This is the fourth in a set of five interviews included in the SLR Special Series on Marriage Equality entitled Queering the (Court)Room.
Introduction
Sumit Saurabh Srivastava is an Assistant Professor at the Centre for Development Studies, University of Allahabad. He earned his Ph.D. in Sociology from Jawaharlal Nehru University, New Delhi and is also an alumnus of IIT Bombay. He has been awarded the Indian Sociological Society's Prof M.N. Srinivas Memorial Prize for the Young Sociologist in the year 2015 for his 2014 article on "Disciplining the 'Desire': 'Straight' State and LGBT Activism in India". He is also an Associate Editor of the Indian Anthropologist.
Almost a decade ago, he wrote on the intricacies of the queer movement in India during the fight against Section 377 in his article “Disciplining the 'Desire': 'Straight' State and LGBT Activism in India” (2014). While much has changed since the article was first published, many concerns that he expressed in the essay resonate to this day. Thus, we thought it important to hear his views and perspective on the construction of queerness and queer social movements vis-à-vis the state, as they have evolved over these years.
In this piece, he highlights the rather tenuous relationship between the state institutions and the queer movement in India and how both have been impacting and transforming each other over the years. He also talks about the role of non-state institutions and influences such as Hindu faith organizations, social media, and citizen journalists among others. He further reflects, importantly, on the rather fraught relationship between the queer movement and the feminist movement. Dr. Srivastava’s contribution brings to focus the changing nature of the state in its relationship to love, desire, sexuality, and marriage, and the possibilities that lie ahead.
Interview
In your article in 2014, you sought to answer two questions: “First, to what extent is the lesbian and gay movement influenced by the State? Second; whether the lesbian and gay movement has somehow influenced the state?” How do you think the answers to both these questions have changed and transformed over the last 10 years, from the period of fighting against Section 377 to the current marriage equality debate?
On the first part of whether the lesbian and gay movement has somehow influenced the state, my answer is positive. Given the fact that as of now the petition regarding marriage equality for LGBT aiming at the legal right to same sex unions is under judicial consideration in India itself speaks for the changing attitudes and perspectives of the parties involved in this complex issue. Somewhere down the line exposure to the sexual liberation movements in western countries is partly responsible for this. The constitutional provisions underlining personal and civil liberties are being effectively channelised into the domain of sexuality rights by the petitioners. Moreover, around the globe and across countries, June, also known as the Pride Month has been observed to mark the significance of alternate sexual and gender identity. Vibrant, influential and inclusive Pride month is also marked through celebrations including pride parades and other similar activities to arrive at meaningful change in the society. India not being an exception in this case also reflects upon the changing social mores and codes over the last ten years.
Responding to whether these are being affected by the State, one can delve into the brief trajectory of the ‘pride parade’ in India. It can be noted that the first ever Pride March/Walk to be celebrated in India was the ‘Kolkata Rainbow Pride Walk’ on July 2, 1999. Subsequently it spread to Delhi, Mumbai and Bengaluru in 1998 and Awadh, Bhopal and Dehradun in 2017. As evident in the wide media coverage, these were held in the public places wherein thousand of LGBTQ participated in such marches/walks along with the supporters and activists. Such public acts of ‘coming out’ tells us a lot about the ‘coming of age’ of alternate sexualities in the context of India. I believe they could do so without fear or stigma (relatively speaking) as the ‘Repressive State Apparatus’ in terms of Althusser has restricted itself to a considerable extent.
Responding to how these movements in terms of Pride Walk/March are affecting the state, one can take the case of Sridhar Rangayan founded KASHISH Mumbai International Queer Film Festival which in its initial years during 2010-2011 was marked by fear and anxiety by the stakeholders as it was under the ‘homophobic gaze’ of state and society. However, over a decades’ time, the acceptability and its outreach has increased as its 14th reincarnation (June 7 - 11, 2023), it showcased 110 films from 41 countries. Can it be argued that somewhere down the line ‘coming out’ in the Pride walks have made the state more sensitive towards the LGBT? It is open for critical inquiry.
