Infinite Variety

by Madhavi Menon

  Upon learning of his suicide, the woman boarded a bus and reached Muzaffarnagar Tuesday. She visited Danish’s house in Kasaban locality the following day and collected information about the place where he had been buried. She went there and consumed the poison, police added. The police found a suicide note, in which she identifies herself as Danish’s ‘wife’ and terms his death as the reason behind her ‘taking her own life’.

  ‘We are yet to record her statement in detail about when she got married and whether Danish’s parents knew about it. She has yet to produce any evidence to corroborate her marriage,’ the SHO said. Danish’s father has refuted the woman’s claims that his son was married.

  * * *

  Delhi, Catch News, 21 July 2015: ‘In the name of love: what drove 4,168 Indians to death last year’:

  It’s not hard to see why being in love in India is no easy thing. Consider the restrictions on courtship in public places, the moral policing of young couples, the stigma around relationships before marriage and outside one’s caste or community. Consider the stories of parents crying rape and kidnapping against the ‘unsuitable’ boys their daughters elope with. Consider the number of inter-community relationships that end in honour killings.

  The social realities that govern relationships in India often feed into a sense of failure, disappointment, disruption, estrangement—and push vulnerable people to suicide.

  In 2014 alone, the NCRB [National Crime records Bureau] attributed 4,168 suicides to ‘Love Affairs’, or 3.2% of all suicides in India. Fewer people, 3,647, died due to ‘Drug Abuse/Addiction’. The NCRB report does not explain precisely why love affairs are driving people to suicide.

  City dwellers are taking their lives for love at higher rates than the country as a whole. Such suicides, as a percentage of all city suicides, is higher than the national average of 3.2%. Among cities, Delhi witnessed most love-attributed suicides (63) in 2014, followed by Bangalore and Chennai (54 each), Bhopal (48) and Mumbai (46). Men seem more lovesick than women, having a significantly higher rate of suicides, except in West Bengal and Odisha where the trend was reversed last year.

  In Meerut, a whopping 46.8% of all suicides in 2013 and 32.4% the year before were attributed to love, the highest of any city. The best places for lovers: Srinagar and Nagaland. Neither has seen a love-related suicide in three years.

  * * *

  New Delhi, The Indian Express, 26 July 2015; ‘Delhi has Highest Number of Suicides over “Love Affairs”’:

  Last year, the national capital witnessed the highest number of suicides over ‘love affairs’ among 55 cities, according to a report of the National Crime Records Bureau (NCRB), which analysed data on reported cases of suicides in these cities.

  As many as 63 people, including 38 men and 25 women, committed suicide over ‘love affairs’, said the report. The capital’s neighbouring cities recorded fewer cases of suicides over ‘love affairs’, according to the report. Chandigarh recorded 21 such suicides, while Jaipur and Ghaziabad recorded seven and 10 cases respectively, it stated.

  * * *

  Mysore, New Indian Express, 14 April 2016; ‘Suicide or Honour Killing? Mystery over Girl’s Death’:

  Distressed by her parents’ attempts to thwart her love for a lower-caste boy, a 20-year-old girl allegedly committed suicide on Tuesday. Police are not ruling out the possibility of an honour killing. The incident, reported from Chandrawadi near Nanjangud, came in the wake of her family’s repeated attempts to make her ‘uphold the respect of the family’.

  Madhu Kumari, hailing from an upper caste, was in love with Jayarama. Her parents, who did not approve of her choice, had fixed her wedding with a relative. They had even started distributing cards for the wedding, slated for March 29. Madhu had resisted the alliance and wanted to marry Jayarama against the wishes of her family, a source said. This led to a furore. A distressed Madhu allegedly committed suicide on Tuesday. The family performed her funeral in a hurry, without informing the police.

