Queer Rights, Section 377, and Decolonizing Sexualities

Nishant Upadhyay

Last week the Supreme Court of India began hearings on the Section 377 of the Indian Penal Code – a repressive act introduced during the British rule of India, dating back to 1861, which criminalizes sexual activities “against the order of nature with any man, woman or animal.” The section goes back to the English Buggery Act of 1533 introduced by Henry VIII in England. Similar laws can be found in over 30 countries, all ex colonies of the British empire.  In 2013, an earlier ruling of the Supreme Court deemed the section as valid and constitutional. This judgement went against the 2009 Delhi Court judgement, where the Court read down Section 377. The 2013 judgement in effect recriminalized homosexuality and stated: “both pre and post Constitutional laws are manifestations of the will of the people of India through the Parliament and are presumed to be constitutional.” Homophobia in “postcolonial” India was thus justified as rooted in precolonial and colonial processes. It seems highly likely that this time the section will be declared unconstitutional and homosexuality will be decriminalized to usher India into the league of other liberal and progressive countries where homosexuality is no longer a criminal offence and same-sex marriage is legal. While this hopeful judgement will be “decolonial” in intent, there are other contradictory processes at play which are not so decolonial in praxis.

Image 3©indiatoday.in

The current hearings are in response to petitions submitted to the Supreme Court by gay celebrities. Using their privileged backgrounds, the elites have filed petitions asking court to decriminalize homosexuality. Demands for “privacy in the bedroom” are being made on behalf of/for respectable, elite, dominant caste, cis-gay Indians. These petitions mark a clear disjuncture from the last few decades of queer activism across India. While there are many critiques to be made of the dominant caste, cis, urban-centric queer movement, the “victory” of 2009 marked a significant moment in articulation of queer rights in India, as activists, more or less, centered intersectional analysis for freedom in the public against cis-heteropatriarchal violences. But now the activists and their work has been sidelined in the face of gay celebrities.

Along with the assertion of neoliberal respectability politics, there has been an escalation in dominant caste right-wing Hindu (Hindutva) articulations of queerness and claiming of superiority to Muslims and caste others. On social media and online blogs, gay bhakts (supporters of the current Hindu fascist PM of India, Narendra Modi) are rejoicing that their great leader is finally going to “liberate” them from the colonial clutches. In the last few years, there have been notable examples of dominant caste Hindu voices being openly casteist and Islamophobic, like examples1, 2 and 3. However,the post-2014 rise (when Modi’s Hindutva party Bharatiya Janta Party [BJP] came into power) in right-wing Hindu gay voices is deeply troubling. Needless to say, BJP is presenting themselves as silent on this issue, while simultaneously maintaining deeply heteropatriarchal, homophobic, and transphobic positions. In fact, in 2017 India rejected UN resolution on abolishing death penalty for queer people, and more recently, the government has dropped “sexual orientation” from workplace discrimination guidelines.

Image 2©timesofindia.com

To fight violences against queer, trans, hijra and other gender non-conforming communities, Hindu scriptures are often used as a proof to demonstrate how Hinduism was/is accepting of peoples of diverse genders and sexualities. Canonical works by authors like Devdutt Pattanaik illustrate queerness by invoking ancient Hindu scriptures and mythologies. However, what is claimed as Hindu texts and culture late is dominant caste culture, making caste foundational to understanding this assertion of Hindu queer, hijra, and trans friendliness. Obfuscating casteist structures of Hinduism to read for queerness and transness in Hinduism (read as synonymous as Indian) reproduces brahminical casteist violences. To claim Hinduism is queer and trans friendly is not only an oxymoron but also a deep ideological erasure of caste violences. Dominant caste queer, trans, and gender non-conforming folks who locate their queerness through these scriptures and mythologies as cultural/historical praxes are complicit in these caste violences. This is not to exempt liberal/progressive/secular/atheist dominant caste Hindus, as I/we/they are equally complicit in brahminical violences irrespective of our relations to Hinduism.

In a recent article, a Rashtriya Swayamsevak Sangh (RSS– Hindutva parent organization of the BJP) member claims: “It is a fact that ancient Indian attitudes and mores were receptive to the idea of homosexuality.” Citing RSS’ acceptance of homosexuality (one RSS leader claimed that homosexuality should be decriminalized but maintained that it is a “psychological case”), the author asks Muslim and Kashmiri leaders to change their positionality on homosexuality. Another article claims that finally under Modi gay Indians will be decriminalized and feel less discriminated from “left liberal” queers as “people from the Hindu Right wing are routinely made to shut up by the ‘Left liberals’ as they would crack jokes about Modi.”These articles demonstrate what Hindu-pinkwashing or saffronwashing looks like.   Dominant caste queers can so easily deny occupation of Kashmir, Islamophobia, and brahminical caste violences, but believe that BJP and RSS can liberate them.

