the spiritual.”[2] The outer, material realm focused on learning from the West in areas such as technology, science, and economic organization, whereas the inner, spiritual realm preserved the cultural essence of the nation, regarded by nationalists as being superior to the West as it held the nation’s essential identity.[3] In the post-independence state, this reworking of an inherent Indian tradition within the modernized nation would continually change, with right-wing Hindu nationalism gaining popularity in the 1990s and continuing to the present, proclaiming a fundamentally Hindu heart to the Indian nation.
The placement and status of LGBT people in this strict dichotomy of inherent belonging through (Hindu) tradition or rejection on the grounds of Western origination would become a hotly contested issue within the courts. Section 377 of the Indian Penal Code would become a primary focus of LGBT activists as it criminalized homosexuality, the 2009 Naz Foundation v. Government of the National Capital Territory of Delhi (Naz v. NCT Delhi) decriminalizing sex between consenting adults.[4] This decision would be overturned in 2013 by the Supreme Court case Suresh Kumar Koushal v. Naz Foundation, reinstating section 377.[5] As Siddharth Mohansingh Akali states in “Learning from Suresh Kumar Koushal v. Naz Foundation through Introspection, Inclusion, and Intersectionality,” the 2014 Supreme Court Case of National Legal Services Authority v. Union of India (NLSA v. UOI) would contrast the Naz ruling as it affirmed “the rights of transgender people”—known as hijra—with the government providing “reservation policies and other legal protections, for the social, economic, and political advancement of transgender people.”[6] Though both cases fell under the same banner of LGBT legislation, why did the courts easily reverse their decision pertaining to a regressive statute written during the colonial era while simultaneously advancing the rights of a marginalized group in ways much of the world has yet to do? The seeming contradictions within the court rulings focus on the debate between the acceptable realms of identity based in traditional recognition: what defines an inherent “Indian-ness.” I contend that the disparity between these rulings is thoroughly influenced by contemporary renditions of tradition present even within the supposedly secular realm of the government, specifically the Indian judiciary.
My intention on exploring the position of the Indian Courts towards the criminalization of homosexuality in comparison with the newly protected rights of the hijra community is not to say one should be or is privileged over the other. Though the courts ruled in the favor of guaranteeing rights for the hijra community, this did not change societal bias or stigma against them, nor did it prevent violence towards them as they are still within the margins of society in much the same way low caste groups are still discriminated against in the face of the reservation system, a mechanism created by the government to “uplift” stigmatized groups by reserving positions in government jobs as well as educational institutions. My aim is to explore the intricacies of these rulings and the ways in which LGBT people are rendered by the state, why there are discrepancies within this umbrella grouping and how this connects back to nationalist understandings of the material-spiritual dichotomy.
I. Rationales for Naz v. NCT Delhi and Koushal
The constitutionality of Section 377 creates the basis of both Naz v. NCT Delhi and Koushal, making its origins “within the context of the consolidation of empire in India,” vital to understanding both rulings.[7] As as anthropologist Suparna Bhaskaran states, policies of integration had normalized the practice of British men “keeping” multiple Indian mistresses, justified as “increasing their knowledge of native affairs.” However, the 1890s saw a complete reversal of this practice as the influences of the 1857 Sepoy Mutiny, a direct threat to British control, led to the development of “isolationist and indifferent bureaucratic imperial state wherein it was imperative that the rulers maintain their sexual, social, and racial ‘purity’.” The latter half of nineteenth-century England saw a focus on sexual behaviors and morality, “targeting many forms of non-procreative sexual activity,” that then reached India.[8] The colonizer’s “brown counterparts,” were forced to abide under these rigid imperial standards of normality that prohibited “prostitution and ‘special Oriental vices’ such as homosexual activity.”[9] The Indian Penal Code was based in an amalgamation of “English law, Hindu law, Muslim law, Livingston’s Louisiana Code, and the Code Napoleon.” Intricacies within laws and customs among both Muslims and Hindus were resolutely ignored as the Indian Law Commission, headed by the staunch imperialist Lord Macaulay, “introduced the colonial anti-sodomy statute, Section 377, into the Indian Penal Code on October 6, 1860.”[10] Contention between the two court cases rested in the fact that Section 377 criminalized all “carnal intercourse against the order of nature,” which had come to assume the definition of “anal, oral, and other penetrative sex between homosexuals,” same-sex relations then falling into the same grouping as beastiality within the law’s purview.[11]
