After the Supreme Court delivered its verdict in Suresh Kumar Koushal v. Naz Foundation (2014) overruling the Delhi High Court’s decision, the National University of Juridical Sciences brought out a special law review issue assessing the judgment. Prof. M.P. Singh, the constitutional scholar and former vice chancellor of the university, wrote an article praising the judgment for its judicial restraint, in which he described the use of constitutional litigation by sexual minorities as a case of “misplaced hope in courts”. Prof. Singh prefaced his article with a cautionary extract from Judge Learned Hand that warns us against “placing our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes”. Prof. Singh similarly suggests that what activists ought to do is to educate legislators rather than pin their hopes on the judiciary. Underlying these opinions seemed to be an unwritten rule of an economy of hope (that one could have a little but not too much of it) but the essential trait of hope is that it is greedy sentiment that demands the impossible, and the Naz judgment with its rich evocation of dignity, liberty and equality had already proven that we could not just demand but hope for the impossible.
Guest Post by SIDDHARTH NARRAIN
The Supreme Court, in the National Legal Services Authority (NALSA) judgment delivered today has recognized the legal and constitutional rights of transgender persons, including the rights of the hijra community as a ‘third gender’. In judgment of immense breadth and vision, Justices K.S. Radhakrishnan and A.K. Sikri have brought hope and a promise of citizenship to a community that has largely been outside the legal framework.
NALSA filed this petition in 2012. In 2013, this matter was tagged together with a petition filed in the Supreme Court by the Poojaya Mata Nasib Kaur Ji Women’s Welfare Society, an organization working for kinnars, a transgender community. Laxmi Narayan Tripathi, a well-known transgender rights activist from Mumbai also intervened in this case.
In this piece, I will point to the highlights of this judgment and why it will go down in history as one of the most rights enhancing decisions in the Court’s history. I cannot but remark on the irony of this judgment being delivered just a few months after Koushal, in which the Supreme Court recriminalized LGBT persons and upheld the constitutionality of section 377 of the IPC. The Court acknowledges this, but makes it clear that while it recognizes that section 377 is used to harass and discriminate against transgender persons, this judgment leaves Koushal undisturbed, and instead focuses specifically on the legal recognition of the transgender community.
This is a guest post by SANJAY KUMAR
(This is an expanded version of the article that has appeared in Stree Mukti, January, 2014)
There is a reason crime fiction is one of the most popular genres in bourgeois societies. Nowhere else, except in the equally fictitious assumptions of the Neo-Classical economic theory, is a human being made to appear an isolated individual in her motives and abilities, as completely as in crime fiction. Borrowing from a famous Ibsen play, in crime fiction, ‘a criminal stands most alone at the moment of crime’. Only her/his motives and acts determine the crime. Bourgeois law also assumes the same about criminal guilt, though punishment is often given under the light of ‘mitigating circumstances’, which mostly is a back door for all kinds of class and social prejudices. Among the ideologies that inhabit a society’s discursive world there often is a dominant ideology which mainly reflects imperatives of the prevailing economic and political order. The feudal ideological world is dominated by notions of loyalty, honour, and community, all of which are the essential ideological glue, as well the felt reality of the hierarchical web of a feudal society. Bourgeois society is founded upon private property. Even though their consciousness is socially formed, its members see themselves as formed and ready prior to their social engagements. Their attributes appear to them as their own, inherent qualities. This gives a moral boost to the enjoyment of fruits of private property; that is the charm of bourgeois consciousness. In crime fiction, criminals as sole proprietors of their motives and abilities thrust themselves against social prohibitions in diabolically creative ways. That is its (hidden) charm.
Guest Post by Jordan Osserman
Amidst the outcry of queer rage and mourning against the Supreme Court judgment has emerged a strand of skepticism (For examples See here , here and here) from within queer circles, directed at the participants in the anti-377 campaign. These skeptics allege that the 377 organizers failed to adequately consider the impact of their activism on the most marginal queers in India (lower class/caste hijras, kothis, MSM, etc.). In the most biting version of the critique, the 377 campaign is portrayed as an elite middle class movement, fueled by foreign-funded NGOs, against a largely symbolic, immaterial enemy. 377, these critics allege, was never a central cause of LGBT oppression; a paper tiger, relatively unknown by police and Indian society writ large until middle-class queers arbitrarily put it on the agenda and invested it with symbolic meaning. To the extent that marginal sexual minorities have been represented at all, their voices have been appropriated in the service of a campaign at best irrelevant, and at worst dangerous, to their lives.
