A LOVE SONG TO OUR

MONGREL SELVES: HYBRIDITY,

SEXUALITY AND THE LAW
RATNA KAPUR
Centre for Feminist Legal Research, New Delhi, India
ABSTRACT
This essay examines some of the cultural wars that are being fought out in India in
the legal domain, cultural wars that all seem to involve sex. The battles taking place
in the legal domain, comprising issues such as a legal challenge to the sodomy laws in
the Indian Penal Code, a legal challenge to satellite broadcasting and the struggle to
decriminalise prostitution, all involve a contest over the meaning of culture. In each
of the controversies, the rallying cry is one of Indian cultural values in which it seems
that all sides of the debate stake their claim to being true protector and promoter of
Indian cultural traditions.
This essay addresses three concerns which underlie why participating in a conver-
sation about gender, sexuality and law is important in a postcolonial context. First, it
examines the importance of recuperating and theorizing desire and pleasure as an
important political project within postcolonial India, particularly against the back-
drop of the rise to power of the Hindu Right. Second, it examines the problematic
role of cultural essentialism in both promoting and resisting this project in the legal
arena. The nal part of this essay re-evaluates the emancipatory potential of the victim
subject in a postcolonial context and explores the possibility of rethinking the nature
of the sexual subject to ensure that the political project remains both liberating and
subversive.
INTRODUCTION
T
HE TITLE for this essay comes from an oft-quoted passage from
Salman Rushdies book, Imaginary Homelands (Rushdie, 1991). It is
his eloquent description of the book that cost him his freedom: Satanic
Verses (Rushdie, 1991). Satanic Verses, he states, celebrates hybridity, im-
purity, intermingling, the transformation that comes of new and unexpected
combinations of human beings, cultures, ideas, politics, movies, songs. It
rejoices in mongrelisation and fears the absolutism of the Pure (Rushdie,
SOCIAL & LEGAL STUDIES 0964 6639 (199909) 8:3 Copyright 1999
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 8(3), 353368; 009285
04 Kapur (jl/d) 22/7/99 11:11 am Page 353
1991: 394). The idea of hybridity and impurity provide the lens through
which the issues addressed in this essay are framed.
This essay is situated in the midst of the cultural wars being fought out in
India, cultural wars that all seem to involve sex (Kapur, 1996, 1997). I am
specically interested in the battles taking place in the legal domain, includ-
ing a legal challenge to the sodomy laws in the Indian Penal Code, a legal
challenge to satellite broadcasting and the struggle to decriminalise prosti-
tution. In each of the controversies, the rallying cry is one of Indian cultural
values in which it seems that all sides of the debate stake their claim to being
the true protector and promoter of Indian cultural traditions.
I will focus on why I think the conversation about gender, sexuality and
law is important in a postcolonial context. This essay is focused on three con-
cerns that underlie my interest in this conversation. In the rst section, I
examine the importance of recuperating and theorizing desire and pleasure as
an important political project within postcolonial India, particularly against
the backdrop of the rise to power of the Hindu Right. In the second section,
I examine the problematic role of cultural essentialism in both promoting and
resisting this project in the legal arena. In the nal part of this essay, I re-
evaluate the emancipatory potential of the victim subject in a postcolonial
context, and explore the possibility of rethinking the nature of the sexual
subject to ensure that the political project I am pursuing remains both liber-
ating and subversive.
RECUPERATING DESIRE IN A POSTCOLONIAL CONTEXT
My project is located on the precipice of desire and subversion. The pursuit
of a politics of pleasure compels me into the conversation on gender, law and
sexuality more specically, to explore why a political project of desire is
important and how we can theorize and recuperate desire in a postcolonial
context. Why should we, and how can we, disrupt the script that represents
women in a developing context as victims constantly in need of rescue and
rehabilitation and rewrite a script of women who are also interested in Choli
Ke Peeche Kya Hai? (What lies behind the blouse?) the vastly popular hit
song and dance number of 1993, which depicts a highly eroticised scene by
the heroine, Madhuri Dixit, between herself and her female cohort, Neena
Gupta (Ghosh, 1999; Kapur, 1997); Ismat Chugtais 1942 short story, Lihaaf
(The Quilt), under whose shifting surface the tempestuous relations of erotic
pleasures are enacted between a sequestered wife and her female maid-servant
in an upper-class Muslim household (Chugtai, 1996); the relationship
between the two sisters-in-law in the 1996 diasporic production Fire, which
culminates in what one reviewer curiously describes as the Indian lesbian
scene; and all three versions of Kama Sutra: the lm,
1
the ancient scriptural
text and the same brand name contemporary condom advertisements.
2
Women in India, rich and poor, urban and rural, are interested in what lies
behind Madhuris blouse, under Chugtais quilt, and between the sheets in
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the Kama Sutra. But the current literature on women in India, outside of our
own context and sometimes within it, is largely focused on issues such as
dowry murders or Satis, poverty and population (Kapur and Cossman, 1996:
26573). Uma Narayan points to the need to think about . . . the kinds of
Third-World womens issues that cross Western borders more frequently
than others; and about . . . the effects of the editing and the reframing
such issues undergo when they do cross borders
3
(Narayan, 1997: 100). The
purpose of this article is to challenge the issues that normally cross borders
by exporting an entirely different spectrum of issues.
Within the context of India, the ascendancy of the Hindu Right has only
served to accentuate the importance of the issue of desire as an important
political goal.
4
The rise of the religious Right is intensifying the prevailing
conservative climate on sex, vilifying sex as some kind of cultural contam-
inant that has arrived from the decadent West. Their stand highlights the
increasing compulsion to restrict and curtail sex and sexuality, along lines
similar to Gayle Rubins argument, that it is a bad and corrupting influence
from which good and decent people ought to be protected (Rubin, 1992).
