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.
MAYUR SURESH finds the Supreme Court guilty of contempt (of citizens)
Contempt: – The word ‘contempt’ comes from the Latin word “contemptus” and much like its modern counterpart, is the feeling that a person or a thing is worthless or deserving scorn.
Contempt is a feeling that is often felt by Lesbian, gay, bisexual and transgender people in India. It’s been meted out to LGBT people equally by the British who aimed to civilise us, and those today who seek to ‘preserve our culture’. An 1838 report on the Draft Penal Code called homosexual acts a “revolting subject” and said that the “frequency” of homosexuality in India “remained a stain on this land.” In 1934, the High Court of Sindh called a man who had consensual sex with another man “a despicable specimen of humanity”. Not to be left behind, those appellants who approached the Supreme Court reserved the choicest of contemptuous words for LGBT people in India: “disgusting”, “filthy”, “delinquents”.
A post on the cowardly judgment of the Supreme Court by DANISH SHEIKH. I term it a cowardly decision because if it had said that we are homophobic then it would at least have been admirable for its honesty if not for its belief. It instead chooses to mask its homophobia with crimes of unreason
Now you’re legal – Now you’re not!
With the ease of a particularly sadistic magic trick, a 98 page document has sent millions of LGBT individuals time-warping back into pre-2009 criminality. If there were any constitutional justifications for this act, they are not to be found lurking in the pages of this shockingly poorly reasoned decision. The Supreme Court has taken a chainsaw to one of the most beloved court decisions of our time, and surgically extracted everything that made it such an important verdict. Besides, of course, that little side business of equal-moral-citizenship granting. A broader walkthrough the shoddiness of the judgment can be found here, (http://kafila.org/2013/12/12/we-dissent-siddharth-narrain/) I’m presently looking at some of the more egregious of its violations. Continue reading Crimes of Unreason: Danish Sheikh
A preliminary walk through the unreason of the Supreme Court in the 377 judgment by SIDDHARTH NARRAIN
We hope to see many more pieces which exposes the judgment for what it is- an example of judicial non application of mind. I have also written a short piece looking at the judgment in the context of the Mandela moment
The Supreme Court’s decision in Suresh Kumar Kaushal & Another v. Naz Foundation & Others is an unprecedented ruling, deciding to turn the clock back to pre-July 2009, when LGBT persons were criminalized by section 377 of the Indian Penal Code. On close reading, the judgment is based on a narrow and blindfolded interpretation of the law, ignoring the momentous changes in society and notions of morality that India is witnessing. Further, the judgment, in many parts, relies on shaky precedent, does not explain the logic of its conclusions, and is surprisingly dismissive of substantial evidence that was placed before it. Continue reading We Dissent: Siddharth Narrain
Sometimes one needs to write pieces while breaking down into tears. That is the only way we can stay true to the fact that words are not enough to express our anguish and our disbelief but also our strength.
It isn’t surprising. In the land where the struggles of Soni Sori and Irom Sharmila not only continue but often go unnoticed, a regressive Supreme Court Judgment which sets the bar low for legality, constitutionality, justice and social morality isn’t out of the ordinary- all in a days work for some.
I spent the week articulating my loving critique of our movement. I thought we were past the idiosyncrasy of fighting an archaic law- one among the many scars of colonialism- being repeated with gusto by whom we can safely call the loony-right wing who claimed to represent all kinds of Gods and worse- many people. We all thought we could move on to fight the many fights that would give us the opportunity to fully shine bright in our creativity and vibrance. But here we are again- having to scream out loud the bare necessities of human existence to voices that have long forgotten the act of listening. Continue reading Justice will prevail
This Sunday, Delhi walks in its fifth annual queer pride parade. Each year at this time the question arises again: why a pride parade? Transgender, lesbian, gay, bisexual, hijra, kothi, and intersex people still have too many answers to give. While a decision on the appeals against the 2009 Naz judgment still remains pending, stories of continuing violence on the bodies of those deemed different do not wait for the Supreme Court. Queer people continue to have no legal protections against discrimination in the workplace; to be forcibly dragged to psychologists; to be forced to lie, cheat and conceal their lives; to be victims of familial, domestic and public violence and to feel, in so many ways both in their own minds and in the eyes of many others, like lesser citizens.
What this past year has reminded us is that they are not alone. The fundamental pillars of what enables this violence – fear, prejudice, intolerance – seem to have dug themselves deeper into our cities just as the institutions and democratic safeguards meant to combat them seem to have floundered. The ranks of urban residents who have experienced that deeply queer moment of exclusion and otherness – whether or not it speaks the particular idiom of sexuality – have grown. This year, as people once again take to the streets, they must do so not just for themselves but for the cities they inhabit and, increasingly, must protect.
By LAWRENCE LIANG and SIDDHARTH NARRAIN
(Published as Magic in the ‘City of Words’ in the August 2009 issue of Himal)
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. Continue reading Striving for Magic in the City of Words