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Governance and the Struggle Over the Antisodomy Law in India
By Jyoti Puri
Duke University PressCopyright © 2016 Duke University Press
All rights reserved.
GOVERNING SEXUALITY, CONSTITUTING STATES
Bharatiya Bar Girls Union (Indian Bar Girls Union), Nityananda Hall, Mumbai, field observations:
* * *
In a large hall in Mumbai on an overcast July afternoon in 2005, some one hundred women have gathered to react to an imminent statewide ban on dance bars. The bar dancers are young, mostly in their midtwenties, dressed neatly in salwaar suits, trousers, and saris. Several dance bar owners are also present, not far from where I sit, but it's the women's voices that reverberate throughout the hall as each steps to the microphone. One woman wonders how bar dancers could be robbed of their jobs because of what they wear while performing, since the women in Hindi films (aka Bollywood) and discos dress so much more revealingly. Why, then, doesn't the government take notice of the film actresses? What about the women who perform in discos? Another woman counters state officials' accusations that dancing in bars is "easy money," lamenting the hardships of the work, the need to take loans from taxi drivers at times, among other indignities. Other bar dancers are intent on distinguishing themselves from sex workers. Many of them wonder about the government's claim to be "helping them" by closing the bars.
* * *
With less than a month to go before some seventy-five thousand bar dancers lose their jobs due to a hastily passed state law, women's concerns, anxieties, and anger are palpable at the union meeting. Mere months before, a prominent elected official unexpectedly proposed such a ban on dance bars — where fully clothed groups of women danced to popular Hindi film songs for a male clientele — initially applying only to the state capital, Mumbai, but then encompassing the entire western Indian state of Maharashtra. It is puzzling, the women note, that state officials singled out dance bars over brothels, Bollywood, and bars and discos at posh hotels. Even though the bars had been a staple of the provincial state's nightlife for over two decades, subject to regulation, and a significant source of revenue, officials were now stridently condemning these bars for "corrupting rural youth" and "damaging the (state's) culture."
Urging attention to these inconsistencies, the bar dancers at the meeting ask why dance bars, why now, in order to understand (and overturn) the regional state's edict. But interpreting the Maharashtra state's capricious actions is not easy, not least because of the confoundingly arbitrary discourses justifying the ban. The initial allegations of cultural depravity soon give way to criticisms that dancers are making "easy money," then projections that they are helpless victims of sex trafficking who need to be rescued, views hotly contested by the women themselves. Indeed state pronouncements oscillating between blaming and saving women and officials' empty promises of public assistance for the thousands who would be rendered unemployed lead to additional furious speculations at the meeting about the state's intents and irrationalities.
Some eight hundred miles north, in the nation's capital, New Delhi, another struggle for sexual justice is pivoting toward the state in ways that, too, are surfacing inconsistencies in discourses and practices of governance. Under way since 2001, these efforts are aimed at decriminalizing homosexuality by overturning the nationwide antisodomy law, Section 377, first introduced by the British colonial state in 1860 and retained in the postcolonial penal code. Unlike the bar dancers reacting to the proposed shutdown, this struggle was initiated by Naz Foundation (India) Trust, an organization established to fight HIV/AIDS, as part of a strategy to seek rights and protections for same-sex sexualities, beginning with a writ petition filed in the Delhi High Court against Section 377. As the legal process unfolds, these petitioners are foregrounding incongruities in how Section 377 is applied — for example, the law is being used to harass and extort from vulnerable same-sex sexual subjects — and the irrationalities of administration, whereby the government is opposing decriminalization but the state-run National AIDS Control Organization is favoring it.
Coming to grips with these messy discourses, inconstant practices, and competing laws and policies through the edicts against dance bars or homosexuality underscores that states are fragmented and deeply subjective. Further, if subjectivity is redefined to mean not just inconsistency and bias but also the passionate, the affective, and especially the sexual, then it animates a more critical view of the states' injunctions on dance bars and same-sex sexual practices. Recognizing states as subjective expands the focus on the state's impact on sexuality to asking how these instances of regulating sexuality serve states. Insofar as states are neither autochthonous entities nor mere material realities, a position I take, awareness shifts to how these preoccupations with managing sexual practices, forms of sexual labor, and such are discursively producing "the state" and serving to achieve state-effect (after, Timothy Mitchell). In other words, these instances suggest that governing sexuality helps sustain the illusion that states are a normal feature of social life, unified and rational entities, intrinsically distinct from society, and indispensable to maintaining social order.