At this juncture it is important to note that there are at least three stakeholders whose arguments and counter-arguments need attention: first, petitioners of the case seeking marriage equality; second, the legal guardians of the country i.e. the judicial apparatus at the supreme level; and third, the Parliament where matters of public policy are debated and laws are framed. It is crucial to understand the issues at stake here. In India, while the judiciary is giving a patient hearing to the petitioners, the government is accusing the judiciary of infringing the rights of the Parliament as the law-formulating agency. Thus, within the three branches of the state, it is two going against one. Civil society elements in terms of Hindu faith organizations further complicate the issues at hand. Given this scenario, one needs to be careful that when we say that the state is sympathetic to the marriage equality for LGBT – is it the government or the judiciary?
Your article notes how queer activism was characterized by the inherent paradox that ‘on the one hand, the LGBT activism critiques the state and its legal texts, and on the other, it expects the state to guarantee their fundamental rights.’ The marriage equality debate is often framed in similar terms. During the course of the hearings, a question that was often asked by the judges to the petitioners was how far the state was under a positive obligation to recognise queer marriages. The argument goes that criminalisation of homosexuality through Section 377 was a positive, rights-infringing measure on part of the state which the Court undid in Navtej; however, the state is under no obligation to extend the recognition of marriage to queer relationships. How do you assess this argument?
Whether the state is under an obligation to extend the recognition of marriage to queer relationships or not is dependent on the nature of the state and how it has evolved – which has been understood differently by different scholars at different times. State is sovereign and supreme, and its authority is legal and binding on its citizens. The state, through its laws, policies, and institutions has been regulating sexuality. If one looks at the state as a modern, democratic and welfare-oriented entity, then definitely the historicity of exclusion and marginalization of alternate sexuality needs to be addressed on a priority basis.
In its brief legal historicity, key signposts of state and LGBTQ dynamics in India have manifested in cases like Naz Foundation Government Vs. NCT of Delhi (2009), Suresh Kumar Kaushal Vs. Naz Foundation (2013), National Legal Services Authority Vs. Union of India (2014), K.S. Puttaswamy Vs. Union of India (2017) and Navtej Singh Johar v/s Union of India (2018) among others. In all these cases, Articles 14, 19 and 21 among similar others of the Indian Constitution have been the recurrent theme.
Being a welfare-oriented democratic state, India should take all appropriate measures towards the realization of Marriage Equality rights. It should also amend/modify legislative texts/Acts introducing policies to enable the LGBT to have the same set of rights endowed to the heterosexual marriage partners. Furthermore, India is party to key international and global Declarations and Covenants safeguarding the rights and entitlements of people; for instance, International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights. It flows from such arguments that a positive decision should be arrived at with regards to marriage equality rights.
Another interesting aspect of the article is how you trace the role of institutions and spaces in the creation of “queer publics” – through pride marches, civil society organisations and NGOs, online dating platforms, even a matrimonial website! How do you see the shaping of the public sphere today, especially with the exponential rise in the usage of social media, digital journalism, and the fact that the marriage equality hearings were livestreamed on the internet for everyone to watch? What role do these institutions and spaces play today?
Sex and sexuality are issues which have remained largely conservative, especially in India. Those who bring these issues out in the public face social ostracism and overt hostility by the society. The right to choose a life partner translating into a demand for the recognition of same-sex unions has come as a cultural shock to many in India for whom marriage has been a sacrosanct social institution strongly anchored in socio-cultural and religious norms. Needless to say, they are of the strong view that marriage equality rights will also affect traditional family structures.
As of now, India is witnessing an explosion of content on social media, digital journalism and citizen journalism. Thus, the debates centred on privacy, autonomy, and constitutional morality with regards to marriage equality have also seeped into the day-to-day conversations of the common people. The public sphere has become more democratic in nature and discussions pertaining to the LGBT rights have become common. Interestingly, there has emerged a scenario wherein people tend to be politically correct as and when the LGBT rights are being discussed whereas in their personal viewpoints, LGBT are seen as expressions of prohibited forms of relationships.
With the images related to Pride March and Rainbow celebrations flooding the digital sphere, most of the common people have become aware of their needs and aspirations. If one searches ‘Marriage Equality Debate India’ on YouTube, one comes across hundreds of videos which have been watched and are being watched thousands of times. Even the live streaming of the Supreme Court hearing of the Same Sex Marriage petitions is being re-watched thousands of times to understand the complex legal challenges inherent in the issue. It has a phenomenal affect on the mind and psyche of the common mass in India.
