Buggery and beggary, and Ferguson

Hijras in Bangalore. Photo by Johanan Ottensooser, at https://www.flickr.com/photos/oatsandsugar/6723701709/

Hijras in Bangalore. Photo by Johanan Ottensooser, at https://www.flickr.com/photos/oatsandsugar/6723701709/

On November 26 and in the days before, police in Bangalore, India, rounded up more than 150 hijras and put them in a concentration camp. (Hijra is a traditional term, across much of South Asia, for people born males who who identify either as women or as a third gender.)  At Orinam, an online resource for LGBT issues in India, human rights lawyer Gowthaman Ranganathan tells the story:

Approximately 167 members of the transgender community have been taken away by the police and kept at the Beggars’ colony. These detentions have been entirely arbitrary … Most detainees were not on the streets begging or doing any act that is prohibited under the Karnataka Prohibition of Beggary Act, 1975. Most of them were going about their daily chores when they were arbitrarily picked up by police officers and taken away to the Beggar’s colony in Hoysalas. The police even walked into the homes of the hijras and dragged them out. … Clearly the objective of the police was not merely to pick up those who were begging, but in effect all persons who answered to the description of being hijra.

The reason for this mass detention is unknown to us but there is information suggesting that this is retaliation for the misbehaviour of one of the members of the community. Even if this were true … [i]t is unconscionable that the entire transgender women community should be punished for the alleged wrongs of some members of the community.

The Bangalore Mirror reports the crackdown began on November 24th, with “more than 200” picked up. Transgender activist Akkai Padmashali told the Mirror that when she and her colleagues tried to investigate, “Officials at Beggars Colony did not even let us in and threatened that even we will also be locked inside the rehabilitation centre.”

Thanks to human rights activists’ quick intervention, officials freed the prisoners by the end of the 26th. Padmashali wrote on Facebook:

The day was hectic in fighting for our rights with Minister, Commissioner, Additional Commissioner. After long lobby [the victims] finally got released. Today protest against police brutality in front of town hall. Permission was granted and again cancelled. Finally we were on street claiming our fundamental right guaranteed by the constitution of India and were successful.

Protest in front of Bangalore Town Hall, November 26, from the Facebook page of Akkai Padmashali (speaking, lower L)

Protest in front of Bangalore Town Hall, November 26, from the Facebook page of Akkai Padmashali (speaking, lower L): Photo © Akkai Padmashali

Congratulations to everyone who worked to get the victims free. India’s LGBT rights movement rocks, along with India’s progressive civil society in general. At the same time, the repression leaves questions about whether police perceive any limits on what they can do to people they despise. My friend Mario da Penha tweeted to Bangalore authorities:

Screen shot 2014-11-27 at 6.10.23 PMThe ugly case reveals even more hideous things. When I wrote “concentration camp,” I meant it. Police seized the hijras under the Prevention of Beggary Act, passed by Karnataka state in 1975, which mandates that beggars be sent to a “relief centre” for “rehabilitation” — for up to three years.

The law says a magistrate should decide these sentences; but in practice, as Ambrose Pinto wrote in an eloquent expose in 2011, many victims are held without any hearing.

Most of those who were picked up have not been informed of the reasons for their being placed in the colony. … Migrants, labourers and people who come to the city in search of employment are randomly arrested and detained for indefinite periods. Instead of producing the inmates before the Magistrates, they are charge-sheeted by the administrative staff of the colony. People are treated worse than convicts with no access to any legal assistance.

The law defines a beggar as anyone “having no visible means of subsistence” who is caught “in any public place.” That makes looking poor a criminal act. In 2010, the Deccan Herald recounted “horror stories,” especially of migrants who had come to neoliberal Bangalore for the table scraps of its wealth:

Inmates of the [Bangalore Beggars] Colony were not necessarily beggars. Take the case of 25-year-old Rahman, a native of Davangere. The youth worked as a painter … About twenty days back, on his way to work, he was reportedly picked up by some people, bundled into a van and dumped at the Colony … “I was thrashed and not given an opportunity to contact my family members and inform them about my whereabouts,” he rued….

Another ailing inmate, Muninanjappa, a resident of Avalahalli said he was waiting for a bus near the Karnataka High Court when he was picked up by unknown men, on the pretext that he appeared too weak and required hospitalisation. He was later brought to the Beggars’ Colony.

