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 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.
Guest Post by PRONOY RAI
It is 2004 all over again. India is shining. Such a difference a decade can make. BJP is on the verge of returning to power, Modi could be India’s next Prime Minister, and the many failures of the UPA could give a new lease of life to Hindutva, if it was dead at all. As India shines, the state (its judicial arm, in this case) has abandoned the queers, questioning their claim to the status of “minority”, rendering them vulnerable to brutality at the hands of the hetero-normative society and other arms of the state (police, for instance), in equal measures. Other minority groups, strangely, or perhaps not so strangely, fought against the claim to citizenship of a (sexual) minority group, decisively defeating them at the altar of justice.
Some of us queers, who stuck to every single word that was written in 2004 that went on to show how agrarian distress, farmer suicides, and saffronization of education didn’t quite add up to a shining India, were left puzzled by the reaction of the BJP to the Supreme Court verdict upholding section 377 in its original, pristine self. You’d think that the shrewd right-wing would take on the first opportunity to invoke a very obvious ancient Indian “culture of homosexuality” to make a progressive argument in favor of decriminalization. You’d assume that in a ravaging hunger to return to power, they would try to bring on board every single group that they can, maybe only later to abandon them, but at least carry them along through elections. Alas, no. For the BJP, India is still shining, and this shining confidence is perhaps sufficient to help them march into 7 Race Course Road, next year. Continue reading Section 377 and India Shining: Pronoy Rai
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.
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
On the 12th of June, the Alternative Law Forum (ALF) celebrated its tenth anniversary with a public lecture by Justice A P Shah and Prof. Upendra Baxi on the topic Courage Craft and Contention: Human Rights and the Judicial Imagination.
We are happy to share the transcript of the lectures.