Legislation and Government Policy

Queer and Religious Alliances in India and Beyond

Jeffrey A. Redding *

A number of recent political and legal controversies in India have highlighted conflicts between religious and queer interests. Over the past many years, for example, right-wing Hindu nationalists have attempted to scandalise Hindu women converting to Islam to marry Muslim men under Muslim personal law. Upon first glance, the pejorative expression used to describe Muslim men’s ‘seduction efforts’ of Hindu women for the purposes of Islamic marriage—love jihad—might seem a confluence of queer and religious sentiment and affect. However, the intention behind this neologism has been to invigilate or even prohibit interfaith marriages and especially those of (formerly) Hindu women. This Hindu nationalist instigation undercuts longstanding queer efforts to encourage respect for the intimate decisions of diverse persons.

The recent prospect of same-sex marriage in India has also raised the hackles of Hindu nationalist politicians and activists, and conservative members of Muslim and Christian communities too. There are several ongoing constitutional challenges to the apparent restriction of same-sex marriage by the Foreign Marriage Act, the Special Marriage Act, and the Hindu Marriage Act. If the movement for same-sex marriage succeeds in India, it will likely transpire as a Supreme Court decision reinterpreting the spousal requirements of the Foreign Marriage Act or Special Marriage Act­ and not through any judicial (or parliamentary) rewriting of a religiously denominated family law in force—for example, the Hindu Marriage Act. Indeed, contemporary right-wing Hindu opposition to same-sex marriage throws up substantial challenges to current legal efforts seeking this kind of Hindu law reform even while this opposition becomes challenged from within.

Queer–religious conflict in India, then, is certainly noticeable and attention-riveting. However, in this post, I want to explore not quotidian conflict but queer–religious cooperation. In a recent volume co-edited by Nausica Palazzo and myself, Queer and Religious Alliances in Family Law Politics and Beyond (New York: Anthem Press, 2022), the prospects of queer–religious alliance (or friendship even) was explored by authors writing from diverse jurisdictions in Europe, North America, and Israel. While broad, the geographical focus of this volume obviously left the political and social possibilities of hugely important parts of the world underexplored for the time being. Yet self-consciously queer movements and agendas continue to increase in number and scope globally, and the hope was that other scholars and commentators would view this 2022 volume as an invitation to seriously consider the prospect of queer–religious alliances and friendships in Asia, Africa, and South America (amongst other places). Doing so might prevent some of the historical political mistakes and antagonisms of the Global North—long needlessly regarded as a ‘model’— getting replicated or otherwise cemented in the Global South. At the very least, many scholars working in the Global South do not have to pretend (or defend the notion) that family law is ‘secularised’ or can be immunized from religion, as is so often the case in the Global North.

It is helpful to clarify what I mean by queer–religious alliance. Queer–religious alliance for this discussion is not so much about religious persons who happen to be queer or, alternatively, queer persons who religiously identify. Surely such persons exist and are more common than stereotype would indicate. By way of contrast, queer–religious alliance here is more about bringing into conversation and coalition groups and people who largely see themselves as hostile, oppositional, and enemy-like. This kind of alliance is a more challenging (and rewarding) prospect than fostering cooperation between intersectional groups and persons already living acknowledged points of broad commonality.

With this view of queer–religious alliance then, some contributors to the 2022 volume considered the reality or possibility of queer–religious coalitions working to legalize family formations typically marginalized or even criminalized by mainstream politics—for example, polygamous unions or non-romantic marriages between dependent siblings. Others (like myself) contemplated combined queer–religious challenges to biopolitical and moralistic efforts by states to shutter churches and gay bathhouses during pandemics—whether HIV, COVID, or future ones. Others yet focused not so much on the substantive aims of queer–religious alliances but contemplated instead potential queer–religious strategies: for example, a ‘new’ legal politics that does not see constitutionalism as helpful or seek it out.

Certainly the strategic provocation is one especially suited for contemplation in the contemporary Indian situation where constitutional commitments to judicial independence, federalism, due process, and minority rights are being shredded by the executive and judiciary alike. But there are also a number of queer–religious alliances oriented around substantive outcomes that can be contemplated in India and, moreover, relating to issues somewhat different than the ones posed by European and North American contexts. In what follows, I focus on one such issue, namely the ‘freedom to identify.’

The Freedom to Queerly Identify

Both queer and religious persons in India have faced immense difficulties convincing Indian governmental actors to respect their individual and social identities whether Christian, Buddhist, (trans)man, or (trans)woman. Where progress occurs, it is almost inevitably followed by reversal. For example, the momentous 2014 Supreme Court of India decision in National Legal Services Authority v. Union of India (commonly known as NALSA) made a number of progressive observations about the need to respect individuals’ gender self-identifications. Wrote the Court:

Transgender persons’ right to decide their self-identified gender is . . . upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender. . . .

