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The Journal of Bodies, Sexualities, and Masculinities is honored to present this book forum on Danish Sheikh's recent collection Love and Reparation: A Theatrical Response to the Section 377 Litigation in India (2021). The book is a pair of plays or performance pieces that each, in their own way, address the worlds created in the interstice between law and the lives of queer people.

Danish Sheikh's Love and Reparation: A Theatrical Response to the Section 377 Litigation in India (Kolkata, India: Seagull Books, 2021)

Frank G. Karioris

The Journal of Bodies, Sexualities, and Masculinities is honored to present this book forum on Danish Sheikh's recent collection Love and Reparation: A Theatrical Response to the Section 377 Litigation in India (2021). The book is a pair of plays or performance pieces that each, in their own way, address the worlds created in the interstice between law and the lives of queer people.

These plays, then, act as both an accounting of what the Supreme Court of India has decided and decided on around homosexuality in Section 377 as well as as an archival moment of possibilities, impossibilities, and the lives that sit alongside the apparatus that is the law and courts. As a law PhD student, a former law professor, and a person who lived under and through these events, Danish Sheikh is perfectly situated to provide readers with descriptions and, more so, the effect of these moments. For, as Walter Benjamin notes, each time we search for a memory, we dig into the ground and unearth new dirt, in our hands; and each time, even more especially when we sit with someone else's memory, we end up with dirt under our nails and in the grooves and scars our hands have from before.

This book forum, then, might best be understood as four people digging into the world around, under, and coming out of Section 377. Each of the four respondents brings their life to it, their hands themselves covered in markers of their past; and their responses are an airing of what is unearthed by and for them from their reading of these plays. There is, then, also, no suggestion that these are perfect recollections, but, like the original they are working from, they are performances that are rooted in the body in ways that complicate theoretical paradigms that seek to export a Cartesian Dualism onto bodies that have already been marked by the world-as-is. The world-as-is is non-reductive and contains the complications of its moments, vocabularies, and is then a by-product of its time and those who inhabit and make real that world.

Each response sheds its own moments onto the book, doing so in ways that will, I hope, assist us collectively in understanding the plays, but, more, recognizing and seeing something emerging from the pages on which they are printed and allowing us to bring them into our own world. The forum concludes with a response from Danish himself, who brings himself unabashedly into discussion with the pieces and reflects on the state of publishing the piece and where he has found himself now that it is published.

In total, the forum hopes not simply to provide a static review of the book but also to think about the ways that our work, our selves, and our world is a collective undertaking. The Journal of Bodies, Sexualities, and Masculinities has, from the moment of its inception, been one of dialogue. We three editors met, spoke at length, sat in discussion, chatted formally and informally, argued over words, and brought each of our own lives to each moment of the journal's life. In this way, the book forum is a summation of the spirit of the journal.

We are excited to continue this trend and publish future book forums, and we already have another one in the works that we are looking forward to bringing into the world. Beyond being a dialogic genre, they are also a space where we, as a journal, as an audience, can push beyond theoretical, disciplinary, and cosmologic boundary walls that often constrain us. Academia is sometimes too known for its pedantry rather than its empathy and listening. The book forum—this and all future ones—hopes in hope that we can be listeners and hold ourselves in community before we treat the world with the violence that is so often enacted on our bodies, minds, and souls by the structures of oppression that wish us to oppress ourselves and make their job easier. We hold ourselves to an ethics of a multi-logos that extends beyond dialogue (‘di’ being two) into a to-be world-to-come of community.

We want to take, in closing, a moment to thank each of the authors, including the most wonderful Danish, for agreeing to be a part of this book forum, and for taking time to share their work and world with us. We hope you will read these pieces with a sense of inquiry, joy, and collective desire toward the building of a world yet-to-be.

The Inheritance of Law and Literature

J. Daniel Elam

Section 377 of the Indian Penal Code was written in 1861 by T.B. Macauley, who also wrote the “Minute on Indian Education” (1835) almost thirty years earlier. Macaulay's 1835 Minute is full of phrases that capture the hubris of empire, including his claim that a “single shelf of a good European library was worth the whole native literature of India and Arabia” and his hopes that anglophone literary education might create “a class of persons Indian in blood and colour, but English in tastes, in opinions, in morals and in intellect.”

This vision for imperial education—its sense of its own intrinsic superiority and its endeavor to recreate the world in its image—laid the groundwork not only for English literacy in India but also for the formation of the British literary canon. As Gauri Viswanathan has shown, the novels that were the most successful at creating mimic men became the cornerstones of English literature (or, not unrelatedly, “world literature”). We can make an educated guess about which books Macaulay imagined on his “single shelf’” or at least which authors have likely secured their position there: Plato and Socrates, Hobbes, Shakespeare, Matthew Arnold, and J.S. Mill (to name only those who make an appearance in the Section 377 rulings or in Contempt). In 1909, Charles William Eliot oversaw the publication of a fifty-volume set of “classics” from antiquity to the late-nineteenth century, which famously fit neatly on a single “five-foot shelf.” Macaulay's writing appears in volume 27, but he shares that single shelf with the Bhagavad Gita and the Quran, which are in volume 45.

