Sexuality Policy Watch

Article Newsletter N 14 – Vqueeram Aditya Sahay

The four figures of the law:  Brief theoretical inquiries into the Queer movement’s relationship with law

Vqueeram Aditya Sahay*

This piece is about what the law means to the queer movement in India. While I study the campaign and mobilization around Section 377 of the Indian Penal Code that criminalizes non-procreative sex, what I attempt to understand is the construction of the figure of the law by the movement. I offer four such readings and the tensions so produced.

The first takes forth from akshay khanna’s work that shows how the queer movement invested the law with the symbolic and the social lives it has come to occupy.  I am primarily interested in how the queer movement entered regimes of governmentality of law, and on what terms. The petition (and supporting interventions) filed against Section 377 presented the queer subject as betrayed by law. The petition itself attempts to create an affective intimate public with a law that actually seems to know very little about the lives in question. It does so by brimming with a certain testimony of discrimination, stigma, and an objective presentation of the subject in pain. Trauma, here, becomes the truth of the subject. Affect replaces the radical call to infrastructure or, perhaps, becomes the infrastructure that renders the subject transparent. This sentimental politics reauthorizes universalist notions of citizenship in a national utopia: the law shall eradicate systemic social pain, the absence of which pain constitutes nothing less than freedom. The law is imagined as reparative therapy to the caesura opened up in the political, by covering the wrongs in what becomes a politics of protection and rescue – one beyond ideology, beyond contestation.

This gesture of reparation is repeated by the Naz judgement of 2009 that set up the Private as the utopian site for the seamless flow of desires. The queer movement too imagined that once Section 377 would go, desires would flow seamlessly. Within this framework of decriminalisation, desires work against restrictions. If we know anything about desires, through psychoanalysis, however, it is that they work in relation to constraints and the law. This notion of sexual privacy is drawn from a lexicon of romantic sentiment – a longing for a space where there is no trouble, where freedom and desire meet in supra-political expression, where the abstractness of the model citizen is left unchanged. Against accusations that privacy is a privilege mostly for upper class gay men, some have argued that the judgement gave us a radical reading of privacy, as both ‘personal’ and ‘zonal’.  But such scholars, I think, forget that the law has its own structure. Consider, for instance, that the Supreme Court judgment of 2013 was badly argued, with no trace of reasonable argument or constitutional empathy. And yet, the same legal scholars tell us, it already affects queer lives as law. This brings us to the second figure of law that emerges from the Queer movement: the figure of law as not only reparative of the political, but of itself – since it lacks structure and is always already open.  What is remarkable here is that the burden of repair falls on the subject marginalised by law, abjected by law.

The sacrifices made at the altar of privacy, this giving of the symbolic space in politics to the law, is often justified in terms of strategy: law as strategy. This is the third figure of law.  It was at a certain moment in third wave feminism that strategy came to become part of thinking of radical politics – with Denise Riley’s irritant feminist politics, Judith Butler’s second preface to ‘Gender Trouble’ and Gayatri Spivak’s strategic essentialism.  I wish to quote Spivak here, from her essay on ‘Subaltern Studies: Deconstructing Historiography’   to remind us of that earlier moment and its politics:

‘From within but against the grain, elements in their (Subaltern Studies) text would warrant a reading of the project to retrieve the subaltern consciousness as the attempt to undo a massive historiographic metalepsis and ‘situate’ the effect of the subject as subaltern.  I would read it, then as a strategic use of positivist essentialism in a scrupulously visible political interest. This would put them in line with the Marx who locates fetishization, the ideological determination of the ‘concrete’, and spins the narrative of the development of the money form; with the Nietzsche who offers us genealogy in place of historiography, and the Derrida of ‘affirmative deconstruction’. This would allow them to use the critical force of anti-humanism, in other words, even as they share its constitutive paradox: that the essentializing moment, the object of their criticism is irreducible’.

It is this desire for immediacy of the self that overlooks the complexity of the production of (a) sense(s) of self. This is a reproduction of the subject effect as subject consciousness, one that doesn’t engage with the ‘line’ so outlined. Most importantly, this suggests the inability to think of the double binds of strategy that I find dangerous in the queer movement’s making of the law as strategy.

My final reading of the figure of the law within the queer movement sees the law as impossible to locate. There are two ways of speaking about the law at work here. One speaks of the law as dispersed, spread out in the social and the symbolic and/or its reflection, i.e., the law as part of this larger law which permeates the field.  So, Section 377 here becomes representative of the larger heteronormativity and its phobias.  The second way is to speak of the law as mere reflection of the prejudices of the court. This becomes increasingly relevant in a judge centric judicial system.  The Koushal judgment of 2013 was berated in queer circles as a prejudiced judgment from judges who had made up their minds and were not willing to listen. The law, then, either becomes part of this larger symbolic or mere reflection of the prejudice of a person. In each case then, when we speak of the law we do not speak of the law at all, since the law as such is nowhere. It merely and always stands in for something else.

In summation, there are four figures of law that haunt the queer movement in India – the law as reparation of the political, the law as constantly repairing itself, the law as strategy and the law as everywhere and therefore nowhere. While the first two figures have helped consolidate the drive towards the production of good queer citizens of liberal Constitutional democracy, the last two seem to tug the former move apart by revealing the tears or silencing the remainders.  While the queer movement attempts to become an umbrella movement in India, such an eclecticism of the law, I worry, is terrifying, and perhaps like terror, paralyzing.

4- Guha & Spivak eds. Selected Subaltern Studies. New Delhi: Oxford, 1988

Vqueeram Aditya Sahay is pursuing a PhD in Delhi University

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