Excerpt: Desire and the Law

Madhavi Menon’s Law of Desire: Rulings on Sex and Sexuality in India, a brilliant, insightful and superbly argued book, calls into serious question the wisdom—indeed, the intent—of our lawmakers and the judiciary when it comes to regulating the forms desire can take. As she demonstrates, though India’s laws and courts claim to know what they mean when they declare an expression of desire immoral or criminal, obscene or unnatural, upon inquiry, they turn out to be building on very weak and often casteist and patriarchal assumptions.

Here’s an excerpt from her Preamble:

Picking ‘desire’ as the term with which to represent [the] many facets of sexuality, politics and culture might seem like an odd choice, particularly since the law itself rarely uses the word. But ‘desire’ is also the term that can most fully evoke these multiple affective and historical registers without being reducible to any one of them. Desire conjures up sexual acts and orientations while also not being synonymous with them. It points to embodied genders and enacted sexualities while also including social aspirations and legal standards. Desire can straddle the body, mind, social structures and cultures at large. Desire suggests pleasure while also encompassing pain. Like its subject matter, ‘desire’ is immense. Which is why we have so many laws to deal with it.

But these laws do not simply thwart desire—they also enable it. Law promises official recognition if desire can be reduced from multiplicity to a specific category of identity. For instance, law confers rights based on specified gender and sexual orientations—you are rewarded for being heterosexual and for marrying within your caste, religion, and community. If you do not abide by the constraints of hetero-sex, binary gender, and caste and religious endogamy, then you are punished with administrative burdens; even when law allows people to define their desires as non-binary and non-heterosexual, it upholds a social norm that makes it difficult for people to act on those desires. Homosexuality, for instance, is no longer criminalized in India. But it has to act within the normatively legal structure of privacy in order to assure itself of State protection. Being legally recognized also means being legally policed.

Another way in which the law enables desire is more perverse, and therefore, more fascinating. By putting obstacles in the way of desire, law ensures its flourishing multiplication. Think of all our most famous love-stories: Heer-Ranjha, Layla-Majnun, Romeo-Juliet. They all have in common lovers in opposition to an unfriendly law; indeed, in Nizami’s twelfth-century Persian rendition of Layla-Majnun, the poet notes that Majnun ‘was a lover, and love knows no laws’. Desire in these stories increases not only despite the obstacles put in their way by family and social pressure, but also because of them. The law inadvertently encourages the militant, unruly, and threatening aspects of desire to emerge in full force—literature and history are full of such examples.

This is why law wants desire to be categorized because desire poses the biggest threat to the rule of law. By sneaking past social constraints of caste and religion and gender and orientation, desire threatens to unravel the social fabric itself. Law wants to maintain the status quo, while desire can overturn hierarchies. The law protects social structure, while desire threatens to undo it. Even the simplest possible question posed from the vantage point of desire has the ability to upset social categorization. For instance, the progressive NALSA legislation in 2018 on the category of the ‘third gender’ in India confers civic rights on third gender people. But the law cannot bring itself to ask why gender should be tied to civic rights that are due to any citizen of the country. Why does the law need to know if I am a man or a woman or neither or both in order for me to get a ration card? What is the relation between my gender and how much subsidized rice I can buy? This is precisely the line of thought the law disallows because it questions fundamental categorical assumptions.

But there is hope yet. Despite the law’s delight in definition, it is riddled with caveats and exceptions. It is not enforceable in any uniform manner, and petitions can result in drastically different judgments. The law is thus less rigid than it pretends to be because its fundamental activity is that of ‘interpretation’. Equally, desire is often more acquiescent than we might like it to be. Under pressure, it disavows multiplicity in order to inhabit straitjacketed categories sanctioned by the State. Desire can thus appear to be legally dutiful despite its unruliness, while the law can in fact be more chaotic than the rigidity of its demeanour.

Featured image: Pride paraders and taxi driver, Kolkata 2018. Credit: Arpan.basuchowdhury on Wikimedia Commons.