PERFORMING CONTEMPT
Danish Sheikh
Over a period of six weeks across February to March 2012, a two-judge bench of the highest appellate Court of India heard arguments on the constitutional validity of Section 377 of the Indian Penal Code. The law criminalized “carnal intercourse against the order of nature” and had been used to persecute and prosecute LGBT individuals since its inception in the colonial penal code back in 1860. In December 2013, the Court held that the law was constitutional even if it possibly led to violence and harassment. LGBT individuals, the judges maintained, ultimately constituted a “minuscule minority” even if their “so-called rights” were affected. The numbers simply weren’t enough to justify the striking down of a central legislation.
In 2017, I wrote a play titled Contempt that edited exchanges from the transcripts of the Court hearings in 2012, and juxtaposed those alongside a series of accounts from the lives of queer Indians. The latter accounts all had their basis in real-life narratives, but in most cases, I used those stories as guiding frameworks to weave an imagined account. In the world of the play, these narratives are delivered by characters referred to as witnesses and given the label of affidavits.
Contempt was performed at three different kinds of venues: first, performances within university spaces (largely law schools,) which were all directed by me. Second, performances at larger theatre spaces, in particular, an extended nine-show site-specific run in Delhi, put together by seasoned practitioners of theatre (I did not, at that point, think of myself as a theatre practitioner, self-identifying instead as a lawyer-who-did-plays). Finally, there were rehearsed readings, some in university spaces, some at theatre venues, and in one case, inside a library.
In this piece, I’d like to explore a set of questions that emerge from the staging of two of these productions. The first— a version of the play directed by me at Ashoka University in Sonipat on the 8th of February, 2018, which I’ll refer to as the Ashoka production. The stage design, as indicated in the image below, featured a series of empty chairs on a stage that were initially only occupied by the lawyer and the judges. These chairs were gradually filled up by the witnesses as they appeared with their respective affidavits. A screen at the back featured projections at different points in the play. The audience was seated partly on the ground and partly on chairs— all to one side of the stage.
Contempt at Ashoka University | Photo: Keren Sam
The second production I focus on is the site-specific run in Delhi at the start of June 2018. Staged at the Oddbird Theatre in Delhi, the production was put together by a collaborative team that included Anirudh Nair, Amba-Suhasini Jhala, Deepa Dharmadhikari, Santana Issar and Oroon Das. The team was collectively credited as designers of the play. Within the group, responsibilities were roughly split along the lines of direction, set design, lighting, and film projection. I was cast as an actor in this production, and remained largely uninvolved in questions of direction and staging. Audiences were seated on both sides of a set of four collapsible sheer-muslin frames which doubled up as projection screens during the affidavit sequences. I’ll refer to this as the Oddbird production.
In this essay, I look at how three ideas travel across these productions. Each of these elements was treated fairly distinctly when filtered through my vision in the Ashoka production versus that of the collaborative team in the Oddbird production. My initial inclination was to assume that the changes that took place were attributable to the fact that I was a novice, whereas the Oddbird team were longtime practitioners of theatre. I will hold on to this thought, but instead of a clear-cut value judgment which places my sensibilities and what they produced on a lesser plane to that of the Oddbird team, I’ll ask a different question.
Contempt in 2018 | Photo: Oddbird Theatre
My hypothesis is that the differences in our respective productions emerged from different notions of responsibility. I walked into the theatrical space holding on to my identity as an activist-lawyer and the play became a conduit for me to conduct my practice of the law. I was speaking to an audience that I imagined shared an investment in questions about how to engage with the law. For the Oddbird team, on the other hand, the artistic choices that were made emerged from a performance practice that was informed by a set of aesthetic-political sensibilities, which didn’t necessarily overlap with legal ones, and where the intended audience was a larger community of theatre-goers.
I. “Carnal Intercourse Against the Order of Nature”
In the text of Suresh Kumar Koushal v. Naz Foundation, the phrase “carnal intercourse against the order of nature” features twenty-one times while “carnal intercourse” on its own clocks forty-one mentions. Justice Singhvi gives us a detailed account of the evolution of the term across English common law through to its interpretation by appellate courts in India. At the end, he concludes that it is impossible to cull out an objective test to classify the acts covered under the Section. He does emphasise that the law doesn’t criminalize a particular identity, that it “merely identifies certain acts which if committed would constitute an offence”. As a matter of constitutional law, this becomes significant when the Court holds that since the harassment and violence faced by LGBT individuals is incidental to the law, it does not constitute valid grounds to be struck down.