. . . The Centre and State Governments should seriously address the problems being faced by hijras/transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for [Sex Reassignment Surgery] for declaring one’s gender is immoral and illegal. (emphasis added)

Despite the NALSA judgment’s orders to the central and state governments, it took India’s Hindu nationalist government five long years to legislate on transgender rights in Delhi. Moreover, the final 2019 Transgender Persons (Protection of Rights) Act ended up contravening the Supreme Court’s 2014 orders on not requiring third-party medical interventions as part of establishing a person’s gender identity and, more generally, the need to respect the gender determinations of individuals. Notably, the 2019 Act’s slyly worded Section 4 allowed self-declaration only for those persons identifying as ‘transgender’ specifically:

4. (1) A transgender person shall have a right to be recognised as such, in accordance with the provisions of this Act.

(2) A person recognised as transgender under sub-section (1) shall have a right to self-perceived gender identity. (emphasis added)

For persons not wishing to identify as ‘transgender’ per se, but also not the gender assigned to them at birth, Section 7 (contra NALSA) requires medical surgery:

[I]f a transgender person undergoes surgery to change gender either as a male or female, such person may make an application, along with a certificate issued to that effect by the Medical Superintendent or Chief Medical Officer of the medical institution in which that person has undergone surgery, to the District Magistrate for revised [gender] certificate, in such form and manner as may be prescribed.

. . . The District Magistrate shall, on receipt of an application along with the certificate issued by the Medical Superintendent or Chief Medical Officer, and on being satisfied with the correctness of such certificate, issue a certificate indicating change in gender.

The formal legal arena in India has struggled to respect persons’ diverse gender identities. The very same can be said regarding religious identities, thus marking out a hugely important and vast arena of potential queer–religious alliance.

The Freedom to Religiously Identify

Religious identities in India have been highly scrutinised not only in the context of self-conscious transreligiosity—religious conversion, in other words—but also in seemingly simple efforts to maintain one’s identity. Regarding the latter, legal scholar Farrah Ahmed’s work reminds us that the current personal law system in India, whatever else recommends it, is not one necessarily concerned with religious freedom or the actual faith identifications of India’s diverse citizens.

Paranoia about and over-regulation of religious conversion have been distressing features of Indian political, social, and legal life for decades. Legal scholars Mukesh Kumar and Garima Yadav report formal efforts to restrict religious conversion from as early as the 1930s in parts of India directly or indirectly influenced by British colonial rule. More famously, the Supreme Court of India in the 1977 case of Rev. Stainislaus v. State Of Madhya Pradesh upheld legal restrictions on so-called conversions by “force, fraud or allurement” legislated in 1968 in the state of Madhya Pradesh, and then too a similar law passed around the same time in the state of Orissa. Criminally prosecuted Indian Christian plaintiffs from Madhya Pradesh and Orissa challenged these laws in their state-level High Courts first, and then eventually in the Supreme Court. One key concern in Madhya Pradesh was the vagueness and potential breadth of penalisations of conversion by “allurement” while in Orissa there was especial concern over the potential expansiveness of criminalised conversion by “inducement.” The Supreme Court, however, was not interested in or persuaded by these arguments and simply saw so-called efforts to religiously “convert” persons as falling outside of the Constitution of India’s declaration that “all persons are equally entitled to . . . the right freely to . . . propagate religion.” As a result of this lamentable decision, similarly bad or worse laws have spread to dozens of other Indian states and union territories in the ensuing decades.

Contemporary criminalisation of religious “allurement” and “inducement” parallel nineteenth century criminalisation of gender allurement and inducement by British colonial authorities. This criminalisation and the gender anxieties underlying it were famously embodied in the Criminal Tribes Act of 1871 which, at the time, penalised public displays of gender nonconformity in the following terms and then-current terminology:

Any eunuch . . . who appears, dressed or ornamented like a woman, in a public street or place or in any other place, with the intention of being seen from a public street or place, or who dances or plays music, or takes part in any public exhibition, in a public street or place or for hire in a private house, may be arrested without warrant, and shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

This provision and further language in the 1871 Act—penalizing any “eunuch . . . who has in his charge, or keeps in the house in which he resides, or under his control, any boy who has not completed the age of sixteen years, shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both”—also anticipated contemporary homophobic concerns in the United States about gay (or trans) ‘grooming’ of minors by queer parents, teachers, drag queens, and others.

Efforts to stigmatise and penalise conversions of gender and religion across different time periods and contexts thus share some remarkable resemblances. However, there is at least one significant difference between the two kinds of identity regulation. Religious conversion regulation in India is very much articulated with other Hindu nationalist efforts to maintain—or, rather, build—a Hindu (read: non-Muslim) demographic majority. However, up until this point of time, there have been fewer efforts to justify gender identity regulation either by reference to India’s Hindu/Muslim demographics or as an attempt to police India’s peculiar gender demographics. One consequence is that queer–religious alliance concerning ‘freedom of identity’ cannot necessarily coalesce as an anti-Hindu nationalism project. Any queer–religious bonds built here will have to be affirmative in nature rather than just part of a convenient ‘the enemy of my enemy is my friend’ politics.