At least these victims get some care, right? The Karnataka state government’s website describes the “relief centre” like a summer camp: It “extensivly [sic] works on rehabilitation of Beggars. It provides not only shelter and hygenic food but also gives training on various skills and strives for better living of Beggars.” The state also shows you pictures, perhaps less than encouraging:

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Scenes of Bangalore’s poor, detained and “rehabilitated” in the Beggars Colony, from https://www.karnataka.gov.in/prms/

Reality is darker. Over just eight months in 2010, at least 286 Beggars Colony inmates died, many from tainted or inadequate food and substandard medical care. An official report found “heartless conditions,” according to The Hindu: 

Gross violations ranging from financial irregularities, inefficient administration, medical negligence and inhuman attitude of the staff … woeful lack of medical help with no more than one doctor available during day, and the flagrant manner in which all mandatory legal procedures and rules were thrown to the wind every step of the way. … Not only did several deaths occur under unexplained circumstances, but several bodies simply disappeared. … [A]s part of a large racket, vital organs could have been extracted and sold illegally.

One inmate told the Deccan Herald: “Everyday, a few inmates fall ill after having food and are shifted out of the Colony on the pretext of being hospitalised. But they never return. Only later we come to know that they have died. Even the place of their cremation will not be known to us.” A media furor erupted; a state cabinet minister was fired; the government dilly-dallied, then brought token charges against four officials; no one seems to have been convicted. It is not remotely clear that conditions have substantively improved.

Inmate of the Beggars Colony in Bangalore being removed to a hospital for treatment, under media pressure, in August 2010. Photo by K Murali Kumar,  The Hindu, December 28, 2010

Inmate of the Beggars Colony in Bangalore being removed to a hospital for treatment, after media pressure, in August 2010. Photo by K. Murali Kumar, The Hindu, December 28, 2010

This is the fate the 167 hijras mercifully escaped. I am detailing these monstrosities for a reason.

First, the laws underlying this are fascinating. The best-known legal instrument in India for persecuting LGBT people is Section 377 of the Criminal Code, which punishes “carnal intercourse against the order of nature.” It’s a survival of British colonialism, direct descendant of a statute against the“detestable and abominable Vice of Buggery” enacted in England under King Henry VIII (he of the many wives). In 2009 the Delhi High Court overturned the law, to rejoicing across the subcontinent. Then, in late 2013, India’s Supreme Court curtly reinstated it. The fact that it’s back has given an informal go-ahead to renewed repression. And there may be no police in India more eager for a crackdown than Bangalore’s. The Karnataka constabulary have a terrible record with transgender people: a history of harassing and jailing them, torturing them, evicting them from homes.

Yet in this case Bangalore’s finest didn’t use the revived 377 at all. Instead, they turned to a law that has equally venerable colonial roots: a law against not buggery, but beggary.

Where did it come from? Laws against vagrants and beggars date from the beginnings of the modern nation-state and its powers. They gave muscular, growing governments tools to classify as well as dominate their citizens. England imposed them, also around the time of Henry VIII, as a means to manage peasants uprooted by enclosure and privatization of formerly common lands; the laws punished any who refused to transit into wage labor, who couldn’t or wouldn’t become workers in a nascent capitalist economy. In time, they were enforced against migrant laborers, the homeless, travelers, street children. As lawyer and activist Alok Gupta and I noted in 2008, they “criminalized poverty, to keep it and the effects of economic dislocation out of sight.” They took on new purposes, though, when carried to European colonies. “In Europe,” we wrote, “vagrancy laws targeted the poor, but rarely had an explicitly racial side. In the colonies, everything was racial. These laws regulated the movements, and controlled the conduct, of the non-white population.”

Sheriffs whipping a beggar out of town, from 16th-century English woodcut

Sheriffs whipping a beggar out of town, from 16th-century English woodcut

Because they strove to subdue and suppress whole groups, not individuals, these laws worked differently from other criminal provisions. Their aim was, Gupta and I wrote,

to rid the public sphere of people not wanted there: to “alleviate a condition defined by the lawmakers as undesirable,” as one commentator observes. They do not require a “proscribed action or inaction,” another writes, but depend on a “certain personal condition or being a person of a specified character.” They make people criminals for what they are, not what they do.