It is possible to read the judgment and walk away thinking the judges might have been faced with a real quandary, that they might have struggled with a difficult question and reluctantly ruled in the manner that they did (a bit of a stretch, this reading, but a definite possibility at any rate). However, the hearings themselves made it rather clear that the difficulty the judges were pointing to did not, in fact, exist. What had transpired within the walls of the courtroom instead was a scenario
where a team of lawyers presented a range of materials: affidavits from affected individuals, mental health professionals, parents of LGBT persons; research reports; government data and arguments drawn from canonical constitutional law cases from the Court. At every step of the way, instead of engaging at length with the material, the judges chose to deflect the arguments by turning to the text of the statute. The lawyer in the play (and the lawyers in Court) identifies early on that the wording of the statute is intentionally vague, that Lord Macaulay’s draftsmanship indicates a fear of inciting public discourse about a prohibited subject even as historical materials and later interpretation are clear on what this prohibited subject was.
But the judges would deflect, and they would deflect by a constant recourse to the words “carnal intercourse against the order of nature”.
In my vision of the play, the words were the focal point. The courtroom scenes were staged with a complete lack of ambient light, the sole spot focused on the lawyer. The wall behind the courtroom doubled up as a projection screen. Every time the judges mentioned any combination of the words “carnal”, “intercourse” or “order of nature”, the words would project onto the screen. By the end of the play, the lawyer is ensconced in a web of words. Meanwhile, the judges themselves were placed behind the lawyer, only the silhouette of their backs visible to the audience.
Contempt, photos courtesy Danish Shaikh
Both these choices attempted to recreate the affect of inhabiting the courtroom in those weeks, to capture the powerlessness and frustration of the constant gap between what the judges were given and what they would churn out. Watching the words manifest and getting a sense of the frequency of their deployment was my attempt at communicating the ways in which a certain use of legality had deflected engagement with the testimonies and assorted constitutional law arguments placed before the Court. The fact that the judges were physically turned away from the lawyer, the witnesses and the audience was in service of amplifying their refusal to engage.
When Contempt moved to Oddbird, both these elements – the projections and the placement of judges – were removed. It wasn’t that projections weren’t technically possible here; rather, the directorial team wanted to play on the progression of the courtroom scenes in a different manner, representing the lawyer’s confinement in a more figurative way. This is where the collapsible frames came into play. The lawyer was placed within the frames, arranged in the corridor-like manner below, at first.
Photo: Oddbird Theatre
In the second courtroom scene, the frames were moved to create a square that hewed closer around the lawyer.
Photo: Oddbird Theatre
The square then collapsed into a much tighter corridor than the one that opened the play by the third scene.
Photo: Oddbird Theatre
The judges meanwhile were positioned on different sides of the room on raised platforms, so that the lawyer had to turn a hundred and eighty degrees each time he switched from addressing one of them.
The tightening frames were a correlative to the word-web, but without the words themselves. The effect served to bring a level of attention to the physicality of the lawyer, a certain emphasis on him as a character that the Ashoka production did not invest in. This same choice however took away from the point about the tangles of legal discourse that the lawyer finds himself having to wade through— here, our focus was more on the lawyer’s predicament and less on the legal discourse that puts him in this place. As for the positioning of the judges, this was in service of a dramaturgy of heightening momentum, to add a kind of velocity to the legal proceedings. This was a sharp contrast to my efforts at distancing the judges from the action: they were front and centre in this case.
The Oddbird team’s responsibility here was tied to a vision of the play that would possibly stimulate the audience in a particular way— the fact that this vision did not necessarily reflect a legal argument rooted in the reality of the litigation did not hold sway for the team. For my vision, however, it was the point. I was performing a critique of the judgment where my investment was in bringing the audience as close as possible to what it meant to be in the courtroom, and to understand what the judges had done and how they had done it.
II. The Kiss
For most of its run, the play ended with a kiss between the lawyer, who remains on stage for most of the performance, and the character titled Witness 1 who opens the play and then returns for its conclusion. The scripting of the kiss and the fact of its staging were crucial to my vision of the play, that it focus not merely on the violence of the law but on small acts of resistance where people fight back to reclaim their autonomy. The kiss in this instance would represent an affirmation of the way in which queer people were continuing to live their lives in the shadow of the law.
