Queering the ‘queer’ verdicts of the Supreme Court (11 December, 2013 and 15 April 2014), Paramita Banerjee re(views) the judgments in her new edition of the ‘Qafe and the Qafeteer’.
In a patriotic play (Chandragupta, 1931) by the renowned Bengali author Dwijendra Lal Roy, Alexander is heard exclaiming to his general, “Honestly, Seleucus – how bizarre this country is!” This exclamation about India has gone on to become an iconic expression often used by Bengalis (who have chosen not to forget their mother tongue and the literature thereof) whenever any untoward incident happens in this country (and we all know how often that can be!). Two recent judgments in quick succession by the Supreme Court of India made me remember this line once more. I refer to the 11 December, 2013 verdict which set aside the Delhi High Court Judgment on reading down Section 377 of the Indian Penal Code (IPC), and the 15 April, 2014 verdict that recognises transgender identity and rights.
Some readers may already wonder why these two judgments are being brought back in focus after the media had gone hyper about both. That is true, of course, but the media coverage, in case of the first judgment, preferred to remain constrained within the reactions of lesbian-gay-bisexual-transgender (LGBT) people; film stars and other celebrities; and politicians. An analysis of the judgment and what it meant in terms of upholding the spirit of our Constitution was sadly lacking. In case of the second judgment, reactions of male-to-female transgender persons constituted the focus of media coverage. Not much was heard about the applicability of the judgment to female-to-male transgender individuals. Nor an analysis of the judgment, either.
It is important, therefore, to take a critical look at the judgments, keeping aside reactions to them, since we’ve read/heard/watched quite a bit of that. This is why Qafe brings the verdicts under the scanner: to review and understand the political significance of the values upheld by both. Also, the continuity of discourse is indispensible for understanding to deepen, and concrete action points (as different from reactions) to emerge. Now that these verdicts have been obliterated from the world of mass media, Qafe picks them up for the discussion to continue.
It would be appropriate to talk briefly about Section 377 of the IPC before getting into the judgment itself, for the paradox starts right there. This country has recently witnessed massive unrest against the English language test in Union Public Service Commission examinations, leading to the government capitulating on such aptitude not being counted. One of the reasons propounded by the agitators was that such preference to those more adept in English is a colonial hangover. It has been quietly forgotten in the furore that English is also one of the languages recognised in the country’s Constitution, and that it virtually operates as the lingua franca in global politics – whether we and other non-English speaking nations like it or not. Isn’t it strange, therefore, that there has been no public outrage at letting a law imposed during British rule in the country (in 1860 to be precise) continue when it has been repealed in most other colonies of the erstwhile British empire, as also in its country of origin?[1]
That Section 377 of the IPC was introduced by the British could well be construed as indicating that the Indian society as it had existed prior to British rule had needed no such law. That, in turn, is open to being interpreted as a pointer to more open and inclusive social norms, which chose not to criminalise personal sexual preferences and practices.[2] In fact, referring to Mr Anand Grover, senior counsel for Respondent # 1 (NAZ Foundation), the Supreme Court verdict states: “The history of unnatural offences against the order of nature and their enforcement during the Mogul time, British time and post independence, shows that the concept was introduced by the British and there was no law criminalising such acts in India . . . Post independence the section remained on the statute books and is now seen as part of Indian values and morals”’ (Point # 19.7, page 34).
It is important to note that nowhere in the 98-page judgment, the learned Supreme Court judges have made any comment about the section’s Indian-ness in terms of values and morals. The verdict is restricted to examining the Delhi High Court verdict on 9 July, 2009, whereby the article was ‘read down’ and pronounced to be inapplicable to adult consensual sexual situations. As mentioned in the judgment, “. . . this Court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity” (Point # 56, page 97). So, there is no scope to say that the learned Supreme Court judges (Hon’ble Justice G S Singhvi and Hon’ble Justice Sudhansu Jyoti Mukhopadhyaya) have made any attempts to highlight the ‘traditional’ nature of this statute. The prejudice is really reflected elsewhere in the judgment. For instance, the said judgment mentions: “… a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders . . .” (Point # 43, page 83). It is ironic that a judgment which condemns Naz Foundation for miserably failing “to furnish the particulars of the incidents of discriminatory attitude exhibited by the State agencies towards sexual minorities and consequential denial of basic human rights to them” (Point # 40, pages 7 – 8) does not find it necessary to furnish the evidence that justifies the assertion about this “miniscule fraction.” Also, what do the two learned judges want the average Indian citizen to understand from this assertion? That laws/statutes adversely affecting a small number of people need not be considered seriously? One could say that this is a not-so-subtle assertion of majoritarianism, and that is frightening, indeed, when it comes from the Apex Court in a democracy.