At first glance an anti-sodomy law and a memorandum on education make strange bookends to one's political career, but their legacies have had a strangely parallel effect well after Macaulay's life. Section 377, as the Naz legal team assiduously argued, disproportionately excludes queer people from legal protection. The “Minute,” and the literary canon that it consequently engendered, disproportionately excludes authors and writers outside of Western Europe. Although it is by no means exceptional in this regard, an Indian legal education is an inheritance of exclusion: of minorities and of texts.

In Danish Sheikh's Contempt, the court speaks with the authority of colonial law in its defense of legal exclusion. Queer people wrest the voices of canonical authors to demand reparation. The court is the space where two reluctant benefactors confront each other. But while the court clings uncritically to an inherited authority, queer people in Contempt reassemble the authors of the “Western tradition” to demand something new. The authority of law and the authors of literature are how one is able to demand redress and recognition. Those who seek the support of the law or of the state must be prepared to speak in this authorizing language. Thus, the question in Sheikh's plays is not how to dismantle authority but how to herald it in the service of a more egalitarian community.

In Sheikh's plays, this community proffers “love”: in the first iteration as the subject of literature subjected to law; in the second iteration as the subject of law subjected to literature. If contempt is the way to use one's authority to uphold exclusion, love is the way to address and channel authority to ensure greater inclusion.

“Love,” though, seems like too much of a literary excursus to fall under the purview of law. Section 377 did not regulate love (though it is associated with the phrase, “a love that dare not speak its name,” later used in Oscar Wilde's trial). It criminalized acts—which Macaulay did not see fit to specify—and had therefore been used to criminalize, exclude, harass, and oppress queer people. The concern of the legal team in 2012 was that Section 377's criminalization of certain acts made certain types of love dangerous if not fatal. This was not untrue, but gay “acts” aren't necessarily acts of “love,” and they needn't bear any relationship to it. Arguing on behalf of “love” feels intuitive, and it has a certain emotional effectiveness, but it is misleading. “Love” is a synecdoche: an abstract whole that represents (and displaces) its various alleged parts. Here, “love” stands in for sex, attraction, identity, and community. All of these are worthy of legal defense, but none of them are synonymous with love. Without denying the power of the state to regulate intimacy between its subjects, “love” is ungovernable. Section 377 did not limit its existence in the world nor did the ruling against Section 377 increase love's reach.

It is possible, especially within the Indian legal tradition, to suggest that Section 377 hindered the political community's ability to love. B.R. Ambedkar did not use the word “love” to describe his imagined political community without exclusion, though the two words he did use—“fraternity” and “maitra” (fellowship)—can be traced back to “love” by way of his academic career. Ambedkar thought that the purpose of laws is to protect people whose safety has not yet been granted and that the legal system had to act in advance of social structures. Ambedkar's law was a law for the meantime: we must demand the annihilation of caste from society, but in the meantime, the law must actively include Dalits as protected citizens. For Ambedkar, “fraternity” names how to expand, in advance of equality and liberty, the boundaries of legal protection. We must work to end violence, discrimination, and exclusion against queer people, but in the meantime, the state must unambiguously protect queer people as unambiguous citizens.

In this sense, “love” is not a matter of intimacy or care between people. “Love” is a legal practice: it is the means by which the state offers an infinite invitation to inclusion. For Henri Bergson, “love” was an indication of an “open” world, and it laid the groundwork for thinking about human rights. Ambedkar, working within the same philosophical genealogy but articulating it in its most radical iterations, sought to enshrine this in the Indian Constitution. It is no wonder that he appears in the 2018 ruling that finally struck down Section 377.

The legal obligation to protect queer people—much like the legal obligation to protect Dalits—works on the basis that discrimination appears in far too many realms to regulate otherwise. In the affidavits in Contempt, we witness homophobia's full reach: it flourished in the medical field, it has structured domestic spaces, it has altered institutions of education, and it has changed the way we speak. An unregulatable cruelty infects multiple spheres of human and social life. Legal “love” will not necessarily eradicate this, but it is the necessary method in the meantime.

This view of juridical activism works based on seeing the porousness between legal and social realms. Or, alternatively: this view of activism is catalyzed by the fungibility of genre. We can speak of “love” in court because it is aesthetically effective, and we can imagine love in its philosophical fullness when we read Plato's Symposium. Sheikh's plays show what it means to live a life governed by law and understood through literature. Their collaboration can rule as an authority to restrict a life or it can authorize a life's full existence.

The project, then, is how to use the twin authorities of exclusion—law and literature—to demand inclusion. How do we speak back to authority in a voice it will recognize as authorial without accidentally replicating the authoritarian logics that have refused so many people the ability to authorize their own lives? Sheikh's plays suggest that speaking in remixed and rematched genres might be the way to represent excluded subjects politically and aesthetically in hopes that representation might include them in its folds. To represent, to recognize, to include: Sheikh leaves these privileges in the hands of authors and authorities. But to be represented, to be recognized, to be included: Sheikh secures these privileges for others, whose voices can wrest from those authors’ and authorities’ texts the vision of an infinite and unpredictable invitation. Macaulay could not imagine this “good library,” but Sheikh's plays give us a glimpse of the many shelves within it.

