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Medico-Legal Assemblages Of Sexuality Crimes In Colonial India (By: Harshit Pande)
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Medico-Legal Assemblages Of
Sexuality Crimes In Colonial India
Authored By: Harshit Pande
This paper is
divided into three parts. Part one will examine the relevance of the category
of the ‘medico-legal’ in the context of sexuality. Part two will examine the
utility of the category of the ‘medico-legal’ in analysing some aspects of the
colonial period. Part three will delve into the deployment of the category of
the ‘medico-legal’ in governing non-normative gender identity expressions and
sexualities, including an analysis of the ‘eunuch’/Hijrah and the ‘homosexual’
and the constitutive medico-legal assemblages that tended to criminalise the
conduct of persons so labelled.
Part One:
The Meaning Of ‘Medico-Legal’ In The Context Of Sexuality
The use of
medicine, like the use of sociology, as a means to gather information and
produce knowledges on ‘governing categories’ was a crucial project that the
colonial administration undertook in India (Levine, 2000) . The
information-gathering and processing were both constitutive and descriptive of
governing categories subsequently produced, a complex process that involved
sociological, medical and legal regimes aimed at aiding the administration in
exercising a degree of control (real or imagined) over the lives and the bodies
of its subjects.
The significance
of the ‘medical’ as a tool of ‘governmental’ control has been explored by
several scholars in several different contexts. Michel Foucault, most
importantly, narrates the use of medicine (particularly psychiatry) as a means
of control in several of his works, beginning with the Birth of the Clinic.
In the paragraphs that follow, we revisit Foucault with the purpose of
understanding the critical importance of the category of the ‘medico-legal’ and
its deployment in / relationship with governing sexuality.
Foucault, in the
first volume of his seminal History of Sexuality (1990) , subverts the
“repressive hypothesis” which tended to posit that the Victorians chose to
silence and not talk about sexuality in general and non-normative sexuality in
particular, and makes the claim that the scientific / academic /
criminological
discourse on sexuality proliferated in the 19th century. Foucault
maintains that the development of sexuality as a field of scientific research
parallels the development of modern criminal law (in the sense that criminality
became a field of scientific research, just like sexuality did). According to
Foucault, the power that underlies the science of sexuality is not only
external i.e. exercised by, say, the physician, the psychiatrist and the like,
but also inverted and experienced internally, as the persons subjected to this
knowledge regime internalise the norms of the science and self-scrutinise. They
are, thus, controlled as objects of the disciplines so formed, and also as
self-constituting subjects that engage in scrutinising their behaviour.
Foucault
discusses how sexuality, thus formed as an area of inquiry, determines several
other aspects of being (such as moral worth, health, desire, identity and
intimacy), highlighting in particular how modern sexuality mimics the religious
practice of confession. A therapist or a doctor thus dons the robes of a
priest. Foucault highlights the link between sexuality and ‘truth’, noting how
the discourse on sexuality appears as a means to inform the self of ‘scientific
truths’ about the self. (Foucault, 1990, p. 59)
Foucault claims
that our experiences and understanding of sexuality flows from specific
cultural conventions and mechanisms of power and cannot exist independently of
them. Foucault, in opposing the repressive hypothesis, characterises power as
essentially productive, not repressive. Power operates not through repression
but through producing (by means of cultural and scientific practices) the ways
and conditions in which we experience our sexuality. Foucault arrives at the
conclusion that power relations are “the internal conditions” of sexual
identities. (Foucault, 1990, p. 94)
Foucault, thus,
through an examination of sexuality, arrives at an important point. He says
that the loci of power are spread (although unevenly) among the various
intertwining, overlapping networks throughout the society. At the interstices
of these networks, subjects are constantly in the process of being constituted
/ reconstituted. The idea of the medico-legal thus emerges from the complex
interlinkages between medicine and the law, located within the framework of the
knowledge/power paradigm. The medical and the legal regimes, thus, are
instrumental in creating the category of the homosexual (or any other kind of
sexual expression). Foucault, speaking about the development of the category of
the sexual deviant, writes:
“This new
persecution of the peripheral sexualities entailed an incorporation of
perversions and a new specification of individuals. As defined by the ancient
civil or canonical codes, sodomy was a
category of