The judgment also rubbishes the HIV prevalence estimates submitted by the Department of AIDS Control on behalf of the Ministry of Health and Family Welfare as “wholly insufficient for recording a finding that homosexuals, gays etc are being subjected to discriminatory treatment either by the State, its agencies or the society” (Point # 40, page 8). Read in combination with the previous point about “ particulars of the incidents”, it seems that the honourable judges are under the impression that acts of discrimination happen in the open and in circumstances that make direct recording possible. The testimonies of LGBT persons, of their parents, of mental health professionals (all of which had been submitted to the Supreme Court); increased vulnerability to HIV transmission; and other such indicators have been dismissed as insufficient ground for recording discrimination.
This Qafeteer wishes that Mark Twain could magically appear to remind the hon’ble justices that “Prejudice cannot see things that are because it is always looking for things that aren’t.” This might convince them that when a judgment purportedly examining only the unconstitutionality of Section 377 of the IPC makes unsubstantiated assertions about the number of LGBT persons in India, it reflects a dismissive, discriminatory attitude about that population group. Well, they still might want harder evidence, of course!
In stark contrast, the 15 April, 2014 judgment of the same Apex Court on the Writ Petition (Civil) No.604 of 2013, starts with the observation: “Seldom, our society realises or cares to realise the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex” (Point # 1, pages 1 – 2). Where one judgment condemns submitted evidence of discrimination as insufficient since they are only indicative, another judgment from that same Court starts with an assertion based on lived-in experiences that can never be entirely captured in the form of hard evidence. Queer, ain’t it?
This judgment goes further to state: “Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom … ” (Point # 20, page 16). It certainly needs to be lauded that these learned judges (Justice K S Radhakrishnan and Justice A K Sikri) of the Supreme Court did not deem it necessary to ask for hard evidence in support of this assertion. Could there ever be demonstrable proof of what is basic to one’s self-determination, dignity and freedom other than lived-in experiences themselves?
In direct contradiction to the previous judgment’s dismissal of LGBT citizens of the country as “only a miniscule fraction of the country’s population” – this judgment unequivocally states: “These TGs, even though insignificant in numbers, are still human beings and therefore they have every right to enjoy their human rights” (Point # 123, page 105). What a relieving departure from overt or covert majoritarianism! No wonder that this judgment stresses that “The rule of law is not merely public order. The rule of law is social justice based on public order” (Point # 125, pages 105 – 106). The other judgment has conveniently forgotten this aspect, limiting itself, instead, to the meaningless rhetoric of “Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes . . .” (Point # 42, page 82) – without even bothering to assign specific meanings to “ordinary course” and “against the order of nature” as used in the judgment. The apex judicial body’s responsibility towards ensuring social justice through the rule of law is further diluted through the assertion that the misuse of a law is not reason enough for any dynamic re-interpretation (Point # 51, page 91).
The timing of the two judgments is also of some significance. The first verdict, delivered after an incubation period of nine months (with all hearings being over in February 2013), threw Section 377 of the IPC back to an outgoing legislature (general elections in the country were due in May 2014). The United Progressive Alliance government led by the Congress, which had not challenged the Delhi High Court order, was faced with the embarrassment of lacking time to take the issue up in the last session of the Parliament before the elections. It was almost as if the learned judges knew that this would be the case and Section 377 of the IPC would remain valid for some time to come, for the newly elected government would have to focus on other major issues first – irrespective of its stance on this provision. The second judgment, on the other hand, ensured that the rights of the “insignificant number” of transgender people in the country were protected before a possible change in the government could make life difficult for minorities of all hues.
Pride Marches by LGBT people and their supporters have been and will be held across the country this year also in defiance of the former judgment and in celebration of the latter. But this Qafeteer is left shuddering at the possibility of gross majoritarianism gripping the judicial system of the country. It is definitely a possibility with the new National Judicial Appointments Commission Bill in place, since it significantly affects the independence of the judiciary. But that discussion has to be left for another edition of Qafe.
_______________________________________________________________________________________________________________
[1] Drawing heavily on the English ‘buggery law’ of 1533, supposedly introduced to counter indiscretions by the clergy, similar laws were enacted by the British Empire in 42 of its colonies, often with the same section number. That is the origin of Section 377 of the IPC. In UK, however, the original archaic law was repealed way back in 1967 through the introduction of a new legislation guaranteeing equality to all its citizens, irrespective of sexual preferences and practices.
[2] That, however, does in no way imply that all such pre-British norms and practices in this country were just and inclusive from all perspectives, with reference to mediums of oppression such as class, gender and caste.