Response

Rupali Francesca Samuel

And I know the law doesn't make sense most of the time, I said that, I meant it. It's useless or it's violent or it's just bad. But also, it's words that…sometimes it's words that I can hold on to. Words that can actually do something. Sometimes.

— From ‘Pride’ in Love and Reparation

Being a constitutional lawyer in India is a strangely isolating experience. Midst the rustling papers, swirling gowns, and discordant voices of courtrooms, I have often felt acutely disconnected from reality: my own reality and the reality of the communities and individuals whose lives are being talked about. People become dates and events. Experiences become hypotheticals. And any attempt at genuine empathy is frowned upon as unprofessional and even manipulative. In the Supreme Court of India, navigating this world also means playing to fragile egos (on all sides) and protecting oneself from the regular dose of public humiliation. How does one break through this wall of grandiose apathy and create a moment that is real? In his book Love and Reparation, Danish Sheikh offers us an answer: theatre.

I first met Danish on my first day at law school. I was a wide-eyed idealist who joined law school to save the world, and he was a final-year super star constitutional law genius who was already saving the world. We immediately became close friends. Beyond our shared commitment to using law as a force for good in the world, we shared two other important priorities in life: love and theatre. We could and did talk about love and being in love for hours. And we found release from all that heartache (it was invariably heartache) in our small but glorious drama club. Years later, 2013 brought one of the biggest heartaches of them all when the Indian Supreme Court overturned an earlier Delhi High Court ruling against India's anti-sodomy law, effectively re-criminalizing LGBTQIA+ persons across the country. And once again, Danish brought healing when he asked me if I could join a table reading for a play he was working on.

By the time Danish was writing Contempt, I had already read the decision in Suresh Kumar Koushal v. Naz Foundation1 numerous times, and the boiling anger I felt at its poor legal reasoning had already spilled out in the form of tirades, essays, and public statements shredding the so-called judgment apart. However, listening to the courtroom transcript from the case in Danish's initial table reads, I could see beyond the legal arguments for the first time. Danish's creative showcasing of the courtroom exchanges persuasively demonstrates a fundamental insight of critical legal studies: that beneath the paraphernalia of legal arguments, our legal system engages in violent spectacle not just at an individual level but at a structural level. In the name of objectivity, deeply embedded scripts of caste, gendered, heteronormative, ableist, religious, regional, and linguistic power are routinely performed and reproduced. Feminist scholars have long argued that in a Supreme Court dominated by upper caste, elite educated men, the legal gaze is framed from their location.2 Feminist legal work on sexual assault has highlighted the deliberate and debilitating way in which the act of giving testimonial evidence is a re-enactment of trauma, serving the voyeuristic legal gaze only to be discarded as unbelievable.3 “But also within law's shadow are stories of people resisting, recrafting, reforging law into something nourishing,” says Danish at page xxi of the Preface of Love and Reparation. Throughout both plays, Contempt and Pride, Danish raises this difficult question for me: as a practitioner invested in the democratizing of and redistributing of the power of the law, especially as a tool for marginalized and oppressed peoples, how can I disrupt the legal gaze?

The Indian Constitution provides for enforcement of the bill of rights4 under Article 32 through issuance of writs of habeas corpus, mandamus, prohibition, quo warranto, and certiorari on the basis on individual claims. In the late 1970s, the Indian Supreme Court substantially expanded the reach of Article 32 by instituting the practice of “public interest litigation” or social action litigation, which allowed relaxed rules of standing to enable the court's intervention to address importance social justice issues.5 While the new rule was intended to correct historical silences, the construction of the whom (already erased in the more popular framing “what”) of public interest is rarely articulated by marginalized communities themselves, and in many instances has been redirected against the very people it intended to serve.6 In Contempt, Danish invites us to examine for ourselves why even well-crafted attempts to wrest narrative control and locate rights deprived peoples at the center of constitutional adjudication can fail. By juxtaposing affidavits (real and imagined) of the actual experiences of LGBTQIA+ persons against the blinkered refusal of the judges to allow them voice, Danish strips the court of its hegemonic position and opens space for a more equal fight for narrative power between legal meaning attributed to our lives and actual experiences of our lives in law.

While there are tremendously broad powers for the Indian Supreme Court under Articles 32 and 142 of the Indian Constitution to craft constitutional remedies, the rule against raising complex, disputed questions of fact in writ jurisdiction makes proving rights violations a challenging task for lawyers.7 Affidavits, as a matter of form, are the only recognized means to bring testimonial evidence in constitutional cases. In my practice as an Indian lawyer, I have found that affidavits are mired in legalese and rarely ever describe events in the actual language of the deponent. In an everyday sense, affidavits are ancillary to the brief; they are formulaic, verbose, hyperbolic, and to be read with some skepticism. This common-sense understanding of the role of an affidavit can do a serious disservice to the dignity of the human story that is conveyed through affidavit in constitutional cases. When Danish was workshopping Contempt and trusted me with the part of Witness 2 in the play, I had to unlearn everything I had internalized about affidavits. I had read affidavits out in court before. But the first time I spoke the affidavit as a person telling my own story, I was profoundly shaken. It felt like nothing I had experienced before in the courtroom. It felt real.

