• Rachel Cochran

Perilous Discourses of Progress: Section 377 and the (Re-)Decriminalization of Homosexuality in Indi


I was midway through writing a completely different article to post here when the news broke on Thursday that India’s Supreme Court had overturned the law known as Section 377, which criminalized homosexual acts in India for over 150 years, and which first came into effect in the Indian Penal Code of 1860. This event struck me as exigent enough to abandon my initial efforts in hopes of instead using this as an opportunity to examine political hypocrisy, neocolonial impulses, and the ubiquity and persistent danger of normative/Eurocentric narratives of history as progress. Of course, these topics are all well-trod ground in many subfields of critical theory, chief among them postcolonial, queer, and feminist perspectives, all of which push against universality/centrality/normativity in the natural interest of advocating for marginalized identities and against the epistemological and embodied violence of marginalization as the necessary consequence of normativity. I don’t address any of these elements here in hopes of asserting new theories, but merely of reflecting on this news from India and the ways in which it relates to the current (embattled) political circumstances in the U.S. and Europe.

First, a brief personal history of my experiences with Section 377: When I traveled to India in 2011, I fell in with a crowd of queer and queer-allied students at the university where I was studying. The closest friends I made in India, these students slowly acquainted me with an idea of what being queer meant to them: there were gay (or at least gay-coded/gay-friendly) bars in the city; a prominent poet in the English Department was famous for his queer erotic poetry; a small but respectable body of Indian-authored queer literature was available in local bookstores; and a recently-developed smart-phone app paired men looking for same-sex hookups, à la Grindr. In other words, there seemed to me precious little difference between these experiences and mine as a queer undergraduate in Evansville, Indiana. I was shocked, therefore, to hear that the law that criminalized consensual homosexual acts had been declared unconstitutional by the Delhi High Court only two years previously, in 2009. At the time, I was naively struck with the sense of how much progress had been made, and how quickly--an impression that was swiftly undermined in 2013, two years after my time in India, when the Supreme Court of India overturned the Delhi High Court’s ruling, reinstating Section 377 and rendering consensual homosexual acts criminal offenses once again. From afar, I heard accounts of how my friends and my friends’ friends struggled to re-closet themselves in the wake of this new blow. “After 2013, I think what was happening was that the dark cloud over queer social interaction reappeared,” a friend wrote to me. “Between 2009 and 2013, there was an upsurge in gay parties and events. Then after the 2013 [ruling], everything had to be hush hush again.” Under this new dark cloud, some of my friends even went so far as to seek to leave the country entirely, a difficult and drastic move that is of course not readily or permanently available to even a fraction of India’s queer population. Within this context, Thursday’s overturning of Section 377 by the Supreme Court is being hailed as marking the end of the struggle, a final victory for queer activists on the struggle against this particular law.

Yet again I am concerned at the naivety, the ultimate vulnerability, and even the Eurocentric hypocrisy of confident narratives of progress like this one (particularly as I see them voiced by fellow Americans in relationship to Indian politics). When viewed historically, narratives of progress empowered and perpetuated imperial conquest and colonization, particularly in the nineteenth and twentieth centuries: in “Can the Subaltern Speak?” Spivak writes of the role propagandic, British-authored horror stories of sati (ritual widow-burning), which served as a rallying cry for imperial advancement in India under the myth of ushering in protection and “progress” for Indian women; in his works, Dipesh Chakrabarty argues against master narratives of history as a whole, which he contends, in their current state, continue to privilege European sovereignty and place all other identities and histories “in a position of subalternity; one can only articulate subaltern subject positions in the name of this [European] history” (1). Building off of these impulses in postcolonial theory to situate narratives of history-as-progress as inherently Eurocentric, Amy Allen writes in The End of Progress: Decolonizing the Normative Foundations of Critical Theory: “to say that progress is a ‘fact’ is typically to say that the normative ideals, conception of practical rationality, and social and political institutions that have emerged in European modernity--in particular, in the Enlightenment--are the result of a cumulative and progressive developmental or historical learning process,” an assumption that is “not merely an empirical judgment but necessarily also a normative one” (13). Indeed, according to Allen, “perhaps the major lesson of postcolonial scholarship over the last thirty-five years has been that of the developmentalist, progressive reading of history--in which Europe or ‘the West’ is viewed as more enlightened or more developed than Asia, Africa, Latin America, the Middle East, and so on--and the so-called civilizing mission of the West, which served to justify colonialism and imperialism and continues to underwrite the informal imperialism or neocolonialism of the current world economic, legal, and political order, are deeply intertwined” (3).