  * * *

  The Urdu and Hindustani term for suicide is khudkushi, which derives from the Persian words khud—self—and kushtan—to kill. This is the way in which all Hindi/Urdu-English dictionaries render the term for suicide. But the colloquial rendition of this word is khudkhushi—with a second ‘h’—which translates quite literally as self-pleasuring. ‘Khud-kushi’ turned up 87 results on Google, and 20,800 without the hyphen. ‘Khud-khushi’ turned up 4,51,000 results, along with graphic images of suicide, and 3,33,000 without the hyphen.

  Sexual pleasure, it would seem, is widely associated in India with the idea of death. To kill onself is also to pleasure oneself. The fact that one of these words is etymologically incorrect does not diminish its power in the popular imagination. Colloquially, speakers of Hindi and Urdu in India speak a language of death that is also the language of desire.

  9

  LAW

  VS: When we first started, we didn’t know the name for it... We only knew that we made each other happy and that’s what counted most.

  SD: Did you feel guilty?

  VS: No. Not till we found out that what we were doing had an actual name for it and that if we were caught we’d be punished by law.

  SD: Did it deter you from continuing that kind of relationship?

  VS: Not at all. To be frank with you, in a way it made the whole thing more interesting for us...you know, the feeling that we were doing something that was a criminal offence...

  —Interview in Shakuntala Devi’s

  The World of Homosexuals

  Two curious things happened in the Indian Supreme Court in two consecutive years.

  In December 2013, the Supreme Court overruled the Delhi High Court’s 2009 decision to ‘read down’ Section 377 of the British-promulgated 1860 Penal Code. Section 377 states that ‘Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.’ The marginal explanation clarifies that ‘penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section’. Even though ‘carnal intercourse against the order of nature’ might refer to any sex act that does not lead to reproduction, the law was widely considered to be discriminatory against homosexuals. And even though there have been no convictions of homosexuals on the basis of this law in the higher courts of the land, Section 377 has been used rather liberally, often by the police, to harass and intimidate gay people around the country.

  The Delhi High Court’s landmark ruling did not get rid of Section 377 altogether. But it did rule that the law was discriminatory against the Constitutional guarantees of freedoms of life, liberty and equality for those people targeted by this law. This included, first and foremost, private consensual sexual relationships between adults of the same sex. Section 377, the court said, could only apply to cases of non-consensual non-vaginal intercourse, or intercourse with minors. That is, Section 377 should penalize only homosexual rape (heterosexual rape is covered under Section 375 of the Indian Penal Code), and the rape of minors regardless of sexuality. The Court held that this justifiable punishment of forced sex could not in any way be interpreted to refer also to consensual sexual relationships between adults of the same sex. The Delhi High Court verdict was greeted with much jubilation.

  Three and a half years later, the Indian Supreme Court in December 2013 overturned the Delhi High Court judgment, and upheld Section 377. The judgement was a strange mix of aggressive ignorance and legal special pleading. It says that homosexuals constitute only ‘a minuscule fraction of the country’s population’. One of the judges said in court that he did not personally know a single homosexual. And the judgment stated that since only Parliament can change the law, the Delhi High Court acted beyond its jurisdiction in reading down Section 377. The partial overturning of the law was thus fully overturned.

/>   And then a few months later...

  In April 2014, the same Supreme Court of India (albeit a bench consisting of different justices) affirmed the fundamental legal and constitutional rights of transgender people. According to the NALSA judgment (so called because the case was argued between the National Legal Services Authority and the Union of India and Others), discrimination against transgenders violates their rights to equality and freedom of expression and dignity. These were the same rights whose violation was dismissed in the case of homosexuals by the Supreme Court four months earlier. Even more, the Court now asserted that gender identity is a matter of one’s intellectual and emotional choice rather than medical intervention. In other words, one does not need to be anatomically male in order to identify as a man and anatomically female in order to be recognized as a woman. This is a huge leap forward in thinking about gender since it also takes into account one’s desire: how do I see myself and how do I want to be seen by others? Under the new dispensation, desire is no longer based on anatomy, but rather on what one wants.