19th-century photograph of "reputed hermaphrodite," eastern Bengal. Photo © British Library Board; from http://notchesblog.com/2014/01/06/hyperbole-and-horror-hijras-and-the-british-imperial-state-in-india/

19th-century photograph of “reputed hermaphrodite,” Eastern Bengal. Photo © British Library Board; from http://bit.ly/1uPkEyo

In 1763, the French philosophe — and judge — Guillaume Francois Le Trosne declared that when the law looked at a beggar, “his estate is his crime, and a habitual crime that provides the ground for conviction.” A direct line runs from this to what the legal scholar Meena Radhakrishna identifies as the guiding principles of the vagrancy acts India passed after independence. “Following English law,” Indian legislators treated vagrancy as “habitual,” a matter of character, not actions. “Indian vagrancy was being again defined in much the same way as European one,” an expression of “proneness to criminality.” Specific deeds were irrelevant. Examining beggary laws in both Bombay and Karnataka, she observes that “from the time a beggar is apprehended, the terminology treats the beggar as an offender, even before it is proven that the person was indeed begging.” Authorities don’t need evidence; they hardly need a trial. Police can convict and confine anyone from a suspect group on sight. Victims are, as Radhakrishna says, “criminals from birth.” India’s Beggar Colonies are great-grandchildren to the dépôts de mendicité and workhouses where European governments used to lock up their unwanted and unemployed. But — offering “rehabilitation” through indefinite and brutal jailing, with only a risible pretense of due process — they are also the dressed-up, moderately more presentable siblings of Buchenwald, Bergen-Belsen, and Guantanamo Bay.

The hijra, it seems, first appeared in modern Indian law through colonial provisions against vagrancy. 19th-century British administrators marked off most nomadic tribes on the subcontinent as “criminal,” largely because they were “vagrants,” refusing to settle down. The Criminal Tribes Act of 1871 included “eunuchs” as a culpable group (defining them as “all members of the male sex who admit themselves, or upon medical inspection clearly appear, to be impotent”). An 1897 amendment required eunuchs suspected of specified criminal behaviors (including those in Section 377) to register with the state — much like prostitutes. It mandated that any such eunuch “dressed or ornamented like a woman in a public street … be arrested without warrant” and imprisoned for two years. It also held eunuchs incapable of making a gift or a will, acting as a guardian, or adopting a son. This put hijras in a class somewhere between children on the one hand, and beggars and bandits on the other: legally incompetent like minors, yet innately menacing to civilized society.* *

We're off to see the Wizard: Real estate in South Bangalore

We’re off to see the Wizard: Real estate in South Bangalore

Why are these ancient laws still there? Because they’re useful. They put a good-streetkeeping seal of approval on social cleansing. In a place like Bangalore — South Asia’s Silicon Valley, model megalopolis of local neoliberalism — they prod the police to scrub thoroughfares into hygenic shopping malls, purify the sidewalks of the impudent and unclean, punish those who dare to be poor, set up a gated, rich, and renovated environment. Brilliant Bangalore, city and symbol, embodies “India shining” — the slogan coined by the right-wing BJP ten years ago and trumpeted by neoliberal icon Narendra Modi in his triumphant election campaign this year. For the rich and tech-savvy, Bangalore will be paradise and Paris, Manhattan and Mahagonny. For the homeless, sex workers, migrants, hijras, it’s the Beggars Colony. Bertolt Brecht, exiled in Los Angeles in the 1940s, wrote:

The village of Hollywood was planned according to the notion
People in these parts have of heaven. In these parts
They have come to the conclusion that God
Requiring a heaven and a hell, didn’t need to
Plan two establishments but
Just the one: heaven. It
Serves the unprosperous, unsuccessful
As hell.

In late October, the Karnataka High Court demanded that the government make Bangalore (in a newspaper’s words) a “beggar-free city.”Justice Ram Mohan Reddy thundered: “Every day, I have to pay a beggar on the street. … Remove them from all public places. You should have removed every beggar from the street by now. I am fed up.”

Shining India, to be built in Bangalore: A new development. Apartments here range from 5-10 million rupees (US $80-160K). The average yearly wage in Bangalore is 60K rupees ($1000)

Shining India, to be built in Bangalore: A new development. Apartments here range in price from 5-10 million rupees (US $80-160K). The average yearly wage in Bangalore is 60K rupees ($1000)

