Jindal Global Law Review


VOLUME 4, ISSUE 1, 2013

Issue Editors: Oishik Sircar Dipika Jain

Editor’s Foreword : (PDF)


1. Continental Drift Queer, Feminism, Postcolonial
      Brenda Cossman
      Article (PDF) | Abstract

In this article, I tell a story of drifts – of continental drifts from feminism to queer theory, drifts between continents, from West to East and back again. From its genesis in the works of Eve Sedgwick and Gayle Rubin, queer theory emerged as a project of theorising sex and sexuality in an analytical framework independent of feminism. Others, like Judith Butler have resisted the bracketing of gender and the break of feminism, insisting instead that neither feminism nor queer theory should have such clearly delineated ‘proper objects’. I seek to bring the continental drift to the question of queer theory’s relationship with feminism, and its location in the postcolonial. While the story starts in the West, where queer theory first emerged, it drifts eastward. But continental drift is not a story of movement from West to East; it is a story of the movement of the Earth’s continents relative to each other. Shifting tectonic plates produces more than a little deep structural change. So too does the drift of queer theory toward the postcolonial, and the postcolonial toward the queer.
Brenda Cossman, Jindal Global Law Review, Volume 4, Issue 1, August 2012, 17:73, ISSN 0975-2498.


2. Multitasking Queer Reflections on the Possibilities of Homosexual Dissidence in Law
     Ratna Kapur
     Article (PDF) | Abstract

This article interrogates how the term ‘queer’ has come to be used in law. I ask whether ‘queer’ performs the same analytical work as ‘sexual subaltern’, or whether it has become aligned to a more sanitised LGBT politics based on fixed identities and positionalities. Reading the Naz Foundation judgment delivered by the Delhi High Court in 2009 and its legal aftermath, I argue that the voice of the sexual subject emerges as somewhat muted in comparison to its articulation in broader cultural and public spaces within which queer agitation has occurred. Exploring the limits and possibilities of ‘queer’ in the law, I interrogate, above all, what ‘queering the law’ might entail. Ratna Kapur, Jindal Global Law Review, Volume 4, Issue 1, August 2012, 36:59, ISSN 0975-2498.


3. Contagion Politics Queer Rights Claims, Biopower and the ‘Public Health’ Rationale for the Repeal of Sodomy Laws
     Neil Cobb
     Article (PDF) | Abstract

This paper explores the increasing use of “public health” rationales in advocacy for the repeal of national sodomy laws, which justify decriminalisation in terms of managing the global AIDS pandemic and in particular reducing the onward sexual transmission of HIV. The paper frames these rationales as an illustration of the influence of biopower on human responses to the pandemic, or power directed towards the advancement of the health and welfare of bodies and populations. The paper acknowledges the strategic value of the public health rationales, especially in the face of resistance by many conservative nation states to traditional liberal human rights arguments for repeal. However, the paper then proceeds to highlight the potential dangers of over-reliance on the rationales by questioning whether they can offer a sufficiently inclusive, sustainable and progressive basis for contemporary queer rights claims.
Neil Cobb, Jindal Global Law Review, Volume 4, Issue 1, August 2012, 60:88, ISSN 0975-2498.


4. Section 377 and the Myth of Heterosexuality
     Zaid Al-Baset
     Article (PDF) | Abstract

This essay intends to ‘read’ the 105 page text of the Naz foundation judgement as a site for the de-historicisation of ‘homosexual’ subject(s). Employing Roland Barthes’ explication of ‘myth’, an attempt is made to understand how the text of the judgement constructs the myth of heterosexuality which de-naturalises the ‘homosexual’ subject as a naturally occurring ‘unnatural’ phenomenon. This essay probes into the contradictory ways in which the ‘homosexual’ subject is produced by the text. While on one hand the ‘homosexual’ is understood as a ‘class’, on the other, a radical anti-essentialist stance is exhibited in the evocation of the discourse of AIDS and particularly the category of MSM (men who have sex with men). The simultaneous ‘minoritising’ and ‘universalising’ stances present in the judgement produce the queer subject in confounding ways which inadvertently evoke and reinforce the specter of the closet. The essay also provides a critique of the ‘right to privacy’ in so far as it threatens to erase the queer subject from the public, thereby, re-producing the closet. The metaphor of the closet is used to denote a space (or its lack) which functions to cohere heterosexuality and produce the ‘homosexual’ as its inevitable and often invisible other. By attempting to analyse the relationship between the queer Indian subject and the closet as produced by the text of the judgement, a theory of the closet is envisaged as not simply a feature of queer lives but all lives in general in a heteronormative context.
Zaid Al-Baset, Jindal Global Law Review, Volume 4, Issue 1, August 2012, 89:109, ISSN 0975-2498.


