- Shreya Mohapatra*
The road to LGBTQI (Lesbian, Gay, Transgender, Queer and Intersex) freedom has indeed been a long one with multiple twists and turns. The Supreme Court ruling on September 6th, 2018, which read down Section 377 of the Indian Penal Code, was unprecedented. Legal recognition, no doubt, represents the first big step to accessing rights of citizenship. However, the larger issue that begs consideration is, how does one embed the vision of a transformative constitution and constitutional morality into everyday social practices? How does one transcend the yawning gap between legal pronouncements and everyday unequal norms? How does one forge a path ahead...a path that accords a dignified existence to non-normative gender identities and recognises the intersections within, across caste, class, religion and ethnicities?
On September 6th, 2018, in the landmark judgement of Navtej Singh Johar v. Union of India & Ors.[1] (‘Johar’), a five-judge bench of the Apex Court read down Section 377 of the Indian Penal Code (‘Sec 377’), a colonial-era law that criminalised ‘unnatural offences’, which include ‘carnal intercourse against the order of nature’. As per judicial interpretation, ‘carnal sex against the order of nature’ included anal sex, oral sex, and in some cases, other non-procreative forms of sex such as mutual masturbation.[2] In what was hailed as a victory for the LGBTQIA+ community in India, the court held Sec 377 to be constitutionally invalid in so far as it criminalised same-sex intercourse between consenting adults.
The queer movement in India has, since its inception, been fighting against this anti-sodomy law which allowed the repression of sexual identities, and perpetuated a culture of shame, silence and prejudice. This paper seeks to map the trajectory of queer struggle through the judicial process which led to the reading down of section 377. It further argues that while Johar without doubt represents a victory for the LGBTQI+ community in India, the path ahead continues to be laden with enormous challenges.
The paper is organised into three sections. Section I provides a brief history of Section 377. Section II traces the trajectory of the LGBTQIA+ struggle for legal recognition through successive court judgements including an analysis of court rulings. Finally, the concluding section looks at how one might integrate homo-normativity into everyday social practices and the challenges that lie ahead.
I. History Of Section 377
Sec 377 was introduced by Lord Thomas Babbington Macaulay, the President of the Indian Law Commission in 1860. The law reflected ‘British Judeo-Christian morals and ethical standards at the time’,[3] according to which non-procreative sexual acts were sins. Macaulay’s penal code was the moral tool of an invasive state which sought to define, categorise, and legislate for everything within its remit, including people.[4] Prior to Sec 377, Macaulay had incorporated Section 361 in the initial draft of the IPC, which penalised touching another person or animal or being touched with prior consent by another for the purpose of seeking unnatural lust.[5] It is interesting to note that even though the British introduced Sec 377 as they feared “their army and daughters would be tainted by Oriental vices”, [6] they decriminalised homosexuality in their own country more than five decades ago.
II. The Fight Against Criminalisation: A Timeline
The legal battle against decriminalisation began in 1994 when a large number of HIV/AIDS cases were discovered among prison inmates in Delhi’s Tihar jail, but the police refused to allow physicians to distribute condoms on the grounds that it would condone an illegal act (physical intimacy between same sex adults). As a result, ABVA, (AIDS Bhedbhav Virodhi Andolan) an NGO, filed a social action litigation in the Delhi High Court, demanding the repeal of Sec 377 but failed to follow through. The same year, another NGO, Naz Foundation along with Lawyers’ Collective petitioned the Delhi High Court and challenged the constitutionality of Sec 377 on the grounds of violation of the right to equality (Article 14), the right to freedom from discrimination on grounds of sex (Article 15), the right to fundamental liberties (Article 19), and the right to life and privacy (Article 21);[7] and asked for Sec 377 to be read down, instead of repealing it entirely.[8] For a little over a decade, the petition filed by ABVA ran around in circles to no avail until 2009 when the Delhi High Court struck down portions of the law concerning gay sex on the grounds of violation of the right to privacy and dignity.[9]
The judgement marked a paradigm shift and reaffirmed the faith of the LGBTQIA+ community in the judiciary. But this victory was short-lived. In 2009, an appeal was filed against the Delhi High Court judgement in the Supreme Court which brought the law back into play.[10] In 2013, the Supreme Court of India overturned the landmark Naz judgement thereby effectively re-criminalising millions of lesbian, gay, bisexual and transgender individuals across the country just four years after the lower court had allowed them the status of equal moral citizenship. The re-emergence of the narrative of stigma and criminalisation for the LGBTQI meant suffering violence and sexual assault without having any recourse to law.
Suresh Kumar Koushal v. Naz Foundation Judgement: Gaping loopholes
Suresh Kumar Koushal v. Naz Foundation[11] (‘Koushal’) was a poorly reasoned decision and a black mark in our constitutional history. It was surprisingly dismissive of the evidence placed before the court and the wide-scale changes in society.
1. Dismissal of crucial evidence:
A voluminous amount of cultural and scientific literature, affidavits, testimonies and FIRs that documented evidence of sexual assault, exploitation and torture faced by LGBTQI persons were placed before the court.[12] The evidence also pointed at how the criminalisation of homosexuality led to instances of families rejecting children, of people being murdered or driven to commit suicide or of queer individuals or heterosexuals who do not fall in line with the acceptable notions of sexuality being threatened, sexually assaulted or inappropriately touched.[13] The parents of LGBTQIA+ persons submitted testimonies asserting that their children were law-abiding citizens. Psychiatrists, clinical psychologists, behavioural psychologists, and other mental health professionals declared that homosexuality was not a mental health disease. The court, however, dismissed the large body of evidence and legitimised only heterosexual relationships.