There’s a lesson in all this. If society stigmatizes a class of people as comprehensively undesirable, getting rid of just one law won’t solve their situation. If Section 377 is scrapped, the police have other penalties at their disposal. There are plenty of provisions to target “deviant” identities and public conduct; though buggery may be out of style, beggary is forever. (Even a landmark Supreme Court of India ruling this year recognizing transgender people’s constitutional equality — discussed here and here, with a more skeptical view here — hasn’t removed the arrows from the cops’ quiver. Supposedly “neutral” laws outlast a formal ban on discrimination.) Moreover, a legal change that salves abuses against some members of the class may leave many others in the lurch. Gay activists worldwide are right to rejoice at the repeal of sodomy laws; yet does this mean real “decriminalization” for all people in their communities? Not in India. The beggary codes, a stringent law on sex work (or the “Suppression of Immoral Traffic”), and punishments for “public indecency” ensure hijras will be criminals long after 377 is gone — along with lots of poorer gays and lesbians who don’t have safe indoor space to be sexual. Not in the US, either. Lawrence v. Texas was liberating; marriage is coming down the pike; but gay men still endure jail and blackmail under solicitation laws, and anti-prostitution measures make merely walking while trans a crime. Too many naive advocates speak of LGBT “decriminalization” as though the laws still constraining L, and the T, and much of the B and G, didn’t exist — or didn’t matter. That’s not just ignorance. It’s indifference to human lives.

Police power I: Bangalore police command the streets during an India-Pakistan cricket match, 2012

Police power I: Bangalore police command the streets during an India-Pakistan cricket match, 2012

Hundreds of millions of people in supposed democracies live, in practice, under dictatorships. States of emergency follow them wherever they walk. Race, poverty, the way you look or what you do with your body can all deprive you of due process, brand you an outlaw, strip down your citizenship — no less than a military coup can. (It may be no coincidence that Karnataka’s beggary law dates from 1975, the year that Indira Gandhi’s Emergency exposed all Indians to similar arbitrary, repressive rule.) Sex workers know this, and hijras, and many more. I’ll venture one broad comment on the Bangalore story — and I think some Indian activists might agree, based on old conversations I recall. Liberation for Karnataka’s hijras won’t come from changing 377 or the beggary law alone. It would require overthrowing a system of police power that confines some people to permanent criminality. And it would require overturning an economy of patriarchy, hierarchy, and stigma that relegates some people to permanent social exile. What Ambrose Pinto wrote of Bangalore’s beggars is likely true of migrants, and sex workers, and hijras too: “The city hates the beggars and refuses them human treatment. As far as the State is concerned, they are no citizens.”

Those are massive and insuperable tasks, but the world is full of similar ones. “Ferguson,” in recent months, has become a name for a massive, seemingly immovable accumulation of injustice. Two days ago a grand jury refused to indict the cop who gunned down an unarmed black man. Talk of police and citizenship these days inevitably brings the name to mind.

Police power II: Police force protesters off the streets of Ferguson, Missouri, August 11, 2014. Photo by Scott Olson/Getty

Police power II: Police force protesters off the streets of Ferguson, Missouri, August 11, 2014. Photo by Scott Olson/Getty

As with our old sodomy laws (carried to America with British colonists), India’s beggary laws have cousins in the United States. Harsh laws against vagrancy spread almost immediately after slavery ended. “Nine southern states adopted” them, Michelle Alexander writes, and “made it a criminal offense not to work”– “applied selectively to blacks”:

Prisoners were forced to work for little or no pay. One vagrancy act specifically provided that “all free negroes and mulattoes over the age of eighteen” must have written proof of a job at the beginning of every year. Those found with no lawful employment were deemed vagrants and convicted. Clearly the purpose of the black codes and the vagrancy laws in particular was to establish another system of forced labor.

The Black Codes intended to reincarnate slavery; they were mostly overturned. Vagrancy laws returned in other forms, though. They exist everywhere in the US today. As in colonial societies, they were never meant to punish crimes so much as to control a racially subordinated population. They remain part of a vastly larger legal edifice circumscribing movement, criminalizing solidarity, denying due process to a subject class: they still bolster what Alexander calls the new Jim Crow, as they supported the old one. This is a thread linking Bangalore and Ferguson.

Pollice with armored personnel carriers fire tear gas at protesters, Ferguson, Missouri, August 17, 2014. Photo: Roberto Rodriguez/EPA

Pollice with armored personnel carriers fire tear gas at protesters, Ferguson, Missouri, August 17, 2014. Photo: Roberto Rodriguez/EPA

That edifice is huge. To face the whole of it is to feel your helplessness. Eliminating one detail or another might be emollient in a mild way but seems hardly able to shake the structure. The police power that keeps part of the population powerless is a technological, ideological behemoth; it survives any of the particular laws it claims to carry out. The racism it enforces is the deep fact of American life. Its strength comes from being protean as well as profound, at once obvious to its victims and invisible to the people who act it out. (One poll last week showed that only 37% of white Americans think Ferguson raised important issues about race. 80% of African-Americans thought so.) Those who propose remedies end up talking in the problem’s terms. The American system sustains itself by criminalizing people; built into its version of justice is the belief that you can right any wrong by criminalizing still more people. Prosecuting a killer cop would fix little or nothing. The problem is that not prosecuting him nods affirmingly at the racism, and tells the police to go kill some more.

