Feminist Legal Studies (2006) 14:5377 DOI 10.

1007/s10691-006-9014-1

Springer 2006

JANE KRISHNADAS

THE SEXUAL SUBALTERN IN CONVERSATIONS SOMEWHERE IN BETWEEN: LAW AND THE OLD POLITICS OF COLONIALISM

ABSTRACT. Ratna Kapurs recent book entitled Erotic Justice proposes a new politics of postcolonialism whereby the sexual subaltern disrupts the normative principles of the universal, liberal, legal domain. Kapur traces legal strategies regarding censorship, sex-work, homosexuality, sexual harassment, tracking and migration which travel a treacherous path, countering allegations of unIndian and Western practice with cultural histories of authentic sexual legitimacies, towards a new politics of desire. Kapur frames her analysis through postcolonial feminist theory as providing a tool for feminist struggle, yet distinct from and disruptive of a liberal project of global sisterhood. This review deeply values the role of the sexual subaltern which disrupts the tenets of a linear, progressive liberalism. Drawing upon Indian feminist and Western feminist perspectives, the review considers how the distinct position of the postcolonial sexual subaltern subject informs the generic role of law as a tool constructing relations of domination regarding gender, sexuality, caste, property and religion. Kapur observes that both the West and the Hindu Right have engaged with liberal legal principles. This engagement, I argue, exposes and informs law as a historical and contemporary tool of gendered legal colonialism, for sisters to disrupt across the Western and Eastern terrains. KEY WORDS: colonialism, cultural relativism, feminist theory, homosexuality, human rights, postcolonialism, sex-work, sexual subaltern, tracking, transnational migrant, universalism

THE CELLULOID SEXUAL SUBALTERN Chameli, a ctional character who entitles Sudhir Mishras Bollywood lm, provides Ratna Kapur with a trajectory into the contemporary debates on how law has been implicated in the ways in which issues of sexuality, culture and subaltern locations are addressed (2005, p. 2). For Kapur, Chameli, a sex-worker who weaves narratives of liberal notions of victim-hood as a strategic device to manipulate, enjoy and benet, wakes the audience to a new
Review of Ratna Kapurs Erotic Justice, Law and the New Politics of Postcolonialism, London: Glasshouse Press, 2005, 219 pp., 26, ISBN 1-90438-524-9

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understanding of the sexual subaltern challenging their liberal assumptions of sexuality and the third world. Kapur continues this device throughout her book as she contrasts discourses of the postcolonial sexual subaltern and liberal human rights, in areas of sex-work, homosexuality, sexual harassment, rape, marital rape, censorship, beauty contests, tracking and migration, to challenge the universal assumptions which reify the cultural Other. The book has ve chapters, which trace the theoretical and disruptive possibilities that the subaltern subject brings to law and to the legal regulation of sexuality and culture (p. 3). Kapur presents law as a site of exclusion but also as a site of discursive struggle. From the spotlight of the controversial Bollywood lms Chameli (2004), Fire (1996) and Bandit Queen (1994), to the media charged issues of the Miss World Beauty Contest, Kapur introduces the reader to popular fora in which issues of sexuality and regulation are debated. Kapur traces the complexity of the postcolonial sexual subaltern who seeks an identity and a history separate from both Western assimilation and nationalist cultural positions. Within the mainstream forum of Bollywood, issues of prostitution, lesbianism, and scenes of castist gang rapes, are alleged as Western imports or countered on the grounds of historical authenticity, which often essentialise the sexual subject. Through the legal issues of censorship and regulation, Kapur depicts how the sexual subaltern is located on the peripheries of law and has a history of negotiation to resist assimilation within the liberal project or exclusion from it. Kapur develops the argument with regard to the Worlds Others, the colonial subject, women, blacks, sexual subalterns such as sex-workers, homosexuals, trafckers and new Others, the Muslim as well as the transnational migrant (p. 3). Kapur harnesses the location of the sexual subaltern to bring a normative challenge to the assumptions on which law operating from a postcolonial location-with its claims to universality, neutrality and objectivity is based (p. 3). Kapurs introductory chapter grounds her analysis within a theoretical framework of postcolonial feminist legal theory, as an emerging area of scholarship that seeks to account for womens conditions of subordination within the conditions of postcolonialism (p. 3). Kapur is quick to quash any misgivings of a grand theory, as she conrms postcolonial feminist scholarship is rooted in the commitment to positionality, and an awareness of who speaks for whom, how and where, as well as of who is listening

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and to what end (p. 4). It is here that Kapur presents a direct challenge to a notion of global sisterhood, not only in terms of the dierent historical locations and experiences of women in the postcolonial world, but also essentially the challenge this presents to the very systems of knowledge that continue to inform feminist understandings of women and the subaltern subject in the postcolonial world (p. 4). Later in the book Kapur challenges strategies of gender essentialism stating:
By not focusing exclusively on womens lived experiences, I am not suggesting that the subject simply does not exist. My intention is to highlight what has been missing from the victim-centred politics the power/knowledge complexes that materially constitute the self, quite specically from a postcolonial location. (p. 106).

Kapur introduces the key theme of this book as the ongoing impact of the colonial past on the postcolonial present, with its construction of dierence based on domination and subordination. She dees the framing of the third woman as either a victim to be saved, or as a global sister who travels the road of liberal feminism towards universal solutions. Kapur asserts the subaltern position to disrupt any claims made in favour of a narrative progress of human history (p. 6). However, in parallel to the liberal critique, Kapur is also careful to resist any notion of an authentic postcolonial subject. Kapur follows Spivaks caution of strategic essentialism (1998) and the need to avoid slipping into a native or authentic feminist position of culturally relativist knowledge production, which serves only to erase or marginalise the heterogeneity of the Others (p. 5). Hence through this book Kapur follows a treacherous path whereby she writes: I need to negotiate some complex postures to ensure that I can participate in culture in a way that challenges cultural orthodoxy, without falling over and crumbling into an essentialist heap (p. 52). It is the formation of this carefully crafted posture which informs the books critique of the Wests colonial history and contemporary role through the techniques of liberalism and the discourse of rights to shape and mould the identities of the Worlds Others. It is precisely Kapurs struggle to form a distinct postcolonial posture within the dominant liberal framework which demands the fracture and fragmentation of the normative assumptions on which it is framed. Yet through the book Kapur raises key questions on how these very techniques of liberalism and human rights have been employed by the Hindu Right to continue the role of domination and subordination.