Most pressing, the issue of dance bars, which I discuss but briefly, and the criminalization of homosexuality that is the focus of this book underscore the expanding significance of sexuality to states. Unfolding as they are in the thick of liberalization's aftermath in India, these sites compellingly signal how regulating sexuality through a variety of mechanisms assumes importance, especially at a time when states are understood to be in decline. That is, states are seen to be diminishing due to the erosion of public services, the relentless drive to privatize, the ubiquity of market-based logics that are exacerbated by transnational flows of capital, and the pressures of transnational political structures, such as the World Bank and the World Trade Organization. While the sexual struggles emphasized in this book have kept Indian state institutions, practices, and discourses in the analytical foreground to an extent, widespread perceptions elsewhere of the scaling back of the state due to the effects of neoliberalism have intensified attention to sexuality in other sites of governance: personal relationships, consumerism, the media, and more. Useful as these studies are, the cases energizing this book show that regional and national states may be retreating from some aspects of social life, but the mandate to govern sexuality perpetuates the state as central, even crucial. The charades of the Maharashtra government's edict and the criminalization of homosexuality are cautionary accounts of how states continue to thrive by leaning heavily on sexuality's arguable potential to engender widespread social chaos.
With the concept of sexual states, this book advances the argument that governing sexuality helps account for the idea and inevitability of states, especially when they are in flux. It shows that regulating sexuality in its various dimensions, such as behavior, marriage, sexual health and disease, fertility, sexual labor, media representations, and the sex industry, are crucial mechanisms through which states are generated and the expansions and modifications in governance are justified. And it hones the understanding that the institutions and agencies, spaces, routinized practices, and discourses composing states are thoroughly imbued by considerations of sexuality. Efforts to decriminalize homosexuality and other sites of contestation flanking the book — closing dance bars, discourses of sexual violence, and policies against migration from Bangladesh — are crucial in demystifying states, foregrounding as they are the iterative, multivalent forms of governance giving heft to the illusion of states. Sustained attention to these instances offers insights into states' impacts on vulnerable groups while also revealing how these and other constituencies become implicated in upholding them.
* * *
Useful as the issues of dance bars and other cases explored at the end of the book are, it is the protracted struggle to decriminalize homosexuality in the contemporary Indian context that provides insights into sexuality's constitutive effects on states. When Naz Foundation sought the modification of Section 377 of the Indian Penal Code, the antisodomy law that declares "carnal intercourse against the order of nature," so that it no longer pertained to adult, consensual, same-sex activity, it was not the first attempt at decriminalizing homosexuality. That honor belonged to the AIDS Bhedbhav Virodhi Andolan's (AIDS Anti-Discrimination Movement, ABVA) attempt to repeal Section 377 dating back to 1994. But Naz Foundation's legal initiative is distinctive and worthy of sustained attention because it inspired a national-level campaign, beginning gradually, with the first cross-country coalition of activists and organizations aimed at securing rights for sexual and gender minorities.
Unlike the bar dancers' turn to the Maharashtra government as a result of its edict or the resort to national and Delhi-based state institutions during a watershed in sexual violence against women, Naz Foundation's turn to the state was premeditated. Seeking to use the antisodomy law as a threshold for long overdue rights and equal citizenship for same-sexualities, it attempted to engage a variety of state sites at the national, regional, and local levels, including the courts, government, and the Delhi Police. Parsing "the state," the Naz Foundation intervention gestured right from the start toward provisional and contextual understandings. As the campaign escalated, it yielded fresh insights, such as that the breadth of statecraft can get smaller as well as larger, from the local dynamics of policing to regionally specific patterns of governance, national-level agencies, and transnational discourses, and that what counts as the state is ever contingent.
Presenting a rich, complicated, and performative arena animated by numerous constituencies, the Naz Foundation–led engagements of sexuality and state are best apprehended through fieldwork. One aspect of my research was focused on the Naz Foundation–led legal challenge, the gradual emergence of a nationwide political campaign, and the positions of supporters and detractors; the other was aimed at unraveling "the state" by pursuing the antisodomy law through a variety of state institutions, agencies, and practices. Spanning five major metropolitan sites — Bangaluru, Chennai, Kolkota, Mumbai, and New Delhi — my fieldwork also included Naz Foundation; its legal representative, Lawyers' Collective HIV/AIDS Unit; a range of sexuality rights, children's rights, and nonfunded groups; and HIV/AIDS organizations with a stake in this conflict. These forays unearthed concerns about the nature and impact of the antisodomy law and, more pressing, cautions about locating the state at the center of this activism.
Contesting the State: Sexuality, Law, and Reform
Naz Foundation's recourse to the state shadows histories of sexual regulation and reform in India. Pointing to this arc, Patricia Uberoi notes that questions of sexuality have been at the heart of the social reform agenda, its debates and contestations, in the colonial and postcolonial periods. Others too have emphasized a tight link between sexuality and legislative social reform starting in the nineteenth century. For the most part, though, such deliberations over the "woman question," or, for that matter, over marriage, pro-natalism, or population control, have been pegged to nation and nationalisms, while institutional analyses of state and sexuality are harder to find. Further, state is frequently collapsed into nation, as seen repeatedly in treatments of sexual violence and trauma during the Partition of India and Pakistan in 1947. In contrast, revised readings of this inaugural moment of the Indian state by Veena Das and Christine Keating's retelling of the framing of the Indian Constitution emphasize the weaving together of the social and sexual contracts, thereby helping reinsert questions of state and sexuality at the heart of Indian postcolonial history.