  Perhaps even more importantly, the Supreme Court judgement understands and supports the idea that the word ‘sex’ as used in Articles 15 and 16 of the Constitution of India to mean a characteristic on the basis of which discrimination is prohibited by law, should be understood to refer not only to biological sex but also to psychological sex, gender identity and sexual orientation. (This last stipulation puts the transgender judgement directly in conflict with the 377 judgement.) The Supreme Court judgment is very much in keeping with the spirit of a postcolonial India that sought to distance itself from several pernicious aspects of British law. The Criminal Tribes Act of 1871, for instance, which included ‘eunuchs’ among other tribes, castes and social groups whom the British considered to be criminal from birth because they did not conform with gender stereotypes, was one such law. Independent India’s first prime minister, Jawaharlal Nehru, repealed the 1871 law in 1952 after referring to it as ‘a blot on the law book of free India’.

  Indeed, the Bill on transgender rights passed in the Rajya Sabha, the Upper House of the Indian Parliament, in 2015 is an attempt to reinforce and re-implement Nehru’s vision with even greater force. This Private Member’s Bill is based on the spirit and letter of the Supreme Court judgement. It defines a transgender person as ‘a person whose gender does not match with the gender assigned to that person at birth and includes trans-men and trans-women (whether or not they have undergone sex reassignment surgery or hormone therapy or laser therapy etc.), gender-queers and a number of socio-cultural identities such as—kinnars, hijras, aravanis, jogtas etc.’

  The Rights of Transgender Persons Bill states: ‘The provisions of this Act or the rules made there under shall be in addition and not in derogation of any other legislation, rules, orders or instructions which provides any entitlement or benefit to transgender persons.’ Such a stipulation seems to open the door to undoing the criminal status accorded by 377 to people of the same sex having consensual intercourse. After all, since the transgender judgment and Bill have lifted the requirement for anatomical alignment between body and gender identity, presumably one of the men having sex with another man could claim, should he so desire, to be transgendered. This is one of the loopholes being examined in the version of the Bill currently circulating in the Lok Sabha. Completely disregarding the Supreme Court’s judgement that the space of the third gender can be occupied by whoever psychologically feels distanced from the gender binary of male and female, the government has sought ‘clarification’ on who exactly and empirically should be included in the category of the third gender. And then, even more perniciously, the Transgender Persons (Protection of Rights) Bill, 2016—which is the current version in circulation in the Lower House of Parliament, the Lok Sabha—officially removed the right to psychological self-determination provided for by the Supreme Court judgement.

  But even if Parliament changes the Supreme Court’s definition of a transgender person as someone whose identity is not dependent on anatomical rigidity, even if it refuses to allow sexual orientation as one of the ways in which the use of ‘sex’ in the Constitution can be understood, even if it refuses to overturn 377, even then the curious legal situation generated in 2013 and 2014 will remain. How can the same court strike down the rights of sexual minorities in its judgement on 377, and then uphold the rights of sexual minorities in its judgment on transgenders? This two-faced legal tangle has generated much perplexity in its wake. Does the Supreme Court, the country’s highest judicial authority, believe that sexual minorities should or should not be protected under law?

  One reason for this curious situation is that the Supreme Court, unlike its counterpart in the US, does not sit as one unified body to hear its cases. Instead, different benches of judges are constituted for different cases, which makes the arbitrariness of the law and its interpretation startlingly obvious.

  However, even as the law’s seeming two-facedness in relation to sexual minorities seems deeply perplexing, there is an underlying uniformity that marks both judgments. Despite the progressive nature of the NALSA judgment and the regressive slant of the 377 verdict, both judgements are sex-phobic. ‘Carnal intercourse against the order of nature’ in Section 377 is met with revulsion because it specifies sexual activity as its ambit, and the Supreme Court judges recoiled from such a blatant reference to sex. Equally, the transgender judgment focuses firmly on the gender identity of a person rather than on their sexual acts. Of the 286 mentions of the word ‘sex’ in the NALSA judgment, only a handful refer to sex acts, and those are inevitably in relation to Section 377, on which the Court explicitly says it will not pronounce. The phrase ‘carnal acts’ is never used. It is almost as if the judgment assumes that transgender people do not have sex.