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Within my review I ask whether Kapurs critique questions the relations of domination which have pervaded the construction of the Other both from the West and within the postcolonial terrains in terms of gender, religion, caste and class. I question whether this historical continuation of relations of gender domination through law from the rst to third world may rather than enclosing a distinct position, demand feminist reections across the postcolonial terrains. I question Kapurs choice not to focus on womens lives and how this constrains and censors the voice and agency of Chameli, as her identity remains a ctional celluloid character, for whom the lmgoer reviews describe her as a hard or raw or cynical prostitute, yet devoid of the history and context which informs and shapes her vibrant subjectivity. Or in the instance of the Bandit Queen, whereby the censorship debate of the liberal versus traditional Indian standards dismissed the protagonist Phoolan Devis criticism that the lm seriously distorts and falsies her life and invades her sexual privacy by showing her raped and re-raped even though she has never talked about this aspect of Phoolan Devis life with her biographer Mala Sen, on whose book the lm is supposed to be based (Kishwar, 1994, p. 34). Yet understanding the importance of Kapurs adoption of the postcolonial sexual subaltern, as a theoretical subject on the peripheries of liberal, and Western domination, I ask whether this may in fact be harnessed as the central location to disrupt the transnational and historical gendered colonialism from which we have not as yet as sisters moved beyond in our daily lives. Certainly Kapur opens a welcomed conversation, for feminists to meet in the words of Homi Bhaba, somewhere in between (p. 65). Kapur centres postcolonial feminist legal theory as the theoretical framework for her book for which she provides a clear, concise and critical summary in Chapter Two, New Cosmologies: Mapping the Postcolonial Feminist Project. Kapur engages postcolonial feminist legal theory to distinctly critique liberal internationalism as a device for addressing violence and discrimination against women (p. 13). She focuses upon Martha Nussbaums arguments in Sex and Social Justice (1999), which promotes a radical liberal project with claims to provide a universal remedy for the injustices experienced by women, particularly in the global South (p. 13). Through this chapter Kapur challenges the key arguments of the liberal capabilities approach with the assumptions of law being used to advance the

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fair treatment of every individual, and their universal capacities. Kapur extensively quotes Nussbaums claims that threats to universal capacities are imposed through emotions embedded in traditions, conventions and patriarchal conditioning. Kapur reects upon how Nussbaum is willing to suer the label of Western imperialist as she questions why women in other countries should be bound by traditions, when she expresses the American pride in having no traditions (Nussbaum, 1999, p. 37; Kapur, p. 16). Rather than questioning this claim on its own terrain, Kapur embarks upon a postcolonial feminist critique which questions the tenets of the liberal project, the narratives of progress within the postcolonial context (p. 21). Kapur draws upon the contemporary legal discourses of regulating sexuality in India as further undermining the liberal assumptions of the public and private divide, the relationships of law and sexuality and the role of the Hindu Right, as specic experiences of the colonial past and postcolonial present, which Kapur argues cannot be universalised under a liberal internationalism. In this review I highlight the diversity of feminist postcolonial theory, which could be drawn upon to further interrogate the relations of domination across religion, caste and gender. Further I suggest that Kapurs postcolonial feminist perspective could critically interrogate and complicate the experience of the sexual subaltern in the West, challenging Nussbaums claims that American women have no traditions, and critically challenge the liberal project of gendered domination across postcolonial terrains. In Chapter Three Erotic Disruptions: Legal Narratives of Culture, Sex and Nation in India, Kapur draws upon Deepa Mehtas lm Fire (1996) to represent the dilemma of culture and authenticity (p. 51). The religious symbolism of the leading characters Radha and Sita is employed to transgress nearly every sexual, familial and cultural norm that constitutes India as it is imagined (p. 51). Kapur traces comparative legal strategies from the contests of censorship to sexual oences, whereby culture is deployed to either support allegations of Western import or defences of Indian heritage. For Kapur the defence of cultural hybridity, as a term which conveys the uidity of culture, presents limitations for the sexual subaltern (p. 52). Kapur outlines her key political concerns within the chapter, to be able to locate sexual subalterns within the historical past, whilst simultaneously challenging and subverting dominant cultural and sexual narratives (p. 52).

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Kapur engages these contemporary political concerns through the analysis of cultural contests of liberal versus nationalist discourses, in the censorship debates of the Bandit Queen, the Miss World beauty pageant and satellite broadcasts. Kapur roots these counter-culture debates in the anti-colonial cultural contests of the nationalists versus social reformers, in issues of child marriage, marital rape and sati, whereby Chatterjee (1993), Sarkar (2001) and Mani (1998) have traced the ways in which culture and sexuality were reshaped and reconstituted in the colonial encounter (p. 54). Kapur highlights how this process developed a normative sexuality whereby the Victorian and nationalist discourses devised sexuality in terms of the public bad and private good terrains. Through the contemporary debates on sexual speech across celluloid and satellite TV, Kapur traces the treacherous path in which essentialising culture and gender entraps both nationalist and feminist discourse. Posing the sexual subaltern, as a theoretical device to challenge normative sexuality and the discourse on which it relies, Kapur demonstrates how the political voices of sex-workers and homosexuals articulate their deance of the norm that is conned to a sacred space, yet the feminist and nationalist merged outcry of danger is such that the politics of positive sexuality and pleasure advocated by the sex-workers remains virtually inaudible (p. 77). Kapur engages with the complex role of cultural hybridity as a legal and political strategy, to authenticate and legitimate desire as Indian. Yet Kapur identies this as inevitably essentialising, excluding Other religions, sexualities and desires. She concludes that the sexual subalterns engagement with law is in itself disruptive, creating discursive spaces, which contest culture as linear, denitive or static. I review whether Kapurs postcolonial feminist engagement in culture and counter culture, is limited to a liberal denition asking whether her decision not to engage with womens daily lives, and nonliberal, non-formal legal relations of sexuality reects a sustained silence in postcolonial feminist debates. In Chapter Four The Tragedy of Victimisation Rhetoric: Resurrecting the Native Subject in International/Postcolonial Feminist Legal Politics, Kapur addresses the identication of the third world woman as the authentic victim in international human rights discourse of Violence Against Women. Kapur argues that this identication reinforces the gender and cultural essentialism, whereby the victim subject ultimately relies on a universal subject: a subject that