Yet this informal defining of the statute would be a point of entry in Naz v. NCT Delhi, the Delhi High Court stating that the term “carnal intercourse against the order of nature,” had lacked a concrete meaning, for “Section 377 has been subject to a variety of judicial interpretations” as courts interpreted it to apply to “sex that is ‘non-procreative’ or ‘imitative,’ or, more broadly, to acts of ‘sexual perversity.’ ”[12] As Yeshwant Naik states Homosexuality in the Jurisprudence of the Supreme Court of India, emphasis is placed on the “non-procreative” nature of the criminalized act held by Indian courts, revealing a deep-seated connotation between heterosexual sex and reproduction as this was necessary in order to further one’s family’s name and legacy.[13] This inevitably changes the meaning behind Section 377, as feminist writer and professor Nivedita Menon states in Sexualities that the “antagonistic Other of each identity is outside it and simultaneously constitutes it by defining its boundaries, its shapes and its outlines,” the statute not defining homosexuality, “which is out there,” but instead, the very boundaries of “procreative heterosexuality.”[14] In essence, Section 377 means to criminalize “any sexual act that is non-vaginal” in nature.[15] This understanding created a space for argument as The Lawyers Collective, an Indian legal advocacy group arguing against Section 377, asserted that though Section 377 applied to both homosexuals and heterosexuals alike, it deliberately “criminalized homosexuality because it completely prohibited all ‘penetrative sexual acts’ between homosexual men.” The New Delhi High Court agreed with this argument and “read down Section 377 . . . to exclude sexual acts between consenting adults in private,” though only four years later, the Supreme Court’s decision in Koushal would overrule the High Court’s judgment.[16]
The reinstatement of homosexuality as a criminal offense in the Koushal decision reveals the unstable basis for the Delhi High Court’s decision in Naz v. NCT Delhi within the context of the Indian Constitution and the terms of a “private realm.” In the Koushal case, the Delhi High Court’s decision had been appealed by astrologer Suresh Kumar Koushal, along with other “religious individuals, and faith-based groups, including Hindus, Muslims, and Christians,” claiming that their religious beliefs were damaged by the decision for it was in violation of “public morality.”[17] The High Court’s decision specifically stated Section 377 “discriminated against homosexuals and violated their constitutional right to express a core aspect of their personal identities,”[18] allowing the decriminalization of private, gay sex involving consenting adults on the basis of “constitutionally enshrined rights to dignity, privacy, equality, and non-discrimination.”[19] Where exactly did public morality factor in within this ruling? The terms of a private sphere are vague within the ruling, implicitly favouring a privileged position of the LGBT subject, one who has access to a private sphere to begin with, as Akali states the decision “primarily benefited upper- and middle-class urban gay men and did little for queer subalterns who often lack access to private space.”[20] The terms of a private sphere are further complicated as this could mean a personal or cultural space as the private realm is one that does not necessarily constitute an exclusion of others or an individuality, with the Indian constitution placing an emphasis on community over individual rights to begin with.[21]
A primary focus of the Naz case reflected on the discrimination faced by homosexuals and men who have sex with men (MSMs) primarily due to Section 377, as the Naz Foundation International, an NGO that supports those living with HIV/AIDS and does HIV prevention work focused on MSMs, claimed that the statute “forced homosexuals and MSMs underground due to fear of prosecution under the law.”[22] Where the Delhi High Court ruled in favor of the Naz Foundation’s basis of discrimination, the Supreme Court verdict in the Koushal case seemed to turn a blind eye to the clear abuse of Section 377 by law enforcement and those in positions of power who utilized it to target LGBT-identified people.