Of ‘Hate Hags’, Witch-hunts, and the Orwellian Woman

The term ‘hate hag’, used to describe “women supporters of Narendra Modi” in an Outlook Magazine article recently gained currency, especially on social media. Vrinda Gopinath, who authored the article, clearly referred to three women—Madhu Kishwar, Tavleen Singh, and Sandhya Jain—as ‘Modi’s mausis’ (Modi’s aunts). Describing these women as what “Libs call Hate Hags or Hacks”, she states that they:

“have swung into the national debate ever since the media’s imbalance in promoting Modi tilted favourably towards him, feverishly affirming their faith on television, Twitter, Facebook and in their columns. They dismiss contrarian, inquiring views as archaic and wimpy; and club those who question them as com­m­unists, feminists, and socialists. They’d love to be hailed as right-wing reactionaries but are now famously known as Modi’s Mausis.”

She further explains how Kishwar—dubbed as ‘Madhu Mausi’—“has taken her Modimania to newer heights of emotional fervour”; how Singh “constructs ‘secularism’ as a dirty word”; and finally, Jain, who “apart from covering [Modi’s] rallies and quoting every pearl that rolls off his tongue…endorses Modi’s views on population control and religious demography, and chants with Modi on ‘Third Front, Third Rate’ and other mantras”. Perhaps, I am too quick to judge her piece (given that ‘a longer version’ of the article appears in print). However, even by the standards of criticisms levelled against Kishwar, or other apologists for the Sangh Parivaar, Gopinath’s pieces resonates with the crass tone one would normally find in an amateur, anonymous handle-led blog, and certainly not in a publication like Outlook (However, given Manu Joseph’s equally crass piece on the Tarun Tejpal sexual assault case, it is perhaps not so unsurprising).

While there’s no problem in writing a sarcastic article on these women, what I found more disconcerting was the over-judicious appropriation and usage of the term ‘hate hag’ by the anti-Modi and anti-BJP voices on social media to target women, especially on Twitter, who are either sympathetic to the BJP and Modi, or themselves are BJP workers. This attack on women—irrespective, or in this case, because of their political ideologies—I argue, is unprecedented, crass and unbecoming. In using the term ‘hate hag’ the risk is in reaffirming a notion of ‘ideal’ woman, whose political views have to be in full agreement with so-called liberal, secular (or religious, fundamentalist) ideal. This is not to say that there are no contradictions whatsoever in women’s support for the BJP, RSS, and the Sangh Parivaar—indeed, these contradictions, I think, are irreconcilable. However, there is a difference in expressing ones disagreement with these, and using a term that is inherently sexist, misogynistic and demeaning to women.

In this essay I critique the term ‘hate hag’ through three broad arguments: first, I argue the term ‘hate hag’ is inherently sexist and misogynistic, and in using the term to ‘shame’ women because of their political ideology, we reinstate another form of a the medieval witch-hunt. Second, I look at the irreconcilable contradictions in the ‘women’s question’ and the Political Right, especially in light of the Janus-faced patriarchy that the BJP and the Sangh Parivaar represent. Here I underscore the role played by real, symbolic and semiotic violence that is directed against women’s bodies and ‘honour’. Finally, I present the idea that the term ‘hate hag’ conforms to the same form of semiotic violence that the Political Right and conservatives use to ‘shame’ women to reaffirm a patriarchal politics. This, I argue, is creates the Orwellian Woman as the ‘other’—that is, the notion that “some women are more equal than other women”, when it comes to being objects of such attacks.

“‘Hate hags’? So what’s the problem? Don’t these women deserve to be shamed anyway?”

As expected, since its introduction, the term ‘hate hag’—not so much ‘Modi’s Mausis’—was widely discussed, shared, and was met with both opposition and appropriation over social media. The way this unfolded, at least on Twitter, was interesting. On the one hand, we had the ardent anti-BJP, anti-Modi (or pro-Congress crowd), who, quite unproblematically, appropriated the term, and used it to deride well-known women BJP-Modi supporters on Twitter (besides the three mentioned in Gopinath’s article). Said this Congress spokesperson:

“Hate Hags perfect term coined by Outlook magazine for NaMo’s women supporters on social media. Sue me now for saying this.”

Several other anti-BJP/Modi counter-propagandists have celebrated the usage of the term because of its “shock value”. Here’s another example:

Some have argued that “such behaviour must be shamed” (a line of thought which could give the Khaps a run for their money).

“Attach Shame”

These counter-propagandists, it would seem, see a war coming. “Political correctness”, they say, is of little use when “the dogs of war are here”.

‘The Dogs of War/Political Correctness'

For these counter-propagandists, it is a case of fighting fire with fire; of fighting hatred with hatred; countering one act of shaming with another. They speak of “shaming” women supporters of the BJP, but fail to see their own language as unbecoming, uncivil, and, ultimately, regressively patriarchal. I lack the space here to undertake an archaeology of the term ‘hate hag’. But let’s rely on the dictionary meaning of the term ‘hag’. The Merriam-Webster Dictionary defines ‘hag’ as:

1. An ugly, slatternly, or evil-looking old woman;

2. Archaic

a: a female demon,

b: an evil or frightening spirit;

3. Witch

‘Cucking Stool, used in the “trial” of witches’ (Source: Wikimedia Commons)

Thus, by its very constitution the term ‘hate hag’ is demeaning to women, and is inherently sexist (Although, many supporters of Modi are quite proudly, and sardonically, wearing the title of ‘hate hag’—as was with the term ‘slut’, which led to numerous Slut Walks). By underscoring the ‘internal/external’ ugliness (of women), people who support the term are supporting a perverted logic that assigns ‘value’ on womanhood based on a notion of beauty/ugliness and purity/pollution. This underscores an import point about the insidious function of discipline/punish that’s embedded in the notion of shame and honour (I will discuss this point in detail in the concluding segment).