In this post, I’d like to challenge some of these claims. We can summarize the critics’ arguments as follows: 1. Section 377 has not historically targeted LGBT people, and rarely affected the lives of sexual minorities prior to the activist mobilization against it. 2. Instead of fighting 377, activists should have prioritized campaigns which would concretely benefit LGBT people, particularly the most marginalized. Alternately, if the 377 campaign had to go forward, the legal strategy and organizing should have been more inclusive. 3. The “liberal outrage” against 377 may be as much to blame for violence justified in the name of the law as the Supreme Court’s decision. For, now that queer activists and the Indian media have popularized the notion that the Supreme Court has “re-criminalized homosexuality,” homophobes have become aware of a new weapon with which to target sexual minorities. I will attempt to address these interlinked arguments in their respective order, before drawing some final conclusions about activism and organizing.
A guest post by Aman finds fault with the Supreme Court’s reasoning on equality
In Suresh Kumar Koushal and another v. Naz Foundation and others (Naz), the Supreme Court notes that, ‘It is relevant to mention here that the Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.’ By concentrating on the acts and not people, it is perhaps tries to convince us (and perhaps itself) that this is not a debate about homosexuality. However, the short-sightedness of the Supreme Court in discounting how these ‘acts’ are so fundamentally connected to a group’s orientation/identity is clear; it does exactly what it says it’s not doing (i.e. criminalize a particular people or identity or orientation).
The text of section 377 is facially neutral and applies to all people but it is not very difficult to see that the provision impacts homosexuals. As mentioned earlier, the so called ‘unnatural acts’ are the only ways homosexuals can have sex. This obviously implies that it is the homosexuals who have to continue bearing the stigma of being a criminal. The symbolic effect of branding homosexuals as criminals was evinced by the Delhi High Court when it said that provisions like these add to the reasons for homosexuality being treated as bent, queer, repugnant, deviant and perverse, leading to further marginalisation of the homosexuals. What could have been an attempt by the Indian judiciary to bring down one of the obstructions for integration, has become an enforcement of a dominant notion of ‘natural’ sex which will naturally lead to concealment of true identity of many people who are anyway struggling in the society to prove that they are normal.
SIDDHARTH NARRAIN based on his legal and extra legal expertise arrives at the conclusion that size does matter
A LETTER TO YOUR LORDSHIPS
Your Lordships have called us, LGBT Indians, a “miniscule minority”. Never mind that statistically we constitute at least four per cent of the population, which are over four million people. Your Lordships say that there are only 200 persons impacted by section 377 over the last 150 years. Never mind that there are millions of LGBT persons who have been under the shadow of this law over the last 150 years, discriminated against, blackmailed, harassed, outed to their families, driven to suicide, forcibly married, diagnosed as mentally ill, raped, assaulted, and disinherited.
Your Lordships say we are a “miniscule minority”. Since you are so fond of dictionaries, lets flip one open.
Miniscule: The adjective miniscule is etymologically related to minus, but associations with mini have produced the spelling variant miniscule. Continue reading Size does matter your lordships – A letter to the Supreme Court: Siddharth Narrain
No Going Back
The Supreme Court’s decision in Suresh Kumar Kaushal v Naz Foundation has re-criminalized millions of LGBT persons, putting their lives at risk and subjecting them to the threat of violence, harassment and arrest. Despite this loss in court, we should not see this as a defeat. It is not a defeat because the mood of the country has changed, rising up in anger against prejudice masquerading as law. The public backlash against this decision has caught even LGBT activists by surprise. It is not a defeat because finally voices from the political establishment of this country have come out in support of LGBT rights. The top leadership of the Congress party, Cabinet Ministers, and spokespersons across the political spectrum have spoken out against the judgment. The BJP’s official stance supporting 377 appears out of step with reality, and there is a section of the party that does not support this view.
It is not a defeat because parents of LGBT persons have rallied around their children in this hour of crisis. It is not a defeat because friends, colleagues, students, teachers, and classmates have been shaken up by the injustice of this moment. The outrage and anger, the public show of solidarity and small gestures of support, has been overwhelming. The 377 judgment is not a defeat because commentators across the political spectrum have criticised the logic of the judgment. It is not a defeat because the legal community including the Advocate General of this country has questioned the rationale of this decision. Described as a judgment devoid of humanity and compassion, the Supreme Court’s decision has prompted many comparisons – A.D.M. Jabalpur, A.K. Gopalan, Mathura, Gian Kaur, Dred Scott, Plessy, and Bowers. It is not a defeat because this judgment has spawned a new generation of activism.
The Supreme Court’s decision has emboldened the human rights movement in this country, brought together diverse groups on a common platform. The Delhi High Court’s 2009 judgment affirmed the constitutional rights of millions of Indian citizens. The Supreme Court verdict has reversed this, but it can never erase that moment of freedom from our past. The mood of this country has changed. Public discourse has changed. People have changed. The law must change. There is no going back.
In cities across the world, people are mobilizing protests against the judgment. Join the Global Day of Rage on Sunday, 15th December.