UNSHACKLING DESIRE
REGRESSIVE ELEMENTS IN NEW LAWS ON SURROGACY AND TRANSGENDERS EXTEND THE COLONIAL HERITAGE OF CRIMINALISING SEXUALITY
LITERATURE, MYTHOLOGY AND RELIGIOUS AND EROTIC TEXTS dating from well over 1,800 years ago not only display a deep familiarity with non-binary genders and sexualities, but also emphasise their virtues. Legend has it that Rama dismissed his subjects, who were ready to accompany him into 14 years of exile, by exhorting all ‘the men, women and children’ to go back home from the edge of the forest. The hijras, fitting into none of these categories, remained where they were for 14 years, awaiting the return of Rama. Touched by their devotion, Rama granted them special powers of benediction for which they continue to be known today.
The Mughal courts borrowed the word ‘hijra’ from the term describing the Prophet Muhammad’s flight from Mecca to Medina; the Islamic calendar—the hijri—begins from this date in 622 CE. The association with a flight from persecution has historically marked hijras as a noble people, seeking sanctuary and freedom from barbarism, and standing steadfast in the face of ruthless political pressure. Hijras are people who flee persecution—in this case, from the draconian orders of gender and sexuality.
The Kama Sutra makes several observations about people of ‘the third nature’, describing their sexuality on par with that of men and women. Across religious and secular traditions, across Hindu and Muslim texts and practices, hijras—also known in India as kinnar, kothi, aravanis—have been an integral and recognisable part of the Indian landscape. Historically, in India, there has never been widespread, systematic or publicly-sanctioned demonisation of those who defied the norms of binary gender and sexuality. All that changed when the British introduced the Criminal Tribes Act of 1871.
The Act, repealed in 1952 by then prime minister Jawaharlal Nehru, announced that eunuchs, among other tribes, castes and social groups, were criminal from birth, and needed to be outlawed. Eunuchs’ criminality consisted of the fact that they did not
conform to gender stereotypes of male and female. People whose bodies had been determined biologically to be male, wore female attire in public, and sang and danced as women might. The British were horrified by this project of gender-bending, and criminalised it. During the British raj, hijras were forced to register themselves and arrested if caught doing things like singing and dancing in public. The Criminal Tribes Act forged the way for criminalising any resistance to gendered and sexual normativity. As a result of these historical shifts, we now occupy a strange space in India in relation to non-normative sexuality. We have a historical memory of the importance of hijras, yet live with the conviction of their criminality. What the British did was to disenfranchise people whose choices they did not understand by labelling them as threats to law and order. Is that the model we would like to follow? Or do we live our daily lives with a recognition and embrace of difference, as Nehru wanted us to? Are we willing to allow the existence of various beliefs and genders and sexualities without feeling challenged by their variety? Or are we content with criminalising others just because their behaviour might not accord with our own? One historically ‘Indian’ option would be to take apart the colonial heritage of criminalising sexuality. The Supreme Court did that with its verdict on Section 377 of the Indian Penal Code, overturning yet another British law that legislated against yet another form of non-normative desire flourishing in India. Or should we remain passive when laws like the one on surrogacy discriminate against the very same sexual minorities the 377 judgment enfranchised? Do we embrace the traditions of hijras or allow them to wither in the folds of the Transgender Persons (Protection of Rights) Bill, which demands hijras be medically examined before being declared transgendered people? If we want to embrace prudery over expansiveness and phobia over multiplicity, then we must be clear such a position has only been ‘Indian’ for 248 years; it dates from the advent of the British empire. But what is and has been ‘Indian’ for almost 2,000 years before that has been the syncretic, multiple, and expansive passions of desire, long predating what we now call trans-sexuality and homosexuality.
INDIAN TRADITION ACCEPTED NON-BINARY GENDERS; THE BRITISH MADE IT CRIMINAL