‘External ugliness/internal ugliness’

Coming back, it would seem that Gopinath’s piece, and the so-called ‘shaming’ the counter-propagandists engage in, occupy a curious space in this on-going tirade against women expressing their political opinion on media. We are well aware of how journalists and activists have been viciously abused on social media by Right-wing fanatics. A BBC Hindi report revealed how women journalists and activists, like Sagarika Ghose, Kavita Krishnan, and Meena Kandaswamy, who have been critical of “caste and Hindu nationalism” have been singled out as victims of misogynistic attacks online. Ghose was abused on Twitter by right-wing chauvinists who called her a “high-class prostitute”; Krishnan, speaking at a Rediff.com discussion when someone with the handle @RAPIST posted abusive comments, and asked where he could “rape her using a condom”; Kandaswamy was threatened with “live telecasted gang-rape and being torched alive and acid attacks”.  These are among the many instances where women are abused and humiliated online, usually by anonymous handles. While Gopinath’s piece, and the usage of the term ‘hate hag’, does not use the abusive language of the anonymous Right-wing troll, it still perpetuates a language of misogyny, sexism and hatred. For her and the anti-Modi/anti-BJP crowd, these ‘Modi’s mausis’ are nothing but apologists for the Sangh, who find fault with the “secular, liberal media” on the one hand, and “have all been steadfastly loyal to the idea of their Hriday Samrat, emperor of India, Narendra Modi”. Gopinath’s argument is one which infantilizes these women for their “blind devotion” to Modi, and yet occupies the moral high ground. But it is unclear as to what she’s based her assumptions on. Going by her arguments, there is nothing to indicate that what people like Kishwar, Singh and Jain write about Modi is qualitatively exceptional in its content. Sure, Madhu Kishwar occupies a piñata-esque position, when it comes to “Modi-worship”. Many of Singh’s columns in The Sunday Express, and on NitiCentral are terrible excuses. And, to be honest, I don’t know enough about Sandhya Jain to comment on her. That said, I do know several people, of both genders, who appraise Modi—from enumerating merits in his so-called ‘Gujarat Model’, and admire the vast and burgeoning propaganda surrounding the man. But why single out these three women? I mean, if one is thinking of women insofar as talking about their role in the Sangh’s moral-political economy, there are women in the Sangh Parivaar who occupy a more dangerous role.

The Janus-faced patriarchy and the Women’s Question

On the face of it, it’s not entirely inaccurate to assume that there can be grounds for one to have sympathy with Gopinath’s piece. It is well-known that the Political Right in India produces, harbours, and espouses misogynistic and sexist ideologies, and, by any standard, is a text-book case of what I have previously described as a patriarchal moral-political economy. Women, however, occupy a more tenuous role in this matter: Should they conform to an ideal notion of universal feminism where they condemn all forms of misogyny and sexism?[1] Or, does their support of individuals or ideologies put them at odds with these so-called universal feminist ideals? Can the so-called “women’s question” be reconciled by constructing an inner, spiritual domain, free from the trappings of western modernity—and yet, is ‘modern’ in a more functional way?^[2] If indeed so, are Kishwar, Singh and Jain exemplary in this regard? I don’t think so. For one, none of the three women are being castigated explicitly for ignoring/endorsing a feminist question. In fact, Gopinath’s sole criticism seems to be their hero-worshiping of Modi. She, it seems, couldn’t care less about actual irreconcilable problems and contradictions between equal rights for women, and the inherently patriarchal ideology of the Sangh Parivaar.

Before I proceed, however, let me clarify some things. I am very definitely critical of the BJP-Sangh and Narendra Modi. I have argued elsewhere that the BJP, RSS, and Sangh Parivaar, with Modi as its face, represent a Janus-faced patriarchal moral-political economy, and have underlying fascist tendencies. I have also categorically stated that apologists for the patriarchal Sangh—and these includes women “supporters”, as well as members of the Sangh’s women’s wing, Durga Vahini—espouse an idea that is fundamentally inimical to the goal of achieving equal rights for women. There are glaring contradictions in the support women give to Modi. For one, I find it irreconcilable that one can support Modi—no matter how awesome his visions of ‘development’ are—and not be bothered by the violence perpetrated by the Sangh on women: be it the brutal gang-rapes of Muslim women in the 2002 post-Godhra riots, or rapes of nuns in Kandhamal in Orissa during the anti-Christian riots; or the Bajrang Dal’s and the Vishwa Hindu Parishad’s (VHP) moral policing and beating up of women and young couples; or even the Rashtriaya Swayamsevak Sangh (RSS) chief Mohan Bhagwat’s claims that “rapes happen in India, and not in Bharat”.

Thus, when Modi speaks of the Nirbhaya case, and promises “security” for women, does he also promise them safety from the vile, misogynistic elements within the fold of the Sangh? In her article Gopinath doesn’t ask if we expected Modi, or his “mausis”, to speak up after Pramod Muthalik, the Shri Ram Sene chief was inducted, and subsequently expelled from the BJP (Muthalik and the SRS is infamous for the 2009 attack on women in a Mangalore pub) Apparently, Muthalik joined the BJP with the objective of “making Narendra Modi the prime minister”. More pertinently, she does not raise any questions about other women within the Sangh’s fold—women who do not enjoy the celebrity-like status of Kishwar, but women who nevertheless believe in, and espouse, the ideologies of the Sangh Parivaar, violently so, if required.

Take, for instance this clip from Nisha Pahuja’s documentary, The World Before Her, which examines two contrasting scapes: first, the camp of the RSS’ women’s wing, Durga Vahini, and the assaults on women and couples in public places, and pubs (the latter by the notorious Shri Ram Sene); and second, the selection round of the Miss India pageant. The instructor at the Durga Vahini camp goes on record to say that women are “biologically weaker than men”, and must, therefore, shun any hopes for gender equality. The more shocking aspect about this “brainwashing at the VHP’s Durga Vahini camp”, according to Pahuja, is what Prachi, a 20 year-old trainee at the camp, has to say about her father, (and, thus, the moral-political economy he and the RSS represent). Says Prachi about her father:

 “In a traditional family they don’t let girl child live. They kill the child. So this is the thing. I get angry; I have quarrels with my dad. But this thing, when it comes in my mind, I feel like crying… he let me live. That is the best part.” 

Clearly, if we highlight the issue of women’s rights—and, thus the contradiction of women supporting Modi and the Janus-faced Sangh Parivaar-BJP—what Pahuja’s clip shows is more inimical to the question of gender equality. This, evidently, is what deserves our attention, and perhaps is worth filling column inches. Instead, what we get from Gopinath is a pointless tirade and caricaturing of three women, who aren’t even big names in the BJP. On Twitter itself, several counter-propagandists have highlighted several female members/supporters of the BJP who have espoused a variety of illiberal balderdash—from casteism, to (ironically) misogyny. Incidentally, it would appear that the preoccupation of these counter-propagandists is to find women who fit into the bill of the ‘hate hags’.

‘A random, unverified handle vilifying Dalits deserves to be labelled “hate hag”?’

Before I conclude, let me offer a clarification: While I am critical of the contradictions between the question of violence against women perpetrated by the Right-wing, patriarchal Hindutva organisations and the women who support these ideologies, I am equally cautious about the risk of reducing violence against women and misogyny to the crucible of ‘culture’. This risk is of patronising women, and given the colonial discourse of paternalistic intervention, there is a risk of reinstating what Gayatri Spivak has described as “saving the brown woman from the brown man”. Anthropologist Kamala Vishwesaran in her book Un/Common Cultures: Racism and the Rearticulation of Cultural Difference, too, highlights this point in the case of refugee women seeking asylum to the United States, where the lands these women come from—usually the Middle East—is seen as inherently misogynistic, sexist and inimical to women’s freedoms. She points that this perception draws from precisely the colonial tension Spivak highlights, and obfuscates (if not entirely erases) the question of violence faced by women in the west, and in United States.