We just need to revisit how women’s movements and feminist activism in their early stage used to sensitize the public and make them aware of the core issues of gender inequality. Though met with resistance in the beginning, over a period of time, the terms ‘feminism’ and ‘being feminist’ have become socially acceptable and are now common in their usage. Digital spaces as of today are doing the same and are of immense importance to the ongoing debates on the marriage equality rights. Truly in the spirit of Habermasian public sphere model, in their arguments and counter-arguments, the learned and esteemed Counsels are shaping and reshaping the minds of India i.e., public opinion is being formed.
It is interesting that you mention the feminist movement. An argument made during the marriage equality hearings was that there are special protections in our existing family laws for women and wives, who have structurally lesser power in a marital relationship; and recognition of same-sex marriages will upset that legal regime. Even otherwise, the relationship between the queer and the feminist movements is sometimes presented as being at odds with each other, or at least, fraught with complications. Could you say a little on this relationship?
Patriarchy as a set of structural and hierarchical relationships bestowing superior position to men and inferior to women in the social order has a very long history. The reason why and how it has survived till now is because it operationalizes and justifies itself in multiple ways. For me, denying the recognition of same-sex marriages on the basis of erosion of women’s rights is an extension of the twisted logic of patriarchy because as Nandita Gandhi and Nandita Shah argue in their book, The Issues at Stake: Theory and Practice in the Contemporary Women's Movement in India (1993): ‘another face of patriarchy is heterosexism’ (p 328). The idea of ‘conceptual cracks’ as experienced in the women’s movements in India can be addressed in not less than two ways.
The first one sees the emergence of sexuality and desire as a manifestation of branching out of feminist scholarship and activism, hence devoid of any major conflict. Still, one can underline that the relationship between the queer and the feminist movement is problematic in its own way. Before venturing into this slippery ground, one needs to remember and recall that Marxism was at loggerheads with Marxist and socialist feminisms as for the former class antagonism was at the core, whereas for the latter patriarchy needed to be stamped out. Further, homogenous feminist movements in India cracked under the pressure of caste and class; the instances are many. Furthermore, the Neanderthal approach to understanding inequality among men and women resulting in leading to ‘sex war’ pitting men and women against each other has given way to more nuanced deciphering of ‘gender relations’ wherein there is a possibility of men being feminist and women taking the recourse otherwise. Taking the above-mentioned ‘conceptual cracks’, the queer and the feminist movements infightings need not be stretched beyond. Feminists and queer theorists negotiate gender-based inequalities in their own way to arrive at a just social order. This is one of the ways to understand the issue at hand.
Secondly, the encounter between the ‘conventional’ women’s movements and LGBT activism in India can be also seen as becoming aware of the emergent issues with changing times. Vibhuti Patel in Dynamics of Women’s Movement in India (2019) has noted that ‘In the 1980s, the initial response of the established leadership of the women’s movement was entirely homophobic, denouncing homosexuality as unnatural, a Western aberration and an elitist preoccupation’ (p. 26). Gandhi and Shah (1993, p. 327) have noted that the lesbian marriage between Leela and Urmila sometime in February 1988 was seen by women’s groups as personal one without having any larger ramification. One of the reasons as underlined by Bina Ferandez in Humjinsi: A Resource Book on Lesbian, Gay and Bisexual Rights in India (1999, p. 9) is ‘lack of visibility of lesbian women in the movement with some exception’. With reference to the women's movements' alliance of feminist groups with Lesbian, Gay, Bisexual, and Transgender (LGBT) groups; it was the National Conference on Women’s Movement in India held in Tirupati in between 23-26 January 1994 which underlined the themes of sexuality in a major way. With regards to the lesbian meeting during the conference, it is interesting to note that the Declaration of the conference acknowledged the rights of every woman regarding their body, sexuality and pleasure. Such a remarkable feat was achieved at that time! How and why the terms of discourse changed? How did sexuality become an issue to be ashamed of and thus to ‘hide’ desire?
