In this paper, I attempt to analyze how the legal challenge to Section 377 of the Constitution of India (which, passed in 1860 under British rule, criminalizes any sexual activity between consenting adults that goes “against the order of nature”) by gay activists and Indian NGO organizations like the Naz Foundation complicates queer theory’s critique of state-centered interventions. 

Critiquing what I call an ‘anti-statist political bias’ that informs much of queer theorizing in the US, I will argue that the attempt to challenge Section 377 of the Indian Constitution does not necessarily constitute a more “traditional” approach to queer politics; in fact, I illustrate how the attempt to mobilize the legal system within the sexual economies of India, does indeed enable performative effects in contexts that exceed the legal sphere. 

For example, gay activists in India are well aware that Section 377 has hardly ever been used to actually prosecute consenting queer relationships. And yet, it is precisely the performative implications in non-juridical contexts that inform the urgency of the Public Interest Litigation filed by the Naz Foundation against Section 377 – mainly, the ways in which anti-sodomy laws prevent the creation of adequate health services, HIV prevention, and condom distribution in prisons. My paper will analyze how the interventions to mobilize the legal sphere in the context of Section 377 do not axiomatically get articulated in the terms of a narrow identitarian framework. For example, the Public Interest Litigation (PIL) filed by NAZ against the law was not attached to an individual petitioner. 

Identity in this context becomes the performative effect of a broader engagement with the political field of sexual citizenship. Thus legalism in this context need not necessarily lapse into liberalism or the much dreaded “statism”—instead, the engagement within the legal sphere is imbricated in material contexts that have profound implications in spaces that have little to do with the legal arena (even while they are not outside the law or exceed its scope in any simple sense). I will thus theorize the attempt to repeal sodomy laws in India as more than just a conflation of the political to an “act of prosecution” but in fact, as an attempt to engage with the socially constitutive implications of that very law. 

Such an engagement, I argue, is quite in-keeping with the queer critique of discursive regimes of normality. In creating this transhemispheric dialogue between sexual citizenship in India and queer theorizing in the West, my intent is not to dismiss the profoundly crucial epistemological and political interventions of queer theory – instead, it is an attempt to, in Michael Warner’s own words, force “Anglo-American queer theorists . . . to be more alert to the globalizing—and localizing—tendencies of our theoretical languages.”

About Nishant Shahani