Thus, to reiterate the question I asked earlier: can there be a version of feminist thinking that emanates from the political Right-wing Hindutva discourse that is in line with the feminist goal of equal rights for women? By relying of the praxis of Hindutva politics in the last two decades—and not merely on scriptures—I am inclined to say I don’t think so. I would, very self-reflexively, say that the ideas women like Prachi and the instructor at the Durga Vahini training camp espouse in fundamentally inimical to the language of equal rights. They are based on an insidious logic of demarcating, and targeting, women based on certain notions they have of the ‘other’. This is based on the double-bind disciplining function of women’s ‘emancipation’ and their ‘punishment’, which can be achieved only by conforming to the hegemonic idea of what is deemed as appropriate in the patriarchal moral-political economy. This is the same notion the French, and so-called liberal western discourse has of the Muslim women. And this is at the heart of using the term ‘hate hag’ against women supporters of Modi, and the BJP.

Conclusion: A twenty-first century witch-hunt and the Orwellian woman

In this essay, I have attempted to present two broad critiques of the term ‘hate hag’, which was used target “women supporters of the BJP”. First, I argued that the term ‘hate hag’, etymologically and discursively, is inherently sexist, misogynistic, and demeaning to women—in this case, since it is used to target, and ‘shame’, women because of their ideological standings. Secondly, I stated that there are indeed several contradictions in the sexist, misogynistic, and regressive patriarchal politics of the Sangh Parivaar, and the RSS, and the question of equal rights for women, and their security—and, the patina of Modi’s “development” does little to hide that fact. This also underlines an insidious Orwellian ploy that “some women are more women than others” and thus, the latter are more deserving of abuse, castigation, and so on. Given these two contexts, the effect of ‘hate hags’ is exacerbated as it functions on an insidious patriarchal logic of discipline/punishment, wherein the woman is assigned space in the dichotomy of virtue/wickedness. In other words, it’s perfectly alright that a particular type of woman is the object of misogyny and sexism and violence (semiotic and/or real) since she—her very being reduced to her appearance, or other marker (like her political belief)—represents the other. She may be a woman, but her ‘marker’ (and that she’s casteist/sexist/bigoted etc.), makes her a less equal one.

‘The language of shaming has universal resonance in patriarchal discourse’

Admittedly, perhaps, I am overstating things, and drawing too many conclusions. In all likelihood, like most things on Twitter, this will probably blow over (if it hasn’t already). Unfortunately, Vrinda Gopinath’s piece will still exist. And I will still live with the memories of the crass, misogynistic and sexist language used by people I follow on Twitter. Probably a good thing, too: a closet misogynist, for me, is more dangerous than an obvious bigot. 

Acknowledgements

I am indebted to some of the wonderful feminists I follow on Twitter for their interventions during this debate; to Ketaki for a conversation we’d had long back on women and the Hindutva Right; and, to Nolina, for her constant encouragement, love, and support. This post originally appeared in the secular humanist website, Nirmukta.org. I would also like to thank the editors, especially Satish, for their feedback and for publishing it. You can access it here.

Notes

---

[1] This also holds true in the case of Islam and feminism. In western liberal circles most debates on Islam and feminism have centered round the ‘veil’, or the hijab or burqa (these terms are used interchangeably). However, many other scholars and academics, like Lila Abu-Lugodh, have argued that this debate reinstates the colonial tension of “saving the brown woman from the brown man” (to use Gayatri Spivak’s phrase), and ignores the systemic oppression of women in Islamic regions due to colonialism, and more recently, the ‘war on terror’. See, Lila Abu-Lugodh, ‘Do Muslim Women Really Need Saving? Anthropological reflections on cultural relativism and its others’, American Anthropologist 104/3, 2002. Accessed from: http://webbox.lafayette.edu/~alexya/courses/readings/Abu-Lughod_Do%20Muslim%20Women.pdf; see also, Val Moghadam, ‘Islamic Feminism and its Discontents’, Steal This Hijab, 8 June, 2011. Accessed from: http://stealthishijab.com/2011/06/08/islamic-feminism-and-its-discontents/

[2] Historian and Subaltern Studies scholar Partha Chatterjee has explored this in his essay, ‘The Nationalist Resolution of the Women’s Question’. Chatterjee argues that in the 19^th century Bengali bourgeois nationalism, nurtured the idea of the bhadramahila—that is, the ideal Bengali woman, who is formally educated, but also well-versed in the traditional etiquettes of the household. The distinction Chatterjee traces between the home and the outside, ghar and bahir. See, Partha Chatterjee, Empire & Nation: Essential Writings 1985-2005, pp. 116-135, New Delhi: Permanent Black, 2010.

‘The Grammar of Anarchy’ Debate: Dr. B.R. Ambedkar

Note: This is an excerpt from Ambedkar's speech made in the Constituent Assembly, on November 25th, 1949 (Constituent Assembly of India - Volume XI). The full debate can be accessed here. 

On 26^th January 1950, India will be an independent country. What would happen to her independence? Will she maintain her independence or will she lose it again? This is the first thought that comes to my mind. It is not that India was never an independent country. The point is that she once lost the independence she had. Will she lose it a second time? It is this thought which makes me most anxious for the future. What perturbs me greatly is the fact that not only India has once before lost her independence, but she lost it by the infidelity and treachery of some of her own people. In the invasion of Sind by Mahommed-Bin-Kasim, the military commanders of King Dahar accepted bribes from the agents of Mahommed-Bin-Kasim and refused to fight on the side of their King. It was Jaichand who invited Mahommed Gohri to invade India and fight against Prithvi Raj and promised him the help of himself and the Solanki Kings. When Shivaji was fighting for the liberation of Hindus, the other Maratha noblemen and the Rajput Kings were fighting the battle on the side of Moghul Emperors. When the British were trying to destroy the Sikh Rulers, Gulab Singh, their principal commander sat silent and did not help to save the Sikh Kingdom. In 1857, when a large part of India had declared a war of independence against the British, the Sikhs stood and watched the event as silent spectators.

Will history repeat itself? It is this thought which fills me with anxiety. This anxiety is deepened by the realization of the fact that in addition to our old enemies in the form of castes and creeds we are going to have many political parties with diverse and opposing political creeds. Will Indian place the country above their creed or will they place creed above country? I do not know. But this much is certain that if the parties place creed above country, our independence will be put in jeopardy a second time and probably be lost for ever. This eventuality we must all resolutely guard against. We must be determined to defend our independence with the last drop of our blood.

