Identity politics, law and queerness in India: Reflections on six years since Navtej

While visibility is crucial, focusing solely on it can short-circuit the more profound understanding of how queer identities are socially and materially produced, write Aditya Krishna and Sagrika Rajora..—.THIS sixth of September marked six years since the judgment in Navtej Singh Johar versus Union of India. There is a celebratory remembrance of the watershed moment in progressive circles in India. However, to many, these temporal celebrations appear like empty fronts of evasive 'solidarities', which overshadow the years of struggle and activism that transcended mere nominal demands..It is nobody's case that the decriminalisation of homosexuality was a nominal demand, but the sixth anniversary of Navtej is an opportune moment to reflect upon queer activism in the country and the mainstream socio-legal discourse outlining this activism..“To many, the temporal celebrations around decriminalisation of homosexuality appear like empty fronts of evasive 'solidarities'..Globalisation and neoliberalism have played a crucial role in shaping the contemporary discourse on queer identity. With the proliferation of Western ideals of democracy and liberal tolerance through global markets, the acceptance of queer identities has become increasingly commodified..As globalisation intensifies, queer politics in India increasingly mirrors its Western counterparts, prioritising visibility and individual rights over collective struggles against systemic inequalities..This focus on inclusion into a neoliberal world order has come at a great cost to those who exist at the intersections of class, caste and sexuality. The marginalised queer subject— such as working-class queer people and sex workers— once central to the early queer struggles to end discrimination against AIDS, or oppressive laws such as Indian Penal Code (IPC)'s Section 377, is now pushed to the margins, their struggles eclipsed by the politics of cosmopolitan, upper-middle-class queer identities..This shift highlights the psychic and political costs of a movement that forgets its roots in working-class activism, and instead turns towards a more sanitised, globalised version of queer politics..Also read: Thailand's ladyboy leitmotif hides a chequered history of LGBTQI rights.We explore that the queer movement in India has a history too radical for us to allow it to be hijacked by the tsunami of identity politics guided by urban, liberal and Brahminical sensibilities..Moving ahead, the movement requires to reflect on its historic true character, and strive towards moving beyond tokenistic visibility and fight for the protection of rights of everyone falling within the fold of the term 'queer'..Arguably, the most notable post-Navtej events on the subject have been two: Supriyo versus Union of India, and the Bharatiya Nyaya Samhita, 2023 (BNS)..Supriyo was the judgment arising out of a batch of petitions filed in the Supreme Court asking for, inter alia, 'marriage equality'. The petitions sought a complete reimagining of the Special Marriage Act, 1954 (SMA) to include marriages between individuals in non-heterosexual congress, in a way arguing that this ought to be the logical extension of Navtej..The drafters of the BNS, on the other hand, completely misread Navtej, when they removed the provision on "sex against the order of nature" altogether. The semantics can be a subject of a longer discussion, but while Navtej had merely excluded consensual acts, the deletion of the provision amounts to decriminalisation of non-consensual acts against men..One would wonder if such outcomes (particularly BNS) come from a reckless reading of Navtej, or is there a broader shift in the direction of the LGBTQ+ movement leaving behind its working-class roots (and, hence working-class issues) and pandering to the hetero-replicating, majoritarian sensibilities of the neoliberal world order..The hetero-majoritarian sensibilities and rigid gender dichotomy serve the neoliberal order by reinforcing traditional power structures, thereby dismissing male sexual assault and sidelining broader queer issues in favour of the cisheteronormative framework..“Globalisation and neoliberalism have played a crucial role in shaping the contemporary discourse on queer identity..While the reasons for the BNS missing out on an analogous provision to Section 377 of the IPC altogether are within the realms of speculation, the most innocent of those speculations is that the drafters did not consider that the provision was not meant to solely punish the 'sinner gays': there was a legitimate mischief— sexual offences against men (and animals)— which were still covered under the umbrella of "against the order of nature" even after consensual 'gayness' (synonymous to 'sodomy' as the cishet discourse dictates) was taken out by Navtej..Whether the drafters were unaware of the meaning and operation of Section 377, or worse— did not see the remainder as worthy of criminal sanction— rests, as stated above, in the realm of speculation..A similar tension is seen in the approach of the judiciary. While in multiple judgments, it has invoked the idea of intersectionality, the idea has not always fructified into outcomes that one would presume..Also read: Japan was happily non-heteronormative till the West captured its imagination, now it is freeing itself.Further, intersectionality, while useful for recognising and categorising identities, ultimately falls short of addressing the root causes of oppression. It allows for a hierarchical naming of differences but does not dismantle the structures that perpetuate these inequalities..The Supreme Court's use of intersectionality, much like its invocation of international law in cases such as Vishaka to fill legal gaps, remains rooted in recognition without concrete action..By selectively invoking international morality, it applies these principles arbitrarily, often ignoring their relevance to broader aspects of