forbidden acts; their perpetrator was nothing more than the juridical subject
of them. The nineteenth-century homosexual became a personage, a past, a
case history, and a childhood, in addition to being a type of life, a life
form, and a morphology, with an indiscreet anatomy and possibly a mysterious
physiology. Nothing that went into his total composition was unaffected
by his sexuality. It was everywhere present in him: at the root of all his
actions because it was their insidious and indefinitely active principle;
written immodestly on his face and body because it was a secret that always
gave itself away. It was consubstantial with him, less as a habitual sin than
as a singular nature. We must not forget that the psychological,
psychiatric, medical category of homosexuality was constituted from the moment
it was characterized-Westphal’s famous article of 1870 on “contrary sexual
sensations” can stand as its date of birth - less by a type of sexual relations
than by a certain quality of sexual sensibility, a certain way of inverting the
masculine and the feminine in oneself. Homosexuality appeared as one of the
forms of sexuality when it was transposed from the practice of sodomy onto a
kind of interior androgyny, a hermaphrodism of the soul. The sodomite had been
a temporary aberration; the homosexual was now a species.” [Emphasis
mine.] (Foucault, 1990, p. 43)
Medical and
legal regimes constitute the category of the sexual deviant, differentiating
between the sodomite (as a person who committed sodomy, i.e. a person
performing an act) and the homosexual (as a person who is a homosexual person,
i.e. as a way of being). Medical and legal regimes operating in Europe received
a further ‘bout’ of inflexion when they operate in a colonial setting (marked
by differentials of race, ethnicity, religion and other such categories).
Part Two:
The Meaning Of ‘Medico-Legal’ In The Context Of Colonialism (Medicine And
Medico-Legal Jurisprudence)
The deployment
of the medico-legal in a colonial context offers interesting insights into the
functioning of colonial power. Several scholars have utilised the category of
the medico-legal in examining different aspects of colonialism. Mitra Sharafi (2021) uses ‘medico-legal’
as a standard with which to examine the development and enforcement of abortion
law in India. Elizabeth Kolsky (2010) , likewise, uses the
category of the medico-legal to examine the development of rape jurisprudence
since the codification of criminal (procedural and substantive) and evidence
law. Sinha (1995) utilises the
category of the medico-legal to examine the concerns surrounding the effeminacy
of Bengali men. David Arnold (2004) , in particular,
highlights the racially charged, biologically essentialist narratives on the
different races of Indians (as Europeans saw them), using a medical
vocabulary to
foster racial and ethnic differences.Most interestingly, and most relevant to
the task at hand, David Arnold’s Colonizing the Body (1993) is an exploration of
the medical regime in colonial India, with specific reference to several
epidemics (smallpox, cholera and plague). Arnold utilises Foucault’s
power/knowledge paradigm to establish the fact that the practice of Western
medicine in India was not an exercise in benevolence but a coercive exercise in
control. Arnold analyses how prisons and barracks, which he referred to as
“colonial enclaves” (Arnold, 1993, pp. 61-115) served as laboratories and observatories of
medical practice. Arnold also refers to the practice by British medical
professionals of “orientalising” India’s tropical climate, that tended to
highlight the vulnerabilities of the non-natives (Europeans, mostly) to several
diseases to which the natives had (by virtue of their continued presence and
adaptation to the local environment) attained a level of immunity. Arnold’s
analysis of colonial medicine provides important insights into the working of
colonial power. Arnold writes: “The history of colonial medicine, and of the
epidemic diseases with which it was so closely entwined serves to illustrate
the more general nature of colonial power and knowledge and to illuminate its
hegemonic as well as its coercive processes.” Arnold highlights the critical
importance of the ‘body’ as a slate upon which the forces of colonialism
etched, calling it the “corporality of colonialism”. The broader aims of
western medicine, far from the benevolent public health uses of it, were
directed towards colonising native bodies. Arnold writes: “Western medicine was
intimately bound up with the nature and aspirations of the colonial state
itself.” (1993, p. 9)
According to
Arnold, the practice of medicine maybe be located in a “diverse array of
ideological and administrative mechanisms by which an emerging system of
knowledge and power extended itself into and over India’s indigenous society.” (1993, p. 9)
Arnold also notes that the nature of medical interaction between the colonial
administration and the natives was almost always coercive. He also highlights
the fact that western medicine was not just transplanted into the subcontinent
but was developed and transformed by its presence and practices on the
subcontinent.