On the 26^th of January 1950, India would be a democratic country in the sense that India from that day would have a government of the people, by the people and for the people. The same thought comes to my mind. What would happen to her democratic Constitution? Will she be able to maintain it or will she lose it again? This is the second thought that comes to my mind and makes me as anxious as the first.

It is not that India did not know what Democracy is. There was a time when India was studded with republics, and even where there were monarchies, they were either elected or limited. They were never absolute. It is not that India did not know Parliaments or Parliamentary Procedure. A study of the Buddhist Bhikshu Sanghas discloses that not only there were Parliaments-for the Sanghas were nothing but Parliaments – but the Sanghas knew and observed all the rules of Parliamentary Procedure known to modern times. They had rules regarding seating arrangements, rules regarding Motions, Resolutions, Quorum, Whip, Counting of Votes, Voting by Ballot, Censure Motion, Regularization, Res Judicata, etc. Although these rules of Parliamentary Procedure were applied by the Buddha to the meetings of the Sanghas, he must have borrowed them from the rules of the Political Assemblies functioning in the country in his time.

This democratic system India lost. Will she lose it a second time? I do not know. But it is quite possible in a country like India – where democracy from its long disuse must be regarded as something quite new – there is danger of democracy giving place to dictatorship. It is quite possible for this new born democracy to retain its form but give place to dictatorship in fact. If there is a landslide, the danger of the second possibility becoming actuality is much greater.

If we wish to maintain democracy not merely in form, but also in fact, what must we do? The first thing in my judgement we must do is to hold fast to constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us.

The second thing we must do is to observe the caution which John Stuart Mill has given to all who are interested in the maintenance of democracy, namely, not “to lay their liberties at the feet of even a great man, or to trust him with power which enable him to subvert their institutions”. There is nothing wrong in being grateful to great men who have rendered life-long services to the country. But there are limits to gratefulness. As has been well said by the Irish Patriot Daniel O'Connel, no man can be grateful at the cost of his honour, no woman can be grateful at the cost of her chastity and no nation can be grateful at the cost of its liberty. This caution is far more necessary in the case of India than in the case of any other country. For in India, Bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in magnitude by the part it plays in the politics of any other country in the world. Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship.

The third thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies, at the base of it, social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life…[And] these principles…are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality; equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty would produce the supremacy of the few over the many; without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them. We must begin by acknowledging the fact that there is complete absence of two things in Indian Society. One of these is equality. On the social plane, we have in India a society based on the principle of graded inequality which we have a society in which there are some who have immense wealth as against many who live in abject poverty.

On the 26^th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which is Assembly has to laboriously built up.

The second thing we are wanting in is recognition of the principle of fraternity. What does fraternity mean? Fraternity means a sense of common brotherhood of all Indians – if Indians being one people. It is the principle which gives unity and solidarity to social life. It is a difficult thing to achieve. How difficult it is, can be realized from the story related by James Bryce in his volume on American Commonwealth about the United States of America.

    The story is – I propose to recount it in the words of Bryce himself – that:

    “Some years ago the American Protestant Episcopal Church was occupied at its triennial Convention in revising its liturgy. It was thought desirable to introduce among the short sentence prayers a prayer for the whole people, and an eminent  New England divine proposed the words `O Lord, bless our nation'. Accepted one afternoon, on the spur of the moment, the sentence was brought up next day for reconsideration, when so many objections were raised by the laity to the word nation' as importing too definite a recognition of national unity, that it was dropped, and instead there were adopted the words `O Lord, bless these United States.”

    There was so little solidarity in the U.S.A. at the time when this incident occurred that the people of America did not think that they were a nation. If the people of the United States could not feel that they were a nation, how difficult it is for Indians to think that they are a nation. I remember the days when politically-minded Indians, resented the expression “the people of India”. They preferred the expression “the Indian nation”. I am of opinion that in believing that we are a nation, we are cherishing a great delusion. How can people divided into several thousands of castes be a nation? The sooner we realize that we are not as yet a nation in the social and psychological sense of the world, the better for us. For then only we shall realize the necessity of becoming a nation and seriously think of ways and means of realizing the goal. The realization of this goal is going to be very difficult – far more difficult than it has been in the United States. The United States has no caste problem. In India there are castes. The castes are anti-national. In the first place, because they bring about separation in social life. They are anti-national also because they generate jealousy and antipathy between caste and caste. But we must overcome all these difficulties if we wish to become a nation in reality. For fraternity can be a fact only when there is a nation. Without fraternity equality and liberty will be no deeper than coats of paint.

    These are my reflections about the tasks that lie ahead of us. They may not be very pleasant to some. But there can be no gainsaying that political power in this country has too long been the monopoly of a few and the many are only beasts of burden, but also beasts of prey. This monopoly has not merely deprived them of their chance of betterment, it has sapped them of what may be called the significance of life. These down-trodden classes are tired of being governed. They are impatient to govern themselves. This urge for self-realization in the down-trodden classes must not be allowed to devolve into a class struggle or class war. It would lead to a division of the House. That would indeed be a day of disaster. For, as has been well said by Abraham Lincoln, a House divided against itself cannot stand very long. Therefore the sooner room is made for the realization of their aspiration, the better for the few, the better for the country, the better for the maintenance for its independence and the better for the continuance of its democratic structure. This can only be done by the establishment of equality and fraternity in all spheres of life. That is why I have laid so much stresses on them.

    I do not wish to weary the House any further. Independence is no doubt a matter of joy. But let us not forget that this independence has thrown on us great responsibilities. By independence, we have lost the excuse of blaming the British for anything going wrong. If hereafter things go wrong, we will have nobody to blame except ourselves. There is great danger of things going wrong. Times are fast changing. People including our own are being moved by new ideologies. They are getting tired of Government by the people. They are prepared to have Governments for the people and are indifferent whether it is Government of the people and by the people. If we wish to preserve the Constitution in which we have sought to enshrine the principle of Government of the people, for the people and by the people, let us resolve not to be tardy in the recognition of the evils that lie across our path and which induce people to prefer Government for the people to Government by the people, nor to be weak in our initiative to remove them. That is the only way to serve the country. I know of no better. 