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resembles the uncomplicated subject of liberal discourse and a native subject... which represents the Eastern woman as a victim of a backward and uncivilised culture (p. 99). Further Kapur argues that the subject as a victim has invited protectionist, and even conservative responses from States (p. 100). Kapur critiques Western feminist debates on the universal subject, public and private sphere, and liberal legal framework as drawing upon a commonality of womens experience which she argues, fails to acknowledge or challenge the hierarchies and domination embedded in western feminism and the liberal framework on which it is based. Kapur further warns of cultural relativist arguments and through her analysis of The Veil and female genital mutilation, suggests their essentialising and exclusionary eect. Kapur engages with Narayans analysis of Death by Culture, to reect upon the dangers of invoking culture as an exotic rationale of violence, which shifts attention from the West, and skews our understanding of the causes of violence. Kapur traces this rst/third world divide through the cultural essentialism of the colonial and nationalist debates on dowry, child marriages, and sati and the contemporary rhetoric of the Hindu Right. The sexual subaltern presents a location from which to address the multiple and diverse layers of subjectivity. Through the analysis of legal narratives of bride burning, sex-workers, beauty queens, transsexuals and migrant workers, Kapur advocates the theoretical and practical shift away from the universal subject and claims of victim-hood, towards a foregrounding of the peripheral subject beyond rights claims in order to provide the critical normative challenges which are essential in our engagement with human rights (p. 128). I review whether Kapurs urge to shift from the voices of victim-hood may lead to a further censorship of the experience of violence within and across Western and Eastern feminism, and whether this is indicative of a limited interrogation into the relations of domination within and across gender relations in everyday lives. In Chapter Five, The Other Side of Universality: Cross-border Movements and the Transnational Migrant Subject, Kapur addresses what happens to the post-colonial sexual subaltern when she crosses over the borders, to disrupt and disturb the universalist premise of international law (p. 137). Kapur projects her critique of the tenets of international liberalism in relation to the sovereign state and subject. Focusing upon the legal regulation of migrant

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sex-workers, U.K. immigration and citizenship procedures, and the impact of global terror discourse on asylum seekers in Australia, Kapur traces how the universal subject is shaped and moulded as the Other. Kapur uses the term transnational migrant subject to indicate a subject who crosses borders and occupies a subaltern position (p. 139). Retracing postcolonial theory and subaltern studies, Kapur focuses upon the relations of domination and subordination between races, religions and genders. She traces the devices deployed in immigration policies to cast the Other as undesirable, intolerable or dangerous and analyses the U.S. Victims of Tracking and Violence Protection Act 2000 as conating migration with tracking and disempowering the subject through the identication as a victim in need of protection and reintegration. In the U.K. Nationality, Immigration and Asylum Act 2002, Kapur identies strategies of assimilation, whereby migrants are moulded towards a British identity yet their marriages are termed as suspicious, culturally alien and denying womens rights. Through the analysis of the Australian immigration policy and contemporary narratives of the experiences of asylum-seekers and their families, Kapur describes the Australian governments immigration policy as rooted in the rhetoric of terror, to legitimate discrimination, exclusion and the violation of the international human rights. Kapur draws together the crisis in the liberal linear progression of rights and the threat of cultural contagion, as fuelling the right wing agenda, which protects the universal subject and demonises the Other. This brings her to perhaps the key argument of her book, which draws upon Fitzpatrick and Darian-Smiths (1999) understanding of postcolonialism as holding apart what the discourse of universalism oppressively unites (p. 173). It is the transnational migrant, the subaltern subject who actively crosses and exposes this divide. Kapur concludes that: In order to understand and respond to the relationship between the transnational migrant subject and the law, it is necessary to revisit the issue as one that is not in terms of binaries ...It must be addressed against this broader canvas of transnationalism (p. 175). It is Kapurs concluding comment that draws my critical attention to the books analysis of the binaries of liberalism and culturalism from which the sexual subaltern seeks to disrupt, challenge and transgress. Throughout the book Kapur raises the concern that the sexual subaltern has been trapped within universal and cultural

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discourses, and that the language of liberalism has too often provided a vehicle for cultural and gender essentialist arguments of the Hindu right. In this article, I review Kapurs formulation of the liberal feminist and postcolonial feminist theories, to consider whether the relations of gendered domination have been interrogated within and limited to the same boundaries which the sexual subaltern seeks to disrupt, or whether they may inform relations of domination within and across transnational feminist perspectives, creating alliances and strategies against a persistent gendered colonialism. Though as Kapur writes, these chapters have been written at separate moments and not with the intention that they read as a tidy narrative (p. 7), I have identied ve key themes which I have centred in each chapter though they run throughout the book. Hence I pose the following questions: How are relations of domination constructed? Is law a site of discourse or domination? What are the cultural traditions of the universal subject? How do the liberal traditions inform strategies of counter-culture? Can there be an authentic consciousness? Does the somewhere in between cross the universal/cultural divide? GLOBAL SISTERHOOD- INTERROGATING RELATIONS In her introductory chapter, Kapur argues that:
strategies that celebrate some notion of global sisterhood or argue that all women are similarly oppressed, obscure the universalising and hegemonic moves on which such claims are historically based at times perpetuating the exclusion of the very constituency they claim to represent through cultural, religious or sexual othering. (p. 4).
OF

DOMINATION

For Kapur, the colonial encounter makes any shared concept of experience, location or perspectives irreconcilable as relations of dominance and subordination are reiterated through the book as beyond gender essentialism. Kapur also highlights the traps of cultural essentialism identied by Spivak (1988), in the history of the authentic Indian woman as both the victim for colonial salvation and a vehicle for right wing nationalist agendas. Kapur refers to the work of Ghandi (1998) and Loomba (1998) which urge the engagement with sites of historicised struggle, where dierences are deconstructed and knowledge is produced about shifting identities and multiple subjectivities that are neither essentialised nor universalised (p. 5).