To explain the way in which my staging of the kiss in the Ashoka production played out differently from the Oddbird production, I’ll take note of the different ways in which the space of the stage was populated in both versions. In my staging, the witnesses occupied the stage one after the other for their successive monologues, so that by the time Witness 1 returned for the conclusion, the stage also held all the other witnesses. In the Oddbird version, a witness would enter the stage for their affidavit, and then exit, so that when Witness 1 returned towards the end, it was to a stage shorn of the other witnesses.
As per my script, the Witness 1 character re-enters the stage to inform us that he will be telling us about a night in 2012 that “changed everything”, and goes on to describe a moment where he is seated on a rooftop, getting intoxicated with a group of other people and talking about love. Directly across from him is a man he refers to as his own personal tormentor, his love object who has so far denied him. On this night, however, things are going to play out differently. As Witness 1 continues to narrate the story, the lawyer jumps into the narration, they start to trade lines about how they stand before a set of elevator doors, alone, the others having left.
At this point, the Ashoka production, in line with the script, proceeds with having each of the other witnesses on stage step in to continue the story— a detailed account of the little movements that lead up to a kiss in the elevator between these two characters. This account goes on for a few minutes, closing with Witness 1 and the lawyer simply looking at each other. As the stage lights grow dim, a projection at the back reads out the operative text from the Suresh Kumar Koushal decision. Simultaneously, a piece of music begins to play, an upbeat, hopeful violin strain, and the lawyer and Witness 1 begin to walk to each other, finally kissing, lit up by the screen behind them which shifts to showing images from a range of different protests reacting to the decision.
Contempt at Ashoka University | Photo: Keren Sam
In the Oddbird production, as the Witness 1 character proceeds with his narrative, the lawyer jumps in, similar to the Ashoka production. At this point, the spoken-word narration ends; the remainder of the scene is performed purely through bodily movement and stage design. A square of light designates the elevator, we hear the sounds of the doors closing and opening, and the lift moving. As the two characters move closer to each other, they are interrupted by the witnesses, who have re-entered at the peripheries of the stage. The witnesses speak out the operative words of the judgment. The lawyer and witness stay still, then proceed to look at each other as the lights fade all around them. They kiss, illuminated by a single spot of light. The stage goes dark.
This staging departed in two significant elements from my vision. First, the kiss was not a shared moment between the two characters and the other witnesses. Second, and related closely to this point, the centrality of the kiss to the play’s narrative receded.
Through the course of the play, we’ve been subject to the judges prying apart the intimate lives of queer persons, reducing any question of intimacy to a varying catalogue of sexual acts. This moment flips the narrative by allowing the queer characters to take over this description, to describe an intimate act in minute detail. What we are hearing the characters describe is ultimately what the judges would probably refer to as another possible iteration of “carnal intercourse against the order of nature”. And yet, where the past recounting was base and dehumanising, this one signals tenderness; it cuts past what the judges would constantly obfuscate, and tries to forge a link between sex and love – towards eros. Through bringing the other characters into the narrative, it also draws the larger community into the story of these two men.
This last element is something I tried to highlight with the images of the protestors behind the characters as well. The idea here was to think about the political nature of this act of love, to place it in conversation with the agitations against the Court’s decision and to gesture at a vision of love that wasn’t necessarily antinomian— that is, that even as this act was opposed to the prevalent legal order, it was part of a constellation of resistance to the same law that constituted an alternate nomos.
The Oddbird version on the other hand closed with this image to the right. Gone are the other witnesses, the images of protest, the space of the world. Darkness all around, the lovers focused within the sole point of light. The lovers constitute their own world here; everything else has fallen apart. The moment registers in a more visceral manner. However, in drawing us into the exceptionality and singularity of this encounter and walling it off from the world of the play, I wondered if the Oddbird version altered the argument I was making as well. In both versions, we’d staged a dissenting act, it was true. But what did it mean to place that act in conversation with other figures on stage and other representations of protest versus placing it as a stand-alone moment?
Contempt in 2018| Photo: Oddbird Theatre
III. The Affidavits
One of the most widely criticized elements of the Suresh Kumar Koushal decision was its invocation of a kind of de minimis rule to justify its holding. Justice Singhvi noted that “a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders” and that over the past 150 odd years, “less than 200 persons have been prosecuted for committing offence under Section 377”. Considering both these points, he found that there wasn’t a sound basis for declaring Section 377 unconstitutional.