Over the past few years there have been several increasingly visible
examples of the inclination to address issues of sex and sexuality as nega-
tive, dangerous, stigmatized and contaminating in law. Recently, the Indian
Supreme Court recognised sexual harassment as a legal wrong, which
includes unwelcome sexually determined behaviour (whether directly or by
implication) such as physical contact and advances, a demand or request
for sexual favours, sexually coloured remarks, showing pornography and
any other unwelcome physical, verbal or non-verbal conduct of a sexual
nature.
5
Shortly after the decision was delivered, the National Commission
of Women began considering ways in which to expand the definition of
sexual harassment. This consideration included a proposal to extend the
definition to cover the harassment by gay and lesbian employers of their
employees, to penalize, that is, an already discriminated group that cur-
rently enjoys no legal rights in India.
6
Some feminist groups began redis-
covering and encouraging women to invoke archaic sex laws to punish
those who stare or sing a song in a way that outrages a womans modesty
(Kapur et al., 1998).
In the rst case to be handed down by the Supreme Court pursuant to the
sexual harassment guidelines, a female ofce worker was victorious in her com-
plaint against her colleague on the grounds that his conduct had outraged her
modesty, and had violated the principles of decency and morality.
7
It did not
escape the Courts attention that the complainant was an unmarried woman
who demonstrated an appropriate lack of familiarity with matters of sex.
8
Para-
doxically this newly dened harm bears more than a slight resemblance to Vic-
torian sexuality. Although the recognition of sexual harassment as a legal wrong
is a signicant victory for women in India, the outcome of the Supreme Courts
decision remains ambivalent. Far from blazing a trail of liberatory politics, the
sexual harassment decision can be read as having sent women straight back into
the catacomb of Victorian morality.
KAPUR: A LOVE SONG TO OUR MONGREL SELVES 355
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Other examples include the intense opposition to the assertion of sexual
rights by sex workers at two recent national conferences held in Calcutta in
1997 and 1998 demanding the decriminalisation of their work and the recog-
nition of their work under the labour laws (DSouza, 1995: 237; Puri, 1997:
283). The sex workers produced a statement asserting that sex is primarily for
pleasure and intimacy and challenged dominant sexual ideology, which
permits sexual expression only between men and women within the strict
boundaries of marital relations within the institution of family.
9
These
emerging voices of the sexual subaltern are posing a counter to the national-
ist narrative of sex and culture. Sex workers are challenging the idea that sex
in general, and commercial sex in particular, are inherently negative, cor-
rosive or otherwise dangerous. They are boldly asserting the rightful place of
sex; and in so doing, they risk being cast as an even more dangerous affront
to Indian culture and normative sexuality.
The demands of the sex workers have been contested by cultural national-
ists, that is, those who invoke culture to delegitimise the sex worker. Prosti-
tution is represented as something that is bad, a western contaminant that has
brought with it a western scourge HIV and AIDS. The crisis has been used
to intensify the state surveillance of sex workers, among others, as the
primary transmitters of the disease. And the language of this surveillance is
deeply imbued with assumptions about AIDS as a western disease that has
been imported into India through promiscuous western lifestyles (DSouza,
1995: 134).
10
The western white male is cast as a sexual conqueror who is
tearing through the cultural hymen and leaving fallen women and a fallen
culture strewn in his wake.
Finally, there is the reaction against the increasing mobilization and visi-
bility of gays and lesbians and their challenge to laws that discriminate against
homosexuals, from both the right and left sides of the political spectrum. This
development has been met with charges from the womens wing of the mod-
erate right wing party, the Bharatiya Janata Party, that the demand for legal
sanction of lesbianism is too vulgar and irrelevant in the Indian context (BJP
Mahila Morcha, 1991: 1). The right wings vehement opposition to this
increasing visibility found expression during the recent screening in India of
the lm Fire, a diasporic production by the Toronto-based lm maker Deepa
Mehta. The lm represents two sisters-in-law living in a middle-class joint
Hindu family in Delhi, involved in a lesbian relationship. Cinema halls
throughout the country were destroyed for screening the lm and viewing
audiences attacked by the mobs of the Right. Justifying the attacks, the
Mahila Agadhi, the womens wing of the militant Shiv Sena, a virulently
Hindu Nationalist and anti-Muslim party, stated, If womens physical needs
are fullled through lesbian acts, the institution of marriage will collapse.
11
On the other side of the political divide, womens groups associated with the
Communist Party of India (CPI) have described the increasing visibility of
gays and lesbians as an invasion of India by decadent western culture and
direct fallout of the signing [of] the GATT agreement.
12
The National Com-
mission of Women, which is located somewhere between the political left and
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right, has proposed that the punishment for homosexuality be strengthened
so that anyone convicted under the section be sentenced to rigorous
imprisonment for life as opposed to simple imprisonment for life as currently
prescribed (National Commission of Women, 1998: 95).
All of these issues speak to the reinforcement of dominant sexual norms,
the denial or disavowal of pleasure. Sexuality continues to be addressed from
a space of pain, of violence, of something that is injurious to our collective
third world, postcolonial health. These stories exemplify the need to rescue
sex and recuperate desire from the space of sexual negativity.
SEXUALITY AND CULTURAL FETISHES
Stories about sex have been tethered to an essentialist understanding of
culture, bringing me to my second concern. Sexuality and culture have been
sutured together as a result of the 19th-century colonial encounter and
nationalist resistance. The work of historians such as Partha Chatterjee
(1989), Lata Mani (1989) and Tanika Sarkar (1996), reveals how the modern
nation state was elaborated in the seemingly autonomous sphere of the home.