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Though Kapur arms the need to avoid slipping into a native or authentic feminist position (p. 5), this is an armation for which the reader keenly awaits the disruption, which has been vibrantly traced through the diversity of feminist scholarship in India, in relation to religion, caste, indigeneity and sexuality (Agnes, 1996; Rege, 1998; Vanita, 2002; Rao, 2003). Throughout the book Kapur presents a limited discussion of the complexity of not only the heterogeneity of identities but also the very relations of power within the post-colonial history in which certain identities have been subordinated and excluded from the Other. Though this theme is recognised and indeed central to Kapurs analysis there is limited interrogation of the interrelations of the colonial and nationalist elite with regard to caste subjectivities. Kapur sets out her endeavour:
to force an interrogation of and a sense of accountability within, the scholarship produced by and on behalf of women and subaltern subjects who inhabit the postcolonial world, and to evaluate the justice-seeking projects formulated by and on behalf of these groups in the legal arena (p. 6).

Yet this is weakened by the omission of addressing the vibrant and diverse writings in India which trace the diversity of postcolonial feminist standpoints. My concern is not only one of inclusion, but to reveal the relations of domination within the postcolonial experience. Kapurs distinction of the way these concerns play out in the context of women, though I also address other subjects such as homosexuals, migrants and Muslims (p. 6) is indicative of the layers of domination and subordination which Kapur categorises as distinct rather than pervasive. I would suggest that though this project is diverse and heterogeneous it founds a collective and political task. Setalvad exposes the silences in the secular Indian textbooks containing discernible strains of the same kind of caste, community and gender prejudice which reects a biased and uncritical interpretation of history (2003). Rege (2003) responds to the exclusion of feminist sociology and the hierarchies of high caste, and urban writings. Rao collates historical and contemporary writings on caste and gender that go further than merely arguing that Indian feminism is incomplete and exclusive... suggesting that we rethink the genealogy of Indian feminism in order to engage meaningfully with dalit womens dierence from the ideal subjects of feminist politics (2003, p. 2). The diversity of the sexual subalterns experience outside of the liberal project,

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traced through regional, religious, community and caste practices, create platforms for feminists to argue for alternative forms of agency outside of the liberal legal system. LAW
AS A

SITE

OF

DISCOURSE

OR

DOMINATION?

Kapur and Cossmans book Subversive Sites (1996) provides a critical overview of feminist engagements with law to assert law as an important site of struggle... which can oer spaces of resistance (1996, p. 285). In Erotic Justice, Kapur draws upon the work of Grewal and Caplan (1994) summarising:
Feminist positions, including postmodern feminism, do not adequately interrogate the colonial trappings and hegemonic rst world formations on which law is based, which continue to exploit women and the subaltern subject and exclude or ignore the non-West from their discussions. (p. 5).

Kapur introduces how law excluded the Worlds Others, such as women, the colonial subject, blacks and children on the grounds of legal incapacity based on arguments that they were inferior, infantile, backward or uncivilised. These comparative relations of domination provide an insight as to how law constructs the dominant legal subject not just in opposition to but also as interdependent upon the Other. Critical legal analysis highlights the colonial alliance with elite Hindu and Muslim communities to preserve caste and religious boundaries such as Brahminical rituals were tied to maintain caste purity through strict control over women and their sexuality (Agnes, 1996, p. 20). Analysis of the material and caste contexts of the regulation of sexual relations has been further tied to property whereby caste is the gateway to property (Rege, 2000, p. 495). Though Kapur presents the postcolonial experience as heterogeneous, a historical and material analysis of laws role to protect property and trade through perpetuating caste and religious divisions regulated through sexual regulation, would progress an understanding of the layers of domination perpetuated throughout the postcolonial experience and apparent in globalisation processes. Throughout Kapurs analysis, the narratives of sexual subaltern struggles in the areas of sexual harassment, sex-work, homosexuality, violence and the transnational migrant are orchestrated in discourses within the dominant legal and cultural framework. Just as the postcolonial feminist project provides a tool to interrogate the past, it is

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crucial to disrupt the foundations of the liberal legal project and the key to understanding the cultural and material regulation of sexuality which have historically colonised the sexual subaltern in the East and West. CULTURAL TRADITIONS
OF THE

LIBERAL SUBJECT

In Chapter Two Kapur elaborates on the postcolonial feminist legal project and how it provides an analytical lens through which to view issues of sexuality and law and a locational framework that decentres the West and the liberal venture in their role as providing a primary grid of analysis (p. 13). It is, therefore, frustrating that Kapur chooses to centre her critique rmly within Nussbaums concept of liberal internationalism, rather than in the array of postcolonial feminist scholarship on sexuality and law in India. Kapur argues that Nussbaums work shares the themes of sexuality and law but exposes some of the assumptions on which liberal claims are based, especially its claim to provide a universal remedy for the injustices experienced by women, particularly in the global South (p. 13). Kapurs discussion centres upon the familiar issues of feminist legal theory and critical scholars of the public/private divide, the relation of law and sexuality and the role of the religious right, but which play out quite dierently in postcolonial India (p.13). Kapur earmarks the encounters with law... shaped in part by the relationship between culture and sexuality produced during the colonial encounter, which continues to impact on the way in which sexuality is taken up and developed in the legal arena (p.13). Kapur therefore asserts the postcolonial feminist experience as distinct from the western feminist concepts of liberal internationalism. Kapur asks why Nussbaum did not initiate an interrogation of the liberal project during the widows meetings in Bangalore whereby widows... were learning to think of themselves not as discarded adjuncts of a family unit, half dead things, but as centres of thought and choice and action (Nussbaum, 1999, p. 67; Kapur, p. 14). Kapurs critique touches upon the extensive arguments of Sen (1990), Nussbaum (1995), Benhabib (1995, 2002), Nanda (1997) and Rege (2000) of whether cultural factors should be allowed to mediate the universal rights of capability and Sens urge to go beyond the primitive feelings that a person may have on these matters, based perhaps on the unquestioning acceptance of certain traditional

