Jyoti Puri's Sexual States situates itself among ethnographies of the state's relationship with sexuality in a transnational legal order. This literature has tended to read sexual regulation as states’ attempts to overcome their diminishing legitimacy in the face of globalization. The sexual politics of the neoliberal state (like the sexual politics of the welfare state) has been a subject of intellectual scrutiny for some time now (Duggan Reference Duggan, Castronovo and Nelson2002, for example), and Puri, while dismantling the idea of the “state” as monolithic, patiently unlocks the “fragmented, messy, contingent and inconsistent” assemblage of states’ sexual subjectivities through her investigation into the “nitty-gritties of governance, their pedestrian, iterative qualities” (10).
Her interrogation of India's sexual state is framed by section 377 of the 1860 Indian Penal Code. This provision, a relic of British colonialism, punishes “carnal intercourse against the order of nature with any man, woman or animal” with imprisonment up to life. Puri notes that although the provision is used to criminalize nonvaginal sexual assault of women and sexual assault of children, it is predominantly used to criminalize homosexuality. The author traces the state, first, at the center of the legal campaign to decriminalize 377 by a petition initiated in the Delhi High Court by the Naz Foundation (India) Trust, an organization dedicated to health and advocacy programs related to HIV/AIDS, and, second, in the shadows of a variety of state institutions, agencies, and practices. Her forays into the petitioner organization, their lawyers, several sexuality rights and children's rights groups, HIV/AIDS organizations, courts, government agencies, and the Delhi Police locate “the state at the center of this activism” (7).
The book is divided into three parts. In the first part, two introductory chapters examine how the state engages with sexuality in India, often through law, and the effects that mapping sexuality has on bureaucratic practices. In an explorative analysis of sexuality's effects on biopolitical states, Puri observes “inconsistencies in the processing of data” by the National Crime Records Bureau (NCRB). While the NCRB processes crimes against women into freely and abundantly available statistics—and elevates these crimes “to the status of a social problem” (25)—it fails to produce any statistics related to 377. This, she argues, is not evidence of heteronormativity, but of an active biopolitical governance, whereby the state generates statistics to govern and regulate. Sexuality's significance to biopolitics, Puri argues, extends beyond statistical discourses and statistical silence because it is more intimately connected to the incongruent ways in which the sexual subject is understood and assessed. Puri contends that the NCRB's statistical silence on 377 is evidence of the state regulating sexuality beyond that section.
The second part, “Sexual Lives of Juridical Governance,” disaggregates the idea of the “monolithic” state by scrutinizing the archives of case law and complaints to demonstrate law's irrationalities (Chapter 3), and demonstrates the significance of antisodomy law to law enforcement (Chapter 4). In Chapter 3, elegantly titled “State Scripts,” Puri closely inspects 99 cases in the 150 odd years of the law and delinks homosexual persecution from 377. She concludes, like several other scholars before her (Narrain Reference Narrain2004, for example), that section 377 has been used more regularly to prosecute the child subject of sexual assault than cases of consensual sexual activity. She therefore affirms that case law and police archives do not necessarily confirm a Foucauldian understanding of “the homosexual” as the “beleaguered subject of the antisodomy law,” a conclusion that, given the history of LGBT activism's alliance with the decriminalization of 377, is, in my opinion, counterintuitive.
Chapter 4, titled “Half Truths,” is perhaps the most persuasive part of the book. Here, Puri, through her fieldwork at police stations in Delhi, convincingly argues that while gay men, lesbian women, and men who have sex with men are all likely to be affected by the intrusive policing of their sexual lives, these “generic homosexuals” are not the primary target of law enforcement. Drawing on her conversations with police constables, she argues that communities perceived to be hypersexualized—Muslims and the Hijras (third gender/transsexual or transgender persons)—are more likely to be disproportionately impacted by 377. She contends that this ought to be seen as a form of prejudice based on race; the portrayal of Muslim men as hypermasculine, hypersexual, and both sexually violent and deviant (Bacchetta Reference Bacchetta1999) is the basis for communal-sexual profiling by the majoritarian Hindu population. Similarly, the gender nonconforming subject is presumed to inherently possess a criminal sexuality, reminiscent of the criminalization of Hijras under the colonial Criminal Tribes Act, a law that presumed certain communities to have a biological predisposition to committing certain crimes. Puri notes that the regulation of these racialized religious minorities and gender nonconforming persons is less flexible than that accorded in the policing of the generic homosexual.
The third part, titled “Opposing Law, Contesting Governance,” follows the trajectory of the Naz Foundation case, which challenged the constitutionality of 377. In Chapter 5, Puri closely reads the case from its first filing in 2011, noting the early criticism of the writ petition, and its subsequent evolution as a national level campaign focusing on the antisodomy law and the “generic gay subject.” The campaign to “read down,” or limit, the application of 377 so as to not infringe on fundamental rights, discriminate against sexual minorities, or interfere with HIV/AIDS work built momentum only after the government (Ministry of Home Affairs) responded (in)famously that the deletion of said section could “open the floodgates of delinquent behaviour” (117). While Puri emphasizes that the Home Ministry's response was not representative of all ministries, she does not sufficiently emphasize, and indeed avoids or omits, the response of the Ministry of Health, which argued that 377 pushed sexual minorities underground, leaving them vulnerable to police harassment and rendering them unable to access HIV/AIDS prevention material and treatment. If the state is to be found in its fragments and in its contradictions, this tension between ministries ought to have been probed deeper by Puri.
In Chapter 6, Puri narrates the second phase (2006–2013) of the struggle to decriminalize homosexuality by juxtaposing two judgments: the 2009 Delhi High Court Judgment (Naz Foundation v. Govt. of NCT of Delhi and Others) decriminalizing homosexuality and the 2013 Supreme Court judgment (Suresh Kumar Koushal and Another v. Naz Foundation and Others) recriminalizing it. For Puri, these rulings mark divergent views of the relationship between state and sexuality in the neoliberal context. She argues that the 2009 judgment signifies the decline of the state's function, while that in 2013 reaffirms the state by prolonging its sexual governance through legislative intrusion. While this framing may explain the judicial complicity of the courts, it fails to sufficiently probe the juridical politics that constitute this complicity. More recent scholarship (Bhuwania Reference Bhuwania2017) has suggested that the enormous powers that public interest litigation confer upon the appellate judiciary germinates in its populist character. While Puri frames the juridical complicity of the courts in participating in the sexual governance of the state, she neglects to interrogate that very political economy of juridical complicity in either case by explaining what a “neo-liberal” or “post-liberal” court encapsulates, which could have been a valuable and instructive addition to this work. That said, Sexual States is an important work in chronicling the history of LGBT struggle against section 377 in India for any reader who is interested to engage with the same.
