Conundrums and Paradoxes

Menon covers an array of issues revolving around the idea of ‘desire’ through the paradigms of sexuality(s), politics, culture, and so on. Looking at how Indian law shapes our understanding and limits of desire and how desire has had a similar relationship with the law, creating normative and descriptive imperatives, she backs up almost every claim she makes by factual data in case law, historical evidence, or academic works, over the course of six chapters.

Menon starts by questioning normative ideas assumed by the Indian state, as it prescribes/enforces laws to its population. She talks about the normalization of certain ideas which have been ingrained in the Indian society since precolonial to postcolonial times, as she attempts to challenge and question them. Menon speaks about two concepts which are at diametrically opposite ends as central and recurring themes of the book, ‘desire’ and ‘law’. The former is an abstract concept with some sense of subjectivity, whereas the latter seeks to establish objectivity and create absoluteness around it, as it shares a parallel with the Age of Enlightenment where human freedom and scientific laws were juxtaposed in a similar fashion. This reflects a theme of power struggle—laws similar to scientific laws seek to set up absolute facts, are codified, and try to explain the unknown with the known, whereas desires like freedom are abstract in nature; these are non-material entities in our world which we are all born with but are only limited by the former.

The book suggests that both law and desire have a fundamental relationship with plurality instead of singularity. This suggests that both law and desire rule over domains which are too diverse to be comprehended in any single method. But the difference between law and desire is that law has exalted itself so much over the centuries that it now believes it is the Truth. This is reflected in the Mobashar Jawed Akbar vs. Priya Ramani judgement the author speaks about in the first page of the book. The language used in courts shows that even when there are female judges, they are still referred to as ‘lordship’. This hints at the fact that despite the presumed progressiveness of laws, they are still to incorporate a change in simple linguistic terminology that refers to gender other than male. Law tries to dissociate itself from the common human being, making itself fundamentally elitist. It can dictate how people should live and list the penalties that will be imposed if they do not follow the set path. But when it comes to desires, law can define what individuals should and should not do, as well as where they should and should not do it, even when there is no victim, as in the case of gay or trans desire.^[1] This is where law and desire clash the most, with the former attempting to cram diversity into a one-size-fits-all framework. However, desire has always found a way to get beyond the law’s vice-like grip.

India inherited most of its laws and ideas of ‘modernization’ from the British ‘raj’ which criminalized ideas of gender fluidity, homosexuality, and was a creation of white elitist men from halfway across the world. Therefore, Menon, even while talking about our judiciary, reflects on the remnants of orthodoxy and evidently sexist structures still playing a role in our thinking via the legal system. It contrasts very well with Marx’s and Engels’s ideas of family, where we learn that concepts of family are inherently patriarchal in nature. These are always in conflict as there is presumed ownership by man over everything (‘thing’ refers to all the beings in a family who are reduced to properties in the context of their rights) in a family. Our judicial system, like many others throughout the world, is riddled with misogyny and sexism. This indicates that no matter how progressive an individual’s judgement appears to be, it is still based on sex ideals that are intimately associated with shame. Thus, despite the excellent 2018 Supreme Court decision on Section 377, which decriminalized ‘carnal activities against the order of nature’, same sex love is still seen as a societal taboo, even the word itself. She goes on to say that we still are in the closet in terms of how we think about desire and its ‘appropriate’ area, whether illegal or not. When it comes to obscenity, the judicial system is notorious for its lack of definitional accuracy. What is obscene to one person may not be so to another, and this is equally true for judges. Different judges view the same work of art or literature in different ways and make different decisions. Obscenity may be the nadir of the law’s narrative about its own objectivity and clarity.

In the multiple rulings covered in the book, the Hadiya ruling uncovered in the second chapter was particularly harmful. It highlighted the most sexist and communal strands of thinking that seem to be endemic in our country’s legal system. Hadiya and Shafin Jahan’s marriage was dissolved by the Kerala High Court in 2017 because Hadiya’s father claimed she was a young and impressionable girl who should be cared for by her father rather than being allowed to select her religion and who she married. Even though Hadiya was a 24-year-old adult at the time, the Court agreed with this paternalistic argument (again transferring agency from a female adult to the man of the house). In 2018, the Supreme Court overruled this decision; however, it did enable the NIA to investigate Shafin Jahan based on false charges by Hadiya’s father. Although the NIA found no grounds to charge Shafin Jahan, the conviction of a Muslim man’s criminality and women’s unreliability in matters of desire are stereotypes that the law never seems to tire of. Indeed, the insidious political insistence on ‘love jihad’, in which the woman is too stupid to know her own wishes and hence needs to be ‘protected’ by the paternalistic state or paternalistic influences of her life, appears to have given it a new lease of life.

The book challenges the basic norms we grow up around, with an emphasis on not accepting the ‘normal’ at its face value but developing a ‘normal’ or ‘natural’ based on rationality. Heteronormative ideas should not be normalized because if they were normal, they would not need normalizing. Heterosexuality is socially reproduced and legally protected due to an overwhelming convergence of great and little laws. Many rules are based on a husband-and-wife unit, and every child is believed to be heterosexual and subsequently pushed to be so. What makes this heterosexism so appealing is that if heterosexuality were truly ‘natural’, it wouldn’t need to be required, and people wouldn’t need to be encouraged to move in that way. This is an excellent illustration of how the law pretends that just one desire is natural, even when confronted with several forms of desire. The book leaves the readers thinking back about the philosophical conundrum:

Should a judge be the product of the society, or should a society be the product of the judge?

Anuraj Singh has a BA Political Science degree with specialization in Economics and Foreign Policy from OP Jindal Global University.

^[1] Section 377 pre-Navtej Singh Johar & Ors. v. Union of India