5. Claiming Citizenship, Contesting Civility: The Institutional LGBT Movement and the Regulation of Gender or Sexual Dissidence in West Bengal, India
      Aniruddha Dutta
      Article (PDF) | Abstract

This essay examines the ongoing construction of gender/ sexual identities and minorities as claimants to legitimate citizenship and civic participation as a process that tends to exclude or discipline diverse practices and subject positions at the intersections of gender/ sexual and class/ caste marginality. Through a situated study of the interactions between the institutionalised LGBT (lesbian, gay, bisexual, transgender; particularly GBT) movement in West Bengal, India and lower class/ caste individuals and communities that inhabit gendered positions of marginality, the article argues that while they are often positioned within the institutional movement either as subjects of welfare or inadequate citizens who need to be trained to become worthy of rights, they may contest such regulatory practices and attendant exclusionary definitions of civility and citizenship. The article explores how these contestations might provide the ground for imagining more radical practices of gender/ sexual dissidence than those accommodated by liberal discourses of equality and rights.
Aniruddha Dutta, Jindal Global Law Review, Volume 4, Issue 1, August 2012, 110:141, ISSN 0975-2498.


6. Disrupting the Dinner Table Re-thinking the ‘Queer Movement’ in Contemporary India
      Ashley Tellis
      Article (PDF) | Abstract

Using the frame of global governance, this article argues that the neoliberal economy and the consequent practice of global funding has turned “queers into entrepreneurial and consumptive citizens who play by the rules of the state-market nexus.” I contend that the ‘queer movement’ in India is classist, casteist, sexist and complicit with power structures of the most oppressive kind. There is a right-wing queer in India, and no other. Questioning the terms ‘queer’ and ‘movement’, the article shows how their coming together helps “old desires resurface – legalistic desires for equality and justice, the humanist desire for dignity and the orientalist desire of liberating the postcolonial queer from barbaric cultures,” and call for a more critical and radical engagement with the politics of the current conjuncture which produces the ‘queer’ imaginary in contemporary India.
Ashley Tellis, Jindal Global Law Review, Volume 4, Issue 1, August 2012, 142:156, ISSN 0975-2498.


7. Unlearning Human Rights and False Grand Dichotomies: Indonesian Archipelagic Selves Beyond Sexual/Gender Universality
      Vanja Hamzic
       Article (PDF) |


8. Asking for it: Erotic Asphyxiation and the Limitations of Sexual Consent
       Ingrid Olson
       Article (PDF) | AbstractThe contentious practices of the sadomasochism (S/m) community provide a template for investigating consensual sexual practices that are often deemed excessive. A recent Supreme Court of Canada (SCOC) decision convicted the defendant in an assault case regarding sexual activity performed during a sex partner’s brief loss of consciousness due to consensual erotic asphyxiation. The SCOC cited law that requires continual consciousness for sexual consent and rejected the defendant’s argument of prior consent. That is, despite prior consent for sexual activities the SCOC ruled on the legal parameters of sexual autonomy. Several contemporary court decisions regarding S/m practices in England and Canada have placed legal limitations on the permissible level of sexual consent, and subsequently, one’s sexual autonomy. Legal parameters on sexual practices often conflict with the contemporary community standards of sexuality. This article argues that the autonomy to consent to the sexual practices one desires should not be limited by consciousness. There is a new sexual movement underway, fuelled by the discourses of feminist, sexuality, and queer theorists that seek to shift anti-porn and sexual assault dialogues to a positive project of sexual empowerment and queer sexualities. It is a call for sexual agency, the autonomy to negotiate sexual boundaries and pursue one’s sexual desires. This sexual liberation movement desires a revaluation of sexual values, and the right to say ‘yes’. Sexual autonomy, borne from negotiation and enthusiastic consent, is a re-imagination of the term ‘asking for it’.
Ingrid Olson, Jindal Global Law Review, Volume 4, Issue 1, August 2012, 171:200, ISSN 0975-2498.


