While clearly a watershed decision for the queer community, the Indian court’s recent reading-down of Section 377 will likely benefit other minorities as well.
After agitating for many years against the existence of Section 377 of the Indian Penal Code, which criminalised homosexuality, it is understandable that the Delhi High Court’s 2 July decision in the Naz Foundation case, decriminalising homosexuality, has been welcomed and celebrated by the LGBT (lesbian, gay, bisexual and transgender) community. But to see this decision as a victory of the LGBT community alone would be to do injustice to the Delhi High Court’s remarkably progressive and well-reasoned decision, and the immense potential this judgement has for changing the course of equality jurisprudence in India. It would also display a very narrow understanding of the relationship between constitutional change and social movements striving for a more just and democratic society.
Like Roe v Wade and Brown v Board of Education, which legalised abortion in the United States and ended racial segregation in public educational institutions, the Naz Foundation decision has the potential to be a case whose name conjures up the history of a particular struggle, celebrates the victory of a moment and inaugurates new hopes for the future. The victory is also highly significant because it introduces a radical politics of impossibility: by overturning what would have been impossible to imagine, the decision does not merely change the conditions of the group whose rights and demands are in question, but changes the horizon of possibility for the law and for constitutional interpretation itself. Let us look at two crucial dimensions of the High Court decision: first, what it means within the realm of constitutional imagination; and second, what its immediate impact on the everyday life of the queer community has been.
Constitutions are not merely charters of governance; they are also ethical documents that lay down a collective commitment that members of a community make to a set of principles as well as to each other about the kind of life they wish to pursue. Thus, the political form that we choose to govern our societies is not separable from the way in which we choose to govern ourselves as individuals and in our relation to others. Who or how I choose to love is, then, both an individual choice and a question of political form and expression. Following Jawaharlal Nehru’s quote included in the court’s judgement of words being “magic things”, one way of reading the Constitution is to see it as a city of words built on the foundational promise made in its preamble – towards securing for its citizens justice, liberty, equality and fraternity. It is important to recall that these are virtues that justify why we give unto ourselves a constitution or why we agree to be ‘constituted’ within a collective.
The perfection of the ‘city of words’ presumes a coherent ‘we-ness’ that already exists. But we also know that it would be naïve to believe that the city of words finds its perfect reflection in reality. More often than not, the real world is always an imperfect one, in which promises remain unfulfilled. In the memorable words of the American litterateur Langston Hughes, dreams are deferred. This is certainly true for the constitutional underclass, for whom the city of words remain just that: words, and who remain unconstituted by virtue of their class, caste or sexual orientation. But is it not the case that the constant striving for the perfect community and the attempts at bridging the distance between the city of words and the imperfect city is precisely what we name as politics? It is in the distance that is traversed between the two cities that struggles reside. Ultimately, it is only through politics and struggles that rights are created. Only in the mist-covered regions of legal theory would we imagine that rights are the product of judicial authorship. This is a point acknowledged in the Naz decision: the judges acknowledge that a constitution does not create rights, it merely confirms their existence.
Equally, it would be a mistake to think of a constitution as the perfect embodiment of values which do not change, even as we strive towards them. Constitutions provide a basis of radical change only insofar as they are willing to be changed themselves – not just through executive fiat or judicial interpretation, but through an understanding of the history of struggles, and through an incorporation of the concrete practices of equality and liberty in various forms of life. Stanley Cavell, in his book about remarriage comedies, The Pursuit of Happiness (itself a reference to the commitments made in the US Declaration of Independence), argues that the constitutional promise about “life, liberty and the pursuit of happiness” has a public face to it. This generally translates into what it is to claim these in law. But there is equally the private face of these claims, and these can only be located in “little communities of love”. The question that brings the public and private realms together consists of asking what it means to ask human society to create the condition for these small communities to be built.
The Naz Foundation decision is, after all, the affirmation of such a community’s right to assert their love, and to do it with autonomy and dignity. But what is involved in the legitimisation of the love that dare not speak its name; it is the emergence of what the Harvard-based legal scholar Laurence Tribe would call a right that dares to speak its name. In other words, our understanding of and our commitment to ideas of equality, dignity and justice are not just products of abstract philosophical values and political will, but are also of our ethical imagination. Cavell says that one cannot base the little community of love only on an appeal to the law, nor on an approach of feeling alone. It is an emblem of the promise that human society contains room for both. But one cannot wait for the perfected community to be formed before one forms the little community.
|Justices Shah and Muralidhar speak
Some of the more-noteworthy sections of the significant judgement.
|Para 79: Thus popular morality or public disapproval of certain acts is not a valid justification for restriction of fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjective notions of right and wrong. If there is any type of “morality” that can pass the test of compelling state interest it must be “constitutional” morality and not public morality.
Para 86: Moral indignation, howsoever strong, is not a valid basis for overriding individual’s fundamental rights of dignity and privacy. In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view
Para 92: The nature of the provision of section 377 IPC and its purpose is to criminalise private conduct of consenting adults which causes no harm to anyone else. It has no other purpose than to criminalise conduct which fails to conform to the moral or religious views of a section of society. The discrimination severely affects the right and rights of homosexuals and deeply impairs their dignity.
Para 104: We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. Further, Article 15(2) incorporates the notion of horizontal application of rights. In other words, it even prohibits discrimination of one citizen by another in matters of access to public spaces. In our view, discrimination on the ground of sexual orientation is impermissible even on the horizontal application of the right enshrined under Article 15.