[23] The Supreme Court went as far as saying that this type of discrimination “did not affect the constitutionality of the law, as legislation is not unconstitutional simply because it is misused,” also claiming that the Delhi High Court had “relied too heavily on international precedent while failing to adequately consider whether such precedent should apply in the Indian context.”[24] The statute, though acknowledged by the Supreme Court that it allows for discrimination and abuse on the administrative level, seems to not be enough to rule against its constitutionality, even if the Delhi High Court had stated that this was grounds for reading down Section 377. As Akali suggests, the dismissal of “foreign precedent” is especially bizarre as this goes against established engagement by the Indian legal system with international law.[25] So what was the Supreme Court’s objective in using this to address the High Court’s decision on the subject of same-sex relations? The Supreme Court’s decision seems to fall back on the traditional inner realm and modernized outer conception of the nation, as the “Indian context” must separate from foreign, or rather, Western precedents in making its ruling. Yet the ruling itself is happening, essentially, within the outer secular realm as the judicial system of India was manifested through Western, colonial influence. As Naik affirms, by not using foreign precedent, the Supreme Court “overlooked the gay rights jurisprudence of other major constitutional democracies, and in doing so, delivered a . . . regressive verdict”: that “India has no specific law to protect the interests” of LGBT people.[26]
II. NLSA v. UOI and the Recognition of “Traditional Identities”
The question now is why an “Indian context” creates a divergent decision which delineates rule to Parliament, for how is the discrimination against certain marginalized citizens not enough to rule against Section 377? This can only be answered through an understanding of the 2014 Supreme Court ruling in NLSA v. UOI “which recognized transgender identity as a distinct, third gender identity,” and “ordered the Indian states and national government to adopt and implement policies to ensure the equal treatment of transgender people.”[27] As Gayatri Reddy states in With Respect to Sex: Negotiating Hijra Identity in South India, transgender women are known as hijras in India, “phenotypic men who wear female clothing and, ideally, renounce sexual desire and practice by undergoing a sacrificial emasculation . . . dedicated to the goddess Bedhraj Mata,” who is “believed to be endowed with the power to confer fertility on newlyweds or newborn children.”[28] In NSLA v. UOI, the Supreme Court began discussion by “acknowledging the ‘trauma, agony and pain’ of members of the transgender community in India, including the ridicule and abuse they experience in ‘public spaces like railway stations, bus stands, schools, workplaces, malls, theatres, [and] hospitals.’ ”[29] This recognition of abuse endured by the hijra community is in direct contrast to the Koushal ruling, as discrimination seemed to warrant little action on the part of the Court. Why? At the heart of all three cases is the understanding of hijras as a traditional identity engrained within the (Hindu) spiritual sphere, which in the contemporary moment of Hindu Right influence, constitutes an Indian cultural identity.[30] Where cisgender LGB individuals are perceived through the notion that their identities are concentrated within the realm of foreign, Western conception, “hijras actively strive to authenticate themselves with the parameters of a local economy” done “through the commission (or omission) of various practices, including physical emasculation, engaging in sex work or any display of sexual desire, and displaying markers of religion and class status,” all signifiers of their identities which are considered ingrained in the nation.[31]
The most compelling argument for the hijra being situated within an inherent Indian identity rests in the idea of a “third gender,” which dates thousands of years to the pre-colonial era, in contrast to the idea of homosexuality as recent, “Western” conception with no ties to the spiritual (Hindu) realm.[32] The Court had supported this as it described the “historical treatment of transgender people in India, from their celebration in ancient mythology and religious texts to the criminalization of their identities by the British,” noting that “while British laws that criminalized transgender identity were repealed in 1949”—two years after India’s independence from the British—“discrimination against transgender people” remained, a remnant of the oppressive colonial rule on the inner spiritual sphere.[33]
