ACADEMIA Letters

An exploration of the contemporary relevance of the ideas

of ’consent’ and ’civil society’ found in the social contract
theories of Thomas Hobbes and John Locke by
considering the ongoing struggle for equality and
acceptance by the LGBTQ+ community in India
Kanav Narayan Sahgal

Thomas Hobbes (1651) and John Locke’s (1689) understanding of ‘consent’ and ‘civil soci-
ety’ are at the bedrock of social contract theory and provide novel insights into the citizen’s
byzantine relationship with the state. In this essay, I look at the Indian LGBTQ+ commu-
nity’s1 contemporary fight for equality and acceptance to both problematize the Hobbesian
and Lockean understanding of ‘consent’ and ‘civil society’ and shed light on how these con-
cepts are relevant in India today.
Hobbes’ conception of the state of nature was mildly pessimistic at best and harrowingly
dystopian at worst. A nonbeliever of man’s ability to self-govern, life in the state of nature
was ‘solitary, poor, nasty, brutish, and short’. To escape this terrifying situation, and to secure
‘peace among mankind’, Hobbes proposed that every single person should consent to give up
part of their natural rights in favour of constituting an almighty, absolute and all-powerful
sovereign, who he calls The Leviathan. Civil society for Hobbes began with the formation of
this sovereign who wielded unquestionable authority over his or her subjects via a set of codi-
fied laws. While Hobbes may be criticized for sanctioning totalitarianism (a rightful reproval,
in my opinion), he does emphasise the necessity of receiving every single person’s consent to
1
LGBTQ+ stands for lesbian, gay, bisexual, transgender, queer/questioning and other identities, such as pan-
sexual, asexual, intersex etc. The umbrella term ‘queer’ is also sometimes used in place of LGBTQ+.

Academia Letters, August 2021 ©2021 by the author — Open Access — Distributed under CC BY 4.0

Corresponding Author: Kanav Narayan Sahgal, kanav.sahgal19_dev@apu.edu.in

Citation: Sahgal, K.N. (2021). An exploration of the contemporary relevance of the ideas of ’consent’ and ’civil
society’ found in the social contract theories of Thomas Hobbes and John Locke by considering the ongoing
struggle for equality and acceptance by the LGBTQ+ community in India. Academia Letters, Article 2808.
https://doi.org/10.20935/AL2808. 1
create the sovereign (even if this consent is predicated on fear). Through his treatise, Hobbes
also sets the foundation for the modern, secular state.
John Locke takes Hobbes’ social contract theory a few notches further by introducing
the ideas of constitutionalism, separation of powers, limited government and the defence of
private property, all of which are the bedrock of his theory. According to Locke, heteronor-
mative conjugal relations formed the genesis of society, in which patriarchs were both the
head of the family and exclusive owners of private property. Women and slaves did not con-
stitute civil society subjects according to Locke. Instead, the government came to exist only
when propertied patriarchs coalesced in defence of their natural rights of ‘life, liberty and es-
tate’. Only these propertied patriarchs’ consent was needed to form a government who would
not only protect the patriarchs’ natural rights but also avert a tyrannical state of lawlessness.
Whereas civil society existed at the end of the state of nature for Hobbes, it existed within
the state of nature for Locke, albeit with more layering in the form of separation of powers,
constitutionalism, limited government and private property rights. If we consider the idea of
consent, we find that Hobbes insisted on receiving every single person’s consent to constitute
the sovereign. Locke, however, only called for the consent of the propertied patriarchs. I will
now use these concepts to discuss the relationship between the Indian state and the LGBTQ+
community vis-à-vis the Hobbesian and Lockean ideas of ‘consent’ and ‘civil society’.
Social ostracization, humiliation, mental and physical violence and until recently, crimi-
nalization are part and parcel of the queer experience in India. In 2014, the Supreme Court
of India recognized the ‘third gender’ as a legally and politically valid constitution of gender
and in 2018, overturned a previous ruling that criminalized homosexuality in India.2 By ap-
plying the Hobbesian perspective, we see that until fairly recently, Indian LGBTQ+ citizens
were politically living in a state of nature, where their very existence was dehumanized, dele-
gitimized, criminalized and pathologized. All of this, despite the presence of democratically
elected governments and a ‘civil society’. This raises the question of consent. If Hobbes
demanded the consent of every individual to create a civil society, how was the consent of
transgenders taken prior to April 15, 2014 (this was the date of the National Legal Services
Authority (NALSA) judgement)? Why were they not seen as subjects worthy of recognition
and self-identification as embodying a third gender from the very beginning of state forma-
tion? If their consent was taken, under what circumstances? Beyond decriminalization, gay
and lesbian people in India have little to no state-guaranteed civil rights. Thus, can consent
under the aegis of fear, marginality and criminality be deemed consent at all? Given the ruling
government’s disdain for advancing LGBTQ+ rights despite continual demands by activists,
2
See National Legal Services Authority v. Union of India (2014) and Navtej Singh Johar & Ors. v. Union of
India thr. Secretary Ministry of Law and Justice (2018).