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priorities (1990, p. 127). Mohanty (1998) and Roy (2001) have argued that this may give rise to a material imperialism, which could erode cultural practices and as Coomeraswamy notes may not allow women to touch base with their traditional sources of empowerment (1994, p. 46). Though Kapurs demand for the interrogation of the historical liberal exploitative project is both compelling and necessary, it forces the ball back into the court of liberalism rather than into non-liberal domains. Kapur provides an extensive and important critique of the postcolonial legal subject as either assimilated within or excluded from the legal subject, yet we are still kept within the liberal framework. Similarly Kapurs interrogation of the colonial cultural encounter on the nationalist versus social reformer debates of child marriage, omits the voices and agenda of women. Indeed Kapur states that [w]omen were strikingly absent from this debate (p. 30). Yet Johns analysis of women in the nationalist movement cites nationalist female leaders such as Sarajoni Naidu who rallied: Indian men and women were to rise and fall together (2000, p. 3824), and Geethas account of women in the Periyar movement presents histories of self-respect marriages and a commitment to rule out caste, religion and gender dierences (1998). This negation of subaltern experiences is indicative of the silencing of voices in the liberal project both in the East and the West. Nussbaums assertion that American women have no traditions suggests a similar erasure of womens historical and contemporary experiences. It is this point of silence that is indicative of the liberal project and the need to interrogate the material and patriarchal gains which inform this liberal culture of silence. Kapur highlights the importance of the subaltern project which challenges the assumptions that the starting point of knowledge is always and already the same (p. 5). This may provide an interesting opportunity to interrogate the relations of the legal and social norms, how Western knowledge is produced and sustained in postcolonial narratives. Further this also raises the question of a dierent starting point, which is indigenous to local women who are not aware of any other liberal starting point other than their own and have not sought to know or be included in the liberal domain. Kapur observes: women who have been excluded from the universal project of liberalism are also the rst to understand and be critical of claims of universality and for reform (p. 18) rather than

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seeing those who perhaps never sought to enter those circles. Here I nd Kalpagams assertion of the local as central to the concerns that an indigenous social science may never truly be indigenous in relation to observer studies (2002, p. 4686). I would argue that this shares Smarts cautionary note that we must never forget that women discursively construct themselves... if we do forget this we risk disempowering women and over-inating the power of more organised discourses (1985, p. 231). I feel this is important for the essence of Kapurs analysis where the fact that we do not hear from the sexual subaltern outside the liberal, legal framework censors the mechanisms by which the culture of law constructs and silences the gendered liberal subject in the West and Eastern terrains. THE LIBERAL CULTURE
OF

COUNTER-CULTURES

In Chapter Three, Kapur cites Foucaults recollection of the domination of the Victorian regime: [t]hus the image of the imperial prude is emblazoned on our sexuality, mute and hypocritical (1978, p. 103, Kapur, p. 51). Here Foucault alludes to the layers of domination, and the raw sexuality to be unearthed below. Kapur considers legal strategies which draw upon cultural authenticity to counter claims of Western or unIndian sexual practices. She traces how dominant cultural practices can be undermined through a historical analysis of pre-colonial and mythological sexual histories. In this chapter Kapur presents an exciting challenge to create a space for a broader range of sexualities through the retelling of the past, while at the same time avoiding cast-iron representations through this retelling (p. 52). For Kapur, theorising and reclaiming desire is an important political project to destabilise the image of the Indian womans victim status, and reinstate her agency, to cross the boundaries of the West and Hindu right. The controversy of culture in India has been central to the censorship debates over the screening of Bandit Queen, the Miss World Beauty Pageant and satellite broadcasting. Kapur centres these debates in the anti-colonial debates whereby Indian-ness was embodied in the Hindu woman in the private sphere. Kapur explains how though Chatterjees writings present this in terms of the colonial versus nationalist debates (1993), Sarkar has traced the internal cultural contests which raised the concerns of child marriage and marital rape (1996) and Manis writings on Sati, where womens

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bodies served as the primary site for the re-articulation of tradition and culture (p. 54). Through Radakrishnan (1992) and Nairs (1996) work, Kapur highlights the paradox of the cultural contests, as she argues that Indian nationalists grounded their anti-colonial position on the very terms of nationalism and normative sexuality produced by the West. As Kapur writes: [t]he idea of sex and sexuality as a dangerous corrupting force to be carefully contained at all costs within family and marriage, was as Victorian as it was Indian (p. 54). Kapur draws upon Nairs observations that these assumptions were absorbed through the colonial encounter into a litany of laws regulating social conduct, and refracted through the gaze of the colonial subject, in particular, the Indian nationalist, to construct a puritanical image of Indian womens sexuality (1996, p. 145; Kapur, p. 54). Kapur identies nationalism and normative sexuality as Western concepts, which presents an interesting question as to their legitimacy in the West. The undercurrents of subaltern sexualities may be traced from the Ancient Greek culture of homosexuality, Shakespearian dramas, and feminist critiques of normative sexuality from Victorian to modern day. Such an analysis could highlight the transparent hypocrisy which is closeted and conned in the Victorian model of liberal, legal regulation. Though Kapur does reference that the idea of normative sexuality may be drawn from AngloAmerican feminist legal theory and it is important not to reject the validity of this concept simply on the grounds it is feminist or foreign, she maintains such concepts must be historicised (p. 55). This is integral to the postcolonial feminist perspective, yet her analysis indicates that the history of normative sexuality lies within the recent Victorian colonial framework. It marks a history where the sexual subject of the West and East has been sexually colonised through distinct yet parallel cultural discourses of the public and private sphere, patriarchal and material regulation of sexuality for property and familial legitimacy. A comparative analysis of the counter-culture debates of the West and East provides an insight into the liberal premise of how legal strategies of the Hindu Right have built on the integral relationship between sexuality and culture, and they have been remarkably successful in advancing their agenda (p. 8). Kapurs analysis of how cultural essentialism is deployed to defend the issues of censorship, sex-work, and homosexuality could be engaged in analysing the