Women and the private sphere of family and home were recast as a space of
pure Indian culture uncontaminated by the colonial encounter. Issues such as
Sati, widow remarriage, or the age of consent to marry, were cast as cultural
issues beyond any legitimate political intervention by the colonial state. In
the discursive strategies of the 19th-century nationalists, womens sexuality
and Indian culture came to be constituted as inseparable.
This 19th-century suturing of sexuality and culture continues to haunt us
today. The assertion of sexuality as a pure space of Indian culture is resur-
facing in the contemporary moment as sexuality again is becoming a site of
intense political contestation. And the idea of culture, of Indian cultural
values, is being invoked by all sides in the legal domain to legitimate or de-
ligitimate sexual speech, sexual conduct and sexual identity. The cultural wars
are being waged in the courtroom against popular representations of sex and
sexuality in Hindi commercial cinema, including lms such as the Bandit
Queen (Choudhary, 1996; Ghosh, 1996; Kapur, 1996b; Kapur and Ghosh,
1995; Kishwar, 1994).
13
Cultural nationalists are asserting that western cul-
tural contaminants are metastasizing throughout Indian homes via satellite
broadcasting. Programmes such as Baywatch, The Bold and the Beautiful and
the MTV music video channel, are being condemned for denigrating women
and displacing them from the position of respect and honour they enjoyed in
some long lost, ancient Hindu past.
14
In addition, the increasing visibility of
sexual subalterns such as sex workers, gays and lesbians, is alleged to be
threatening to destroy the fantasy of the Indian joint family and the ancient
cultural values and traditions that have cemented it together.
The language of Indian cultural values is deployed in two different ways
in the sexuality debates. It is deployed by those in positions of power and
dominance to legitimate dominant sexual norms in and through a stagnant,
KAPUR: A LOVE SONG TO OUR MONGREL SELVES 357
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fetishised and exclusive understanding of culture. It is being used to weave a
cultural tale based on a notion of oneness, of one culture that is xed and
timeless (Hall, 1996: 212). The longing for a strong cultural identity has been
an important desire and symptom of postcolonialism in the contemporary
Indian context. In the hands of dominant conservative groups, it is based on
the idea of a substantive or real essentialism, and becomes reactionary. It
becomes an exclusionary discourse a tale shaped in the image of intolerance
and disapproval of difference. In India, the reactionary potential of substan-
tive or real cultural essentialism can be found in the Hindu Rights efforts to
construct a history of Indian culture based on the idea of one god, Ram, one
temple, in Ayodhya, and one people, the Hindus.
Indian cultural values are also being used by disempowered and margin-
alised groups to counter the idea of the authentic subject that informs domi-
nant cultural essentialism and problematise the opposition between the
western and Indian subject.
15
They are challenging the search for a real,
originary culture as a narrow essentialist telling of the story of Indian culture
in relation to sexuality. And they are promoting the idea that culture is never
stagnant and xed but is constantly shifting and uid that it is hybrid (Hall,
1996: 212). It is a position that argues the shape shifting of culture and an
inquiry into its construction are legitimate processes. Cultural hybridity rep-
resents the postcolonial moment, which Stuart Hall describes as the point of
recognition that a return to a set of uncontaminated values is impossible
(Hall, 1996: 247). Revealing that culture, that Indian cultural values, is and
continues to be in a process of construction, creates space for the possibility
of alternative sexual practices and behaviour, that both challenge and subvert
dominant sexual norms.
16
There is, however, still the concern that in engaging with Indian cultural
values, cultural hybridity runs the risk of also essentialising Indian cultural
values. There is a need to ensure that the cultural move, which is used to chal-
lenge master narratives about Indian cultural values, does not in turn become
its own unifying, essentialist and exclusionary discourse. For example, groups
challenging the constitutional validity of section 377 of the Indian Penal Code
that criminalises sodomy have deployed cultural essentialism in ways that
present this very problem. Their petition relates a cultural story about homo-
sexuality which is intended to authenticate and legitimise the existence of gays
and lesbians within the Indian cultural space, yet the cultural story they tell is
overwhelmingly a Hindu rendition.
17
Their story for the inclusion of gays and
lesbians can be said to be at the cost of the exclusion of another minority a
religious minority, namely the Muslims. Cassell recently published a book on
Indian lesbianism that weaves a story about the exclusion of lesbian identity
told explicitly within a Hindu nationalist framework (Tandani, 1996). The
Muslims are portrayed as being among those who obliterated the glorious
(Hindu) lesbian past through conquest and imposition of their alien cultural
norms and values.
18
The dangers of such an argument are all too obvious
within the context of communalism and right wing politics
19
(Basu et al., 1993;
Cossman and Kapur, 1999).
358 SOCIAL & LEGAL STUDIES 8(3)
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The traps of essentialism can upset a political project of pleasure, especi-
ally if it remains unproblematised and shackled to an exclusive understand-
ing of culture and the search for an uncomplicated authentic subject.
Gayatri Spivak argues that we need to emphasize how the position of the
strategist is important: . . . [W]e have to look at where the group the person,
the persons, or the movement is situated when we make claims for or
against essentialism (Spivak and Rooney, 1994: 154; see also Guha and
Spivak, 1988). She has argued that her own remarks about strategic essen-
tialism have been taken up in discourses that operate from sites of inuence
and power, and that the marking of the critical moment, which is the stra-
tegic moment, have been erased (Spivak and Rooney, 1994: 154). Yet Spivak,
among others, has also been critiqued for her hyper anti-essentialist stands
and taking deconstruction to the point that it is no longer possible for the
native to speak. Part of my project is intended to create a space for margin-
alised sexual expression and for sub-altern sexualities to speak, in ways that
validate them within the existing cultural context, while simultaneously chal-
lenging and subverting dominant cultural essentialism and sexual norms.