State institutions are the hub of contestations over sexuality in contemporary India more acutely than ever before. Such contestations — related not just to homosexuality but also to HIV/AIDS, sex work, sex trafficking, sexual violence, population control, and media representations, among others — play out intensively in the Indian context, making it an especially useful lens to apprehend what is relevant in other settings as well. Anxieties about obscenity in media representations or art, for example, have been defined in terms of the need to protect the moral and social fabric of the Indian nation but are actually channeled through local police stations and the courts. Citizens and representatives of political and religious groups routinely register complaints; reportedly thousands of such complaints are pending, and although few prosecutions occur, state institutions remain the focal points of redress.
More than any other institution, law and the attempts to enforce, reform, and redefine it in ways that match the aspirations of ordinary people, what Nandini Sundar calls law struggles, has come to define the interface between state and sexuality. Not surprisingly, then, ABVA's abortive attempt at repealing Section 377 and Naz Foundation's subsequent intervention worked squarely within this paradigm. The antisodomy law had been increasingly commanding center stage due to the heightened contestations around same-sex sexualities amid the impending HIV/AIDS crisis. Marked by greater governmental scrutiny of same-sex practices and identities, deemed as high risk, this period also witnessed increased countermobilizations to protect people from the intrusions of governance. Increasingly Section 377 was identified as the symbol of institutionalized homophobia and an instrument of legal and extralegal persecution. Additionally, insofar as it criminalizes same-sex sexual practices and, by implication, gay, lesbian, and queer subjects, it was also seen as the barrier to securing necessary rights and protections for them.
Conceived as a legal strategy to be waged procedurally in the Delhi High Court, the Naz Foundation intervention was from the beginning circumscribed by its pivot to the state. Aimed at persuading the court to decriminalize homosexuality, the writ highlighted the antisodomy law's ill effects on same-sex sexualities and, most important, the violation of constitutional rights. In so doing it surfaced questions about the potentials but also the limitations of its bent, arguments, and strategies. For one thing, the writ sought to expose the inconsistencies and biases of state policies, whereby some state institutions acknowledge and serve same-sex sexualities even as the law criminalizes them. Yet its principal arguments were couched in a grammar of reasonableness: that decriminalization would ensure better public health and effective regulation, thus raising the greater concern for me about the extent to which decriminalization might actually lead to strengthening governance.
Curious about this and the complex relationship between state and sexuality that was emerging as a result of Naz Foundation's challenge to the antisodomy law, I spoke with a number of activists and lawyers who were part of the legal process. More and more intrigued about how the state was being imagined through the writ petition and how officials were representing notions of state, governance, and sexuality, I visited a number of state institutions and agencies in the first phase of my fieldwork. Looking to gain insight into the positions of the respondents (Delhi Police, Union Government of India, and others) named in the Naz Foundation writ and also the bureaucratic procedures and mechanisms through which such positions are crafted brought me up close to the state and the intricacies of governing Section 377.
Excerpted from Sexual States by Jyoti Puri. Copyright © 2016 Duke University Press. Excerpted by permission of Duke University Press.
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Table of ContentsAcknowledgments vii
Part One. Introduction
1. Governing Sexuality, Constituting States 3
2. Engendering Social Problems, Exposing Sexuality's Effects on Biopolitical States 24
Part Two. Sexual Lives of Juridicial Governance
3. State Scripts: Antisodomy Law and the Annals of Law and Law Enforcement 49
4. "Half Truths": Racialization, Habitual Criminals, and the Police 74
Part Three. Opposing Law, Contesting Governance
5. Pivoting toward the State: Phase One of the Struggle against Section 377 101
6. States versus Sexuality: Decriminalizing and Recriminalizing Homosexuality in the Postliberalized Context 126
What People are Saying About This
"Reversing the critical commonplace that the state produces sexuality, Jyoti Puri challenges us to think about the ways in which the regulation of sexuality legitimizes the modern Indian state. This fresh, consistently thought-provoking, and often surprising book analyzes key moments, including the controversies around bar girls and the criminalization of homosexuality, to show how the police, the legal apparatus, and the bureaucracy are shaped by the notion of deviant sexuality."
"Sexual States is beautifully written, clearly argued, and carefully researched. Original and compelling, this important book will be of broad interest to those whose work focuses on sexuality and the state, from legal scholars, political scientists, and sociologists to anthropologists, gender and sexuality scholars, and activists."