The obvious answer to this point is that it misunderstands the nature of constitutional rights violations and the process of judicial review, that one of the reasons constitutional courts present themselves as counter-majoritarian institutions (and this has been true of the Indian Supreme Court) is to resist the implication that the harms faced by a few are less significant than the harms faced by many. But then, this was an argument that was indeed made before the Court and one which it rejected anyway. The response to this for a fresh legal battle might be to change the way the numbers were tracked, to present empirical data before the Court that told a story about the more widespread and diffuse invocation of the law against LGBT persons. Then there was another possibility— what if the manner in which these limited stories were presented before the Court could be altered? What could a set of arguments that emphasized depth over breadth look like?
Affidavits are the route through which lawyers bring stories before the Court. The problem with these stories is the form in which they are often presented. In my final year of law school, as the briefs for the case were being prepared, a lawyer I’d interned with reached out to me. He was working on putting together affidavits for this case and wanted to see if I could contribute one drawing on my experiences. I was quite happy to do this, and spent the next week putting together a narrative that explored the ways in which the law had affected my life directly and indirectly. He reviewed the document and mailed it back to me with significant changes— it was, it seemed, too literary, too poetic. The stories of harassment had to be presented much more obviously, the harm had to come through more prominently, and I couldn’t digress from the point.
But perhaps the point is lost without the digressions?
Of the audiences I was speaking to with Contempt, the one that was most squarely in my mind was current and soon-to-be legal practitioners. I wanted to think through, with this group, the ways in which we might take a measure of responsibility as a community that works with the law, for what happened in this particular courtroom. Could we deepen the accounts we brought before the court, and what would these stories look like?
The affidavits in Contempt were my attempt at intervening in this conversation. Thus each of the stories in the play, presented in the form of monologues, drew on real-life incidents that I’d then fleshed out. The story of Swapna and Sucheta, lovers who committed suicide together when it became impossible to resist their families, might be narrated in the terms of just this sentence. Or, it could be a larger narrative about love that emerges in the unlikeliest of spaces, that tries to repeatedly defy until it chooses at last to extinguish itself on its own terms.
The manner in which these sequences were staged involved each witness entering the space of the courtroom, illuminated distinctly from, and standing next to, the lawyer; delivering the monologue to the audience and taking a seat within the courtroom space at the end of their story.
Contempt | Photo: CutShots Photography
The Oddbird production undertook a major reworking of this element. The witness sequences used the frames that had been placed between the audiences as a projection screen. A mix of images and sound played on these screens. In the case of a lesbian woman who is taken to a psychiatrist by her parents, the first half of the story was told in recording supplemented by a series of images representing queerness in popular culture through the ages. A cheerful melody played in the background as the frames – at this point positioned as a square box – exploded with colour. The witness emerged at the halfway point to finish the narrative which involves a confrontation with the psychiatrist, played by the judges in succession.
Photos: Oddbird Theatre
In the Swapna-Sucheta story, the witness doesn’t ever take the stage. Instead, the recorded voices of two women play out against a backdrop of fleeting urban imagery: clotheslines, locked doors, bare walls. In both these instances, the space of the courtroom disappears almost completely as we enter these other worlds.
I watched these sequences entranced by the interplay of light and sound, even as I wondered how it changed the way the audience would perceive these moments. Would this departure from the world of the courtroom, this entry into a world of more abstract imagery, mean that the initial idea of how we bring a narrative into the courtroom might stand diluted? Was this service to the aesthetic experience of the play at odds with the play’s argument?
And so I return to the question I began with: is it possible that the difference in these approaches came from a difference in what we envisioned our responsibility to be, in what we thought we were practising when we were practising theatre? Through my choice of word-projections and the placement of the judges, I was conducting a form of legal critique that harkened to the experience of being in the courtroom; through my staging of the kiss, I was conducting a form of protest that attempted to position love as an explicitly political idea; through the use of affidavits as a device, I was staging a conversation with a community of legal practitioners. Conversely, the Oddbird team’s own commitments spoke to a vision that was more rooted in questions of the aesthetic experience, one that, while informed by questions of the political (not necessarily legal) was guided by an allegiance to crafting what could be an immersive theatrical experience.
Editor’s note: The Suresh Kumar Koushal decision was finally overturned by the Supreme Court in September 2018.
As a practitioner of law and theatre, Danish Sheikh explores the intersections between the two spaces, asking questions around how one might use the theatrical space to think more creatively about the legal regulation of sexuality. He is currently a PhD scholar at the University of Melbourne.