Para 131: Constitutional law does not permit the ordinary criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is the antithesis of equality and that it is the recognition of equality that will foster the dignity of every individual.
In the years leading up to the Naz Foundation decision, the LGBT community in India had already redefined what it means to make a commitment to an ideal, through a commitment to a form of love. By locating this commitment in the language of personhood and personal autonomy, the High Court renders the Constitution vulnerable – in the best way possible – to a redefinition of the values of equality and dignity. This move is vital if we are to bring our imperfect world closer to the city of words. But, as Nehru’s quote in the judgment reminds us, even the “magic of words sometimes cannot convey the magic of the human spirit and a nation’s passion.” We who strive towards the city of words forget sometimes that that the magic of the human spirit does not necessarily proclaim itself as a scream. The singer-songwriter Tracy Chapman once wrote of “talking about a revolution” and how it “sounds like a whisper”. It is said that a prisoner once weathered down a thick prison wall by whispering stories into its walls over a number of years. The Naz Foundation case is a good instance of how the formidable walls of prejudice that inform most public institutions can be broken down. The next barrier is to spread the whisper around a bit. By outing sexuality into public discourse in a manner never done before, the Naz Foundation decision is already talking about a revolution.
One good indication of this is the media coverage and national debate on homosexuality that the judgement sparked off in very diverse social and political spaces. This 105-page document has in a sense outed an issue that has previously only been talked about in hushed and embarrassed tones in most households. The public debate about the decision in the media has made conversations about homosexuality and the impact of the Section 377 possible in homes, offices and schools. “My father called and congratulated me when he heard about the judgement,” said a gay friend, ecstatically. Though his parents already knew of his sexual orientation, he had still struggled to talk about the issue. “After the judgement, we have talked about homosexuality at home almost every day, because of some aspect or the other that has been discussed in the media,” he said.
The judgement has meant a newfound respectability and legitimacy for the issue of homosexuality. A few days after the judgement, these writers were asked by a high school in Bangalore to talk to their Standard XI and XII students about the case. While this was probably something that should have happened long ago, the interest generated by the Naz case has meant invitations to speak at a wide variety of forums – schools, colleges, media organisations and NGOs. As lawyers, we found that the judgement has also provided leverage in interactions with the police. In the first ‘377 incident’ we dealt with post the judgement, we handled the case of a 26-year-old gay man whose laptop, mobile phones and other valuables had been stolen by a man who he had invited home to spend the night. The police were helpful at first, but changed their attitude when they discovered that the man was gay. The sub-inspector refused to give him his belongings, and threatened the man with Section 377 unless he paid him INR 30,000. We had to talk to a superior police officer to recover the laptop, after which we talked to the police officer about the judgement and the fact that it represented changing views in Indian society. The police officer reluctantly agreed that what homosexuals did inside their homes was none of his business.
While the court’s decision is technically one only to decriminalise homosexuality, arguments around equality and the judges’ reading of gender and sexuality have meant a far wider impact. Even those fighting the case were taken aback when the Times of India reported homosexual couples across India suddenly getting married, and citing the judgement as proof that they could do so. This has now sparked off a Special Leave Petition before the Supreme Court, filed by an astrologer who says that the judgement will lead to LGBT persons demanding, marriage, inheritance, etc. Thankfully we are spared of assertions such as the one made by Nero, who claimed that homosexuality caused earthquakes. Moral turpitude is somehow a little easier to deal with than earthquakes, even if many of us may believe the decision may indeed have seismic effects.
In another remarkable incident, a women recently approached a lawyer for a matrimonial case. She was perplexed when she was told that she was not legally entitled to half of the property. “But what about the case?” she asked hopefully. “What case?” responded the puzzled lawyer. “The Delhi High Court case,” she said. “Doesn’t it mean that we are all entitled to equal rights now?” While this may sound farfetched, it is not that far from the truth. Several legal commentators have already pointed out that the Delhi High Court’s interpretation of the anti- discrimination provisions of Article 15 of the Constitution, where it has read ‘sex’ to mean ‘sexual orientation’, could potentially benefit other minorities. The court has said that forcing someone to behave in accordance with predefined notions of what it means to be a ‘man’ or a ‘woman’ can be considered discrimination based on sex, in violation of Article 15.
The court’s reading of the ‘strict scrutiny’ test and its horizontal application of rights (where citizens are guaranteed rights vis-à-vis one another in public spaces) has meant that it will make it much more difficult to discriminate against vulnerable minorities such as disabled persons, women and, ironically, even religious minorities, who have so far ranged from being ambivalent to opposing the judgement. The Naz judgement’s potential for minority rights has further been strengthened by the judges, where they make clear that public morality and majoritarian opinion has to be subservient to constitutional morality and protection of fundamental rights. Finally the court’s interpretation of ‘privacy’ to refer to a broad notion of autonomy and personhood has meant that Section 377 cannot be applied in public spaces, where much of same-sex intimacy takes place. This expansive interpretation of privacy has tremendous potential in other spheres as well, such as women’s reproductive rights.
The Delhi High Court judges have drawn on a number of international law decisions including the recent Nepali Supreme Court decision (2008) striking down the laws criminalising homosexuality. Nepal has led the way on LGBT rights in Southasia, but the Naz decision is likely to have huge implications for the rest of Southasia, where homosexuality remains criminalised under similar laws.