Academia Letters, August 2021 ©2021 by the author — Open Access — Distributed under CC BY 4.0

Corresponding Author: Kanav Narayan Sahgal, kanav.sahgal19_dev@apu.edu.in

Citation: Sahgal, K.N. (2021). An exploration of the contemporary relevance of the ideas of ’consent’ and ’civil
society’ found in the social contract theories of Thomas Hobbes and John Locke by considering the ongoing
struggle for equality and acceptance by the LGBTQ+ community in India. Academia Letters, Article 2808.
https://doi.org/10.20935/AL2808. 2
we also see the absolutist nature of the sovereign assert itself in India’s so-called democratic
polity. The passage of the Transgender Bill 2019 despite massive pushback from transgender
activists is a great (and tragic) example of this unhinged absolutism.3
A Lockean reading tells us that the state’s refusal to see queer people as subjects wanting
of equal rights has put them in the same historic position as women and slaves were at one
point in time. Since property rights and marriage laws in India are hetero-patriarchal and pa-
trilineal in nature and considering the state’s refusal to see same-sex relationships as a valid
part of ‘conjugal society’, queer people’s consent to govern is de-facto excluded. Although
constitutionalism, limited government and the separation of powers have afforded queer peo-
ple some basic rights, one cannot say that the Indian state is committed to preserving queer
people’s right to life, liberty and estate. This fact is evidenced by the state’s exclusion of
same-sex couples from the Surrogacy Bill 20194 and the state’s abstention from the LGBTQ
rights vote in the United Nations (UN) last year (Mohan, 2019).
The uniqueness of the Indian LGBTQ+ experience lies in the fact that their political ex-
istence as both an individual and a community was until recently deemed illegitimate. By
creeping out of the fringes of marginality and slowly becoming more visible, queer existence
forces us to both appreciate their struggle and question the nature of consent obtained from
them to form a civil society in the first place. To live in a Lockean civil society constituted by
the majoritarian will of the few is indeed not very civil at all. Far from it, it is oppressive and
unjust.
To conclude, one could extend Carole Pateman’s (1988) argument in this regard and say
that the Hobbesian and Lockean social contract rest not just on a sexual contract, but on a
heteronormative sexual contract that both excludes the LGBTQ+ community and further stig-
matises their existence in India. In an impassioned defence for gay and lesbian rights, Martha
Nussbaum (1999) writes ‘discrimination against gay men and lesbians still seems to me irra-
tional and outrageous’ (p. 16). It is thus, imperative for Indian politicians and lawmakers alike
to heed Nussbaum’s words and accept that only when queer people are granted the freedom
to live and love in an atmosphere of safety, with full civil and political rights, can we truly say
that we live in a civil society premised on secular, liberal and democratic values as enshrined
in the Indian Constitution.
3
See the Transgender Persons (Protection Of Rights) Act, 2019.
4
See the Surrogacy (Regulation) Bill, 2019.

Academia Letters, August 2021 ©2021 by the author — Open Access — Distributed under CC BY 4.0

Corresponding Author: Kanav Narayan Sahgal, kanav.sahgal19_dev@apu.edu.in

Citation: Sahgal, K.N. (2021). An exploration of the contemporary relevance of the ideas of ’consent’ and ’civil
society’ found in the social contract theories of Thomas Hobbes and John Locke by considering the ongoing
struggle for equality and acceptance by the LGBTQ+ community in India. Academia Letters, Article 2808.
https://doi.org/10.20935/AL2808. 3
References
Hobbes, Thomas. (1651). “Of the Natural Condition of Mankind as Concerning their Felicity
and Misery”. Chapter X111, The Leviathan.

Locke, John. (1689). Two Treatises of Government. Book 2, Chapter VII and Chapter V111.

Mohan, Geeta. (2019, July 12). India abstains from voting for LGBTQ rights at UN Human
Rights Council. Retrieved February 9, 2020, from https://www.indiatoday.in/india/story/
india-united-nations-lgbtq-rights-1567935-2019-07-12

National Legal Services Authority (NALSA) v. Union of India AIR 2014 SC 1863.

Nussbaum, M. C. (1999). Sex & Social Justice (p. 16). Oxford University Press.

Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice Writ
Petition (Criminal) No. 76 Of 2016.

Pateman, Carole. (1988). The sexual contact. Stanford, Cal.: Stanford University Press.

Academia Letters, August 2021 ©2021 by the author — Open Access — Distributed under CC BY 4.0

Corresponding Author: Kanav Narayan Sahgal, kanav.sahgal19_dev@apu.edu.in

Citation: Sahgal, K.N. (2021). An exploration of the contemporary relevance of the ideas of ’consent’ and ’civil
society’ found in the social contract theories of Thomas Hobbes and John Locke by considering the ongoing
struggle for equality and acceptance by the LGBTQ+ community in India. Academia Letters, Article 2808.
https://doi.org/10.20935/AL2808. 4