Western medical
practice viewed “orientalised India” as “a land of dirt and disease, of
lethargy and superstition, of backwardness and barbarity”, in sharp
contradistinction to the “coolheaded rationality and science, the purposeful
dynamism, and the paternalistic humanitarianism of the West.” (1993, p. 292) Thus, western medicine was often
deployed as a tool in the West’s “civilizing mission”. Biomedicine, thus, far from
being a “universal truth” was rife with intrinsic contradictions brought about
by the colonial impulses of “othering” the colonized. Thus, the history of
western medicine in India is a history of coercive and hegemonic practices.
The field of
forensics also forms a critical link between the medical and the legal. Singh (2021) ,
in his article on the deployment of forensic sciences in colonial India,
examines the coerciveness inherent in the practice of forensics. While the
colonial administration relied on the field of forensics as a scientific means
to gather reliable evidence in criminal processes, the repression inherent in
the practice served to further the governmentalized operations of the colonial
power. Not to mention the fact that the codification of evidence law gave
weight to forensic evidence and expert witnesses in criminal proceedings,
producing various categories of criminals such as “the infanticidal woman”,
“the homosexual”, “the eunuch”, the prostitute, “the respectable” (as against
the unrespectable “others”). While the practice may have been introduced with
the seemingly innocuous goal of protecting innocent subjects and punishing the
‘criminal’, Singh documents rampant abuse, violence and repression in the
practice of forensics. Evidentiary standards both produced criminal categories
and paved way for their regulation or elimination. Arondekar (2009) , quoting from Norman
Chever’s A Manual of Medical Jurisprudence for India: Including the Outline
of a History of Crime Against the Person in India (1870), writes: “After
long opportunity of becoming acquainted with the people of India, we
freely admit that these legal opinions upon their character are of infinite
value in court— but nowhere else.” [Emphasis mine]
Part Three:
Criminal Law And The ‘Sexual Deviant’: Legal Control And Elimination
Before we begin
this section, bear in mind the two criminal statutes that penalised the conduct
of the homosexual and the eunuch: Section 377 of the Indian Penal Code, and
Part II of the Criminal Tribes Act. In addition, the evidentiary standards
codified by means of the Indian Evidence Act are also relevant in considering
the overall impact of criminal law and criminal procedure in creating criminal
categories.
The purpose of
the category of the ‘medico-legal’, of course, is to render the body (that is
sought to be governed) ‘legible’. Anderson (2004) has delved into the
concept of making bodies legible through her study of the “tattoos” inscribed
on the bodies of prisoners. Forensic knowledge tends to discharge a similar
burden of rendering the body ‘legible’ for the purposes of a court of law. The
intricate and detailed forensic descriptions of the bodies suspected of
committing offences such as those of sodomy (and other crimes against persons)
made it easier for colonial courts to reach their decisions as regards the
criminality of the suspects. Arondekar (2009, pp. 89-90) writes: “…medical
jurisprudence’s
narrative
precision (the exact shape of the wound, the types of angles) makes unnatural
offences visible (and invisible) in a language that no criminal court can
deny.”Queen Empress v. Khairati, ILR (1884) 6 All 204 was a case where
one Khairati was arrested and prosecuted under Section 377 of the IPC on the
suspicion that he was a “habitual sodomite”. While the Allahabad High Court
later acquitted him/them for lack of adequate evidence, the Sessions Judge reached his decision based
on expert reports filed by the civil surgeon. The Judge had made the following
statement, which exemplifies the intersection of the medical and the legal and
its association with criminalising an identity: “… ‘This case relates to a
person named Khairati, over whom the police seem to have exercised some sort of
supervision, whether strictly regular or not, as a eunuch. The man is not a
eunuch in the literal sense, but he was called for by the police when on a
visit to his village, and was found singing dressed as a woman among the women
of a certain family. Having been subjected to examination by the Civil
Surgeon (and a subordinate medical man), he is shown to have the characteristic
mark of a habitual catamite—the distortion of the orifice of the anus into the
shape of a trumpet— and also to be affected with syphilis in the same region in
a manner which distinctly points to unnatural intercourse within the last few
months.’” [Emphasis mine.]
