The Freedom Of Trade And Rainbow Capitalism: What In India?

Introduction

When June arrives and Pride month begins, our 2SLGBT+ relatives are faced with a similar reality that involves yet another intersection of appropriation: profit-driven “allyship” and erasure with the appropriation of the rainbow flag. Corporations and small businesses alike, in the name of solidarity, use the rainbow flag to paint the landscape with everything from products to dedicated store sections, altered logo colours, advertisements, and social media campaigns. This practise is known as rainbow capitalism.

It is generally disputed that, similar to the appropriation of Indigenous cultures, the 2SLGBTQ+ community as a whole benefits next to nothing from the marketing of the rainbow flag and queer culture, nor does it alleviate the violence that is persistently directed at these people. The majority of the time, these businesses utterly miss the opportunity to explain how Pride began as a liberation-focused act of resistance organised by Black and Brown Queers. These same businesses, however, gain from the queer movement.

This article explores the issues associated with commercialization of products and services during the pride month, and its analysis vis-à-vis the impacts they generate.

Sexual Liberation, Politics and Corporatization of Pride

Existing Issues

Some contend that capitalist society has not acknowledged all physically different individuals similarly and a more prominent social resilience exists on the off chance that LGBTQ individuals have more noteworthy admittance to assets, binds conversations of sexual personality to conversations of orientation, identity, capacity and social class. Numerous critics keep up with that main gay, cisgender, Western, capable, white, metropolitan and center or privileged men will generally be acknowledged into the social setting of utilization. This system might advance a homogeneous and heteronormative ideal of the gay man, who has a specific marvel, a solid and hyper-sexualized body, manly way of behaving, vocation achievement and a particular buying power, laying out which bodies are alluring and which are not and minimizing those don’t fit this stylish model, even from the gay local area itself.

The accomplishment of “symbolic rights” for the community is exploited to justifiably benefit from celebrations of sexual identity today. The LGBTQ+ movement is increasingly being leveraged for political and commercial goals. Pink capitalism may also be seen in the necessity that LGBTQ+ rights be protected in order to provide help to underdeveloped nations and the use of LGBTQ+ equality to bolster nationalistic and anti-immigration agendas. The LGBTQ+ community, which has historically been dubious of governments, has grown more in favour of homonationalism.

Neoliberal governmentality uses homonationalism and rainbow capitalism as instruments. It has been argued, drawing on Foucauldian understandings of biopower, that inclusive and intersectional liberatory initiatives are constrained and suppressed by envisioning the neoliberal state as a supplier and gatekeeper of sexual freedom. Neoliberalized sexual politics, according to academics, serve to reify existing uneven power dynamics. This viewpoint also acknowledges and criticises how cisgender-ness and whiteness are valued more highly in neoliberal and Western societies at the detriment of trans and non-white LGBTQ+ people.

Ads in no place mention caste, and neither do corporate policies take any steps to combat caste and profit from it. Caste inclusiveness has been conspicuously absent in gay communities.

Legal considerations vis-à-vis Article 19(1)(g)

It is important to remember that a person should select a career or business based on his or her own abilities, interests, and skills in order to not only help him stand out in a market that is full of constant competition and comparison, but also to help him become financially superior to the majority of people in society. His involvement in a job or career helps him stay current, attentive, and educated about the numerous events and occurrences across the world. Without a doubt, it also gives him the knowledge he needs to manage daily challenges, which in turn boosts his confidence and inspires him to keep developing and raise the quantity and quality of his work.

Therefore, taking into account the necessity and significance of employment, Article 19(1)(g) of the Indian Constitution guarantees to all citizens the basic right to practise any profession or to engage in any occupation, trade, or business. This right strives to promote the welfare and security of both the individual people and the country. According to this article, every person has the freedom to engage in any employment, trade, or activity of his or her choosing, but under Article 19(2), the State also has the authority to impose reasonable restrictions on the above mentioned right it. Article 19(1)(g) doesn’t ensure a syndication to any person to continue any occupation. The option to carry on a business likewise incorporates the option to close it, whenever relying on the craving of the proprietor. The State can’t constrain any resident to maintain a business which is despite his desire to the contrary. However, as no right is outright, the option to close a business is likewise not a flat out right. It is something which the State has the option to control by regulation for the government assistance of general society. The option to shut down a business can’t be compared with the right not to begin and carry on a business. On the off chance that an individual doesn’t wish or try and plan to begin any sort of business, he can’t be compressed to begin one; it is totally up to his watchfulness. In any case, in the event that an individual is engaged with some business, he can be constrained by the State to shut it down, for the worry of the overall population.

The constitution grants this privilege to all of its citizens, but this does not mean that they can engage in any employment or operate a company that is against social customs and rituals. He must be aware of the consequences, if his job in any way violates the morals and norms that are upheld in society as a whole. He must abide by a set of rules of behaviour when conducting any form of business or engaging in a certain vocation. It is crucial to ensure that someone else is not put in danger, which might lead to the violation of public order, while exercising this basic right for his own gain and personal good. He must be careful not to engage in any actions that might lead to social discontent or war. If not, the State will intervene in the person’s basic right and take the appropriate actions and measures to stop the immoral and criminal activities he is engaging in, in order to avoid any additional trouble and to maintain public safety.  

Amidst the stir created owing to unreasonable pricing of products during the pride month by bigger brands, coupled with exclusive sale of pride related products during the month, questions arise with regard to integrity of business in furtherance of motivated sale for consumer traction and a form of nudging created to increase brand value.

In light of the same, while one might contend from a constitutional perspective that it stands to be perfectly permissible for such sale in light of the nature of freedom enlisted in the aforementioned section, the standard of reasonable restrictions in this regard has to be implored.

In consideration of public order and morality, the Supreme Court of India, in Luxmi Khandsari v. State of Uttar Pradesh, Bombay Hawkers Union v. Bombay Municipal Corporation, and State of Kerala v. Joseph Antony has respectively held that restrictions can be imposed to curtail unreasonable pricing in comparison to products of such nature sold usually or by other competitors, unfettered issuance of license for exclusive sale of specific products, and sale of life and identity endangering products.

In consideration of the aforementioned precedents, it can be opined that in as much as businesses can be permitted to be carried on with allowance for sale of pride based products during the month, exclusive sale of the same, charging of unreasonable prices from consumers intending to extend genuine support to the movement, or defeating the purpose of the pride month by its commercialisation and commodification would call for state interference. In pursuance of state interference, there would be a systematic regulation of sale of pride products to enhance and add value to the purpose of the pride movement, and not otherwise.

(This is an editorial column authored by Tejas Hinder, a 5th-year law student at National Law Institute University, Bhopal. )

CITE AS: Tejas Hinder, The Freedom of Trade and Rainbow Capitalism: What in India?‘ (The Contemporary Law Forum, 1 July 2022) <https://tclf.in/2022/07/01/the-freedom-of-trade-and-rainbow-capitalism-what-in-india/> date of access.

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