One of the posters of the campaign against 377 carried the sentence in the title within quotes. Notwithstanding the fact that there may be ideological questions raised about whether there should at all be a sexual category called ‘straight’, I use this poster quotation in the literal meaning to indicate how meandering, complex and conflictual -as opposed to smooth, unidirectional, straight – a legal journey it has been . But I use it also in the symbolic meaning that the struggle for equality is for everyone, irrespective of one’s sexual orientation. One of the first impressions one gets after going through all the 98 pages of the SC judgment on S 377 (Suresh Kumar Koushal v Naz Foundation) is that this is a good text for teaching how not to write a judgment. A substantive part of the first section of the judgment goes back to the Delhi High Court judgment and gives long quotes from it. This seems unnecessary to the least and makes the reader wonder whether there is nothing really substantive for the Supreme Court to offer. The second section of the judgment details the arguments made by lawyers on the Special Leave Petition by Suresh Koushal, who claimed having a moral responsibility to protect cultural values of Indian society, interveners who made Interlocutory Applications and new petitioners who were not parties before the Delhi High Court. The final section of the judgment aims to prove that S 377 is not a violation of Article 14, 15 and 21 of the Indian Constitution. It asserts that S 377 does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court (in 2009) is legally unsustainable. It is this last section that the following part of the paper will focus on.
According to the Supreme Court, lesbians, gays, bisexuals and transgenders constitute a ‘miniscule fraction’ of the country’s population and in the last 150 years, less than 200 persons have been prosecuted under S 377. Therefore that cannot be a ‘sound basis’ to declare the section ultra vires of Constitutional provisions of 14, 15 and 21. Since when did the language of minority start to dominate the judiciary of a democratic nation-state? It’s only appropriate to quote Siddharth Narrain here, ‘Your Lordships say we are a miniscule minority. We say your role, as a guardian of the Constitution is to protect the rights of minorities, however itsy bitsy, teeny weeny, itty-bitty they may be’ (http://kafila.org/2013/12/16/size-does-matter-your-lordships-a-letter-to-the-supreme-court/). Agreeing that S 377 does not mandate the police to blackmail, harass or torture persons, especially those belonging to LGBT community, the Supreme Court however goes on to state that the ‘mere fact that it is misused by the police’ does not make the section ultra vires of Constitutional guarantees. The judgment says that ‘[f]rom the decided cases in India as well as in United States of America, the principle appears to be well settled that if a statutory provision is otherwise intra-vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra-vires or unconstitutional’. This is the reason why the learned court concluded that this section is not a violation of Art 14 of the constitution. Why is it so then that even if there are no clear numbers/data about the misuse of S 498 A by women, there are recommendations in court judgments as well as separate petitions to the Parliament to amend the section? Is there an implicit assumption that ‘misuse’ by women -is far more harmful than misuse by the police? Or is it that there are differential arguments because the former ‘misuse’ (if at all) challenges the ‘order’ of the patriarchal family; while in case of the the latter harassment meted out by the police is to maintain the ‘order’ of the hetero-normative patriarchy?
In continuing with the disrespect that the Supreme Court exemplified through the judgment to the LGBT community, it commented ‘in its anxiety to protect the so-called rights of LGBT persons….it (the High Court) has extensively relied upon the judgments of other jurisdictions’. When does the question of other jurisdictions become a problematic — only when it is about upholding the hetero-patriarchal casteist family norms? Otherwise in matters of labour laws, consumer lifestyles and projecting India as a global economic power the government as well as the judiciary have been enthusiastic to emphasize our modernity, progress, liberal spirit, open door economic policies and so on. Quoting from a 1974 Supreme Court judgment, this 2013 Supreme Court judgment makes a connection between the differences in marriage laws in different countries. The 1974 judgment stated that merely drawing legal principles from other jurisdictions (read cultures) may not be advisable; although if these are objective and rational, and applicable to the prevailing conditions of this country (India), it may be considered. ‘The family law in England has undergone a drastic change, recognised new social relationship between man and woman. In our country, however, even today a marriage is an arranged affair. We do not say that there are no exceptions to this practice or that there is no tendency, however imperceptible, for young persons to choose their own spouses, but even in such cases the consent of their parents is one of the desiderata which is sought for….While we should seek light from whatever source we can get, we should however guard against being blinded by it’. When it comes to family (of course hetero-normative); and marriage (primarily arranged, but today also love that is arranged, and rarely love between heterosexual adults) tradition surpasses choice, autonomy, dignity, privacy. If these are exercised by adults in same sex relationships the court terms it as ‘so-called rights’.