PLEASURE AND THE SEXUAL SUBALTERN
This brings me to my nal concern, which is to rethink the nature of the
sexual subject. My interest in theorizing the sexual subaltern, in particular the
sex workers, gays and lesbians (as well as hijras, who are transgendered
people, and other intersexed people), revolves, in part, around Spivaks
muting of the subaltern, who she has declared can never speak (Spivak, 1988).
She argues that subalternists are erecting a native subject, with an authentic
voice, and challenges the essentialism that inheres to such a position. My
question is whether the debate on sexuality and culture has to be framed
within the essentialist/anti-essentialist divide, or whether the subaltern, who
is a sexual subversive, can move beyond this divide.
Rajeswari Sunder Rajan has attempted to break through the essentialist/
anti-essentialist impasse in the context of debates about Sati and the free
will/coercion dichotomy (Sunder Rajan, 1996). Feminists have continuously
argued that Sati is a coercive practice and that the women are victims, while
the pro-Sati lobby has argued that Sati is a voluntary act and that the woman
feels no pain.
20
Sunder Rajan, drawing on the work of Elaine Scarry and her
focus on the radical subjectivity of pain, shifts the discussion from one of
Sati-as-death, to a focus on the pain of the dying woman. Sunder Rajan
argues that the focus on the pain of the dying woman reminds us of the
womans subjectivity, as well as the fact that the pain impels the suffering
subject towards freedom. Sunder Rajans reformulation presents us with a
more complicated subject. It avoids the complete erasure of the womans
subjectivity through her experience of pain; while at the same time recog-
nizing that the experience of pain actuates the womans desire to escape, to
be free from it.
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But what has the body in ames got to do with the postcolonial project of
pleasure? Addressing the body in pain appears to subvert the very project I
am pursuing. Perhaps this is the point at which the issue of desire and the
subversive role of the sexual subaltern can be brought together. Is there space
to construct a radical subject in pleasure (as opposed to the one in pain that
Sunder Rajan draws on); the sexual subject at the point of orgasm rather than
demise, metaphorically speaking? The moment of pleasure is not conned to
the individuals experience, but provides an understanding as to the relations
of power that determine the way in which sex and sexuality are understood
and either replicates or challenges the script of dominant sexual ideology and
the cultural narrative.
The postcolonial sexual subaltern subject-in-pleasure may assist in moving
beyond the essentialist/anti-essentialist divide. Essentialism that is used for
either dismissing or validating issues of sex and sexuality is not in and of itself
helpful. The use of cultural essentialism for example, to argue against sexual
pleasure or against the existence of the sexual subaltern, reinforces dominant
sexual norms and the idea that there is just one way to do it and live it.
Similarly, cultural explanations that try to prove the existence of these con-
taminants within Indian culture can become their own exclusionary dis-
courses as I have already discussed. Sexual subalterns who deploy cultural
arguments in this exclusionary fashion can slide down the slippery slope into
an essentialist, and at times equally orthodox, stand.
The sexual subaltern subject-in-pleasure may provide a way to ensure the
instability of sex and culture as non-essentialist categories. The fact that the
location of the subject, as a sexual subaltern, is precarious and destabilizing
challenges dominant sexual ideology. The focus on the pleasure of the sexual
subaltern disrupts the dominant cultural narrative that has to some extent
been ruptured by the victim subject, but has not necessarily produced a
subject with emancipatory potential.
21
Creating space for the subject-in-
pleasure who is in a marginalised position, that is the postcolonial sexual sub-
altern subject, can challenge dominant sexual norms, and the idea that sex is
dirty and corrupting; that it needs to be curtailed, conned, restricted and
boxed in. The plurality of experience and dispersed location of the post-
colonial sexual subaltern subject-in-pleasure shatters any claim to the unity
of sexual practice and the cultural performance in which it is clad. The sub-
jectivity of the sexual subject is also recognized, and is both positive and
empowering. Unlike Sati, where death is inevitable, dowry, sexual harassment
or sexual violence (which are no doubt important political issues) in the
context of sex and the subject-in-pleasure, the possibility of ecstasy goads one
into agency, bliss, and at times even a sense of accomplishment. The sexual
subaltern subject-in-pleasure challenges the ways in which cultural essential-
ism can be used in law to reinforce and reinscribe dominant sexual ideology
and a creeping cultural hegemony around sex as something that is alien
to Indian culture and ethos. The convulsions of this subject-in-pleasure
provide a counter-hegemonic possibility to challenge the broader relations of
power, knowledge and the crooked truth about sex and sexuality that is
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being narrated by, and nds its most powerful expression through, the forces
of the Hindu Right.
The sexual subaltern subject-in-pleasure to some extent displaces the
elusive and illusory search for the authentic subject, which all sides of the
debate have sought to retrieve through some form of cultural essentialism
(Heng, 1997: 30). It produces a subject who is more complicated and multi-
farious, not simply either exoticised or victimised. The sexual subaltern I am
describing is always in a precarious and unstable place. Drawing attention to
her location and presence in the cultural script, draws attention to the uid-
ity of culture and the idea that it is constantly shifting, changing and mal-
leable. The position of the sexual subaltern is disruptive and her cacophony
at the peripheries of the cultural narrative provokes a questioning of the limits
of the cultural script.
In this respect, the lm Fire captures in representative or celluloid terms
the disruptive possibilities of the sexual subaltern subject-in-pleasure. The
story involves the attraction between two sisters-in-law, Radha and Sita, who
are married to two brothers, Ashok and Jatin, respectively. Both the husbands
are represented as almost uniformly undesirable and resistible. While Ashok
is preoccupied with his search for spiritual salvation and raising money for
his gurus scrotum operation, Jatin continues to serve as the lap dog lover of
Julie, an Indian Chinese woman, an affair he refuses to surrender even after
his marriage to Sita. Radha and Sita, whose names are the repositories of
Indian cultural values in ancient texts and scriptures, are recuperated in the
contemporary moment to transgress nearly every sexual, familial and cultural
norm that constitutes India as it is imagined. The two women enter into a
sexual relationship with one another, which is not entirely the consequence
of bad marriages. In fact, Sita demonstrates her agency through the lm, con-
stantly pushing the boundaries of pleasure and passion with Radha, until
Radha herself is brought to a realization that her relationship with Sita is also
one of desire and choice.