One can argue that the subsequent ‘aggressive resurgence’ of the religion in the public sphere along with mainstream politics in the Indian context over a period of time severely trimmed the benefits of such a Declaration. The de-eroticized strands of religious discourse seeped into our day-to-day discourse and became so powerful that the pleasure principle was forcefully devoid and divorced from sexual acts. We became more religious than being a ‘sexual’ being. Uncertainty (impossibility?) regarding the ‘autonomous’ nature of women’s groups and organizations is equally debated in women’s movements. Furthermore, increasingly politicization of the women’s movements in India on the lines of respective political party’s agendas and programmes further defragmented the centrality of the women’s sexuality issues.
In the article, you cite Henrietta Moore to emphasize how the idea of “alternate” sexualities and desires is based on the notion of “Difference”. The queer self and politics are a sharp critique of heteronormativity, it is based on non-normativity. In this context, what do you make of the demand to seek recognition in marriage – an institution, which many would say, is characterized by conventionality and normativity.
For Marx, production (of human necessities) is the first act of survival. Improving upon it, feminists argued that reproduction ensures the life line of the humanity; thus, reproduction is the first act of survival. In the course of history as and when the texts (legal and otherwise) were being written, marriage as a union between a ‘biological’ man and a ‘biological’ woman was considered as the ‘normal’ cornerstone of human society because it ensured reproduction of the next generation. Subsequently, the social institutions of family, marriage and kinship were endowed with religious sanctity and came to become ‘natural’. With the advancement of medical science in general and Assisted Reproductive Technology (ART) including In Vitro Fertilization (IVF) in particular, marriage (socially sanctioned for the reproduction process) as an institution characterized by conventionality and normativity came under feminist scrutiny.
In this context, one can bring in Shulamith Firestone, a radical feminist who in The Dialectic of Sex: The Case for Feminist Revolution (1970) saw the reproduction process and motherhood as the site of female oppression. Subsequently she underlined reproductive technologies as liberative in nature. The plethora of contributions to the feminist literature soon followed and with the gay and lesbian movement gaining momentum, the distinction between ‘genitor’ (biological father) and ‘pater’ (social father) developed sharply. One can see this signpost as the first major conceptual ‘jolt’ to the sacrosanct heteronormative social institutions such as marriage and family.
The decriminalization of homosexuality coupled with domestic partnership for lesbian and gay persons along with the legal recognition of same-sex marriages is a step further towards diverse sexualities as non-biological parents will also have the equal socio-legal status as being enjoyed by biological parents. The crux of the matter in the marriage equality debate is that the term ‘man’ and ‘woman’ in the conventional and normative marital alliance needs to be replaced by the term ‘life partner’ or ‘spouse’. By legally doing so, those having alternate sexuality will have equal say in the marital alliance and will have their rights and entitlements secured.
The language you use in your 2014 article is quite intriguing: “discipline”, “law-abiding”, “normalcy”, “alternative forms” – all very Foucauldian. The law, many legal anthropologists and other theoreticians would argue, is inherently a tool of repression and disciplining, which awards normative subjects and punishes aberrant ones. Therefore, any attempt at using law (or the state) as an instrument of emancipation is misguided, at best. Foucault himself had a very complicated relationship with queer politics. What do you think of the relationship between the law, the state, and the “desire to discipline”?
Conventionally understood and viewed, sexuality is considered dangerous for the maintenance of social order. That is why sexuality needs to be monitored, regulated, and controlled more so ever in the case of female sexuality. Sex stripped of its sensuous character was to be synonymous to child birth and procreation. One can simply look over what major religious texts across religions have to say about sexuality and female sexuality and the point I am making becomes clear. Foucault through his writings weaved a seamless conceptual and theoretical framework of knowledge, power and sexuality and thus became regarded as the frontrunner of sexuality and queer theory. Considering that sexuality is socially constructed, he noted that the medicalization of sex and pleasure resulted into the categories of homosexuality and heterosexuality. Foucault and the discourse of sex-desire is an equally influential account of how power operates within the domain of sexuality.