Religion, Homophobia and the Aftermath of 377: Some notes from Jamaat-e-Islami Hind's “protest against homosexuality”

I was walking past Azad Maidan on my way to CST when I saw something that caught my eye. It was, as most things at Azad Maidan are, a protest. But the nature of the protest is what intrigued me: it was a “protest against homosexuality”, organised by Jammat-e-Islami Hind (JIH), which appraised the Supreme Court verdict of December 11^th, 2013, which effectively criminalized consensual same-sex between adults under the archaic Section 377 of the Indian Penal Code. This wasn’t surprising since Jamaat-e-Islami Hind (JIH) has been very vocal in its support of the Supreme Court verdict. Against my better judgement, I decided to stay there for a few moments, and try to understand what this “protest” was really about. Never before, have I been in an atmosphere that was so intolerant and venomous. I sat amidst JIH volunteers holding placards like: “GAY: God Abhors You!”, “Homosexuals are selfish”, and “Gay rights are not human rights!” It was, also, an atmosphere fraught with fallacies, hatred and misinformation.

Before I proceed with an overview, and criticism of the JIH “protest”, let me clarify a few things: firstly, I write as a student of gender studies, so my views are more concerned with JIH as representing a patriarchal ideology, than they are as a religious organisation. There are homophobic and irrational views across the political and religious spectrum—and most of them are as worse, if not more, than the others. In this case, as it just so happens, Jamaat is an Islamic organisation. In fact, they had even roped in a sadhu to speak out against homosexuality. Secondly, in this article, my argument is against the misinformation, lies and inaccuracies about homosexuality that the JIH presented. Finally, this article attempts to examine how differing ideologies (religious, political) coalesce under patriarchy and, in that respect, it also presents a critique of such pervasive patriarchal structures.

“Homosexuality is a Western idea; it is against Indian culture; it will lead to population decline”

First of all, there is no evidence whatsoever to indicate that homosexuality made its way from the West to India—even during colonialism. That India has its own legacy of homoerotic representations in literature and art, and that there are prominent queer themes in Hinduism, too, is entirely (and purposefully) absent in their discourse. As Devdutt Patnaik writes:

“…homosexual activities – in some form – did exist in ancient India…its existence was acknowledged but not approved. There was some degree of tolerance when the act expressed itself in heterosexual terms.”

Indian “culture”, therefore, for organisations like Jamaat and the political Right, exists purely in a rhetorical space, and is divorced from historical facts. Their limited and myopic reading of history of the West also fails to see the moral panic over homosexuality, even in the United States and Britain, and Europe. As Abhay Kumar points out:

“The argument is made in such a way that Indians – both Hindus and Muslims – are opposed to homosexuality, while Indian culture is painted as morally sound and Western culture is morally repulsive and corrupt. The difference between Hindus and Muslims, seen as the source of perennial ‘Hindu-Muslim’ conflicts, suddenly disappears.”

Thus, events like the persecution of homosexuals by the Third Reich, the Stonewall riots, the assassination of Harvey Milk, Proposition 8, and the present-day persecution of homosexuals in Russia—to state a few examples—cannot at all figure in their interpretation of the “West”. It, like their definition of an “Indian culture”, is an empty category to be used for political mobilisation. In fact, what both Jamaat and the sadhu forgot was that Section 377 is an explicitly colonial legislation, based on Victorian morality and control over sexuality. To put it simply, had it not been for the West and British colonialism, there would be no Section 377, and by extension, there would be nothing for Jamaat to protest against.

Likewise, there is no evidence to suggest that it is homosexuality that’s affecting population growth in the West; and the same would hold true for India. An examination of the population growth and total percentage of homosexuals in the United States of America, for instance, lends no credibility to the claims of the JIH. The population of the USA in 1970 was 205.1 million, and in 2012 it was 313.8 million—a population rise of approx. 65.3% in 42 years. At the same time, according to a study conducted by the Williams Institute in 2011, an estimated 3.5% of adults in the USA identify as lesbian, gay or bisexual. On the other hand, as of 2013, the contraceptive prevalence rate in the USA is 76.4%. This, coupled with factors like increased costs of livings, declining family size, capital-intensive labour, and so on, have possibly contributed to a slower growth rate – and, most definitely, not homosexuality.

“Homosexuality is a disease; it causes AIDS; it can be cured”

As with their earlier claims of homosexuality being a factor causing population – and thereby, civilizational – decline, these claims of the JIH, too, are untenable. First of all, in 1973, the American Psychological Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-II) eliminated ‘homosexuality’ as a mental disorder. Through this elimination, argues Dr Robert Spitzer, who authored the paper:

“…we will be removing one of the justifications for the denial of civil rights to individuals whose only crime is that their sexual orientation is to members of the same sex.”

Clearly, then, homosexuality per se is not a deviance, or a disorder, and much less a disease (However, the ASA’s usage of the term ‘Sexual Orientation Disturbance’, too, is extremely problematic. But that’s an argument for another discussion). Further, questioning the givenness of gender and sexual identities, anthropologists have presented compelling cases wherein several indigenous cultures (and, even biology) do not conform to the binary model of gender. Anne Fausto-Sterling, for instance, has presented a historical overview of “intersex” identities and argues for a need to think of five sexes, and not two. Sharyn Graham, studying the Bugis in Indonesia, too, presents a case for five genders, as well as a ‘meta-gender identity’.

Their arguments on HIV and AIDS, too, are ill-founded. The human immunodeficiency virus (HIV) is transmitted by only four means—of which, homosexuality can account for only one, i.e., unprotected sexual intercourse with an infected partner. It is estimated that 85 to 87% of all HIV transmission is through unprotected sex. And while anal sex does increase the chances of HIV transmission, it is difficult to estimate exactly how much of it is through homosexual sex. Thus, homosexuals who have sex without using condoms would be at no more, or less, risk of contracting HIV, than heterosexuals who do the same.

According to the Supreme Court verdict, HIV prevalence among MSM (Men who have sex with men) is approximately 7%, and that there are about 25 lakh MSM in India presently. This, however, is a contested figure, as the category of MSM does not just include gays, but also men who are married, and do not identify themselves as homosexuals. According to the Behavioural Sentinel Surveillance (BSS) report in 2006, “three percent” of all respondents “indulged in sex with males in the last one year”. And, in the states with high awareness on the issue “the involvement was also reported to be the highest”; among these, “only one-fifth used condoms during the last occasion of sex with a male partner” (BSS, 2006: p. xix). The BSS 2006 report on MSM further estimates that, on an average, consistent condom use among MSM is approximately between 35 to 36% (this includes both, with commercial and non-commercial partners, in 10 Indian cities) (ibid, p. 42).