The relationship of the two women is interwoven with a cultural script that
is designed to legitimise their sexual transgressions. The appropriation of
rituals such as kharvachauth, a fast that is kept by wives to secure the
longevity of their husbands, by the two women for one another, constitutes
a celebratory moment when they trespass into an unacceptable sexual space.
This moment culminates in the Indian lesbian scene. But the women are not
damned into the sexual exile of a decadent west. Instead, they are legitimated
through another cultural move: the testing of a womans purity through the
agnipariksha, the re that redeemed the original Sita from the wrath and con-
demnation of her husband, Lord Ram, and her community.
At the same time, as witnessed through the lm, the position of the sexual
subaltern subject-in-pleasure is not without its attendant risks. The celluloid
Radha (not Sita) is forced to undergo the test of purity through re. Unlike
the epic version where the agnipariksha is a public event, and Sita voluntar-
ily sits in the middle of a burning wood re to prove her delity to her
husband and divine consort, Ram, Mehtas Fire takes a different cultural turn.
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Radhas sari catches re from the burning gas stove. We have no idea if she
survives until the camera brings us to the closing sequence in the setting of
the Nizamuddin durga (tomb) a site of Susm, which accommodates differ-
ent sexual practices and multiple sexual identities. The camera encircles the
two women, Radha and Sita, embracing one another with a beloveds gaze.
Radha survives the test of purity, but unlike the epic version of Sita, this time
the test is not for the sake of cultural purication and sexual recuperation.
Rather, it is for validating her love for Sita through the re-presented cultural
space that they inhabit. Methas counter-cultural move does not leave us in
the end with an uncomplicated authenticated subject. Culture is strategically
invoked by the newly reconstituted sexual subaltern subjects. In the end,
their temporary occupation of a Muslim spiritual space, the space of a perse-
cuted religious minority, the space of another Other, brings us to the brink
of a new level of complexity and challenge.
But the tensions surrounding the sexual subaltern remain present and unre-
solved. Mehtas subsequent disavowal of Fire as a lesbian lm renders the lm
subject to a completely other reading namely, the essentialising of a culture
from the point of view of an Asian immigrant in Canada. The refuting of that
aspect of the lm which is most subversive of Indian culture unmasks Mehtas
project as one of securing her own legitimacy and authenticity. The disrup-
tive possibilities of the sexual subaltern continue to be haunted by the ghosts
of an essentialised culture and the spectre of the authentic subject.
CONCLUSIONS
The postcolonial sexual subject that I have proposed is likely to elicit several
challenges. At a personal level, I may be charged with stylish rootlessness,
or as Suleri states, a continual migrant, in a state of absolute contingency
(Carter, 1997: 173; Spivak, 1992). This mongrelised subject is not simply a
free-oating multifarious agent who is detached from the context and struc-
tures of her location. The sexual subaltern subject-in-pleasure is partly con-
structed in and through the normative understandings of sexuality and
culture in postcolonial India as well as through her location of class, religion,
ethnicity and race.
There is also a need to ensure that pleasure and the sexual subaltern are not
set up in an exclusionary fashion, a warning that resides in the work of Geeta
Patel about the purication of hijras into authentic Hindus, whose lineage
stretches back across vast reaches of mythic Hindu time (Patel, 1996). It is
also necessary to ensure that pleasure is not displaced onto rigid categories
of male/female desire, nor that the sexual subaltern, in turn, is whipped up
out of the distinct ingredients of male and female.
Culture and sexuality are not uncontested categories in law. Their expla-
nation does not reside in predetermined categories of identity and experience.
These categories are sites of negotiation, contestation and reconstruction, the
power of which has the potential to be mobilized through ambivalence and
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hybridity, creating space for a passionate politics of pleasure and desire, at least
in my postcolonial sexual subaltern imagination. The love song in my article
is a love song to hybridity. But the song faces many challenges. The celebration
of hybridity is not intended to reect the position of an uncritical native infor-
mant or an uncritical position on the history of imperialism. Hybridity, as
useful as it is in the sexual debates and the culture wars, does not mean that I
want the deployment of hybridity to amount to a celebration of the imperial-
ism that helped produce it. It is important to remember that postcoloniality is
about a critique of the imperialism that produced hybridity, not simply about
its production. I am concerned that my critique should not be heard exclu-
sively as a native informant, but reect the complex and contradictory politics
that characterizes the contesting political movements and the intricate debates
being produced on sex and culture in law in postcolonial India. It is also my
hope that this picture will put at rest the search for the authentic subject in the
postcolonial world and essentialist cultural explanations that are used to exoti-
cize the Other. There is a need to take responsibility for understanding the
complexity of debates in the postcolonial world that surround issues of sex and
the different cultural spins in which it is dressed or undressed.
NOTES
Ratna Kapur is a Director of the Centre for Feminist Legal Research, New Delhi. I
would like to thank Marie-Claire Belleau, Brenda Cossman, Mary John, Tayyab
Mahmud, Kerry Rittich and Yasmin Tambiah for their helpful comments and sug-
gestions on earlier drafts. My appreciation also to Shohini Ghosh.
1. The lm Kama Sutra was directed by Mira Nair, and released in India in 1997.
2. Sushma Swaraj, the Minister for Information and Broadcasting, declared that
condom advertisements should not be explicit and anything suggesting activity
between the sheets prohibited. Kama Sutra is the brand name of a condom and
its advertisements have been the subject of legal and public controversy in India
for a number of years: see The Times of India, 4 April 1998.