Less than a decade ago in my paper I attempted to weave in the intricate relationship between the law, the state, the ‘desire to discipline’ and the ‘disciplining of the desire’. Simply put, it was through its Section 377 that the legal apparatus of the state ‘disciplines’ the alternate forms of ‘desire’. Subsequently, the paper elaborated upon the vibrant activism of LGBTQ+ community evident in varied scholarship and sites of activism. In today’s time, what we are witnessing in terms of ‘Plea for Marriage Equality: Constitution Bench’ is a consolidated outcome of the same. Personal matters are increasingly becoming political. It also points to the changing cultural and political terrain of how sex, gender and sexuality are being understood in India. As a key site of engagement, state has become of singular importance to all those who rally behind plea for marriage equality as till date sexuality has been produced, governed, and regulated by the state.
The article briefly refers to the resistance of the Hindu right against any recognition of homosexuality. The Hindu right has gained enormous political power in the last 10 years and has resisted the marriage equality petitions both through state and non-state actors. How do you understand the role of the Hindu right in queer movements and politics (and even feminist/anti-caste movements of similar nature demanding the right to marry as per one’s choice, that have become important in the context of “love jihad” laws etc.)?
Over a period, one can observe certain significant changes both in the ‘public’ and ‘personal/private’ manifestations in the overall persona of the Hindu right. It can be argued that this has to do with religion and religious identities becoming more public. The religious expressions have become grander whether in personal space i.e., within the four walls of our home or public spaces. The increasing political power of the Hindu right has played an important role in the public display of ‘Hindu’ image and identity to present itself as a powerful ‘Hindu Rashtra’.
Regarding the aggressive and sometimes violent opposition of the Hindu Right to the ‘constitutional’ right to marry as per one’s choice, one needs to see this in the equality discourse framework. The ‘sacred discourse of inequality’ is entrenched in Hinduism in the form of hierarchical and exclusionary caste system which Ambedkar termed as ‘graded inequality’. The ‘secular discourse of equality’ stems through the Constitution of India which is egalitarian, just, lawful and democratic to its core. Feminist/anti-caste movements are located in the realms of ‘secular discourse of equality’ whereas Hindu right’s resistance to these is located in the ‘sacred discourse of inequality’. The radical convergence of religion and nationality also comes in handy for the Hindu right wherein all those not professing Hinduism become ‘outsiders’ and thus are viewed with suspicion in day to day lives.
Regarding homosexuality, since religious discourse of all hue and colour decry it, Hindu right is not an exception. Homosexuality viewed through the religious lens is ‘unholy’ and ‘sin’ and those who commit it are destined to rot in ‘hell’. Thus, in legal parlance, homosexuality is crime punishable by the law of land; in the religious tone, it is a ‘sin’.
The judgment in the present case has been reserved and is expected to be out soon. Irrespective of the judgment, what do you think the marriage equality petitions and hearings mean for the queer movement, and how we think about questions of love, desire, sexuality, and marriage more broadly?
State and policies related to sexual orientation in India have undergone sea changes in terms of their outlook and day-to-day practice. State homophobia has decreased to a considerable extent as evident in more and more. Pride walks being organized with lesser harassment and ‘witch hunting’ by the institutionalized law and order mechanism. As one of the three branches of the state, the fact that the judiciary is giving a patient hearing to the LGBTQIA+ petitioners itself reflects upon the changing ambience. If the judgement is inclined towards ensuring equal treatment of sexual minorities, then the petitioners would see it as a favourable stand by the judiciary. The legislative and executive action on such a decision by the institutional mechanisms of the Government and Parliament is something which is fraught with many obstacles. It will take herculean efforts by the judiciary to ensure that its ‘legal sensitivity and commitment’ towards alternative sexualities are ‘institutionalized’ in terms of modified laws, acts and policies. Consequently, the social environment will be tuned more towards social recognition of same-sex marriage and will further expand opportunities for those parties to it. Most importantly, the queer movement in India and elsewhere will get energized. The plea for marriage equality points to the fact that the traditional definitions and boundaries of sexualities are undergoing significant changes. Surely, the coming times would be more democratic and liberal in terms of love, desire, sexuality, and marriage.
The questions for this interview were prepared by Manhar Bansal and Namya Gambhir on behalf of the SLR Editorial Board.
Read the other pieces in Queering the (Court)Room