Abstract
In the past few years, sexual and gender minorities in India have made significant legal gains, including the repeal of the colonial-era anti-sodomy laws and the legal recognition of transgender identity. These developments often are represented in mainstream media (and even in some academic discourse) as a march forward from regressive traditions to modern progressive sexual values. But a simple representation of these developments as progress from tradition to modernity undermines the complex histories of colonialism and nationalism that shaped these regressive legal and social regulations in the first place. Drawing on postcolonial scholarship and legal and policy debates on the anti-sodomy law and transgender rights, I show that differing groups within the nation-state can construct competing versions of modernity and tradition. These competing visions reveal the complex terrain on which sexual and gender identity rights are debated in contemporary postcolonial India.
I thank Smitha Radhakrishnan and Gowri Vijayakumar for the valuable and critical feedback they provided on this essay. Special thanks to Myra Marx Ferree and Hae Yeon Choo for their support and critical feedback on this project.
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Notes
- 1.
Hijras are a socio-religious group of people who dress in women’s clothes and are often organized in clans or gharanas. They are biological males who reject their “masculine” identity to identify as women, “not men,” “in-between man and woman,” or “neither man nor woman.”
- 2.
I use Bacchetta’s definition of Hindu nationalism as an “extremist religious micronationalism of elites,” in which elite leaders of these organizations draw on a homogeneous understanding of Hindu religion as a political strategy to exclude non-Hindus from the nation. For more discussion of Hindu nationalism, see Bacchetta (1999, 141).
- 3.
The attack on the film Fire, directed by Deepa Mehta, in 1996 and the most recent attack on Tamil author Perumal murugan’s book One Part Woman are two cases in point.
- 4.
Kannabiran, Kalpana. 2009. From “Perversion to Right to Life with Dignity.” The Hindu, July 6. www.thehindu.com.
- 5.
Naz Foundation vs. Government of New Delhi. WP (C) No. 7455/2001. Para. 40.
- 6.
“The Homosexual Debate.” NDTV 1 February 2016. https://www.youtube.com/watch?v=3GzWnc1Nfko. Retrieved on September 20, 2017.
- 7.
The Qunit, “Tharoor’s Bill to Decriminalize Homosexuality Defeated in LS”. 11 March 2016. https://www.youtube.com/watch?v=gWRkVbdmmEw.
- 8.
Whereas the Naz petition was primarily focused on MSM and gay men, Voices against 377 and other groups have also articulated the impact of Section 377 on hijras and lesbian women.
- 9.
Naz Foundation vs. Government of New Delhi. WP (C) No. 7455/2001. Para. 79.
- 10.
Navtej Singh Johar & Ors v. Union of India, Writ Petition (c) No. 7455 of 2001, High Court of Delhi at New Delhi, July 2, 2009.
- 11.
Khajuraho is the largest group of Hindu and Jain temples, which are famous for their erotic sculptures. These temples were supposed to have been built between the tenth and twelfth centuries A.D. Korank (Sun Temple), a thirteenth-century monument and temple in one of the Eastern states of India, Orissa depicts erotic and amorous poses that are supposed to be derived from the kamasutra.
- 12.
Manu the Hindu lawmaker was the creator of Manusmriti (Laws of Manu), which is regarded as a foundational work of Hindu law. It was first translated into English in 1794 by Sir William Jone, an English Orientalist and judge on the British Supreme Court. According to some accounts, Manu only prescribed fasting and purification rituals for having homosexual sex and these prescriptions are higher when it comes to heterosexual adultery. Despite these mild punishments, people like Singhal use it as an argument against homosexuality.
- 13.
Petition by B.P. Singhal, New Delhi High Court, 2009. P: 51.
- 14.
Petition by B.P. Singhal, New Delhi High Court, 2009. P: 53.
- 15.
Petition by Baba Ramdev, Supreme Court of India, July 2009.
- 16.
“Scrap Section 377: Should Parliament Lead the Way?” NDTV, February 6, 2016. https://www.youtube.com/watch?v=EaWDLKY9ZH4.
- 17.
“‘We don’t want 2 gay men holding hands waling on Marine Drive to be arrested,’ says SC on Section 377,” The Times of India. July 11, 2018. https://timesofindia.indiatimes.com/india/article-377-an-example-of-social-disdain-declaring-it-invalid-will-help-lgbt-community-sc/articleshow/64949972.cms.
- 18.
National Legal Services Authority v. Union of India and others, Writ Petition No 400 of 2012. Supreme Court of India. P: 10.
- 19.
The Act provided for the registration, surveillance, and control of certain criminal tribes and eunuchs, and it penalized eunuchs, who were registered and appeared to be dressed or ornamented like a woman in a public street or place, as well as those who danced or played music in a public place. They could also be arrested without warrant and sentenced to imprisonment up to two years or fine or both. Under the Act, the local government had to register the names and residence of all eunuchs residing in that area, as well as of their properties, who were reasonably suspected of kidnapping or castrating children or of committing offenses under Section 377 of the IPC. National Legal Services Authority v. Union of India and others, Writ Petition No 400 of 2012. Supreme Court of India. P: 16.
- 20.
“Comments of members in the discussion of the Rights of Transgender Persons Bill,” Rajya Sabha TV, 13 March 2014. YouTube Video, 14:27. https://www.youtube.com/watch?v=cIeC9c7LNmk.
- 21.
Two examples of this continuation of the colonial criminalization of gender nonconformity are the Karnataka Police Act and the Hyderabad Police Act. Section 36 (A) of the Karnataka Police Act (1963) gives power to police officials to register names and places of “eunuchs” residing in their jurisdiction.
- 22.
Narasimha is the fourth avatar of Vishnu. In this avatar, he manifests as half man and half lion. According to Hindu mythology, he took on this avatar to kill the demon Hiranayakashipu who could not be killed by God or a human, as he got a boon from Brahma the Creator. Narasimha’s avatar as half lion and half human gives him the opportunity to kill the demon.
- 23.
Ganesh, the Hindu God of auspiciousness, is half human and half elephant. He has an elephant trunk and a human body, which, according to mythology, was given to him by his father Siva.
- 24.
“Nishikant Dubey’s speech on Transgender Rights”. Mango News, 29 April 2016. YouTube Video, 9:13. https://www.youtube.com/watch?v=YBJI-FuX4dY.
- 25.
First as Apathy, Then as Farce: The Transgender Persons (Protection of Rights) Bill, 2016. http://orinam.net/apathy-farce-trans-rights-bill-standing-committee-report/.
- 26.
Tamil Nadu Protests Trans Bill 2019. 2019. http://orinam.net/tn-protests-transbill-2019/.
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Lakkimsetti, C. (2022). Traditional Genders, Modern Sexualities: Struggles over Sexual and Gender Nonconformity in Postcolonial India. In: Radhakrishnan, S., Vijayakumar, G. (eds) Sociology of South Asia. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-97030-7_5
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