Queer Citizenship in India in Times of Autocratic Legalism

By Ankita Mukherjee

Right-wing ideology is on the rise in Indian politics. Contemporary citizenship projects such as the National Register of Citizens and the abrogation of Article 370 are increasingly exploiting the law to implement unconstitutional changes. Ankita Mukherjee argues that individuals with intersecting minority identities have become the prime targets of these projects

India’s National Register of Citizens

The National Register of Citizens (NRC) emerged from decades of ethno-linguistic disputes between the Indigenous people of Assam, and Hindu and Muslim immigrants from neighbouring Bangladesh. Its aim was to identify and expel undocumented immigrants who, during a state-led door-to-door survey of the residents of Assam in 2018, were unable to establish their Indian lineage.

Within a year of NRC’s implementation, nearly 33 million people were classified as residing illegally in India, and subsequently rendered stateless. Among these were 2,000 LGBT people.

Facing multiple marginalities, India’s queer Muslims encounter unique challenges when trying to establish their lineage. Their religious identity already places them in a default ‘outsider’ category in a Hindu-majority country. Their LGBT status subjects them to an additional range of discrimination and stigma.

Many LGBT people are estranged from their families, losing access to key identity documents that remain with family members. When attempting to re-establish contact, their families often turn them away without recourse.

The NRC thus placed queer Muslims in Assam in danger of being detained and deprived of their citizenship.

The abrogation of Article 370

Article 370 of the Indian Constitution was a set of ‘temporary, transitional, and special provisions’, granting the erstwhile state of Jammu and Kashmir the right to self-govern. Jammu and Kashmir also had the autonomy to decide the extent to which the country’s Constitution applied to the region.

In August 2019, the incumbent Bharatiya Janata Party (BJP) government nullified Article 370, and made all provisions of the Indian Constitution applicable to Jammu and Kashmir. The BJP followed this abrogation with the imposition of a curfew, a blockade of communication lines — amounting to what some consider digital apartheid — deployment of troops, and the extrajudicial detention and arrest of Kashmiris.

In the aftermath of the abrogation, all Kashmiris experienced curtailment of their civil liberties, but it was the doubly marginalised LGBT Muslims who bore the brunt

In the aftermath of the abrogation, all Kashmiris experienced curtailment of their civil liberties, freedom of speech, and access to public and online spaces. It was the doubly marginalised LGBT Muslims, however, who bore the brunt of the state’s severity in the region.

A year-long lockdown that quickly followed the abrogation severely restricted LGBT people’s freedom of movement, impacting their income sources through alms collection, panhandling, and cruising. Beyond their material dispossession, the protracted lockdown also dismantled LGBT people’s safe spaces, online support groups, and community organisations that compensated for their lack of familial relationships.

Homonationalism at work?

In 2014, India passed a bill recognising the legal status of the ‘third gender’. This, along with the subsequent decriminalisation of homosexuality in 2018, appeared to pave a clear path to queer liberation. However, India’s recent citizenship projects have exposed the state’s violence against queer people. Perhaps less obviously, such projects have also revealed its co-optation of queer Hindus.

Following the revocation of Kashmir’s special status, the BJP swiftly joined forces with LGBT and feminist groups in an attempt to soften the party’s austere image and garner support among the liberal demographic. Right-wing spokespersons hailed the abrogation as a step towards liberating queer people from the clutches of a regressive (Muslim majority) region, and a move towards a new, queer-friendly India. However, threats of violence still loomed large over queer Kashmiris.

The Bharatiya Janata Party joined forces with LGBT and feminist groups in an attempt to soften its austere image and garner support among the liberal demographic

The backdrop of Kashmir therefore provides a crucial vantage point for analysing the workings of homonationalism. Homonationalism is a theoretical framework posited by Jasbir Puar for analysing the processes by which states project LGBT emancipation as a means to justify racist and Islamophobic positions. Puar’s framework lays bare the false link between Kashmir’s reunification and queer liberation. It also reveals how, in establishing such a link, the state promotes its Hindu-centric, majoritarian interests while distracting attention from the rampant violation of the rights of queer Kashmiris.

Autocratic legalism and the dispossession of minority identities

Kim L. Scheppele defines autocratic legalism as the centralisation of power through seemingly above-board legal processes, effectuated by a democratically elected government. Her framework focuses on autocratic law making — ‘the use, abuse, and non-use of the law’ in the service of the executive branch of the government — to examine contexts of slow democratic declines.

In recent years, India’s formerly robust constitutional democracy has been in decline. The country’s legal system has seized control of state institutions. The BJP administration has appointed favoured judges, and censored the media. The country has also experienced a decline of federal values and bipartisan consensus. The effects of all this include the exertion of legal control over minority groups, weaponisation of citizenship laws to destabilise minority citizenship, and depoliticisation of the public sphere.

In an autocratic manner, India’s legal system has preserved Hindu majoritarian interests while stripping minority subjects of their citizenship and human rights.

The National Register of Citizens established categories of ‘citizens’ and ‘non-citizens’, eroding the rights of people who were already disadvantaged

The NRC instituted a categorisation of people as ‘citizens’ and ‘non-citizens’. This categorisation affected those who were already at a disadvantage, including people who lacked legal documents to validate their identity. Many of these people are LGBT Muslims.

Under the guise of a terrorism clampdown, the abrogation of Article 370 also unleashed measures curtailing ordinary Kashmiris’ civil liberties. Most citizens in Kashmir were negatively affected by the fallout from this abrogation. But queer Kashmiris who lacked familial support systems became the most vulnerable victims of these measures.

From overt to covert suppression

The NRC and the abrogation have operated insidiously within an autocratic legal framework. They have permitted the infringement of constitutionally guaranteed rights of minority groups without eliciting significant public outcry.

Historically, the Indian state has overtly suppressed queer rights through explicit transphobic and homophobic legislation. Presently, it is covertly undermining these rights with initiatives that conflate Hindu nationalism with purported support for queer liberation. These initiatives may appear to align with modern liberal values. However, they have a disproportionate effect on queer Muslims, who suffer multiple forms of marginalisation, and lack adequate legal protection.

This article was originally published at The Loop and is republished here under a Creative Commons license.

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Previously Published on theloop.ecpr.eu with Creative Commons License

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