For his first public performance of Contempt in 2017 in Delhi, Danish cast a set of lawyers (including me) with no professional acting experience and a certainly inflated sense of our acting chops. For the lawyer-actors playing the judges, who had their backs to the audience the entire play, voice modulations and careful pauses were crucial toward conveying the casual violence of these men. The cyclic, bored, and yet almost chant-like invocation of the phrase “carnal intercourse against the order of nature” by these faceless, casually cruel beings, set against the restrained desperation of the lawyer, built an atmosphere of anxious tension that felt eerily familiar to me. As the first witness to break this rhythm, I found it so visceral and so cathartic to speak, to shout, to declare: “I've had enough at this point.” With each rehearsal, I felt something opening up inside me. An inner “idealist” from law school who had been told to have thicker skin in the game peeped out from the closet I had locked her in. And slowly I began to ask myself, is there a better way for us to do this? Can we actually make courtrooms emancipatory spaces where people get to actually tell their stories?

Our first round of amateur performances of Contempt happened just as the Supreme Court was getting ready to hear a new round of cases that reopened the question of the constitutionality of Section 377. This brought a reflective quality to the performance and viewing of the play. We would end the performance with a discussion, and the audience (especially the lawyers) would invariably share that they found the disruption of the courtroom with actual testimonies very stark. Someone would always ask, “How do we make this happen in a real courtroom?” I was convinced about the need for audio and video testimonies in the Supreme Court and would offer that as a concrete action point for lawyers to pursue. But Contempt does more than just bring people back into courtrooms. As someone who was living in the play, I felt that the experience of embodying a character changed the way I was thinking about the issues in the case. Arguments that felt intangible or tenuous in the larger basket of legal arguments, like those grounded in human dignity or in a “right to love,” began to feel as relevant as arguments grounded in more traditional arguments of liberty or equality. In fact, the neat lines between these categories began to dissolve, and the powerful overlaps in these legal principles became much clearer. I felt so much more creative and ready to listen for new ways of thinking about the challenges we were working with. In Contempt, Danish offers us theatre as a moment of reflection on the working of the legal system but also as method. Through theatre, the embodied act of living someone else's story, through discarding the legal systems’ straitjacket and experimenting with different narrative viewpoints, Danish argues that we can find new ways of understanding the relationship between law and life, not as two separate spheres where law applies to life but as enmeshed experiences that find meaning through each other.

In Pride, Danish offers us an exploration of just how radical and liberating it can be to reflexively bring the fullness of one's lived experiences to the table while thinking about what law is and what it should look like. Evaluating the strategies in Navtej Johar v. Union of India8 (the case that had the right result), Person 2 in Interlude II of Pride says, “We gave the court a story.” But by juxtaposing discussions on legal strategies with therapy sessions and monologues that all have a deeply autobiographical flavor, Danish reminds us that the neat storytelling of courtroom advocacy, even when informed by real-life narratives, is not truly reflective of the chaos of real life. Here, in bringing theatre to law, Danish reminds us that real life is messy and rarely makes narrative sense. The reason of law demands that these kinds of stories cannot be believed (“Literally how cross examination works” is a line in the play). In Pride, Danish argues that these assumptions and legal logics are inherently flawed. They are alienating and isolating. Truth is a journey of self-discovery, not an accurate recollection of events, the play nudges. Can we begin to think about redesigning law and life, law in life, and life in law to actually encompass the many layers of human experiences? In Love and Reparation, Danish suggests that with more creativity, experimentation, self-awareness, courage, and some good ole theatre, we can. Maybe the college drama club needs to have more of a central role in legal pedagogy and in continuing legal education for lawyers and judges.

Notes

1

Judgement of the Indian Supreme Court dated 11 December 2013 in Civil Appeal 10972 of 2013, reported in (2014) 1 SCC 1.

2

Kalpana Kannabiran & Vasanth Kannabiran (2002), De-Eroticizing Assault: Essays on Modesty, Honour and Power (Stree: New Delhi).

3

Pratiksha Baxi (2013), Public Secrets of Law: Rape Trials in India (Oxford University Press: Oxford).

4

Part III of the Indian Constitution is titled “Fundamental Rights” and comprises the bill of rights.

5

Upendra Baxi (1985), “Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India,” Third World Legal Studies, vol. 4, article 6.

6

For a critical history of public interest litigation see Anuj Bhuwania (2016), Courting the People: Public Interest Litigation in Post-Emergency India (Cambridge University Press: Cambridge).

7

See P. Radhakrishna Naidu v. Govt. of A.P., Judgement of the Indian Supreme Court reported in (1977) 1 SCC 561.

8

Judgement of the Indian Supreme Court dated 06 September 2018 in W. P. (Crl.) No. 76 of 2016. Reported in AIR 2018 SC 4321.

Law, Theater, and Queer Love

Marco Wan

What is the relationship between literature and law? The case of Navtej Singh Johar v. Union of India, in which the Indian Supreme Court held that the application of Section 377 in the country's penal code to consensual homosexual sex between adults was unconstitutional, provides a point of entry into the question. The case opens with a quotation from Johann Wolfgang von Goethe: “I am what I am, so take me as I am.” It also makes reference to William Shakespeare: we hear the famous question “What's in a name?,” though from reading the judgment alone one may be forgiven for not realizing that it was Juliet who asked the question or, indeed, that the quotation was taken from Romeo and Juliet at all. These lines are cited to make the rather obvious point that individuality and identity matter to us: we cannot have a meaningful existence without a sense of individuality and a conception of identity. The importance of being authentic or true to oneself is nothing new to twenty-first century ears. The literary quotations are excised from their original contexts, reframed as applicable precedent and precepts, and thereby flattened into a series of truisms. When incorporated into the machinery of law, the literary voices of figures like Goethe and Shakespeare become elevated into grandiose legal principles and so come out sounding hollow.