Thus, on a practical note, the dynamic (and dangerous) nature of HIV transmission makes it extremely difficult to chart out an exact statistical figure of risks. Instead, it is more feasible to understand the notion of “risk” through vulnerabilities—that is to say: communities that are socially, economically and culturally vulnerable are at a greater risk of contracting HIV. By forcing the question of AIDS on only homosexuals, we run the risk of misunderstanding how it affects other marginalised groups, like drug users, female sex workers, AIDS widows and orphans. Furthermore, as Shivananda Khan of Naz Foundation (one of the petitioners in the SC) argues, factors like stigma, discrimination, violence etc. are responsible for driving the disease underground, and these seriously harm intervention efforts that are trying to address issues like transmission, prevention and building support systems for people living with HIV/AIDS (PLHAs). This persecution of homosexuals—and, those who work on health issues of MSM—is, thus, framed under the misguided assumption that social ostracism can deal with AIDS.

In fact, JIH wants these people to hide, and be underground—to live in khauf (fear), as one of their speakers put it.They said, that after the 2009 verdict, gays “came out on the street and marched fearlessly”. This, for the JIH, is in absolute contravention of patriarchal norms. Homosexuals, further to being persecuted, must also be deeply shamed for being who—and, what—they are. More to the point, not only is this attitude being deeply dehumanizing, it is, I argue, also one that seeks to entrench them in the worldview of the dominant patriarchal discourse.

The questions that I have raised above, however, are of no concern to the Jamaat-e-Islami Hind, and other patriarchal ideologies. They are resistant to viewing social reality, and problems, as complex; for them, the force of their arguments comes from simplifying issues of sexuality, reducing it to a notion of patriarchal control over bodies, and stems from the concern—or obsession, more correctly—over control of sexuality and property rights. For instance, their supposed “cure” for homosexuality is early marriage. In older days, they said, people were married off precisely because this “prevented them from getting homosexual desires”. So, for people to get these “desires” in the first place, would not the homosexual desire be “natural” in all of us?—which must, then, be “prevented”?

Further, they claimed: “If we legalise homosexuality today, then tomorrow will we also legalise crime, rape, sodomy, bestiality, incest, and so on?” Once again, the Jamaat speakers displayed their ineptitude at understanding Section 377. In cases of rape and sodomy, insofar as there is evidence to indicate that it was non-consensual and/or coercive, Section 377 can, in theory, be applied—and the victims of such sexual assaults could be women, minors and even other men.The merit of the Delhi High Court verdict was that it presented such a nuanced reading. But nuances, for Jamaat, and other like-minded organisations, are almost incomprehensible, it would appear. In fact, they would rather cite the “historical evidence” of the destruction of Sodom and Gomorrah, to justify their view that homosexuality is a sin, that it is immoral, and so on. I won’t even try providing any credible references to refute these claims because that would only insult my intelligence, and that of the readers’. Their entire “protest” was rife with such logical inaccuracies. This evidently demonstrates that the JIH did not have the first clue about what homosexuality actually entails; theirs was, from the beginning, a prejudiced view—nothing more, nothing less. However, the crux of Jamaat’s protest, I suspect has more to do with their desire to portray themselves as a masculine, chauvinistic outfit, than one actually concerned with religion.

“The government must not amend Section 377, or they will lose our votes”

I confess, they did not use the exact same words; but, their sentiments were apparent. Indeed, this was their primary reason for holding the “protest”. They said, Congress ministers who are supporting the amendment of Section 377, and thereby “decriminalising homosexuality”, should think twice about it, given the 2014 General Elections are only a few months away. There was also a vague, and snide, speculation over Rahul Gandhi’s (prolonged) bachelorhood, and the Congress’ desire to amend the said Section. Jamaat’s criticism of the Congress, thus, was an implicit projection of their support for the BJP (as if the presence of the sadhu was not enough)—whose president, Rajnath Singh, “welcomed the Supreme Court verdict”, making their stance on homosexuality quite clear.

Jamaat-e-Islami Hind’s intolerance of homosexuality, and its alignment with the Hindutva Right on this, therefore, is much less a coincidence, than it is an indication of a condition that gives them power and legitimacy in the dominant patriarchal nature of politics in India. This kind of political machismo and parochialism aims to ’emasculate’^* a certain section of the population, and is perhaps the most prevalent form of power-mongering in Indian politics—the MNS’ tirade against the “north Indian migrant”; Shri Ram Sene’s and the VHP’s assaults on women in pubs and public spaces; the violence directed on individuals by the Khap Panchayats in the form of “honour killings”; and, now, this renewed persecution of homosexuality. These are, all of them, indicative of a masculine politics of domination in a system of the patriarchal moral-political economy. Patriarchy, more than being a redundant concept, is widespread in contemporary society, institutions, and politics in renewed and pervasive forms. It functions on the subordination and persecution of sexualities (and other caste, religious etc. identities), and aims to punish the transgression of patriarchal norms.

Moreover, what I found particularly infuriating was one speaker’s reference to Ambedkar, and how, he added, the constitution must “prevent homosexuality from spreading”. As an admirer of Ambedkar, this statement was offensive to me personally, and it also undermined and insulted Ambedkar’s legacy, and all that he stood for. Ambedkar was a revolutionary—if not the most revolutionary—thinker of 20^th century India. Besides his struggles against Brahmanical hegemony, it was Ambedkar’s Hindu Code Bill that not only challenged Brahmanical patriarchy, but also gave civil liberties to Hindu women, such as rights over property, divorce, and so forth (see Sharmila Rege’s Against the Madness of Manu, Navyana, 2013, pp. 204-243). As with the championing for the rights of marginalised communities, the legacy of Ambedkarite political thought underscores the contemporary struggles against the homophobia and sexism of (patriarchal) organisations like Jamaat-e-Islami Hind, and the Hindutva Right-wing. Homosexuality—as with giving property rights to women—is precisely the target of such masculine politics of domination, because it deeply unsettles the notion of power that comes to be defined in terms of, and gains privilege from, a hegemonic masculinity.

By the end of the “protest”, I wanted to speak out, and question their claims.

But, to be really honest, I could not take that suffocating and venomous atmosphere anymore. I left. And then, I Tweeted this whole incident—a pointless exercise, really. Not entirely because I failed to say this to the JIH “protestors”; but because they—like other organisations are trying to assert a patriarchal moral superiority—did not possess the acumen or sophistication to engage in any kind of debate, especially one that would undermine their masculine imagery. Their attack on homosexuals is an empty exercise to gain masculine capital in a patriarchal moral-political economy. To conclude, therefore, Jamaat’s “protest” was no more than a self-congratulatory exercise; a desperate bid to keep itself—and its sense of morality and patriarchy—relevant in a charged political scenario.

This post first appeared in the secular humanist website, Nirmukta.org, under the title ‘Jamaat-e-Islami Hind’s Homophobia.’ I am thankful to the editors for their feedback on the post, and for publishing it on their platform. You can read the original post here.