3. Sati and dowry are nearly always conated although there are very distinct
practices. Sati is a nearly extinct practice, where a widow steps on to the funeral
pyre of her husband and immolates herself with his body. The debate on Sati
has been an ongoing one despite the fact that it is not a widespread practice. It
was prohibited by law in Bengal, a north-eastern Indian state, in 1929 by
William Bentinck, a British governor. It is assumed to have declined in fre-
quency thereafter. In post-Independence India, there have been stray incidences
of Sati reported, about 40 in all, mostly in some northern Indian states. It
became the subject of public controversy once again in 1987. On 4 September
1987, 18-year-old Roop Kanwar, who had been married for only seven months,
died on her husbands funeral pyre in a village called Deorala, in the state of
Rajasthan (which is located in the western part of India). As Uma Narayan
points out, the information that crossed into the western press was that women
were being burned to death every day in India through the practices of Sati and
dowry/dowry murders. Apart from inating the occurrences of practices such
as Sati, no distinction was drawn between Sati and dowry and dowry murders.
KAPUR: A LOVE SONG TO OUR MONGREL SELVES 363
04 Kapur (jl/d) 22/7/99 11:11 am Page 363
Dowry is a cultural tradition that can take on many forms, but basically it is an
amount of money/property that a bride takes with her to her husbands home
and which is paid by her natal family. Dowry is a practice that has been around
for a long time. It is a practice that is distinct from dowry murders. A dowry
murder is where a women is killed by her husband and/or in-laws for failing to
provide more dowry and the method more often than not is by re. A dowry
murder is a thoroughly modern practice that only emerged in the 1970s, it
seems with the emergence of the consumer market. It is a modern contempor-
ary construction, has little to do with the cultural practice of dowry and has
nothing to do with Sati.
4. The Hindu Right is a nationalist and right wing political movement devoted to
creating a Hindu State in India. It includes the Bhartiya Janata Party, the politi-
cal arm of the Right which is currently in power at the national level, the
Rashtriya Swayam Sevak, the main ideological component of the Right, and
the Vishwa Hindu Parishad, the exponents of the Rights religious doctrine.
Other parties include the militant and virulently anti-Muslim Shiv Sena. These
organisations collectively promote the ideology of Hindutva an ideology that
seeks to establish a Hindu state in India (see Basu et al., 1993; Sarkar and Butalia,
1995).
5. Vishaka v State of Rajasthan AIR 1997 SC 3011, at 3016.
6. See proposal of the National Law School to the National Commission of
Women on extending the denition to include harassment by gay and lesbian
employers, submitted in March 1998. (available on le) Section 377 of the
Indian Penal Code, 1860, makes it an offence to have unlawful carnal know-
ledge of any person. Although it is a neutral provision, it is primarily used as
a tool for harassing gay men.
7. Apparel Export Promotion Council v A.K. Chopra, Judgment dated 22 January
1999, Civil Appeal Nos. 2267 of 1999, in the Supreme Court of India.
8. Id. at 22.
9. See Sex Work Manifesto, presented at the First National Conference of Sex
Workers organised by the Durbar Mahila Samanywaya Committee, at Yuba
Bharati Kriangan (Salt Lake Stadium, Calcutta, 1416 November 1997) (avail-
able on le). See also A Statement of Women in Prostitution from Veshya AIDS
Muquabla Prishad (VAMP), May 1998 (available on le) which states: We
believe that a womans sexuality is an integral part of her as a woman, as varied
as her mothering, domestic and such other skills. We do not believe that sex has
a sacred space and women who have sex for reasons other than its reproductive
importance are violating this space. Or if they choose to make money from the
transaction they are immoral or debauched (at 2).
10. See also draft of Maharashtra Protection of Commercial Sex Workers Act, 1994
(available on le) and Revised Draft Bills with Explanatory Notes on The
Immoral Trafc (Prevention) Act 1956, prepared by Dr N. R. Madhava Menon,
National Law School of India University, in association with students, faculty
and task force experts from Calcutta, Lucknow, Bangalore, Bombay and
Madras, December 1993 (available on le).
11. Indian Express, Friday 4 December 1998.
12. Womens forum opposes gay lm festival, The Hindu, 1 November 1994.
13. See Bobby Art International v Union of India, AIR 1996 SC 1846, where
the Supreme Court permitted the screening of the film in India ending the
legal struggle that had dogged the film in India since its release in other coun-
tries.
14. See Eighth Report of the Parliamentary Standing Committee on Communi-
cations, (Central Board of Film Certication) 1995, at para. 1.8; petition by the
364 SOCIAL & LEGAL STUDIES 8(3)
04 Kapur (jl/d) 22/7/99 11:11 am Page 364
National Commission of Women pending in the Delhi High Court, which
seeks to regulate satellite broadcasting in India on the grounds that it is morally
and culturally tearing [apart] the national and cultural ethos of the country: Ms
Nirmala Sharma and Others v Union of India and Others, Civil Writ Petition
No. 2697/95 at 23.
15. The search for the authentic subject involves the discovery of a pure, Indian
subject who can be distinguished from the Western subject, that is, a subject
who is constructed outside of modernity. However, as Gyan Prakash points out
the search for the authentic subject remains irretrievable as s/he has been
thoroughly refashioned in and through the colonial encounter and its legacies
(Prakash, 1990). Similarly, Gayatri Sprivak argues that that the idea of a pure
Indian subject ignores the effects of the colonial encounter. She points out that
the very term Indian is the product of colonial discourse and as a category of
identity involves a particular material history of subject-constitution by
subject forces which cannot be wished away (Spivak, 1993: 211).