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mechanisms by which both the West and East deploy cultural essentialism to rearm dominant sexual ideology by those in positions of power and how such an approach views culture as static and immutable (p. 8). This analysis could inform other liberal constructions of domination, across gender, race, religion and caste. Kapurs analysis of Bandit Queen exposes the culture conundrum by which the exposure of gender and caste violence was considered to pander to the stereotype images the West has of India, a land of female infanticide where parents are brutal in their treatment of daughters and where evil mother-in-laws torture their daughters to death (Kishwar, 1994, p. 36). Kapurs analysis identies the same liberal tenets of nationalism which invoke a cultural essentialism against external forces of colonialism or contemporary globalisation processes. Kapur engages with cultural hybridity as a view which recognises that culture is not essential, static or denitive, but is uid and changing. This is well documented in the Bandit Queen censorship case, whereby caste, gender and sexual agencies were constrained to avert a crisis of culture (p. 61). Kapur shifts this crisis point within the transnational cultural ows and postcolonial paradoxes (p. 64) as the lm based and directed in India, was co-produced with Channel Four, U.K. This leads to the lms being cast as foreign/ Western/Other (p. 64), and the once colonial laws are now called upon to defend the Indian cultural ethos (p. 65). This point is crucial in Kapurs legal analysis which she identies as the contradictions of a postcolonial legal regime, for which the colonial legal history is complicit in creating the cultural practices, and which is indicative of the alliance of the liberal and nationalist project which informs postcolonial terrains. Kapur terms these diasporic relations as hybrids, neither here nor there, but at best, in the words of Homi Bhaba, somewhere in between (p. 65). Kapur traces how the National Commission on Women and other womens groups argue about Indian culture unreectively and thus wind up essentialising the very culture that they have sought to transform in other arenas:
Their arguments are constructing a pure place of authenticity which is remarkably similar to the strategies of the religious rights whose vision for women is similarly based on restoring women to a position of respect and honour that they enjoyed in some bygone era as wives and mothers. (p. 69).

Kapur traces the legal arguments which draw upon counter-culture to historically counter these cultural positions. As in the West such

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counter-culture need not go back to historical practices, but rather unearthing the existing contemporary sexual subaltern practices which reect the sexual subaltern not as an exception, but as integral to our daily lives. In fact it seems that another level of censorship is at play within feminist western and postcolonial discourse, whereby the everyday is silenced somewhere in between (p. 65). Through Kapurs analysis of the censorship of sexual speech, the arguments of cultural legitimacy are fought upon legal terrains. Kapur even highlights how Phoolan Devi alleged that the lm did not accurately represent her life and, somewhat contradictorily, that the representations of the sexual violence violated her privacy (p. 60). For Kapur culture was invoked at every turn in the controversy to either justify or contest the cuts to the lm (p. 60), so much so that even the protagonists voice is deemed to invoke culture, rather than be heard. The accused rapists constructed their arguments for censorship in line with the courts reasoning informed, in part, by Art. 51-A of the Indian Constitution... [which] provides that it shall be the duty of every citizen of India to value and preserve the rich heritage of our composite culture (p. 61). It is here that the contrasting constructions of culture, expose not only its paradoxical usage, but indicate precisely the construction of culture in law as inherent in the old politics of colonialism informing the Victorian and the postcolonial, both fundamentally patriarchal. Kapur continues to engage the paradox of the counter-cultural argument in the legal debates of sex-work and homosexuality whereby:
culture is being deployed in law either to contain the practices of sexual minorities and exorcise the cultural contaminant or historically ground the existence of the sexual subaltern in an eort to recast the treatment of sexual minorities in law (p. 70).

Kapur argues that the Immoral Trac (Prevention) Act 1956, International Convention for the Suppression in the Trac Persons and the Exploitation of the Prostitution (of Others) signed in New York, 1950 all operate to deny women in sex-work rights to a residence, mobility, expression and work, and operate primarily against such women rather than those who exploit them (p. 72). Kapur highlights the Report of the Department of Women and Child Developments key interest in public morality and protecting the normative family (p. 74). Targeting the sex-worker rather than the

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system of exploitation in which she works, is once again a familiar scenario to the West. Kapur draws upon how the rhetoric of A.I.D.S. has further created a specic postcolonial image of contagion and contamination, whereby the purity of the Indian woman is threatened. Finally Kapur draws upon the voices of the sex-worker, anchored in the womens movement of 1995 statement asserting, that sex is primarily for pleasure and intimacy (p. 77). The statement of Sangram (Struggle) is vital evidence of the local contemporary arguments of sex-workers. Kapur suggests that in order to counter the nationalist and feminist arguments which merge to present sex-work as Western and harmful, it is important to develop a more complicated analysis of the cultural location of the sex-worker in India and counter the cultural essentialism that has informed the legal debates (Nair, 1996b; Kapur, p. 78). The historical narratives of Nair (1996), Kotiswaran (2001) and Banerjee (1998) reveal the criminalistion of sex-work through British rule. Kapur notes the importance of this work to locate the sex-worker in the postcolonial context, the diverse composition of the sex-workers community as well as their presence and popularity in popular culture (Nair, 1996b; Oldenbury, 1990, Kapur, p. 78). Yet as the importance of the politics of desire is armed, the religious, caste and material relations of the women are once again unheard. Kapur then applies the theme of counter culture to the issues of homosexuality in prisons, tracing the legal debates regarding s.377 of the Indian Penal Code which makes it an oence to have voluntary carnal intercourse against the order of nature with any man, woman or animal (p. 79). Kapur examines this cultural contest whereby the Inspector General of Prisons, was opposed to the distribution of condoms, as promoting homosexuality in prisons, on the grounds that this would in eect condone a criminal oence. She traces the counter-cultural arguments posed in defence whereby:
homosexuality had always constituted a part of Indian culture was evident from passages in the Kama Sutra. Once again the cultural move that denies the existence of homosexuality in India is challenged through a counter-cultural move which argues that homosexuality has always existed in Indian culture. (p. 80).

Kapur highlights the cultural essentialism of such claims which potentially exclude the Others. Furthermore, she emphasises the arguments which claim that it is Western secularism that has