Notes

^* The term “emasculation” is used here very specifically. In case of analysing violence against homosexuals, and especially gay men, it is important to see how entrenched patriarchal and homophobic attitudes work insidiously to deny them a “gay” masculinity—because, that would mean the constitution of a masculinity outside of the hegemonic and patriarchal moral-political context. ‘Masculinity’ is a reified category precisely because it is such reification that gives it power in certain contexts. Thus, something as ubiquitous as using the term “gay” or “faggot” as an insult, seeks to undermine (and, in more serious cases, deny) masculinity to even (presumably) straight men, until they conform to the notion of hegemonic masculine identity. I have explained this in detail in an academic research paper on masculinity in the critically acclaimed TV show, The Wire. Access it here.

Thoughts on Section 377: Against the absurdity that is “against the order of nature”

I

There’s a line from the movie Philadelphia that I recollect every time I’ve discussed homosexuality, the AIDS epidemic, legality and so on. In the movie, as those who’ve seen it are aware, there’s a scene in the courtroom where Denzel Washington, in his cocksure, charismatic charm, says:

“Everybody’s thinking about sexual orientation, sexual preference...whatever you want to call it. Who does what to whom and how they do it. So let's get it out in the open. Let's get it out of the closet. Because this case is not just about AIDS, is it? So let's talk about what this case is really all about: The general public's hatred, our loathing...our fear of homosexuals.”

On the 11^th of December, 2013, the Supreme Court of India “set aside” a landmark judgement of the Delhi High Court pertaining to Section 377 of the Indian Penal Code. The Delhi HC verdict, which had effectively decriminalized consensual same-sex relations among adults covered under Section 377 of the IPC (effectively: homosexuality; read the full verdict here), was thus rendered unconstitutional by the Supreme Court. The assumption, therefore, is that those who engage in sex as stipulated in Section 377 can be tried under it (the description is given below). Section 377 was enacted by Lord Macaulay in 1860, and it states:

377. Unnatural Offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.

Explanation:  Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.

The Delhi High Court’s judgement, in decriminalizing consensual same-sex relations, thus, was truly bold and revolutionary; and it is pertinent to quote its verdict at length:

 “130. If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society nurtured over several generations. The inclusiveness…is manifest in recognising a role in society for everyone. Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracised.”

“131. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination…It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.”

“132. We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution…[and] by ‘adult’ we mean everyone who is over 18 years of age and above.”

It added that the provisions of Section 377 continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors (those below 18 years of age) as they “would be presumed to not be able to consent to a sexual act.” This clarification, the High Court held, will hold until Parliament chooses to amend the law, and enact the recommendation of the 172nd Law Commission Report which sought to decriminalize homosexuality [see Section 1.2.1.Part I, (3)].

The two-member bench of the Supreme Court, however, ruled that: “Section 377 IPC does not suffer from the vice of unconstitutionality [and]…that the said section [377] does not suffer from constitutional infirmity.” It thus concludes that declaration made by the Division Bench of the High court is “legally unsustainable”, and puts the ball firmly in the legislature’s [Parliament’s] court, stating: “Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same.”

It further argues that “even after 60 years of independence, Parliament has not thought it proper to delete or amend Section”, the section, therefore, remains valid. The Additional Solicitor General, P.P. Malhotra, in an affidavit by the Ministry of Home Affairs, which:

“…had opposed decriminalisation of homosexuality and…recommended retention of Section 377 IPC because the societal disapproval thereof was very strong. [And] that the legislature, which represents the will of the people, has decided not to delete and it is not for the [Delhi High] Court to import the extra-ordinary moral values and thrust the same upon the society”

It must, here, be remembered that the Delhi High Court decriminalized homosexuality specifically within the Section 377, upholding it in cases of sexual assault – against women, children and men. However, this ‘severability’ is something which the Supreme Court didn’t agree with (read the full judgement here).

II

Of course, in light of the Supreme Court’s judgement, Denzel Washington’s quote from Philadelphia is exceedingly significant; especially since many have dubbed the Supreme Court’s ruling as “procedural homophobia”. Others, too, have criticised it for being “regressive” and taking us back to the 19^th century.

My criticisms of the Supreme Court judgement, however, are different: they are concerned with the judgement being situated in the larger discourse of what I’ve argued is the patriarchal moral-political economy. Although the Supreme Court’s concern is, largely, constitutional and legal, constitutionality is not a textual problem; it’s also a socio-political one. The Delhi High Court verdict was revolutionary precisely because it helped a social group articulate its political and social rights – and, that this social group is not necessarily a “sexual minority”. My other concern is that there are several logical fallacies riddled in the judgement, through which, the Supreme Court effectively sanitizes and, thus, absolves itself of this responsibility from the larger political movement of gender rights.

I shall elaborate on these arguments throughout the course of this essay – and its follow up.

The Supreme Court ruling which reinstates Section 377 of the Indian Penal Code, and thereby criminalizes “voluntary” same-sex relations between consenting adults is, to say the very least, regressive. Now, I use the term ‘regressive’ in a very specific way: not in terms of the judico-moral discourse of human rights, or anything, but especially as huge setback to:

(a) The consistent work being done by organisations in HIV/AIDS outreach activities, especially among what is called ‘MSM’ (men who have sex with men), such as the petitioners, Naz Foundation; and, (b) The vocal LGBT community, and other allied organisations and social groups, like transgender communities, hijras, and so forth, who suffer from police brutality, irrespective of the question of law, who are equal stakeholders in this struggle.

The Supreme Court verdict also, apart from these specific concerns, seriously undermines the women’s movement, and the question of gender rights and equality, when it states that:

“In its anxiety to protect the so-called rights of LGBT persons…the [Delhi] High Court has extensively relied upon the judgments of other jurisdictions….we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.”

This is, perhaps, one of the most regressive points in the entirety of the 98-page document – “so-called rights”? Would the Supreme Court say that rights of women, Dalits, religious and linguistic minorities are “so-called” rights? This violates the entire legacy of Feminist, Dalit and other politics – and of groups, much like the LGBT community, who have invested their faith in the judiciary; and it is this hope which has been betrayed. My argument, thus, is that the Supreme Court bench fails to situate the Delhi HC’s verdict in the broader context of the gender rights; subsequently, it betrays the spirit of the makers of the Constitution – chiefly, that of B.R. Ambedkar – who sought to include marginalised sections of the population under the protection proffered by the Constitution, and were given respective rights. This becomes more baffling, seeing that the bench observed: “…in last more than 150 years less than 200 persons have been prosecuted…for committing offence under Section 377 IPC…”, there is nothing inherently unconstitutional in the law itself (42; p. 83); and the precedent is on the Legislature to repeal/amend the section (56.; pp.97-98).