16. As Annie Bunting argues, essentialism from a dominant position can perpetu-
ate oppression while, as a means of challenging dominant ideologies, it can be
necessary and persuasive (Bunting, 1993: 12).
17. In their petition led in 1993 in the Delhi High Court, the AIDS Bedhbhav
Virodhi Andolan makes innumerable references to passages dealing with homo-
sexuality in the Kama Sutra.
18. For a detailed and incisive critique of this work, see Natrajan, Kanchana (1998)
Tracing the Lesbian through Indian Art and Literature, The Lesbian Review
of Books 5(1): 911. For a more complicated reading of the lesbian subject and
culture in India, see Sukthankar (1999).
19. Communalism has been dened as a discourse based on the belief that because
a group of people follow a particular religion, they have as a result, common
social, political and economic interests (see Chandra, 1984). It is a discourse
that attempts to constitute subjects in and through community attachment, par-
ticularly through religious community. Indian society is understood as frac-
tured by the conict among these groups. This community identity becomes
the basis for social economic and political demands, and for political mobiliz-
ation around these demands. Hindu communalism, more recently, Hindu right
wing politics through the discourse of Hindutva constitutes Hindu subjects to
understand this fractured society as a thousand-year-old struggle by Hindus
against Muslims.
20. Kum Kum Sangari and Sudesh Vaid have complicated the issue of Sati to move
beyond this dichotomous position, by historicising the practice and articulating
the contemporary political, social and economic context in which Sati has
occurred. They have documented the fact that the practice of Sati was varied in
different states, and that the practice was legitimised by the local custom rather
than the authority of any religious text. Second, the proponents of the practice
or at least its glorication today, are not the rural masses but the landed gentry
and the urban business classes. And nally the glorication of the practice
through temples and fairs is a commercial phenomenon and an entirely modern
phenomenon as well. The modern practice does not derive from hallowed ritual.
In fact, at times, the supporters of the practice will argue, when it suits them, that
the conict is not one between culture and modernity, but a reconciliation
between the two. They argue, for example, that Roop Kanwar, who committed
Sati in Deorala in 1987, was a modern girl in many respects, who they allege
chose to commit Sati despite her afuent background and education (see Vaid,
1988; Sangari and Vaid, 1991). Yet the stark contrast between the two positions
remains, hinging very often on the issue of consent (see Oldenburg, 1994).
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21. The victim subject position has played an important role in challenging the idea
of the autonomous, free, and totalising liberal subject, by emphasizing the social
constructedness of the subject, as one who is shaped in part by systematic and
institutionalized gender oppression (see Abrams, 1995). However, I question
the emancipatory potential of the victim subject in law. The spate of criminal
legislation increasing the regulation of sexual conduct combined with the cul-
tural nationalism of the Hindu Right has increased the moral surveillance of
womens lives. Ironically, a neo-Victorian regulatory urge is being satised
under the cloak of Hindu cultural nationalism.
REFERENCES
Abrams, Kathryn (1995) Sex Wars Redux: Agency and coercion in Feminist Legal
Theory, Columbia Law Review 95: 30476.
Basu, Tapan, Pradip Datta, Sumit Sarkar, Tanika Sarkar and Sambuddha Sen (1993)
Khaki Shorts, Saffron Flags: A Critique of the Hindu Right. New Delhi: Orient
Longman.
BJP Mahila Morcha (1991) Womens decade: Mahila Morcha Response, Dashak Ke
Jharokhe Mein. New Delhi: Bhartiya Janata Party.
Bunting, Annie (1993) Theorizing Womens Cultural Diversity in Feminist Inter-
national Human Rights Strategies, in Anne Bottomley and Janne Conaghan
(eds) Feminist Theory and Legal Strategy. London: Blackwell.
Carter, Mia (1997) Unmapping Identities: Deconstructing History and Nation in
Meatless Days, pp. 16184 in Anne Cvetkovich and Douglas Kellner (eds)
Globalization and Cultural Studies. Boulder, Colorado: Westview Press.
Chandra, Bipan (1984) Communalism in Modern India. Delhi: Vikas.
Chatterjee, Partha (1989) The Nationalist Resolution of the Womens Question, pp.
23353 in Kum Kum Sanghari and Sudesh Vaid (eds) Recasting Women: Essays
in Colonial History. New Delhi: Kali for Women.
Choudhary, Asha (1996) Canning the Controversy: The Saga of the Bandit Queen,
Voices: A Journal on Communication and Development 4(2): 279.
Chugtai, Ismat (1996, reproduced) The Quilt and Other Stories. New Delhi: Kali for
Women.
Cossman, Brenda and Ratna Kapur (1999) Secularisms Last Sight? Hindutva and the
(Mis)Rule of Law. New Delhi: Oxford University Press.
DSouza, Andrea (1995) Pramod Navalkar Hopping Mad, Savvy: 1347.
Ghosh, Shohini (1996) Deviant Pleasures and Disorderly Women: The Represen-
tation of the Female Outlaw in the Bandit Queen and Anjaam, pp. 15083 in
Ratna Kapur (ed.) Feminist Terrains in Legal Domains: Interdisciplinary Essays
on Women and Law in India. New Delhi: Kali for Women.
Ghosh, Shohini (1999) The Troubled Existence of Sex and Sexuality: Feminist
Engagements with Censorship, pp. 23360 in Melissa Butcher and Christianne
Brossier (eds) Imaging India. New Delhi: Sage.
Guha, Ranjit and Gayatri Chakravorty Spivak (eds) (1988) Selected Subaltern Studies.
New York: Oxford University Press.
Hall, Stuart (1996a) When was The Post-Colonial? Thinking at the Limit, pp.
24260 in Iain Chambers and Lidia Curti (eds) The Post-Colonial Question:
Common Skies, Divided Horizons. London: Routledge.