The case, quoted
above, relied significantly on the evidence provided by the civil surgeon’s
examination of the person’s body. Arondekar writes, “Medical jurisprudence
provided the most irrefutable testimony against Khairati, a testimony that
spoke the ‘‘truth’’ of the body even as the body eluded the judicial
requirements of its crime. To a large extent, medical jurisprudence, as in the
Khairati case, became the most reliable truth technology of a colonial legal
system ravaged by disputes over witness unreliability, codification, and orders
of evidence. That is, as legal medicine gathered disciplinary force, it
mobilized distinctly ethnographic knowledge to produce its truth value in
court.” (Arondekar, 2009, pp. 85-90)
With regard to
sexual deviance within prisons, the “colonial enclaves” of prisons offered the
colonial administration the opportunity to test their theories of sexuality in
controlled settings. Ludwig (2013) notes how the
colonial engagement with “unnatural vice” was essentially an exercise in
knowledge gathering and production, that fed into European theories of sexual
identities. Ludwig’s research has revealed the various issues surrounding
sodomy in the Port Blair prison and how the colonial administration used the
prison as an opportunity to create ethnic differentials, where Pathans, Sindhis
and Burmans were categorised as “naturally addicted to ‘unnatural vice’.” (Ludwig, 2013, p. 10) Arnold’s “colonial
enclaves” served as laboratories within which sociological and scientific
theories of sexualities could be tested, and information gathering could occur.
This, of course,
was in addition to the colonial task of creating governing categories and applying
the criminal law on them to produce “regulable” or “exterminable” subjects. The
subverted masculinities of the eunuchs and the homosexuals, and the insistence
/ resistances of the people so labelled posed serious challenges to colonial
administration in much the same way as prostitution did. (Ludwig, 2019) The colonial project
ran into difficulties when it stumbled upon the ‘uncategorizable’, the deviant.
As Levine (2000) has detailed, the
colonial officials found it incredibly difficult to outline what constituted a
“common prostitute”, but this difficulty of being unable to categorise did not
impact their ability to create a set-up of informal categorisations and
taxonomies that aided their attempts to regulate prostitution. The colonial
administration took note of the subversion of gender and sexual norms by the
homosexuals and the eunuchs. The ‘otherizing’ instinct that tends to permeate
the colonial administrator’s mind takes particularly virulent forms when it
comes across the body of the homosexual and the body of the eunuch. Closely
associated with the will to count (or the will to document) is the will to
regulate/register and the will to extirpate. The “extirpative” impulse that
abounds colonial governmentality sought ways to ‘discover’ the eunuch and
ultimately render ‘it’ sterile, non-existent, no longer posing a threat to the
colonial order. Jessica Hinchy (Governing Gender and Sexuality in Colonial India:
The Hijra, c.1850–1900, 2019) has written
extensively about the category of the ‘eunuch’ or the Hijrah in colonial India.
The impulse to
exterminate was not hidden. Hinchy highlights the explicit motives with which
the law surrounding the registration and regulation of the Hijrah identity was
operationalised. (Hinchy, ‘The Sexual Politics of Imperial Expansion: Eunuchs and Indirect
Colonial Rule in Mid Nineteenth Century North India, 2014) She writes, “British
administrators claimed that Hijras – or ‘eunuchs’ in colonial parlance – were
‘habitual sodomites’, beggars, an obscene presence in public space and the
kidnappers and castrators of children.” As per her archival research, Hinchy
reveals that in 1865, the “North Western Province declared that its aim was to
‘reduce’ the number of ‘eunuchs’ and thus ‘gradually lead to their extinction’.