One of the great contributions of the two plays in Love and Reparation is the way they give us a sense of the range, complexity, and multiplicity of voices of lesbian (L), gay (G), bisexual (B), trans and gender diverse (T), intersex (I), queer (Q), plus (+ other identities) (LGBTIQ+) communities. Contempt intercuts scenes adapted from Suresh Kumar Koushal v. Naz Foundation with the stories of a number of people, stories which, in the words of the playwright, “begin with one foot planted in reality,” but then “meander, following imagined paths,” which lead us far away from the framework of law. There's the guy who ponders over the meanings of love with some help from the ancient Greeks; there's the girl who chooses to confront the psychologist attempting to “cure” her of her lesbianism; there's Sucheta, who is forced to bring the relationship with the woman she loves to a cruelly early end; and there is Kokila, the hijra woman who is labeled crazy or “cuckoo.” As we move back and forth between their stories and the scenes in the courtroom, the narratives of law appear increasingly, and laughably, out of touch with lived experience. Dignity, individuality, identity…these are lofty ideas, and often foregrounded in legal cases about minority rights. But they tell us little about what it is like to be part of a minority. To understand the impact of law on LGBTIQ+ people, to get even a glimpse of the difficulties they face in life, we need to move out of the courtroom and into the theatre. Theatre provides an imaginative forum for their experiences to be articulated, amplified, and, just for a moment, heard.

Pride adds to this mix of voices the conversations between a man and his therapist. These conversations also meander: sometimes, they have the precision of a cross-examination in the courtroom; at other times, they range freely over reflections on Socrates and Aristophanes, references to the Bollywood romance Manmarziyaan; personal memories; defensive jokes, and many other things. As the play progresses, we move even further away than Contempt from the grandiose claims of individuality and identity, and from abstract formulations of rights and equality. The second play reminds us that, yes, pride is important and legal victories ought to be celebrated, but at the same time, we need to acknowledge the insecurities, obsessions, moments of self-absorption, uncertainties, half-deliberate deceptions, and irrational thoughts that also constitute sexual and emotional experience. Pride explores these dimensions, and in doing so further underscores the irreducible complexity of experience that is often overshadowed by the more confident, even triumphant, assertions arising from more positive moments like Johar.

Finally, there is the conversation between the playwright and the reader of the script. The preface notes that a theatrical script is “inchoate” and “never quite finished,” yet it goes on to observe that “here we are somehow. You and I, in conversation.” In addition to the voices from the courtroom, the testimonies and affidavits, and the therapy room, there is yet another voice: that of the reader. As we read the script, we add to the plays our own experiences of love and reparation. For some, these pages bring about a sense of recognition; for others, a sense of discovery. It is part of the richness of both Contempt and Pride that they speak differently to different readers and perhaps even to different parts of a single reader, as evidenced by the range of responses published in this journal.

My favorite part of the script is the ending, where A and Firoz meet, in part because the ending provides a striking illustration of the ways in which law and literature create meaning. The law's power comes from closure: it is because Johar unequivocally declares Section 377 to be unconstitutional insofar as it criminalizes sexual conduct between adults of the same sex that it is such a landmark case. The ruling is significant because it provides a final, definitive answer about the possibility of equal citizenship. By contrast, the power of theatre lies in its openness: it is because we have “no idea” how the relationship between the two characters will develop, because we have “no idea” whether there is going to be a “next morning” after the date that is not a date, that we are hopeful for them. The endless possibilities which the ending opens up is, to quote Firoz, the “fun part,” and it is also the important part: theatre shows us that openness, as much as or perhaps even more than judicial pronouncements that bring about closure, is a force that can lead to change.

Queering the Law

Alvin K. Wong

Danish Sheikh's play Love and Reparation (Sheikh 2021) is an indispensable queer work that explores the colonial, social, psychic, and collective dimensions of the law in the context of contemporary India. It explores the duality of law, “its ability, at once, to be a vehicle for power's oppression as well as a tool that has the potential to be wielded against such oppression,” so well phrased by Tarun Khaitan the Vice Dean of the Faculty of Law at Oxford University (Sheikh 2021, ix). The play tracks the development of the legal adjudication of the constitutionality of Section 377 of the Indian Penal Code, itself a British colonial legacy that punishes “carnal intercourse against the order of nature.” As a legacy of British colonialism, it should be noted that similar legal struggles have been waged against postcolonial governments in Asia, and it wasn't until 1991 that Hong Kong decriminalized the sodomy law (Panditaratne 2016). Between December 2001 when the Naz Foundation first filed a petition challenging the constitutional validity of Section 377 in Delhi High Court to September 2018, when the Supreme Court finally decriminalized queer intimacy between consenting adults in India, a lot of things both personal and political happened in the playwright Danish Sheikh's life. Thus, situating the play within the contexts of both the years-long queer activism in India, the legal victory, and the queer diasporic journey of Sheikh altogether presents a multi-perspectival reading experience.