None of that’s a secret. It’s a form of what radicals have probably felt every century, facing interlocked, impenetrable systems of domination. Any single change looks paltry, palliative, impotent against the totality. Where can anybody start?

Don’t look at me. But I did feel some glimmering hope — improbably — reading an article by left-wing lawyer David Cole about the American carceral state. As most Americans don’t know, the United States has highest rate of imprisonment in the world. Its Gulag is overwhelmingly racial. (The percentage of African-Americans in prison is more than three times the rate of incarceration of the general population in any country worldwide.) What hides behind penitentiary walls is, of course, the other side of that overwhelming police power felt on open streets in Ferguson. The power imprisons those it doesn’t kill.

Graph from http://www.prisonpolicy.org/graphs/raceinc.html; by Peter Wagner, 2012.

Graph from http://www.prisonpolicy.org/graphs/raceinc.html; by Peter Wagner, 2012.

Where can the work of unlocking the prisons begin? Politicians are lockjawed, parties deadlocked, courts looking “not to lead but to follow.” But Cole concludes:

Mass incarceration is one of the most harmful practices we as a society have ever adopted … If mass incarceration is to end, it won’t be because courts declare it unconstitutional. It will instead require the public to come to understand … that our policies are inefficient, wasteful, and counterproductive. And it will require us to admit … that our approach to criminal law is cruel and inhumane.

Here’s the rub, though. A transvaluation of values like that doesn’t happen by voluntary osmosis. The public doesn’t placidly persuade itself that what it thought was right is profligate or immoral, that what it thought was protection is devastation and sheer waste. In all of history, such a change has only come from a single starting point: when the disposable themselves stood up and said: We are not waste material. It’s only happened because the trash refused to be taken out, when the victims of inhumanity shouted: We are human. Such a consciousness negates the negations that neoliberalism or militarism beget, sweeps away the sterile detritus of all the reigning denials. In breaching existing reality, it is intrinsically violent; in annulling the intolerable, it affirms itself, and life. That is the definition of a revolutionary act. I don’t know whether it is possible anymore. The air is thin these days, and shouts don’t carry; the walls loom close, and scrape the skin. If it is possible, Bangalore and Ferguson are places it could begin.

Hijras at Bangalore Pride march, 2008

Hijras at Bangalore Pride march, 2008

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* NOTE: The text on how “eunuchs” appeared in colonial India’s Criminal Tribes Act has been corrected above. The original text read: “In 1897 the colonial rulers amended the Criminal Tribes Act to add “eunuchs” as a group (defining them as ‘all members of the male sex who admit themselves, or upon medical inspection clearly appear, to be impotent’).” I revised the text after Mario da Penha kindly pointed out that eunuchs were already listed in the original law; the revision reflects the research (at the hyperlinks) of Arvind Narrain and Siddharth Narrain.

10 thoughts on “Buggery and beggary, and Ferguson

  1. So true, this. Apart from Beggary, there are also state-specific acts such as the Karnataka Police Act (36A “power to regulate eunuchs”) and Hyderabad Eunuchs Act, both derived from the Criminal Tribes Act, and the national Public Nuisance Act (IPC 268), that are routinely used to round up, harass and exploit hijras and other trans* and gender-queer people.

  2. Pingback: » Ajam’s Juma Reading List #19 Ajam Media Collective

  3. Pingback: Hundreds of Hijras rounded up after Bangalore's first pride parade | Planet Transgender

  4. It’s disgusting what’s happening and this article does a good job but really? “Born males”? You should have done a little more research in order to find out that the correct, non-transphobic phrasing is “assigned male at birth.” People are not born a gender. They are born a baby. We assign gender based on genitals.

    • I thought there was a difference between biological sex (of which intersexed is also included) and gender, gender indentity and societal gender norms. I agree “assigned male” could have been used but I don’t know if that automatically makes the original sentence transphobic, especially given the context of the entire article.

  5. Hi Scott, is there a way we can get in touch with you personally. Keen to get in touch with some of your sources on the implementation of the anti-beggary law in Karnataka. Looking forward to hearing from you.

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