Hall, Stuart (1996b) Cultural Identity and Cinematic Representation pp. 21022 in
Houston A. Jr. Baker, Manthia Diawara and Ruth A. Lindeborg (eds) Black
British Cultural Studies: A Reader. Chicago: University of Chicago Press.
366 SOCIAL & LEGAL STUDIES 8(3)
04 Kapur (jl/d) 22/7/99 11:11 am Page 366
Heng, Geraldine (1997) A Great Way to Fly: Nationalism, the State and the Var-
ieties of Third-World Feminism, pp. 3045 in M. Jacqui Alexander and
Chandra Talpade Mohanty (eds) Feminist Genealogies, Colonial Legacies,
Democratic Futures. New York: Routledge.
Kapur, Ratna (1996a) Who Draws the Line? Contemporary Issues of Speech and
Censorship in India, Economic and Political Weekly 31(16,17): 1530.
Kapur, Ratna (1996b) Queen on the Screen and Bandits in the Courts: How Censor-
ship Re-Told the Bandit Queen Story, Fireweed: A Feminist Quarterly of
Writing, Politics, Art and Culture 55: 3343.
Kapur, Ratna (1997) The Profanity of Prudery: The Moral Face of Obscenity Law in
India, Women: A Cultural Review 8(3): 293302.
Kapur, Ratna and Brenda Cossman (1996) Subversive Sites: Feminist Engagements
with Law in India. New Delhi: Sage.
Kapur, Ratna and Shohini Ghosh (1995) The Bandit Queen Comes Out on Top, The
Bulletin: Rights of Women: 1012.
Kapur, Ratna, Shomona Khanna and Shohini Ghosh (1998) The Sexual Harassment
Guidelines: A Double-edged Sword, Horizons: Genders 2(2): 57.
Kishwar, Mzdhu (1994) The Bandit Queen: A Film Review, Manushi 84(Sept./Oct.):
345.
Mani, Lata (1989) Contentious Traditions: The Debate on Sati in Colonial India, pp.
88126 in Kum Kum Sanghari and Sudesh Vaid (eds) Recasting Women: Essays
in Colonial History. New Delhi: Kali for Women.
Narayan, Uma (1997) Dislocating Cultures: Identities, Traditions, and Third World
Feminism. New York, London: Routledge.
Narayan, Uma (1998) Essence of Culture and a Sense of History: A Feminist Cri-
tique of Cultural Essentialism, Hypatia 13(2): 87106.
National Commission of Women (1998) NCWs Review of Laws, Amendments, New
Bills. New Delhi: National Commission of Women.
Oldenbury, Veena Kumar (1994) The Roop Kanwar Case: Feminist Responses, pp.
10130 in John Stratton Hawley (ed.) Sati, the Blessing and the Curse. New
York: Oxford University Press.
Patel, Geeta (1996) Home, Homo, Hybrid: Translating Gender, College Literature
24(1): 13350.
Prakash, Gyan (1990) Writing Post-Orientalist Histories of the Third World: Per-
spectives from Indian Historiography, Comparative Studies in Society and
History 32(2): 383408.
Puri, Jyoti (1997) Gender and Sexuality in Postcolonial India, Dissertation. University
of Michigan.
Rubin, Gayle (1992) Thinking Sex: Notes for a Radical Theory of the Politics of
Sexuality, pp. 267319 in Carol Vance (ed.) Pleasure and Danger: Exploring
Female Sexuality. London: Pandora Press.
Rushdie, Salman (1991) Imaginary Homelands. London: Granta Books.
Rushdie, Salman (1988) Satanic Verses. London: Viking.
Sangari, Kum Kum and Sudesh Vaid (1991) Institutions, Beliefs, Ideologies: Widow
Immolation in Contemporary Rajasthan, Economic and Political Weekly
26(17): WS2.
Sarkar, Tanika (1996) Colonial Lawmaking and Lives/Deaths of Indian Women:
Different Readings of Law and Community, pp. 21042 in Ratna Kapur (ed.)
Feminist Terrains in Legal Domains: Interdisciplinary Essays on Women and
Law. New Delhi: Kali for Women.
Sarkar, Tanika and Urvishi Butalia (1996) Women and the Hindu Right. New Delhi:
Kali for Women.
Spivak, Gayatri Chakravorty (1988) Can the Subaltern Speak? pp. 271313 in Cary
KAPUR: A LOVE SONG TO OUR MONGREL SELVES 367
04 Kapur (jl/d) 22/7/99 11:11 am Page 367
Nelson and Lawrence Grossberg (eds) Marxism and the Interpretation of
Culture. Urbana: University of Illinois Press.
Spivak, Gayatri (1992) Acting Bits/Identity Talk, Critical Inquiry 18: 770803.
Spivak, Gayatri Chakravorty (1993) Outside in the Teaching Machine. London: Rout-
ledge.
Spivak, Gayatri Chakravorty and Ellen Rooney (1994) In a Word: Interview, pp.
15184 in Naomi Schor and Elizabeth Weed (eds) The Essential Difference.
Indianapolis: Indiana University Press.
Sunder Rajan, Rajeswari (1996) Real and Imagined Women: Essays in Postcolonial-
ism, Gender and Culture. London: Routledge.
Sukthankar, Ashwini (ed.) (1999) Facing the Mirror: Lesbian Writing from India. New
Delhi: Penguin.
Tandani, Giti (1996) Sakhiyani: Lesbian Desire in Ancient and Modern India.
London: Cassell.
Vaid, Sudesh (1988) The Politics of Widow Immolation, Seminar 342: 2023.
368 SOCIAL & LEGAL STUDIES 8(3)
04 Kapur (jl/d) 22/7/99 11:11 am Page 368