What does queer literature have to do with the law, and how does Sheikh's play perform what I call a “queering of the law?” I find Love and Reparation's numerous intertextual references to Plato's Symposium to be smart, humorous, and critically disruptive to the supposed transparency and constitutionality of the law. The play's retelling of the figure of Alcibiades who flaunts his queerness and erotic openness against the supposedly philosophically minded thus sexless Socrates serves as a literary opening and perhaps an analogy. Within the cultural setting of the Ancient Greece of Symposium, “symposia were places to indulge in the physical pleasures of food, drink and sex, [and] they were also a place to cultivate the pleasures of the mind” (Howatson and Sheffield 2008: ix). Specifically, toward the end of Socrates's dialogue on love with his elite male peers like Aristophanes, a drunk and rowdy Alcibiades interrupts the scene. His speech basically confirms the fact that Socrates is often seen around young beautiful men and alludes to the ancient Greek practice of pederasty: “What you see is a Socrates who is liable to fall in love with beautiful young men, is always in their company and is greatly taken by them….But on the inside, once he has been opened up, you can't imagine, my fellow-drinkers, how much self-control is to be found within” (Howatson and Sheffield 2008: 55). Within Love and Reparation's queer intertextual reference, however, the world of Symposium and the interaction between Plato and Alcibiades might point to the absurdity of the legal interpretations of Section 377 that supposedly treats all Indian citizens equally and punishes all those who commit crimes against nature, while in its everyday police harassment, cultural vilification, and unequal distribution of rights, the state indeed singles out LGBT and queer sexual minorities. Thus, the courtroom that upholds the validity of Section 377 “objectively” is not unlike the figure of Socrates in Symposium who speaks in the name of objectivity and the higher moral grounding of the mind and philosophy, while denying the corporeality of eros, embodiment, desire, and indeed their numerous forms of oppressions.

This framing of the law as supremely objective, notwithstanding its homophobic and transphobic social applications, is brought out most cleverly in the section titled “Round 1: This Colonial Legacy.” Here, the character Judge 1 asks the lawyer to read out the exact wording of Section 377 and further probes, “Counsel, tell us where is the mention of lesbians, gays, etc. here?” The plaintiff's lawyer replies: “They aren't explicitly mentioned, your lordship, but we have overwhelming evidence to show over the past 150 years that it is LGBTIQ+ persons who have been targeted under this law” (Sheikh 2021: 7–8). The rest of Contempt perpetually returns to this irrationality and contradiction of the law in which to uphold the false pretense that Section 377 punishes all persons who practice “unnatural sex” regardless of gender and sexual orientation is also to deny the very social existence, identity, and erotic desire of LGBT and queer subjects who are most likely the ones punished by the law. Perhaps this legal displacement and “writing out” of queer subjects in the courtroom is also a form of psychic denial. To recognize the affidavits and experiences of oppressions by those who live in the shadow of the sodomy law would be to recognize the unconstitutionality of the law itself in its failure to ensure equal protection and respect fundamental rights in accordance with emerging global consensus of human rights. Or to put it in more conceptual terms: “What has to be heard in court is precisely what cannot be articulated in legal language” (Felman 2002: 4). The rest of Contempt tells the traumatic story of a lesbian youth being forced to visit a psychologist for gay conversation therapy, the obstacle of carrying out human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDs) work under Section 377, and the gang-rape of Kokila, a hijra which all point to the impossibility of turning a blind eye to the unconstitutionality of the law.

In Pride, the author works through the psychic and social costs in the aftermath of decriminalization in 2018 and whether legal progress and queer liberalism enable substantive transformations both individually and collectively. I find the conversations between A, a gay man in his late twenties to early thirties who visits the psychiatrist for love problems and trauma, and T, the female psychologist, to be quite smart and funny. It turns out that A once fell in love with a man who is Socrates-like and who likes to drop literary references, while A himself feels unworthy of love from this love interest, nicknamed Socrates. Toward the end of the counseling session, it is revealed (according to the reading of T the psychiatrist) that A is unable to maintain a healthy gay relationship with anyone due to the fact that he once bullied a gay teen in the past who was more effeminate and vulnerable than himself when he was ten years old. Recalling this childhood scene of internalized homophobia, A narrates, “The week he joined I led the brigade in teasing him, bullying him mercilessly, and it was such a relief to be in a position of power. I remember this one time the entire class made fun of his lisp and I stood right in front. I remember the specific hurt in his eyes reserved for me who should have done better and should have understood” (Sheikh 2021: 80). I like to conclude my short commentary with this scene of internalized homophobia because it gets to some of the broader psychic and collective issues that Danish Sheikh has illuminated for us throughout Love and Reparation. Given its particular concern with queer activism and legality in South Asia and its queer diasporic framing, Sheikh's play will resonate deeply with those concerned with queer desire, legality, and intimacy around the world.

References

  • Felman, Shoshana. 2002. The Juridical Unconscious: Trials and Traumas in the Twentieth Century. Cambridge, MA: Harvard University Press.