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eectively suppressed sexuality in India. Western analysis of the mechanics in which sexuality is suppressed (Buss and Herman, 2003) could provide a key to the methods which both the Christian and Hindu Right employ to suppress sexuality and construct culture. Kapur draws upon cultural hybridity to reveal, culture is and continues to be in a process of construction. And this process creates space for the possibility of alternative sexual practices and behaviour that both challenge and subvert dominant sexual ideology (p. 88). The problem here is that the sexual subaltern by its very term, is located on the peripheries, and against the dominant norms, and is constructed by the liberal centralism on which it is mapped. This paradox is sustained in Kapurs analysis of the subaltern in law, whereby the sexual subaltern speaks from within a contested cultural framework, forcing courts and law to engage with the uidity of culture and its contested histories (p. 92). As Kapur traces the cultural backlash of historical gender and cultural essentialising narratives, this could be further attributed to the legal construction of culture, of the Other. Kapur reects upon the complexity of culture, that: Assumptions about desire were informed by relations of power, the growth of regional politics and urban centres during this period, and mediated by class, caste and gender, and how, Responses to sexuality are thus neither linear nor one-dimensional and arguments that erase complexities are likely to fall into the traps of cultural essentialism and reproduce binaries (p. 89). It is these responses which would provide an understanding of the construction of culture in the liberal tradition. As Kapur arms: [l]aw is constantly engaged in re-inventing and re-interpreting the subject (p. 92) for which [t]he erotic subject challenges the inviolability of the linear narrative that law tells about sex and culture in India (p. 93). This is indicative of the space somewhere in between, and the need to unearth not only a buried past, but the everyday sexual practices which the liberal doctrine of law has suppressed. THE AUTHENTIC CONSCIOUSNESS In Chapter 4 The Tragedy of Victimisation Rhetoric: Resurrecting the Native Subject in International Postcolonial Feminist Legal Politics, Kapur recognises the victim subject as a transnational phenomenon, yet for which the postcolonial or third world victim subject has come to represent the more victimised subject, that is the

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real or authentic victim subject (p. 96). In this chapter Kapur redraws the double-edged sword of the universal subject, which either falls prey to gendered essentialism or is bound in a cultural essentialism of the Other. Kapur examines this relationship of the victim subject within the international discourse of the Violence Against Women (V.A.W.) campaigns, and argues that gender and cultural essentialism construct a native subject to justify imperialist interventions reminiscent of and perpetuating the colonial encounter. Kapur asserts the sexual subaltern as a location of resistance to the gender and cultural essentialism of the liberal project of international human rights. Through the chapter Kapur interrogates womens rights discourse through the location of the victim subject in relation to the structures of social relationships and the shape-shifting of culture (p. 134) which reects the incongruence of the Western and postcolonial feminist experience. Kapur delves into the arguments of MacKinnon to question her changing stance from asserting the liberal model of rights as inherently patriarchal, to a concept of womens commonality as a vantage point to reshape the law. Further Kapur identies the fracture in womens commonality in Western and postcolonial feminist legal theory, since:
Although there have been some critiques of liberalism and rights discourse by feminist legal scholars in the West, it has rarely been amplied to address the ways in which the colonial encounter problematised rights discourse from its very introduction into the former colonies. (p. 135).

Kapurs resistance to any concept of global sisterhood may be revisited with regard to the contemporary discourses which question the geographical North and South divide, as sweeping over the internal geographical inequalities of material and cultural locations. The recognition of the blurring of identities has led to a return to the local, a position which Kapur strongly resists. A critique of the victim-subject, without engaging with womens lived experiences, is vulnerable to similar colonisations of the subject under the arguments of false consciousness or as Kapur terms the power/knowledge complexes that materially constitute the self (p. 106). To highlight the culture tightrope walked by feminists between fracturing the gender essentialist argument and the dangers of the reication of culture, Kapur engages with the Special Rapporteur Report on Violence against Women (Coomeraswamy, 2002). Under

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the subtitle Cultural practices in the family that are violent against women, the Report is divided into 12 sections of cultural practices from Female genital mutilation to Beauty and Incest. Kapur, somewhat contradictorily, decides to focus upon the issues of F.G.M., The Veil, Sati and dowry as indicative of cultural practices that have come to occupy our imaginations in ways that are totalising of a culture and its treatment of women, and are nearly always over simplistic or a misrepresentation of the practice (p. 107). Furthermore, Kapur states that the reality of womens lives, though important, cannot adequately explain the social construction of violence and resistance to such violence (p. 107). It is at this point that Kapurs book strains under the tension of her postcolonial feminist commitment to interrogating who speaks for whom, with a critical perspective on how those voices are formed. Similar tensions are found in Western research as the generic terrain of body mutilation reveals both the agency of the victim as a mode of empowerment or as a deluded act through a false consciousness of choice (Bibbings, 1995). Comparative discourses of the Veil criticise the array of cultural, Marxist, and anti-Western defences, without listening to the real experiences of Muslim women who practice Islamic virtues (Mahmood, 2001). Kapur critiques the reication of culture deployed to explain dowry death and bride burning, yet ultimately neither challenge nor arrest the problem of dowry murders (p. 112). She advocates that: [r]esearchers, scholars and womens rights activists must take responsibility for understanding and informing themselves about the complexity of debates that surround issues of womens rights in the postcolonial world (p. 112). Yet Kapur is hesitant to engage with women as agents as she claries:
I do not intend to argue that womens subjectivity can only be understood in terms of discourse analysis. My argument is that in the area of human rights and law, subject constitution has not been suciently analysed in terms of how rights discourse has produced a particular understanding of the subject which is a manifestation of the pervasive discourse power relationship. (p. 113).

The importance of centring the postcolonial sexual subject moves beyond the geographical boundaries of East and West. Comparative studies of violence in daily lives expose how the cultural othering of dowry and honour killings is parallel to the cultural term of domestic violence in the West.

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Similarly Kapurs analysis of the criminal laws of rape, marital rape and sexual harassment embedded in the Victorian English legal doctrines in India, may progress Western understanding of legal cultural concepts of corroboration, forced and voluntary sexwork, or the consent of risk as a defence to criminal liability for H.I.V. transmission, rooted in the Oences Against the Person Act 1861, (Weait, 2005, p. 133). Postcolonial legal feminist theory provides a vital theoretical tool to disrupt the liberal legal narratives, for which the subaltern location crosses the postcolonial terrains. CROSSING
THE