Last year, US-based Hindu American Foundation (HAF) came out with a solidarity statement with LGBTQ communities demanding inclusive and equitable representation in California’s school textbooks. Since 2005, HAF has been at the forefront in seeking changes to the history and social science textbooks to depict Hindus and Hinduism positively. HAF contends that talking about gender, caste, religious, and class violences in India makes Hindu students vulnerable to racism in schools. Along with asking for unbiased representation of Hinduism in textbooks, they collaborated with the FAIR Education Implementation Coalition to advocate for more LGBTQ inclusive curricula in Californian schools. In a policy brief, “Hinduism and Homosexuality,” HAF proclaims that Hinduism is LGBT friendly religion and allows for equal rights for people of all sexualities and genders and supportive of same-sex marriage. Blaming colonialism for homophobia in India, they call for an acceptance of LGBT peoples within the Hindu society. This alliance with (mostly white) LGBTQ groups is troubling given how HAF has been asking for Hindu inclusion from a casteist brahminical stance and seeking to sanitize as Hinduism of its violence practices.

Denying caste, gender, and religious violences, while propagating a myth of queer, hijra, and trans friendliness is part of the same ideological framework. Following global anti-Islamophobic homonationalist formations in the US, the UK, Israel, and elsewhere, Hindus are also mirroring these processes. This allows them to construct themselves as “modern”, “progressive”, and accepting of queer and trans peoples, what we can call as homohindunationalism. Responding to HAF’s solidarity statement on the killing of queer activists in Bangladesh in 2016, genderqueer Bangladeshi activist Farhat Rahman writes: “In doing so, it cynically uses queer Muslim deaths, in Muslim-majority Bangladesh, to justify and uphold American imperialism. HAF is not concerned about homophobia and transphobia as evidenced by its utter silence on the violence and extremist conditions faced by minorities in India.” This allows HAF and gay Hindus to align themselves with other Islamophobic global powers to assert their superiority to Islam. Thus, homohindunationalism is rooted in Islamophobia as well as in brahminical supremacy.

Image 4https://www.thenewsminute.com/article/lgbtq-meets-caste-religion-politics-social-justice-pride-flag-chennai-queer-litfest-84364

Dalit feminists have long shown the critical intersections of caste, gender, and sexuality. Centering the intersections of caste, gender, and, sexuality, Dalit and Bahujan queer, trans, and hijra writers argue that sexual/queer/trans liberations are impossible without the annihilation of brahminical heteropatriarchal caste structures(Dalit Queer Pride, Surya, Dhrubo Jyoti, Akhil Kang, Moulee, Living Smile Vidya, V. Angayarkanni, Grace Banu, and many others). While many of these activists and writers work within/alongside queer and trans movements in India, they have shown how these movements have maintained dominant caste hegemony by centering urban upwardly mobile dominant caste queer cis-men identities, and invisibilizing all caste oppressed peoples.Living Smile Vidya, Dalit trans artist and activist,writes: “Our gender identity is linked to caste in such a way that it is impossible to separate the two at all. We talk about the difference in our caste and class background … We also critique Brahminism and vegetarianism which is linked similarly in inseparable ways in India.” Similarly,at the Delhi Queer Pride in November 2015, Dhrubo Jyoti, queer Dalit activist and journalist, declared: “We bring caste up because caste is everywhere and in my everything. Caste is in my shirt. Caste is in my pant. Caste is in my sex. Caste is in my being and Caste is in every part of you too!”

As a diasporic (knowing well that 377 actually doesn’t affect me directly given my diasporic location) brahmin queer non-binary person, what I take from these works is that caste cannot be separated from any assertion of gender and sexual identities. My experiences of gender and sexual marginalization are produced and simultaneously protected through my caste privileges. In other words, homophobia, hijraphobia, and transphobia is not just a byproduct of British colonialism in India but also a manifestation of brahminical cisheteropatriarchal structures. Endogamic practices are central to brahminical hetropatriarchy that seek to maintain caste boundaries through gender and sexuality. Queer and trans struggles in India cannot be articulated without foregrounding the convergences of caste and colonial violences. As much as the punitive law needs to go, we can hope, as Moulee writes that the present Supreme Court case will only “de-centralise the queer movement” to make visible “the forgotten fights” of queer and trans peoples in India. Decolonizing the law, state, and sexuality would also mean annihilating caste and brahminical notions of sexuality.


345054cf-802a-4d59-b158-2f95c1368856 Nishant Upadhyay teaches gender studies at the University of Massachusetts Dartmouth. Their work can be found in WSQ, GLQ, Feminist StudiesFeral Feminisms, and Sikh Formations.








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