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  • Howatson, M.C., and Frisbee C.C. Sheffield. 2008. Plato: The Symposium. Cambridge, MA: Cambridge University Press.

  • Panditaratne, Dinusha. 2016. “Decriminalizing Same Sex Relations in Asia: Socio-Cultural Factors Impeding Legal Reform.” American University International Law Review 31 (2): 171207.

    • Search Google Scholar
    • Export Citation
  • Sheikh, Danish. 2021. Love and Reparation. London: Seagull Books.

Response: Wrenching Law Open

Danish Sheikh

Four commentators have generously taken up the invitation to respond to Love and Reparation: two from the disciplinary location of comparative literature, a third from the legal academy, and a fourth who writes from the persona of a lawyer. One of the great joys of reading these warm reflections is in terms of watching a particular kind of path-crossing. The disparate disciplinary and institutional positions of Daniel Elam, Rupali Samuel, Marco Wan, and Alvin Wong yield insights that take off from very different starting points before intersecting and colliding in unexpected ways. In my response, I will follow some of these lines of conversation, threading another layer of connection through them.

The broadest of these themes concerns the interconnections of law, literature, and theatre. In her 2005 survey of the law and literature movement, Julie Stone Peters identifies an urge within each discipline as it attempts to interact with the other.1 For the legal scholar orienting toward literature, it is a desire for the ethical corrective of literature; for the literary scholar orienting toward law, it is a desire for the political real. Daniel Elam positions his response to Love and Reparation with an acute awareness of these inevitably thwarted hopes. Both literature and the law in their respective ways, he notes, can serve as authorities of exclusion, particularly as techniques of empire fashioning the good colonial subject. At the same time, he sees in the strategic deployment of both law and literature, a hopeful possibility. The question is, in his words: “How do we speak back to authority in a voice it will recognize as authorial, without accidentally replicating the authoritarian logics that have refused so many people the ability to authorize their own lives?” The answer in part involves a strategically irreverent understanding of genre. This is one of the core concerns fueling my work, which ultimately comes down to a continuum of genre-troublings, shaking and prizing open this thing that we call the law: What if we were to recraft the legal affidavit as a literary document? What if we were to take the theatricality of the legal trial as a given and then find ways of restaging it? How might we recognize the stories we tell about the law as constitutive of law?2

Returning to Peters’ field-mapping exercise: whatever we might make of the accuracy of this diagnosis of the field,3 it is safe to say the conversations in this interdiscipline have shifted to some extent since then. Peter Goodrich's 2021 Advanced Introduction to Law and Literature, for instance, dismisses a focus on “the copulative ‘and’” as a distraction, drawing attention to the longue duree where the exposition of law has always been a literary, imaginative endeavor.4 This is not to say that the “distractions” as Goodrich puts it, don't exist. In their introduction to the Routledge Handbook on International Law and the Humanities, Shane Chalmers and Sundhya Pahuja consider how at least one contemporary strand of the interdiscipline holds on to a concern about boundary-crossing.5 The object in consideration is taken to belong to a humanistic discipline, with the lawyer crossing disciplinary boundaries in order to conduct the work of enquiry. I find myself tending toward another approach that Chalmers and Pahuja highlight in their introduction, an approach that is particularly favored by the Antipodean law and humanities scholarship6 in whose midst I am currently situated, while also resonant with Goodrich's description of legal humanism. Here, the sites of law are pluralized, as are the methods with which we approach them. In the context of Love and Reparation, this becomes an invite to view queer lives lived in dissent as sites of law; it also becomes an invite to approach the theatrical as jurisprudential.

As a legal practitioner, Rupali Samuel takes up this invite, finding within theatre a significant legal method. In Samuel's gracious characterizing of my argument: “through theatre…we can find new ways of understanding the relationship between law and life, not as two separate spheres where law applies to life but as enmeshed experiences that find meaning through each other.” This invocation rhymes with the theatrical jurisprudence of Marett Leiboff, where Leiboff offers a training for lawyers toward noticing how much of them (our!)selves is deployed in undertaking the most minute practices of law.7 The training of the body to notice becomes a training in jurisprudence here; it is a training where theatre becomes a method by which we might do law better. Samuel finds that this training takes place through the reworked affidavits that I offer in Contempt, in part through the turn toward particularizing and embodying what the law attempts to blur in abstraction.

Marco Wan and Alvin Wong take up this tussle between the abstract and the particular in different modes. Wan notes how the abstract machinery of law can flatten the sharpest of literary voices into grandiose legal principles. Law's instrumental use of literature here results in a hollowing out of the latter—and that is not to mention instances where literature is actively mis-used, as for instance when “literature enables law to forget the wounds of the murdered man.”8 Wan finds within the open-ness of theatre an active challenge to the law's imperative toward abstraction and closure. One of the core themes of Love and Reparation is my challenge toward the grand narratives we tell, both in law and in love. Contempt builds up to a fiercely romantic conclusion, a story about a passionate, stolen moment of intimacy. I reevaluate this romance in Pride, challenging it in terms of how it is staged in the storyteller's memory as well as what it might mean for their future.