BORDERS,

TO

MEET SOMEWHERE

IN

BETWEEN

In Kapurs nal chapter The Other side of Universality, the boundaries of the West and postcolonial are blurred, an experience, which I would argue recalls and reclaims the postcolonial as a global experience. Kapur introduces the chapter with Kumars quote that The illegal immigrant is the bravest among us. The most modern among us (2000, p.xiv; Kapur, p.137). In contrast to Kapurs argument of law as a space we go to when things go wrong (p. 92), this nal chapter highlights the role of law as uninvited and directly constructing the subject as native within their homelands, victims or dangerous Others when crossing borders, and on arrival, moulded towards the citizen subject. Kapurs analysis of the U.S. conation of tracking with sexwork migration, the U.K. policy as contesting the legitimacy of arranged and forced marriages, and the Australian depiction of the migrant as a potential threat to the indigenous nation, is illustrative of the historical entrenching of borders from the nation state, to the domestic sphere. This entrenchment of boundaries in the face of change, reects the historical trajectory of feminist critiques of the public and private sphere, from the colonial and anti-national movements, through caste and religion, as an understanding of the relations of domination locating sexuality as the safeguard of identity (Menon, 1998; Charlesworth and Chinkin, 2000; Marchand and Runyan, 2002). To consider these current issues as new, limits the comparative feminist analysis of the historical and contemporary role of international law in legitimising the colonisation of the public and private sphere, work and non-work across gendered terrains. Kapurs critique of the foundation of global sisterhood as implicated in the violence of colonialism is, I suggest, a continuant of

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the cultural essentialism and feminisation of violence of liberalism and the Hindu Right. Rather I would argue that the interrogation of the layers of liberal and cultural domination exposes the interdependent construction of normative sexuality which has historically sought to regulate and control identities, properties and places. Law has been the key instrument in the colonial project to construct the liberal subject and cultural other both in the Eastern terrains and the West to silence the sexual subaltern. Erotic Justice, highlights the specic postcolonial location of the sexual subaltern, a location which both informs and disrupts the centrality of the liberal project, to meet somewhere in between. ACKNOWLEDGEMENTS I would like to acknowledge the vibrant, diverse and critical perspectives shared by the women from the villages of Maharahstra, India (19931997), which radically inuenced my work and the guidance of Professor Didi Herman, throughout my research on rights, reconstruction and gender in India. Thanks also to Ruth Fletcher and the challenging conversations with Shilpa Shivalkar, Yasmin Tambiah and visiting fellows Maharukh Adenwalla, Banumati Kalluri, Lakshmi Arya, of the Gender, Sexuality and Law exchange, and Alternative Globalisations Forum, Keele University, U.K. A special thanks to Sue Millns for her kind support throughout this endeavour. REFERENCES
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Coomaraswamy, R., To Bellow like a Cow: Women, Ethnicity and the Discourse of Rights, in Human Rights of Women, National and International Perspectives, ed. R. Cook (Philadelphia: University of Pennsylvania Press, 1994), 3957. Coomaraswamy, R., Cultural Practices in the Family that are Violent Towards Women, Report of the Special Rapporteur on Violence Against Women, E/CN.4/ 2002/83, (31 January 2002). Fitzpatrick, P. & Darian-Smith, E., Laws of the Postcolonial (Michigan: University of Michigan Press, 1999). Geetha, V., Women and an Ethnic of Citizenship, Economic and Political Weekly 33/17 (1998), WS-9WS-15. John, M., Alternative Modernities? Reservations and Womens Movement in 20th Century India, Economic and Political Weekly (2000), WS-2WS-31. Kalpagam, U., Perspectives for a Grassroots Feminist Theory, Economic and Political Weekly 35/4344 (2002), 46864693. Kapur, R., Erotic Justice, Law and the New Politics of Postcolonialism (London: Glasshouse Press, 2005). Kapur, R. & Cossman, B., Subversive Sites (New Delhi London: Sage, 1996). Kishwar, M., Film Review The Bandit Queen, Manushi 84 (1994), 3437. Mahmood, S., Feminist Theory, Embodiment and the Docile Agent: Some Reections on the Egyptian Islamic Revival, Cultural Anthropology 16/2 (2001), 202236. Majumdar, R., History of Womens Rights: A Non-Historicist Reading, Economic and Political Weekly (2003), E.P.W. Perspectives, 7282. Marchand, M.H. & Runyan, A.S., Gender and Global Restructuring, Sightings, Sites and Resistances (London: Routledge, 2002). Menon, N., State/Gender/Community, Citizenship in Contemporary India, Economic and Political Weekly 33/5 (1998), PE-3PE-10. Mohanty, C., Under Western Eyes: Feminism Scholarship and Colonial Discourses, Feminist Review 30 (1998), 6168. Nanda, M., History is What Hurts: A Materialist Feminist Perspective on the Green Revolution and its Ecofeminist Critics, in Materialist Feminism, A Reader in Class, Dierence and Womens Lives, eds. R. Hennessy & C. Ingraham (London/New York: Routledge, 1997), 364394. Nussbaum, M.C., Sex and Social Justice (Oxford, New York: OUP, 1999). Rao, A., (ed.), Gender and Caste (New Delhi: Kali for Women, 2003). Rege, S., Dalit Women Talk Dierently: A Critique of Dierence and Towards a Dalit Feminist Standpoint Position, Economic and Political Weekly 33/44 (1998), WS-39WS-46. Rege, S., Real Feminism and Dalit Women: Scripts of Denial and Accusation, Economic and Political Weekly 35/6 (2000), 492495. Rege, S., Sociology of Gender, The Challenge of Feminist Sociological Knowledge (New Delhi, Thousand Oaks, London: Sage, 2003). Roy, A., Community, Women Citizens and a Womens Politics, Economic and Political Weekly 36/17 (2001), 14411447. Sarkar, T., Colonial Lawmaking and Lives/Deaths of Indian Women: Dierent Reading of Law and Community, in Feminist Terrains in Legal Domains, Interdisciplinary Essays on Women and Law in India, ed. R. Kapur (New Delhi: Kali for Women, 1996), 210242.

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Sen, A., Commodities and Capabilities (Oxford University Press, 1990). Setalvad, T., How Textbooks Teach Prejudice, Combat Communalism, 15 June 2003 (countercurrents.org, accessed 11.11.2005). Smart, C., Law, Crime and Sexuality, Essays in Feminism (London, Thousand Oaks, New Delhi: Sage, 1985). Spivak, G., Can the Subaltern Speak?, in Marxism and the Interpretation of Culture, eds. N. Nelson & L. Grossberg (Chicago: Illinois UP, 1988), 271316. Vanita R., (ed.), Queering India: Same-Sex Love and Eroticism in Indian Culture and Society (New York: Routledge, 2002). Weait, M., Criminal Law and the Sexual Transmission of HIV: R v. Dica, Modern Law Review 68/1 (2005), 121134.

Law Department University of Keele Keele North Staordshire ST5 5BG UK E-mail: j.h.krishnadas@law.keele.ac.uk