Ajay R Maherchandani

UNCERTAINITIES

Identity and the objectification of its marker has been a major contestation within the neo-liberal politics in the Indian subcontinent. This article would endeavour to explain the larger socio-legal realities of the Queer community in India, its erasure of history and the imaginations that could be used as a tool for the way forward.

We live in times of political instability, in forms of polarised practices of contesting one communal identity over another but the state herein regulates practices of its citizens through its heteronormative and patriarchal domination over the civil, social, economic and human rights of marginalized individuals and communities. Courts are included in this framework of the regulatory practices of the State, often-times as watch-dogs of heteronormativity and patriarchy. I want to juxtapose the figure of the Queer person, or the “personhood” as a disobedient object for the State.

UNCERTAINITIES – QUEER SUBJECTHOOD

Subject-hood may have categories that reflect the citizen’s capability to “emote, express, act out of volition, live” which is the classic jurisprudential logic under the Art. 21 of the Constitution of India. The act of “liberty” and the idea of life is signified as the basic manifestation of a capable citizen. The narrative becomes different for the queer community of the subcontinent. This subject-hood that the State so graciously gives as a case of political freedom for other citizens becomes a contestation where the “queer” person has to imagine a different self-hood since there seems to be no inclusion in the State language of the same, through its laws. If at all, there is inclusion of the “queer experiences,” it becomes a matter of shame and guilt for the State, and of course criminal. These queer experiences are seen from the lens of the “sexual,” as if the queer body is just sexualized for themselves and the other. It also takes into account, the idea of violation, or as rape or assault by the queer on the supposed normal. The State assumes that the sexualized queer body is capable only to be assaulted or to assault the other. The State language thus just sexualized the queer body till the de-criminalization of sec. 377 of the Indian Penal Code in 2018 in the Navtej Singh Johar case. The NALSA judgement by the Supreme Court in 2014 was a step towards the de-sexualization of the queer being. The State devises or rather localizes the site of rape[1] as to import a distinct meaning inscribed on the body of the citizen that is violated. It is not appropriate to create hierarchies of violence, though the nature of violence faced by the sexual minorities in the Global South can be markedly different than on cis-women. The Queer as a group is not a homogenous marker but is embedded in markers of caste, class, notions and acceptance of gendered performance and sexuality expression in India. There are structural dynamics that affect the relationship between members from sexuality minorities and the Indian State.

The socio-legal narrative can be mapped first by the use of Sec.377 of the Indian Penal Code, 1860 which was de-criminalized in September, 2018 by the Supreme Court of India. Regulation of “trans-queer” bodies and lives through the criminalization of the community happened with the Criminal Tribes Act, 1871. Though, the abovementioned law stands repealed, the State government of Karnataka made changes to its Police Act by including Sec 36A – power to regulate Eunuchs, which was inspired from the Hyderabad Eunuchs Act, which in turn was based on the Criminal Tribes Act, 1871. The State herein deems them “undesirable” and the need to “prevent, suppress or control” these activities becomes the work of the state police authorities. This idea is a version of how the state here serves a particular class interest in deeming certain activities as undesirable and therefore can legitimately use power to prevent it. A pertinent question here is, whose class interests is the state translating while using the language it does to de-subjectify citizenship itself for the queer community?

The criminal justice system thus confines bodies[2] and categorizes them “at risk,” not only placing a value on their subject-hood but also creating the “at risk” for others in the society. The Indian State thus perpetuates the rigid conditions of the gender binaries through its directives. The solutions though may sift through extra-legal research, the queer body here becomes a site of research than the activities of the state itself. The framework of power which forms the nexus between the enforcement agencies of the state and the citizens upholding binary structures, make the queer body a site for investigation, research and thus indirect control. There have been two reports by the People’s Union for Civil Liberties organization, a human rights based civil society organization that has exposed the atrocities and harassment faced by the Queer community, at the hands of the police. Operations of power, thus are far more complex when a member from the sexuality minorities comes in contact with the state, framing themselves as legal subjects. There are contradictions that are thus produced by the regimes of legal recognition and moral policing by the State. The laws that apply or have made an impact on the Queer citizens in India are the Criminal Tribes Act, 1871, Immoral Trafficking Prevention Act, 1986. The laws on sex work are used to harass and exploit the trans group, at the core. The nature of violence here is two-fold for the sexual minorities group: one is through the surveillance of the state and the other is the sexual nature of the violence that is perpetrated by the society and often-times by the state officials themselves. Under-reporting of cases of violence, most of the times sexual in nature also shows the inaccessibility of laws for the queer community members. The struggle of coming out and performing one’s gender expression or sexuality, is mired with the inaccessibility and in turn, more violence by the state, thus keeping this community at the peripheries from the mainstream margins.