The contradiction between the Court’s understanding of the hijra community as a distinct aspect of the (Hindu) nation while also erasing deviations from heterosexual norms inherent within pre-colonial India can be attributed to the influence of colonial codification that created the terms for considering what is and isn’t “traditional,” and even further, what is “acceptable.” As Menon states, various gender expressions and sexual inclinations common within pre-colonial India and present up till the 1800s were “sutured…through legal and social interventions that disciplined a range of non-normative sexualties,” effectively erasing “writings in Indian languages about love between women and love between men who are not biologically related can be found dating back to 1500 BC.”[34]
III. Conclusion
Britain’s “civilizing mission” had delineated what Indian traditions were barbaric, with the nationalist voice then having to find a way to navigate this conceived inferiority by holding onto certain aspects of tradition which could be rendered acceptable in a modern light. The case of the hijra community, though still marginalized, developed into a more “acceptable” identity through its connection to ancient customs grounded in Hindu texts, translating into the court system as a recognizable group. Simultaneously, LGB individuals outside the hijra community, would be further molded into what the colonial construct already labeled as deplorable, “for it was only in the 19th century . . . that a minor homophobic voice largely ignored by mainstream pre-colonial India . . . became a dominant voice.”[35] This labeling would act to erase any connection to homosexuality within a pre-colonial context, the Hindu Right endeavoring “to reaffirm the purity of Indian culture by cleasing it of ‘alien’ sexualitues,” making any progress within the secular realm of the Courts continue to be an uphill battle.[36] For the West, the verdict in NLSA v. UOI can be considered a triumph towards a more progressive future for marginalized identities like the hijra communities of India, and in many ways, it truly is. It is only when one takes a closer look at the rationale introduced by the courts that a very different picture begins to form, one that delineates who exactly is considered visible, recognizable, and apart of the Indian state as it is, or as it is told to be. In an era of increasing Right-wing Hindu nationalism, those who are (supposedly) protected, or worthy of protection, are those who fit within a narrowly defined narrative of what is representative of inherent “Indianness,” with the logic of the allegedly secular courts reaffirming this sentiment that Indianness correlates to a Hindu foundation. The hijra communities, though protected by the state in its reading of what is culturally inherent to India, still do not fit the middle-class Hindu archetype of the “respectable” citizen and because of this, their status within the nation is as precarious as ever. It is the treatment of those who do not fit this standard— other LGB individuals, Dalit or lower castes, Indigenous tribes, Muslims and other non-Hindu religions—that have the most to lose with this rationale intended to advocate an exclusionist understanding of the nation’s cultural core.
***
[1] Partha Chatterjee, “Colonialism, Nationalism, and Colonialized Women: The Contest in India,” American Ethnologist 16, no. 4 (1989), 622.
[2] Chatterjee, “Colonialism, Nationalism, and Colonialized Women,” 623.
[3] Chatterjee, 623, 624.
[4] Siddharth Mohansingh Akali, “Learning from Suresh Kumar Koushal v. Naz Foundation through Introspection, Inclusion, and Intersectionality: Suggestions from within Indian Queer Justice Movements,” Berkeley Journal of Gender, Law & Justice 31, no. 1 (Winter 2016), 122.
[5] Akali, “Learning from Koushal v. Naz,” 123.
[6] Akali, 123, 136.
[7] Suparna, Bhaskaran,. 2005. Made in India: Decolonizations, Queer Sexualities, Trans/National Projects. New York: Palgrave Macmillan, 80.
[8] Bhaskaran, Made in India, 80.
[9] Bhaskaran, 81.
[10] Bhaskaran, 85.
[11] Akali, 122.
[12] Akali, 128.
[13] Yeshwant, Naik. 2017. Homosexuality in the Jurisprudence of the Supreme Court of India. Springer Cham., 9.
[14] Nivedita, Menon. ed. 2007. Sexualities. Zed Books., 36.
[15] Naik, Homosexuality in the Jurisprudence, 9.
[16] Akali, 129.
[17] Akali, 133.
[18] Akali, 132.
[19] Akali, 132.
[20] Akali, 143.
[21] Pawan, Singh. 2016. “Between Legal Recognition and Moral Policing: Mapping the Queer Subject in India.” Journal of Homosexuality 63 (3), 416.
[22] Akali, 131.
[23] Akali, 131.
[24] Akali, 131.
[25] Akali, 134.
[26] Naik, 199.
[27] Akali, 134.
[28] Reddy, Gayatri. 2005. With Respect to Sex: Negotiating Hijra Identity in South India. University of Chicago Press, 2.
[29] Akali, 123.
[30] Mary E., John and Janaki Nair. 2000. A Question of Silence: The Sexual Economies of Modern India. Zed, 35.
[31] Reddy, With Respect to Sex, 15.
[32] Reddy, 21.
[33] Akali, 138.
[34] Menon, Sexualities, 11.
[35] Menon, 11.
[36] John and Nair, A Question of Silence, 389.