9.‘Paradoxes of Visibility’: Lesbian and Gay Parents in the Australian Print Media
      Damein W. Riggs
      Article (PDF) | Abstract

As popular media increasingly include representations of lesbian and gay parents, so comes with this what Gamson terms ‘paradoxes of visibility’. On the one hand, increased representation means both that lesbian- and gay-headed families are able to see themselves reflected in the mirror of the social realm, and that such representation potentially signifies increasing acceptance of lesbian- and gay- headed families. On the other hand, media representations of lesbian and gay parents, like all media representations, are prone toward sensationalism, normativity and potential misrepresentation. This article takes up this paradox by exploring a sample of articles from Australian popular magazines featuring lesbian and gay parents. The analysis presented suggests that normativities predominate across all representations examined, with this occurring specifically through: 1) the evocation of ‘loving families’ to account for lesbian- and gay-headed families in highly normative ways, 2) an emphasis upon biological relatedness to the exclusion of all other family forms, 3) a failure to recognise the racial and class privilege of white middle-class lesbian and gay parents, and 4) a primary focus upon coupled parents. As such, this article suggests that while the appearance of the articles analysed is positive for what it potentially signifies about public acceptance and the intelligibility of lesbian and gay parents, the articles function to exclude as much as they include.
Damin W. Riggs, Jindal Global Law Review, Volume 4, Issue 1, August 2012, 201:218, ISSN 0975-2498.


10. Resisting, Demanding, Negotiating and Being: The Role of Scandals in the Everyday Lives of Argentinean Travesties
       María Soledad Cutuli
       Article (PDF) | Abstract

The aim of this article is to explore the different uses and meanings of the category ‘scandal’ among Argentinean travestis. It is argued that this insight could be fruitful to understand the logic according to which local travestis resist, negotiate, demand and manage access to rights, opportunities, and/or goods, from which they have been historically excluded due to their non-hegemonic gender identities. In line with the performative logic employed to construct their gender identities, the idea of ‘scandal’ is fruitful for them to think, to make themselves visible and to act politically. This article proposes a political and anthropological approach to study the relation between structures of inequality and resistance through collective action. It takes into account a perspective developed by political anthropologists, centred in the power relationships analysis and an understanding of politics as a dimension of daily life.
Soledad Cutuli, Jindal Global Law Review, Volume 4, Issue 1, August 2012, 219:237, ISSN 0975-2498.


11. Queer Politics in Spain: There is Life after Same Sex Marriage Legislation
       Susana López Penedo
       Article (PDF) | Abstract

This article analyses the evolution of the gay and lesbian movement in Spain during the past forty years, from the final years of Franco’s dictatorship and the transition to democracy to the achievement of same-sex marriage rights in 2005. The article focuses on the influence of Queer Theory and queer activism in the gay and lesbian movement and, more widely, in the politics of other Spanish social movements. The article analyses the debate between the gay and lesbian movement and queer activists about the implications of focusing on same-sex marriage instead of developing a radical critique of heteronormativity. The author explores the effects that achieving same-sex marriage has had in the dynamics of the LGBT movement. As reclaiming the right to marry for gay and lesbian people was the main political objective of the LGBT movement, once the right was achieved it left the movement with a lack of political direction and a need to readdress its priorities. The author argues that the Spanish case is a good example of the limited effectiveness of strategies that focus on the discourse of rights and laws and their inability to stop social and cultural homophobia. She explores the contribution of queer activism in the politics of current Spanish social movements, beyond LGBT activism, especially in the discourse of the new M-15 movement which emerged as a result of the social discontent created by the current international economic crisis and that has inspired the Occupy Movement beyond the Spanish borders.
Susan López Penedo, Jindal Global Law Review, Volume 4, Issue 1, August 2012, 238:263, ISSN 0975-2498.



12. ‘Split Decisions: How and Why to take a Break from Feminism’ by Janet Halley
      Saptarshi Mandal
      Jindal Global Law Review, Volume 4, Issue 1, August 2012, pgs. 264


13. ‘For the Record: On Sexuality and the Colonial Archive in India’ by Anjali Arondekar
        Lakshmi Arya
        Jindal Global Law Review, Volume 4, Issue 1, August 2012, pgs. 277