justice. Intersectionality risks reproducing the neoliberal order by focusing on identity without confronting the material structures of oppression..This seems to reflect a strategic evasion of the State's duty to effectuate democratic justice and constitutional safeguards. The intersectionality framework is often reduced to identity politics, emphasising the naming and categorisation of differences without addressing the underlying structures that create and sustain these inequalities..It abstracts identity within the global liberal democratic order, offering recognition but no real solutions, thus replicating the neoliberal status quo..Within the queer movements in India, the politics of nomenclature is also indicative of how identities are shaped by globalised agendas. Terms like 'lesbian' and 'gay', imported from Western queer movements, have become dominant signifiers of queerness, erasing local expressions of same-sex desire and non-normative sexualities, as described by Shraddha Chatterjee in her 2018 book Queer Politics in India: Towards Sexual Subaltern Subjects..This shift has sidelined the realities of working-class queer people who may not have access to the cultural or linguistic capital to claim these identities. The rise of homonationalism, where certain queer identities are accepted in exchange for allegiance to nationalist and neoliberal goals, further complicates the inclusion of these marginalised groups..For instance, the Indian State's refusal to distribute condoms in prisons, despite recommendations from health organisations, reflects how queer sexualities— especially those tied to working-class or subaltern communities— are still policed and moralised in ways that perpetuate their exclusion from the broader queer movement..“Whether the drafters were unaware of the meaning and operation of Section 377, or worse— did not see the remainder as worthy of criminal sanction— rests in the realm of speculation..In drawing allegiance from— and giving validation to— the nationalist project, the realities of the stakeholders are replaced by mythologies and fantasies of the nationalist project..In Articulation of Rights around Sexuality and Health: Subaltern Queer Cultures in India in the Era of Hindutva, Arvind Narrain identified the entrenched role of Hindutva ideology in framing issues such as Section 377 and the broader discourse around sexuality..Also read: Five years of the HIV/AIDS Act, 2017: An assessment— Part 2.He highlighted that in the socio-political context, challenging Section 377— criminalising same-sex relations— was not merely a legal battle but a confrontation with the dominant ideology of Hindu nationalism..Hindutva, which envisions India as a majoritarian nation, ties its exclusionary project to the marginalisation of queer identities, presenting them as threats to the moral and cultural purity of the nation. This view has significantly impacted health policies, especially those related to HIV/AIDS, and reinforced discrimination against the LGBTQ+ community..The government's response to petitions challenging Section 377, such as the one by the Naz Foundation, revealed that concerns about public morality and nation-building under Hindutva superseded public health concerns..The use of Section 377 as a tool to police sexuality extends beyond the law itself, embedding itself in media narratives, medical establishments and societal norms. The framing of homosexuality as antithetical to the 'Hindu nation' illustrates how Hindutva's influence undermines inclusive constitutional principles, perpetuating social stigma and criminalising queerness in both public and private spaces..This connection between Hindutva and Section 377 is critical for understanding how religious nationalism has shaped the legal and cultural repression of non-normative sexualities in India..The invocation of Sanskritic texts and mythological figures (Shikhandi, Brihannala et al.), as evidence of acceptance, serves as a superficial gesture that obscures the material realities. These texts were created and maintained by the upper castes— reflecting the values and hierarchies that included not only caste but also rigid gender roles and norms around sexuality..The Manusmriti is a prime example of how such texts perpetuate Brahmanical patriarchy. It mentions same-sex relations as offences, punishable by fine, amputation and flogging (8:369–370)..It also reinforces caste hierarchies and patriarchal control over women's bodies and lives, demonstrating that any recognition of same-sex relationships existed within a broader oppressive framework..By selectively interpreting these texts to affirm acceptance, modern discourse risks reinforcing Brahmanical hegemony. It projects an image of a decolonised India reclaiming its cultural roots, but this is an illusion..Also read: Geeli Pucchi: How intersectionality fades away individuality.Instead, it aligns with the neoliberal global order, where recognition of identity is often emphasised over systemic change. The focus on identity recognition without dismantling the structures of caste and patriarchy leads to a co-optation of queer struggles within the same Brahmanical order..