Wong approaches this particular narrative with an interest in the framing device that I spin around it: the night of drunk revelry and love-shaken oratory described in Plato's Symposium. Here, Wong finds the juxtaposition of the courtroom exchanges in Contempt with the Symposium's exchanges between Socrates and Alcibiades as performing a queering of the law. Socrates climbs past the ladder of irrational love to reach for a higher, objective grounding, while Alcibiades passionately holds him to account for the consequences that emerge from this rejection of eros. Wong locates Socrates’ embrace of objectivity in the Indian Supreme Court's seemingly hyper-rational attempts at holding to the letter of the law. If Alcibiades poses a challenge to Socrates in the Symposium by locating the contradictions in Socrates’ own conduct, my method of challenge to the Court in the present days relies in part on staying within the register of the law, by continually asking us to consider and reconsider the Court's contradictory utterances. Ultimately, this is my refusal to cede the ground of law.

It is to the home-ground of law that I then return as I end this response. Law school is where we are initially trained into the embodiment of hierarchy.9 In her response, Samuel, my fellow traveler, identifies the importance of the college drama club as a site of legal pedagogy. Perhaps because I'm currently more attuned to the theatrical, I have been noticing its uptake across different registers in the legal academy. The Scottish iteration of the Feminist Judgment Project—an exercise where academics rewrite existing court decisions holding on to the persona of the feminist—featured a theatre workshop as a training program for its participants.10 Theatre became a mode of enabling judgment writers to increase their confidence in writing within the strictures of legal judgment, while also enhancing their understanding of the judicial role through physical exercises to imagine it.11 Closer home, an upcoming academic writing workshop hosted by the Institute for International Law and the Humanities in Melbourne is slated to kick off its program with a three-hour theatrical workshop by the performer-academic Rinske Ginsberg oriented toward “putting the body back in practice and play.” In a former home, I've had the privilege of conducting a warmly received year-long course on legal theatre, where law students conducted legal critique through the restaging of existing court decisions.12 Where at first I thought law-theatre was an isolating endeavor, it now appears to be everywhere I look.

Love and Reparation has been my big gambit to start sorting through the anxieties and frustrations and hopes about the law that I've harbored since my first days of law school. Theatre emerged for me as a way to revitalize my relationship with the law; some might even say, to repair it.13 I am grateful to Daniel Elam, Rupali Samuel, Marco Wan, and Alvin Wong for their reparative unfurling of my attempts at expressing this relationship.

Notes

1

Julie Stone Peters. “Law, Literature, and the Vanishing Real: On the Future of an Interdisciplinary Illusion.” PMLA 120, no. 2 (2005): 442–453.

2

Or as Robert Cover puts it memorably: “We inhabit a nomos—a normative universe. We constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void…. For every constitution there is an epic, for each decalogue a scripture.” Cover, Robert M, ‘The Supreme Court, 1982 Term — Foreword: Nomos and Narrative’ [1984] Harvard Law Review 66.

3

And not everyone makes much of it; see in particular Greta Olson, ‘De-Americanizing Law and Literature Narratives: Opening up the Story” (2010), Law and Literature 22 (1): 338.

4

Goodrich draws on the French legal historian Ann Teissier-Ensminger to develop an account of jurisliterature, which holds the exposition of Law and Literature in this book. Goodrich, Peter (2021), Advanced Introduction to Law and Literature (Cheltenham, UK: Edward Elgar Publishing).

5

Shane Chalmers and Sundhya Pahuja (eds) (2021), Routledge Handbook of International Law and the Humanities (New York: Routledge).

6

Chalmers and Pahuja point toward the Australian journal Law Text Culture as an example of a journal focused from the outset on what might be called the whereabouts of law—its objects and sites—rather than on the disciplinary identities of those who study law.

7

Marett Leiboff (2019), Towards a Theatrical Jurisprudence (New York: Routledge).

8

Nina Philadelphoff-Puren and Peter Rush (2003), “Fatal (F)Laws: Law, Literature and Writing,” Law and Critique 14: 191.

9

Duncan Kennedy, “Legal Education as Training for Hierarchy,” 22.

10

Sharon Cowan, Chloë Kennedy and Vanessa Munro (eds) (2019), Scottish Feminist Judgments: (Re)Creating Law from the Outside In (London: Hart).

11

Ibid.

12

I write about that particular pedagogic experiment here: Danish Sheikh (2020), “Legal Theatre: Staging Critique in the Law School,” Australian Feminist Law Journal 46 (1): 115.

13

Eve Sedgwick probably would. See in particular Eve Kosofsky Sedgwick (2003), Touching Feeling: Affect, Pedagogy, Performativity (Durham, NC: Duke University Press).

  • Collapse
  • Expand
  • Felman, Shoshana. 2002. The Juridical Unconscious: Trials and Traumas in the Twentieth Century. Cambridge, MA: Harvard University Press.

    • Search Google Scholar
    • Export Citation
  • Howatson, M.C., and Frisbee C.C. Sheffield. 2008. Plato: The Symposium. Cambridge, MA: Cambridge University Press.

  • Panditaratne, Dinusha. 2016. “Decriminalizing Same Sex Relations in Asia: Socio-Cultural Factors Impeding Legal Reform.” American University International Law Review 31 (2): 171207.

    • Search Google Scholar
    • Export Citation
  • Sheikh, Danish. 2021. Love and Reparation. London: Seagull Books.

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