The province launched an anti-‘eunuch’ campaign that had the explicit goal of
‘extirpating’ or ‘exterminating’ the Hijra community.”
The process of
elimination was codified in 1871 with the passing of the Criminal Tribes Act.
While Part I of the Criminal Tribes Act deals specifically with “criminal
tribes” i.e. tribes whose members were considered hereditary criminals owing to
the caste that they belonged to, it was crucially Part II of the Criminal
Tribes Act that focused on the registration and eventual elimination of the
Hijras. By means of this Act, the colonial administration sought to closely
monitor and police the gender performance, domestic arrangements and
livelihoods of the Hijras.
Under the Criminal Tribes Act, the police were
empowered to surveil the activities of people who were “reasonably suspected”
of committing sodomy and who were thought to indulge in kidnapping and
castration of children. The surveillance powers of the police extended to
registering persons so suspected and preventing them from wearing women’s
clothes, preventing their public performances, removal of children from the
households of the people concerned. (Hinchy, Deviant Domesticities and
Sexualised Childhoods: Female Prostitutes, Eunuchs and the Limits of the State
Child “Rescue” Mission in Colonial India, 2014) The Act was also
meant to disrupt the traditional Hijra practice of discipleship and succession.
It was clear that the short term aims of the Act were to eliminate public
presence of the Hijras by removing them from public square and denying them
their gender expression, and the long-term aim of the Act was to eliminate the
category of the Hijra itself. (Hinchy, Troubling
bodies:‘eunuchs,’masculinity and impotence in colonial North India., 2013)
The Hijra
question, more than the homosexual question, is interesting for several
reasons. While the homosexual was an individual, the hijra or the eunuch, on
the other hand, was a community bound by traditions such as the guru-chela
relationships and complex socio-cultural histories that varied across the
subcontinent. The colonial administration, including the natives that formed a
part of the colonial administration, saw Hijras as a “race” that posed a threat
to the broader community. There was moral panic surrounding a number of
perceived threats from the Hijra community, such as abduction and castration of
children, subverted gender performances and perceived issues of hygiene. It was
believed that the Hijra community “reproduced” by means of castration. Of
course, the act of castration was penalised under the Indian Penal Code
(sections relating to bodily harm), but special attention was paid to the act
of castration in relation to the Hijra community because it was believed that
the community could increase its numbers / population by means of castrating
young boys. Hinchy notes, “The nineteenth-century privileging of the conjugal
family unit is part of the story of why khwajasarais were labelled politically
“corrupt,” and why hijra households and kothas were derided as “deviant”
domesticities.” Hinchy notes the anxieties surrounding the protection of
children that led to colonial interventions in Hijra households. (Hinchy, Deviant Domesticities and Sexualised
Childhoods: Female Prostitutes, Eunuchs and the Limits of the State Child
“Rescue” Mission in Colonial India, 2014)
The use of
criminal law and, in particular, the reliance on medical and forensic standards
to prosecute suspect categories established a regime of medico-legal
documentation and surveillance that sought to control the lives and the bodies
of the homosexuals and the eunuchs.
The eunuch and
the homosexual were produced at the interstices of criminal law and medical and
forensic sciences. The medico-legal regimes were instrumental in constituting
these new criminal categories. When sexual deviance intersected with
differentials of race and ethnicity, it produced conditions suitable for
operationalising the new sciences in aid of the colonial state’s objectives.
The category of the medico-legal (as a domain of historical inquiry) thus
offers a useful lens to examine the production / constitution of newer criminal
categories, and the operation of colonial baggage inherited by the postcolony.
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Article Information
Medico-Legal Assemblages Of Sexuality Crimes In Colonial India (By: Harshit Pande)
Authors: Harshit Pande
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/09/13
- Volume 2
- Issue 7
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International Journal for Legal Research and Analysis
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