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.
Continue reading Naz and Notional Equality: Aman
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”.
Continue reading Contempt of Citizens: Mayur Suresh