I will, however, keep the above problems on the legislature, and the state, in the follow up post. In this essay, I attempt to put the Supreme Court’s logic to the test, especially on the concept which of “against the order of nature”, which is a predominant theme in the court's judgement. The conceptual clarity that I seek to proffer on this condition is embedded in the whole discourse surrounding Section 377, which is, as Washington puts it, “our fear of homosexuals”. 

III

Firstly, the cases the judgement cites, wherein Section 377 IPC has been used to prosecute offences, were indeed brutal cases (pp. 69-70). There’s no doubt about that: women, children, and even other men can be, and are, victims of sexual assaults. But, a closer reading of these verdicts reveals that the offence is not so much against the bodily integrity of the victim, as it is against the “order of nature”. 

[Note: the text below contains some amount of graphic details. Reader’s discretion is advised].

For instance, in the Khanu v. Emperor AIR 1925 Sind 286 (p. 69), wherein the accused is said to “be guilty of having committed the sin of Gomorrah coitus per os with a certain little child”, the case reads:

“…Is the act here committed one of carnal intercourse? If so, it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings which in the case of coitus per os is impossible.”

Further to it, in the Lohana Vasantlal Devchand v. The State AIR 1968 Guj 252 (p. 70), the accused had sexually assaulted the victim boy, by subjecting him to anal and oral sex:

“The question that arose for consideration therein was as to whether the insertion of the male organ by the second accused into the orifice of the mouth of the boy amounted to an offense under Section 377 IPC.”

This verdict, based on a definition of “reciprocity” – “the enveloping of a visiting member by the visited organism” – which intercourse connotes, therefore was that “the act in question amounted to an offense punishable under Section 377.” The verdict cites other cases – one in which a boy was sexually assaulted and murdered, and the other where oral sex was forced upon a six year old girl – and in all of them, the prerogative was to establish is the offence “was against the order of nature”.

In all cases cited, it is sufficient to say that very grave and violent crimes were committed against children. And, by all means, it is the prerogative of the courts to ensure that the accused are given maximum punishment under the valid laws. But, does that validate the archaic definitions embedded in Section 377 – such as ‘reciprocity’, ‘orifice’, and ‘order of nature’? Clearly, from these cases, it would appear that the courts were more interesting in defining what exactly constitutes offence “against the order of nature” – there is no explicit mention of the crime violating the bodily integrity of the victim in question. Even in its own conclusion, the Supreme Court bench observes that, despite the idea of sexual intercourse meant for procreation being outdated, at the same time (p. 71):

“…it could be said without any hesitation of contradiction that the orifice of mouth is not, according to nature, meant for sexual or carnal intercourse. Viewing from that aspect, it could be said that this act of putting a male-organ in the mouth of a victim for the purposes of satisfying sexual appetite would be an act of carnal intercourse against the order of nature.”

Thus, even sexual stimulation gained by “intercourse between the thighs” is against the order of nature (p. 73). In other words, forced oral or anal sex (viz. sexual assault) is not a grave crime insofar as we would seek to define it in terms of physically harming the bodily and mental integrity or personhood of the victim; it is a crime because even if it is consensual, it is against the order of nature.

The judgement, however, does concede that the cases refer “to non-consensual, coercive situations…and the keenness of the court in bringing about justice cannot be discounted while analysing the manner in which the section has been interpreted.” However, this justification is difficult to fathom when the court holds that (p. 77):

“Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which, if committed could constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.”

In an absence of cases where consent can be established, the Court functions merely on the presumption that there is a form of sexual intercourse that is normal, and not against the “order of nature”, and sexual activity that contravenes this normalcy is, by law, illegal and punishable. In other words, as long as people who identify as homosexuals do not engage in sex, they cannot be criminalized – the absence of proof (of consensual same-sex), constitutes, for the judgement, the proof of its absence. The absurdity of “the order of nature” is foundation stone of the patriarchal moral-political economy. One of the processes through which the moral-political economy sustains unequal relations between and within genders, is by its definition of the dominant (hegemonic) form of masculinity. Furthermore, as Michel Foucault argues in The History of Sexuality, this “new persecution of peripheral sexualities entailed an incorporation of perversions and a new specification of individuals…sodomy was a category of forbidden acts; their perpetrator was nothing more than the juridical subject of them” (1978: pp. 42-43, tr. Robert Hurley, New York: Pantheon Books).

IV

There is, however, some truth to the arguments made by the counsel – who represented the Hindu, Christian and Muslim organisations, and the Delhi Child Rights Commission  – opposing the Delhi High Court verdict, saying that Section 377 is gender neutral, and “covers voluntary acts of carnal intercourse against the order of nature irrespective of the gender of the persons committing the act”  (p. 22). Further:

“…[and that in] carnal intercourse between man and man, man and woman, and woman and woman…[there is] no constitutional right that vests in a person to indulge in an activity which has the propensity to cause harm and any act which has the capacity to cause harm to others cannot be validated.”

Thus, going by the above logic, Section 377 does not criminalize only homosexuals – it criminalizes any individual who has it in them to indulge in desire, and pleasure outside of heteronormative norms – thus, rendering people as a “new specification of individuals”, as Foucault put it. It rests on a fallacious concern for human dignity, safety and morality; but is silent on the fact that a great deal of violence is perpetrated on women when they are raped, in many cases, by their own husbands, in accordance “to the order of nature” – which, ironically, still isn’t a crime in the law books (more on that later). Perhaps, then, it is important for those in the gender rights movement to articulate our unregulated right to fuck – not just the “miniscule population” of gays, lesbians, and transgender people, but even straight, heterosexuals, and – who knows, maybe even “thigh-fetishists”?

The arguments concerning “against the order of nature”, thus, firmly seek to entrench patriarchal structures. Referring back to the notion of the moral-political economy, it is not sufficient for it to merely define the dominant category, or signifier, of the masculine; there is a concerted need to define the intimacy of subjects so as constitute the masculine in a sexualised process. The “order of nature” – and this conclusion, I concede, comes rather late – is this the order of the patriarchal moral-political economy.

V

In the next post, I shall continue my criticisms of the Supreme Court judgement on Section 377 of the IPC, by situating them in the broad context of gender identities, the gender rights movement, and present a critique of the Parliament . Therein, I will attempt to unravel the contradictions of the Supreme Court’s judgement, by arguing that reinstating Section 377 points out the fallacies of the Indian State’s commitment to preserving the rights of marginal groups – both, women, and the LGBT community, have been at the receiving end of the Indian State’s apathy; and by suggesting that the very same state legislate on Section 377, the Supreme Court’s verdict is a historical blunder, and fails its own legacy. Moreover, the clarity I argued for in the case against “against the order of nature”, is pertinent in the follow up post, where I shall situate my argument, alongside the critiques of the state, and structures of legality, in what could be called a “politics of desire”.