In simpler terms, Eurocentric narratives of progress are impossible to critically maintain in our current moment, when the fear--and reality--of regress (or, viewed more accurately, political and social change that emulates, reimagines, and/or reconstructs a more oppressive past) is evident all around us. Others (including our own Linda Garcia-Merchant, in her post “Making America Mid Century Modern--Again”) have written eloquently on the ways in which Trump’s vision of “greatness” is a patriarchal and, by definition, a sharply exclusive, sexist, racist, and rigidly classist one; MAGA ideology therefore configures progress as regress--or, at least, it situates itself in opposition to the models of emancipation which have long undergirded critical theory and academic knowledge. Access to resources, to citizenship, to the country itself are being blocked, even actively rescinded. Even this week, the fear of regress hangs as its own dark cloud over the confirmation of Brett Kavanaugh, whom many fear will contribute to stripping away gained ground, effectively recriminalizing same-sex marriage or abortion rights. (Sure, he says Roe v. Wade is “important precedent,” but what security is precedent in Trump’s times?) On a more local, but scarcely less immediate, level, the recent realities of death penalty legislation here in Nebraska resemble India’s deliberation over Section 377: three years ago, lawmakers moved to abolish the death penalty, but the law was reinstated by voters in 2016, resulting in the execution of Carey Dean Moore on August 14 of this year, less than a month ago. In these times, we are perhaps right to be anxious about progress; yet we are far more right to reject historicizing our own past as one in which progress is inevitable--to see, as Walter Benjamin encourages us, that “as soon as it becomes the signature of historical process as a whole, the concept of progress bespeaks an uncritical hypostatization rather than a critical interrogation.” After all, do caged children, like Adorno’s conceptions of Auschwitz, not “[make] all talk of progress toward freedom seem ludicrous” (7)?

The United States is not alone in its seemingly-intentional patterns of sociopolitical regress. Brexit can be read as Britain’s attempt to extricate itself from its culpability in the consequences of its own history, the aftermath of the tools of oppression it weaponized against the lands and populations it colonized. It is Britain’s culpability in particular that relates to the Indian Supreme Court’s recent decisions regarding Section 377: the Indian Penal Code of 1860 was imposed by the British, several years following the Indian Rebellion of 1857 and the subsequent dissolution of the East India Company and formal annexation of much of India under the British Empire. The Penal Code represents imperial Britain’s attempts to understand a vast, culturally diverse subcontinent by forcibly and unnaturally unifying it--an epistemic reduction that empowered and enabled the violences of empire for many generations to follow. It is important not to view India’s recent victory as arising comparatively late in comparison to the West’s own decriminalization of consensual homosexual acts: such a conclusion invalidates not only the West’s hand in instating these laws in India in the first place, but also the shockingly recent Supreme Court overturning of the U.S.’s own sodomy laws at the federal level, which took place only fifteen years ago. It is also important to rebel against the idea that progress is natural, stepwise, or automatic, or even that it exists in any clear or traceable way across time; conceiving of history in this way can all too easily result in (in the best cases) esoteric smugness and even (in the worst cases) apocalyptic proselytizing in the face of the regressive/oppressive politics of our age. Rather, as Max Pensky says of Benjamin’s theories: “Progress’s first step is the enraged destruction of the discourse of progress” (170).

References

Adorno, Theodor W. “Progress or Regression?” History and Freedom: Lectures 1964-1965, edited by Rolf Tiedemann. Translated by Rodney Livingstone. Polity Press, 2008.

Allen, Amy. The End of Progress: Decolonizing the Normative Foundations of Critical Theory. Columbia University Press, 2016.

Benjamin, Walter. “[On the Theory of Knowledge, Theory of Progress].”

Chakrabarty, Dipesh. “Postcoloniality and the Artifice of History: Who Speaks for ‘Indian’ Pasts?” Representations, no. 37, 1992, pp. 1-26.

Jamieson, Alastair. “India decriminalizes gay sex, ending colonial-era Section 377 law.” NBC News, 6 Sept 2018, https://www.nbcnews.com/feature/nbc-out/india-decriminalizes-gay-sex-ending-colonial-era-section-377-law-n906966. Accessed 6 Sept 2018.

Merchant, Linda Garcia. “Making America Mid Century Modern--Again.” Watershed, http://www.watershedblog.com/single-post/2016/11/10/Making-America-Mid-Century-Modern-Again. 6 Sept 2018.

Pensky, Max. “Contributions Toward a Theory of Storms: Historical Knowing and Historical Progress in Kant and Benjamin.” The Philosophical Forum, vol. 41, 17 Feb 2010, pp. 149-174. Wiley Online Library, doi:10.1111/j.1467-9191.2009.00356.x

Spivak, Gayatri. “Can the Subaltern Speak?” Colonial Discourse and Postcolonial Theory: A Reader, edited by Patrick Williams and Laura Chrisman, Columbia University Press, 1994, pp. 66-111.

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