  In its avoidance of sex, the Supreme Court judgement is joined by the hijra community’s historical association in India with celibacy. Post-op hijras who have undergone ‘nirvana’ are meant to abjure sex absolutely, and are often punished if they violate this rule. While several hijras go into prostitution by compulsion or desire, and have sex by choice, they are not supposed to do so. Celibacy is a requirement of the true hijra—going beyond gender also means going beyond sexual desire. This is why for so long, and continuing to this day, hijras are considered to be holy—because they fit the bill of a celibacy that all Indian religious traditions hold to be sacred. It is not difficult, then, to see a deeper affinity between the 377 and transgender judgements since they are joined together in an avoidance of sex.

  Even though the NALSA judgment delivered some revolutionary ideas in terms of gender, it did so at the expense of dealing with sex. It expanded the understanding of gender from biological to psychological gender, but it did not pronounce on the sexual attractions that might be tied to such a psychological gender. The judgement made illegal the need for sex reassignment surgery in order to qualify as a transgender person of the third sex, which is a huge step forward from thinking of gender as being entirely embodied. But it did not specify that such members of the third sex can also be men and women who have sex with other men and women. The judgment boldly said that no one should be discriminated against on the basis of sexual orientation, but it equally noted that it would not comment on the one law that explicitly peddles such discrimination. Indeed, in many ways, the judges were operating in a sex-free zone, which perhaps made it easier for the Court to deliver the progressive judgement that it did. The judgement was bold because it brushes sex under the carpet. This absence of explicit sex is now allowing the government to try and get away with excluding sexuality from being protected under the ambit of NALSA.

  The legal sphere in India is sex-phobic, then, whether actively or by omission. This does not only mean that courts cater to phobias about sex, although they do that too. But even more, they refuse to think about sex even and especially when they pronounce judgements that mark a step forward in matters of gender identity. While it is a sound move to uncouple gender f
rom sexuality—after all, one’s gender should not automatically determine one’s sexual desire or even suggest that one should have sexual desire of any kind—it seems egregious to refuse to pronounce on sex acts at all in a judgement that has far-reaching consequences for who has sex with whom.

  Indeed, two things seem evident about laws governing desire in India today: they are averse to talking about sex acts, and when they do talk about them, they talk only about heterosexuality. The underlying impulse of Section 377—to distinguish between ‘natural’ and ‘unnatural’ sex and then penalize the ‘unnatural’ so designated—has a deeper reverberation in the law, quite independent of Section 377. The Criminal Law (Amendment) Act of 2013, for instance, which has made the rape laws in India more stringent, cannot even conceive of sexual activity as being anything other than heterosexual. Male victims of male rapists are not protected by the amended law and female perpetrators of sexual violence against women or men are not even allowed to exist.

  In Talking of Justice: People’s Rights in Modern India, her account of serving on the Justice Verma Committee charged with providing recommendations for laws on sexual assault and harassment at the workplace, Justice Leila Seth describes her views on the law’s sexual blind spots:

  When I had helped draft a bill regarding sexual offences for the 172nd Report of the Law Commission, of which I was a member, we had made rape gender-neutral, which meant that the perpetrator could be ‘any person’ and the victim could also be ‘any person’... (This was also the accepted position in Bill No. 130 of 2012, pending in the Lok Sabha.) But there was considerable weight of opinion pressing for this offence to be made gender-specific... After a great deal of brainstorming...we arrived at a consensus: though the perpetrator was identified as a man, the victim was to be categorized as gender-neutral, thus covering males, females and transgender persons... // The government ordinance issued immediately after our report was submitted kept the gender neutral with regard to both perpetrator and victim, but when the Criminal Law (Amendment) Act, 2013...was passed by Parliament, it made the offence of rape gender-specific with regard to both perpetrator and victim.