UNCERTAINITIES – SHIFTS  

The microscope has to shift from queer communities taking charge of the lens, by taking intra-legal space, inhabiting the structure itself. An example, though contested by many would entail granting representational quotas to the queer community in the parliament. A Congress MP from Telangana started an online petition in 2020 to transfer the Anglo-Indian reserved seats (now scrapped) to the transgender community for “adequate political representation.” A total of six transpersons have fought the elections in 2014 and 2019 for the Lok Sabha but were not elected. An inclusive legislature, as has been in practice in the past 20 or so years in some countries also gives rise to greater impact on the perspectives related to family, health, education and livelihood.[3]

It is important to note that Courts also formulate a specific structural framework to understand queer representation as professionals. Representation of women is barely taken into consideration while understanding the socio-political power nexus within the Courts themselves. It is also is barely taken into account while understanding the Indian courtroom socio-structural architecture. Women judges at the Supreme Court till date, have accounted for only 3.2% of the total appointments. Out of the 1.7 million advocates that are registered, only 15% are women. In effect, it’s a “gentlemen’s club” with a colonial hangover, reeking of gendered elitism and the courts themselves have not done anything to de-institutionalize this dominance. A recent Madras High Court judgement has rejected a plea to formally give a 30% reservation to women for the title of Senior Advocate. The Advocates Act, 1961 specifies two classes of advocates in the Indian judiciary. The Bombay High Court in 2020 designated 22 advocates as senior advocates all of which were men. Within this milieu, the enrolment of the first transperson lawyer as an Advocate occurred as late as in 2018.

The Courtrooms become sites of oppression themselves, by distinguishing between the binary categories of gender – the struggle for the transgender advocates seems like an uphill battle. Women advocates face double patriarchal knots, both from the bar as well as the bench. The notion of subjectivity wherein women advocates need to display “merit” on par with their male counterparts, only translates into the practice of their own exclusion within the courtroom corridors. This display of merit now would also translate into the experiences of other queer persons pursuing a career in litigation.  This display of “merit” so as to satisfy the “opinion” of the Courts, only becomes a way for the establishment to use the normative language of the state which is exclusionary to women and transgender advocates. The exclusionary tactics are very well documented in eloquent legal language, where the understanding of truth is a matter of “opinion” – the title of the senior advocate is a matter of privilege according to the High Court. This privilege is bestowed upon the all-boys club, by their patriarchal masters.

Patriarchy translates in its everyday-ness. The workings of the courts and its denial to open their gates, only shows how scared the all-male gaze is. The idea that a Court is the citadel of truth and justice, and all that it does is rationalize facts and give a non-partisan decision loses muster when the minds working in it are characterized by a majority. There needs to be a plurality, in the everyday-ness of the courts themselves. One cannot assume the conception of justice to be fair if the very idea of laws are made on discriminatory grounds. The courts that formulate their opinion based on the black letter of law, forget that justice is experienced more than it is dictated from the ivory towers. Courtrooms are as much a site for oppression, as is any other establishment or institution. They need to de-centre and acknowledge their own patriarchal notions first – without which, no real progress is possible or feasible.

The State, be it through the parliament, judiciary, executive branches, becomes a site of contestation and the battles have to be fought in the intra-legal way. The contestation of space for representation in the parliament, or for that matter, contesting the discrimination at other levels have to be fought by queering the language itself. Imaginations are relevant for making history, and the queer community needs to take space within socio-legal imaginations of the state and propel a future that is inclusive. Legal language has to be understood for its patriarchal and parochial ways and has to be countered with language hitherto never seen or heard or felt by the one’s who make laws for the queer community.

[1] Pratiksha Baxi, Public secrets of law: Rape trials in India (OUP 2014).

[2] Nicole A Francisco, ‘Bodies in Confinement: Negotiating Queer, Gender Nonconforming, and Transwomen’s Gender and Sexuality behind Bars’ 10 Laws 9 (2021) 49.

[3] Andrew REYNOLDS . ‘Representation and Rights: The Impact of LGBT Legislators in Comparative Perspective’ (2013) 107 The American Political Science Review (2) 259-274.

Ajay Maherchandani is a Senior Research Fellow, Jindal Global Law School and Research Associate, Centre For Women’s Rights, JGU.