TRACING THE RESIDUAL SHADOWS OF QUEER CRIMINALIZATION BEYOND SECTION 377
Anupriya Kumari, ICSSR Doctoral Fellow, Department of Law & Governance, Central University of South Bihar, Gaya (India)
The judicial reading down and partial decriminalization of Section 377 of the Indian Penal Code by the Supreme Court in Navtej Singh Johar v. Union of India (2018) 10 SCC 1 which confined the provision’s operation to non-consensual acts and acts involving minors has not precipitated the dismantling of queer criminalization; rather, it has facilitated its reconstitution through less visible, yet equally coercive, legal and institutional mechanisms. This paper conceptualizes residual criminalization as a post-decriminalization phenomenon in which queer and trans persons remain targets of surveillance, regulation, and punitive control under adjacent statutes, including those related to public nuisance, obscenity, vagrancy, and trafficking. These legal instruments while facially neutral serve as vectors for the continued policing of non-normative sexualities and gender expressions. Deploying an interdisciplinary analytic that integrates queer criminology, postcolonial legal sociology, and abolitionist justice theory, the paper theorizes residual criminalization as a modality of structural violence. It argues that criminal law functions not merely as a framework for adjudication, but as a broader apparatus of state-sanctioned regulation and social abandonment particularly for those at the intersections of caste, class, gender non-conformity, and economic precarity. Beyond critique, the paper advances a normative vision for transformative legal futures, grounded in the concept of queer legal sovereignty. It proposes participatory legal architectures such as trans-led oversight mechanisms and community-embedded legal aid as essential correctives to the limitations of formal rights discourse. In doing so, the paper contends that the pursuit of queer justice in India necessitates not only legal reform, but a paradigmatic shift in how legality, legitimacy, and liberation are conceived and institutionalized.
| 📄 Type | 🔍 Information |
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| Research Paper | LawFoyer International Journal of Doctrinal Legal Research (LIJDLR), Volume 4, Issue 1, Page 575–608. |
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