It should be mentioned that there are more charitable ways of understanding Indian worries about religious conversion. One oft-stated concern here is that religious conversion efforts are socially and politically provocative and ‘intolerant’ in their embodied belief that Christianity (for example) is a ‘better’ religion than the alternatives. The work of historian Cassie Adcock has discussed this prominent historical (and contemporary) understanding of secularism in India and its approach to ‘intolerant’ religions. The Supreme Court of India itself, in its Rev. Stainislaus decision, remarked that:

[i]t has to be appreciated that the freedom of religion enshrined in the [Constitution] is not guaranteed in respect of one religion only, but covers all religions alike, and it can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons following the other religions. What is freedom for one, is freedom for the other, in equal measure, and there can therefore be no such thing as a fundamental right to convert any person to one’s own religion. (emphasis added)

Yet at the same time, worries like these coexist with a largely unproblematised Hindu absorption of certain religious minorities, including Sikhs, Jains, and Buddhists—all treated as Hindus under not only the Hindu Marriage Act but also Article 25 of the Constitution of India and its ostensible protection of religious freedom.

Some Friendly Cautions

Efforts by religious minorities and converts to escape Hindu absorption have raised tricky ethical questions for queer–religious alliance in India and elsewhere. These questions potentially limit the extent of queer–religious alliance especially where a prospective coalition partner (queer or religious) is especially unsavory. The potential limits to queer–religious alliance were discussed by different authors in the 2022 volume edited by Nausica Palazzo and myself, and they also come into sharp relief when considering a famous early Supreme Court of India challenge to expansive legal and constitutional understandings of Hinduism.

In the 1966 Supreme Court case of Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya, the Court had to decide whether the State of Bombay (as it was then called) could apply a Hindu temple-entry act to a religious group who understood itself to be ‘not Hindu.’ Articles 17 and 25 of the post-independence 1950 Constitution, respectively, outlaw “Untouchability” and allow the state to mandate Hindu temple-access for historically marginalised low-caste (Dalit, or Untouchable, or Harijan) Hindus. However, in this case, representatives of a pan-Indian group whose members are commonly known as ‘Satsangis’ challenged the application of Hindu temple-entry regulations to their group because they (or at least the legal challengers) were ‘not Hindu.’

Freedom of religious identification in this case raised the prospect of wily and discriminatory plaintiffs escaping the application of important nondiscrimination laws with a simple declaration that they are (at least for the moment) ‘not Hindu.’ The Supreme Court rejected this possibility by famously articulating a very expansive—and very problematic—definition of who is a Hindu. Along with the important value of nondiscrimination then, the important value of religious self-identification was definitely at stake in this and later comparable cases.

In these highly conflicted situations, one major question then for queer actors is whether alliance (or friendship for that matter) with bigoted religious persons can ethically be pursued. I raise this important question in closing but do not aim to answer it definitely for all situations and contexts. It is worth highlighting how, in the 2022 edited volume, sociologist Christian Klesse warns queer people away from allying with racist or homophobic religious groups even if important policy objectives—such as ending the state’s monopoly over marriage—can be more easily achieved via a joint front. Yet the identification of such bigoted parties is not always easy. Notably, the Supreme Court of India’s decision in Sastri Yagnapurushadji, while critical of Satsangi attempts to avoid the application of Hindu temple-entry laws protecting low-caste individuals, highlighted the tolerance embodied by “the Satsang philosophy [which] allows followers of other religions to receive the blessings of [Satsang] teachings without insisting upon their forsaking their own religions.” Further, while the LGBTIQA+ acronym is largely used uncritically in the contemporary moment, it bears emphasis that in some jurisdictions—such as the not-so-distant-past United States—G(ay) politics has been hostile to T(ransgender) politics. And A(sexuality)’s insertion in this acronym may already represent a queer–religious alliance.

Ultimately, queer–religious alliances in India—like elsewhere—will be as fraught as they are productive. In this way, these alliances would be like many of our friendships. New friends allow us to see old issues anew. Similarly, queer–religious alliances can generate new politics and new strategies for multiple legal dilemmas—not just in the arena of family law—helping us overcome what presently appear to be intractable problems.

*Professor Jeffrey A. Redding is a Senior Fellow at Melbourne Law School and the recent co-editor, along with Dr. Nausica Palazzo, of Queer and Religious Alliances in Family Law Politics and Beyond. He is also the recent author of the monograph A Secular Need: Islamic Law and State Governance in Contemporary India.