The last paragraph of the judgment bewilders the reader when it says ‘notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting S 377 from the statute book’. The surprise is related to the fact that the same Supreme Court in 1997 in Vishaka v State of Rajasthan was proactive in laying down the guidelines on sexual harassment of women at the workplace citing the need for International commitments of CEDAW and that the constitutional guarantees of Art 14, 15, 19 and 21 are violated if there is sexual harassment at the workplace. The Supreme Court had the view that ‘with the increasing awareness and emphasis on gender justice, there is increase in the effort to guard against such violations’. After sixteen years, the Supreme Court had the opportunity to make similar observations about the increasing awareness on same-sex relationships and transgender persons as well as the need to guard against the violations and discrimination faced by these people. However, instead of taking this route, the Supreme Court rather decided to go the Mathura judgment way. The Bombay High court had made a progressive judgment on Mathura rape case, making an interesting legal interpretation of ‘consent’ — between passive resistance and submission. The Supreme Court later in Tukaram v State of Maharashtra,1979 had not only overturned it by looking at consent in a narrow manner but connected consent with Mathura’s past sexual character. The Naz moment of the Indian judiciary is nearly similar to the Mathura moment. An Open Letter to the Lordships of the Supreme Court challenging the judgment followed at that time and the rest in some sense is history — marking the beginning of a new phase of women’s movement in India’s political landscape. In contrast with changing times, discourses, technologies, and media on this occasion there have been various letters, statements against the judgment from women’s organizations, gay, lesbian activists, transgender groups, political parties as well as individual politicians. The Government has already submitted a review petition to the Supreme Court mentioning that S 377 is a reflection of sodomy laws transplanted to India in 1860; they lack legal sanctity and are unlawful in view of Constitutional mandates of Articles 14, 15 and 21. This petition also pointed out that law by nature has to be dynamic rather than static. Finally, an interesting point, that ‘while law-making is the sole responsibility of the Parliament, it is the task of this Hon’ble Court to judge the constitutional validity of laws’. This is countering the Supreme Court’s claim that it is for the legislature to deliberate and delete S 377. Is this passing the buck and where will the buck stop?
To conclude there are three issues to reflect upon. Firstly, in many of these legal discussions issues surrounding lesbian women have not been fore-grounded. While one reason could be that S 377 targets gay sexuality directly; but the other reason could be the invisibilization of lesbian couples in spite of the unfortunate reports on lesbian suicides across the country. Secondly, the legal issue is not restricted to S 377 only; having a gender-neutral definition of a rape survivor in S 375 is an equally important legal requirement today. This is because the experiences of sexual assault/abuse faced by the transgender community are an everyday reality and there is no provision in the law presently to report these violations. Thirdly, it is necessary to understand the symbolic power of S 377. To remember Nivedita Menon – who had stated that if heterosexuality was so normal and common then why was there a need for S 377? This is to suggest that the fight against S 377 is at one level a fight for the dignity and autonomy of a certain community(s) of people who are directly targeted due to the symbolic value of Section 377. However, at another level it is also a struggle to establish choice and autonomy to live in various kinds of plural partnerships, to question the exclusive legitimacy of heterosexual marital relationships and to fight castigation in a criminalized same sex relationship. There are many intimacies and domestic spaces shared in between these two forms and it is necessary to discuss them openly — be it the single woman, the single mother, live in heterosexual couples, childless married heterosexual couples, a child reared not exclusively by the biological/adopted parents but by many significant others, siblings of different genders sharing a space, or friends sharing a domestic space. All of these challenge the hegemony of a heterosexual marriage with children as the building block of the Indian societal/cultural value.
As a result of the delay in the judicial/legislative front, the campaign against S 377 will only get stronger with diverse voices protesting the law as well as legal/socially sanctioned ways of cohabiting. What the Supreme Court or the Parliament need to comprehend is ‘awaaz do, hum anek hain’ (Raise your voice, we are many, i.e. diverse).
1. Suresh Kumar Koushal v Naz Foundation, Civil Appeal No. 10972 of 2013 (Arising out of SLP (C) No. 15436 of 2009)
2. In the Supreme Court of India Civil Appellate Jurisdiction Review Petition (Civil) No of 2013 in Civil Appeal No. 10972 of 2013
The author is at Ambedkar University, Delhi