Sex, Governance and the Law: India as Theater of Postcolonial Critique

Lars Olav Aaberg

The struggle to repeal the colonial-era law Section 377 of the Indian Penal Code, often referred to as the anti-sodomy law or the law that criminalizes homosexuality, has become the central if not defining focus of the contemporary movement in India for queer azaadi (queer freedom). The movement to decriminalize homosexuality in India has initially sought to repeal Section 377 on the grounds that the law prevents sexual health non-governmental organizations (NGOs) focused on HIV-prevention from adequately administering information and technologies (i.e. HIV tests, condoms, etc.) to those who are considered the most ‘at risk’ populations - namely men-who-have-sex-with-men, hijras (South Asian third gender) and sex workers - because NGO workers and their clients face police surveillance and harassment under the law. 

This argument became the primary angle by which a collective of activist lawyers sought to repeal the law by channeling their request formally through the court system in New Delhi, yielding a successful if short lived victory. In 2009, the Delhi High Court allowed a partial repeal of Section 377 that effectively decriminalized homosexuality. This was soon reversed in an unprecedented decision by the Supreme Court in 2013 that nullified the Delhi High Court decision and thus recriminalized sodomy, a tragic moment for queer activists and their allies in the subcontinent. It was during this time that the repeal of Section 377 was taken up beyond medical-juridical praxis and became pivotal in representing and articulating state-sanctioned violence and discrimination against sexual and gender minorities. It is the movement for queer azaadi with its symbolic investment in the repeal of Section 377 and the profoundly retrograde Supreme Court ruling in 2013 that set the stage for Puri’s analysis of governance and her ethnography of the Indian state in Sexual States: Governance and the Struggle over the Antisodomy Law in India. The monograph brings to bear over 10 years of ethnographic data collection in which Puri puts in dialogue seemingly disparate political and legal events, such as the forced closure of Mumbai’s dance bars in 2003 and the migration of Bangladeshis to New Delhi today, as a means to discuss how the Indian state regulates bodies and practices of desire.

Focusing on how the regulation of sexuality and practices of desire are important if not necessary to the state, Puri adds a new perspective to the discussion of queer politics with regard to Section 377, which hitherto has largely been a discussion among activist lawyers who focus on the emancipatory aspects of legal reform and civil society activists and academics who critique this strategy. In Part 1, Puri introduces her study (Chapter 1) as one that seeks to hone in on the intimacy between state and sexuality. Subscribing to the conceptualization of the state as a subjective entity, she seeks to expand state subjectivity beyond the ‘irrationalities of administration’ to include the sexual, citing the Maharashtra state government’s largely unsubstantiated justification for criminalizing sex work on the grounds of protecting social order as just one example. She thoughtfully connects her analysis of what she sees as the irrational and affective decision of the state of Maharashtra to regulate sex work to her ethnographic encounter with the highly gendered spaces of a crime statistics bureau in New Delhi and its inconsistent documentation of Section 377’s case law history (Chapter 2). This lays the groundwork for Part 2, in which she links the history of colonial and postcolonial law enforcement (Chapter 3) with her ethnographic reflections on the attitudes of law enforcement personnel, i.e. Delhi police constables, with whom she discusses same-sex sexualities vis-a-vis the anti-sodomy law (Chapter 4). Puri then changes course to examine how the queer azaadi movement has pivoted toward the state by investing symbolic import in repealing Section 377 (Chapter 5) and then places the regulation of desire through recriminalizing homosexuality in 2013 in dialogue with the deregulation of the national economy through liberalization (Chapter 6). She concludes in the final chapter, Afterlives, by connecting the state invested in criminalizing what it considers perverse sexualities with the state that seeks to criminalize other sexualized bodies, particularly Bangladeshi migrants in the capital city. If the premise of Sexual States is that the (Indian) state is deeply subjective, to the extent that subjectivity is defined by contradiction, irrationality and constituted through iterative practices, then Puri’s central argument adds an insightful nuance to the now commonly held feminist position that states regulate sexuality. In the age of liberalization, the Indian state is not merely invested in the regulation of bodies and desire. Sexuality becomes imperative for the liberalized state in providing its raison d'être. That sexuality helps to constitute the Indian state as inevitable and ‘there’ is a novel and much needed intervention in the field of Indian feminist and sexuality studies.

Sexual States, like other contributions to queer theory and theories of governance, is in part influenced by and writes in response to Foucault. A straightforward, if not Eurocentric, reading of Foucaultian biopower can be easily applied to the arguments against criminalization of homosexuality, as mentioned above, on the grounds that Section 377 inhibits administration of medical technologies, the underlying impetus being that managing sexual health is a concern for the state as guardian of Indian society at large. It is clear throughout the monograph that the political motivation for Puri, who is obviously committed to sexual and gender equality, is a close scrutiny of Section 377 in conversation with Foucault’s history of sexuality in order to provide a post-colonial lens to the influential work. Puri’s archival research into the case law history of Section 377 does not neatly follow a Foucaultian history of the homosexual, which locates anti-sodomy laws in Europe as the site where the homosexual is discursively produced only to then be penalized. That surveillance and penalization of same-sex sexual practices in India most often utilize penal codes other than the anti-sodomy law, such as those related to public decency, is but one among several examples the author offers. Instead, Puri concludes that the anti-sodomy law was (and continues to be) a law that primarily penalizes hijras, Muslims, and Sikhs, those bodies rendered queer in their association with perverse sexualities. Thus she not only adds to a growing corpus of literature highlighting the necessity of a theoretical and political alliance in resisting state surveillance and brutality among those persecuted as ethno-religious minorities and those persecuted as gender and sexual minorities; she also draws attention to the Indian context, and by extension post-colonial contexts more broadly, as a theater of knowledge production in its own right, with its own intersecting and divergent histories of governmentality, biopolitics, and, sexuality. This should be considered required reading for any scholars interested in the Indian state, postcoloniality, and sexuality studies.