“Intersectionality, while useful for recognising and categorising identities, ultimately falls short of addressing the root causes of oppression..This selective reading of history apart from maintaining the status quo, also creates confusion. On one hand, there is an attempt to align with the global liberal narrative of 'LGBTQIA+' rights; on the other, there is a search for nostalgic validation within a homeland context that itself was embedded in Brahmanical and patriarchal oppression..This duality offers a false sense of decolonisation, as it does not challenge the casteist and hierarchical structures that these texts were built upon but instead attempts to reinterpret them to fit a modern rights framework..While the need for globalisation of values— and the resultant softening of the Hindutva-State's stance— may seem to have helped some 'LGBT' people assert their identity, this superficial acceptance of homosexuality echoes Michel Foucault's argument that sexuality-based identity categories were inventions of eighteenth-century Europe..In India, the superficial legal recognition of queer rights often lacks the deeper recognition and realisation of these rights in practice, as seen in the oscillation of laws..However, within the queer movement itself, the dominant civil rights strategy remains limited, as it emphasises political rights without addressing the intersecting systems of power that dictate life chances..While discursive and cultural coercion are crucial, the systemic exploitation rooted in political-economic structures cannot be ignored. Queer movements must be understood within this broader framework of exclusions— classism, racism and sexism— both within and beyond queer concerns..Also read: Marriage equality judgment: An explainer.As the socialist feminist Rosemary Hennessy notes, queer discourse confronts heteronormativity, challenging the fixed gay-straight binary and reshaping subjectivity. By critiquing heterosexuality as a pervasive institution, queer theory exposes how societal norms shape what is seen, said and valued, ultimately influencing the legal and cultural frameworks that define identity and rights..Despite some progress, the realities of unemployment, structural stigma, and the neoliberal tokenisation of queer identity— often restricted to issues like toilets and marriage equality— remain a barrier to effective mobilisation in India..The focus on mainstream issues by those who can tokenise queer activism ignores the abuse and systemic exclusion faced by trans people, particularly in India's socio-political landscape..The real issues— recognition, citizenship, employment, housing and safety— continue to affect queer communities. The capitalist structure, as discussed, fragments individuals into isolated units, creating a commodified view of identity..This same dynamic plays out in cis-heteronormativity, where identity is moulded into socially accepted forms that sustain existing hierarchies. Just as capitalism masks the exploitative labour relations behind commodities, cis-heteronormativity masks the constructed nature of gender and sexuality, presenting them as natural or inevitable. In both cases, people become complicit by internalising and reproducing these norms..“It abstracts identity within the global liberal democratic order, offering recognition but no real solutions, thus replicating the neoliberal status quo..Queer identity, in this context, poses a challenge to both capitalist commodification and cis-heteronormative structures. The fluidity of queer identity threatens the rigid categorisations that uphold capitalist and patriarchal systems, which depend on stable, marketable identities..Yet, queer identity itself can also be commodified under capitalism— turned into a market segment or a form of identity politics that, rather than inciting revolutionary change, can lead to a depoliticised quest for visibility and inclusion within the system..Also read: Gender fluidity will slowly dissolve the rigid opposition to it— An interview with transgender rights activist Vyjayanti Mogli.The connection between Karl Marx's theory of commodification and identity politics, particularly queer identity, lies in how both challenge the visible versus the invisible in social structures. Marx's concept of commodity fetishism reveals that the value of commodities appears intrinsic but is actually rooted in the invisible exploitation of labour..Similarly, identity politics— especially queer identity— grapples with visibility in a way that can obscure the deeper, structural forces shaping that identity..“Terms like 'lesbian' and 'gay', imported from Western queer movements, have become dominant signifiers of queerness, erasing local expressions of same-sex desire and non-normative sexualities..Queer identity, like the commodity, is often framed through surface-level visibility (e.g., representation in media or consumer culture) without addressing the underlying social relations and material conditions that shape its existence..In today's capitalist society, queer identity can become commodified— reduced to a marketable trait or a symbol in the marketplace, much like products that are consumed and exchanged. This parallels Marx's critique of how commodities obscure the labour that produces them, as the visible surface masks the material conditions behind it..For example, the commercialisation of queerness through pride-themed merchandise or corporate-sponsored events offers visibility, but also risks fetishising that identity..This focus on surface-level representation can deflect attention from the historical and material conditions of queer people's lives— such as systemic inequality, exploitation and violence— just as commodity fetishism hides the exploitation of labour..Marx's critique urges us to look beyond the fetishised surface to the historical and social relations that produce both commodities and identities. In terms of queer identity, this means recognising how capitalist forces shape and commodify identity, and how labour, material conditions and economic structures remain central to the lived experiences of queer individuals..Merely celebrating queer visibility within a consumer-driven system without addressing these deeper forces risks perpetuating the same logic of commodification that Marx critiques..“Identity politics— especially queer identity— grapples with visibility in a way that can obscure the deeper, structural forces shaping that identity..In essence, while visibility is crucial, focusing solely on it can short-circuit the more profound understanding of how queer identities are socially and materially produced— similar to how commodity fetishism masks the labour relations behind material goods.

Identity politics, law and queerness in India: Reflections on six years since Navtej

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