2. Overlooking practical aspects of the case:
The Court declared that Sec 377 is not harmful since only one couple had been prosecuted till date, thereby completely discounting the fear of blackmail and prosecution that it had engendered among the sexual minorities, forcing them to hide their sexual identities.[14] Lesbians, gays, bisexuals, trans people and queer individuals who meet in parks and other public spaces were often subjected to harassment by police officials who threatened to penalise them under Sec 377.[15] Harassment also extended to NGOs and other organisations working for LGBTQIA+ rights.[16]
Foucault uses the analogy of the panopticon to introduce the idea that an individual’s behaviour is determined by the internalisation of the prohibition by the law. [17] Thus, the real danger of Sec 377 lay in the fact that it pervaded different social settings - medical establishments, media, family, and the state. It was integrated into the very social fabric of workplaces, families, hospitals, and popular press.[18] This analysis is confirmed by the countless instances[19] that point towards how Sec 377 is used for wrongful detention, extortion and questioning.[20] Owing to the fear of abuse and prosecution under Sec 377, many are reluctant to disclose their identities to their families and communities and are driven underground. As a result, this law imperils access to basic rights such as producing medical histories sans fear of criminal action and intimidation. Unfortunately, the Court confused prosecution with persecution and dismissed their concerns as the LGBTQIA+ community was only a 'miniscule minority'. Such an approach that sets a de minimus threshold for being worthy of the Court’s protection and access to fundamental rights puts the judiciary’s role as a counter-majoritarian institution in jeopardy.[21] To suggest that the constitutional ideals of justice, equality and rights are out of bounds for an oppressed and marginalised group until it achieves some kind of minimum number before approaching the court for relief sends out a wrong signal of its role as a counter-majoritarian institution. Koushal, thus, put in place a dangerous precedent for a constitutional and egalitarian democracy like ours.
3. Replete with homophobic tendencies:
The notes of the Supreme Court’s hearing prepared by Alternative Law Forum, Bangalore reveal the deep-rooted homophobia in the minds of the judges. Justice Mukhopadhyay was shocked at sex being openly discussed in courts. In another instance, Justice Singhvi remarked that whether homosexuality was abnormal or not could only be decided by people who had ‘experienced’ it. Further, the judgment failed to establish the intersection of sexuality with class and citizenship.
4. Poor display of judicial craftsmanship:
A glaring loophole in Koushal was its restrictive reading of the concept of rights.
The right to equality, privacy, non-discrimination, and freedom of speech and expression form the key facets of the discourse surrounding Sec 377. To provide some context, every law which invades essential liberties needs to be examined through a conjoint reading of Articles 14, 19 and 21. Violating any one facet of the right without following due process can be struck down as unconstitutional. This idea which found its roots in Maneka Gandhi v. Union of India[22] (‘Maneka Gandhi’) and was subsequently applied in K S Puttaswamy v. Union of India[23] (‘K S Puttaswamy’) that dealt with the fundamental right to privacy. Thus, where liberty and equality intersect, they must both be protected from unjust encroachment by the state, failing which the infringing law is invalidated.
i. Right to Equality
For a classification to pass constitutional muster, the Test of Reasonable Classification should be satisfied. This test comprises two primary arguments:
a. Is the classification based on intelligible differentia?
b. Is there a rational nexus to the object sought to be achieved by the Act?[24]
The former implies that when law treats two groups differently, there must be a clear criterion for differentiation between the groups. The Hon’ble Supreme Court in Javed v. State[25] observed that the classification should be 'well defined and well perceptible'. It is clear that what constitutes 'carnal intercourse against the order of nature' is neither well-defined nor well-perceptible and hence, the classification does not bear any intelligible differentia. However, the Supreme Court held that the classification made by Sec 377 is not arbitrary, even as it said that it would be difficult to cull out a uniform test to classify these acts.[26] It also completely abandoned the second limb of the test laid down in Maneka Gandhi (to prove reasonable classification) which asks what the purpose of the Act is and whether such differentiation helps achieve that purpose.
ii. Right to Privacy
The queer movement in India has had an uneasy relationship with the concept of privacy. Many in the movement felt that challenging the constitutional validity of Section 377 on grounds of infringement of privacy would be problematic since the privacy argument would be rendered meaningless for many individuals who did not have the privilege of a private space. For many lesbian women, the question of a private space was impossible; for the numerous men who did find a sexual space in public spaces like parks, the privacy argument actively perpetuated stigma against them. Privacy, in this instance, created tiers of reputable and disreputable sex, protecting acts behind closed doors while otherwise heightening vulnerabilities.[27] Notwithstanding this the right to privacy was recognised as intrinsic to life, liberty, freedom, and dignity under Article 21 in a number of judgments such as District Registrar and Collector, Hyderabad v. Canara Bank[28] (‘Canara Bank case’), and Govind v. State of Madhya Pradesh[29] (‘Govind case’). While the former established that regardless of older notions of privacy, in the modern constitutional sense, the right to privacy is premised upon the personhood of the individual. The Govind case explicitly laid down that protecting privacy of the home is necessary primarily because individuals need a place of sanctuary where they can be free from societal control.[30] Sec 377 violates the fundamental right to privacy by allowing the police and state officials to recklessly encroach on the privacy of a person’s home.
Despite these landmark judgements, the court could come to no reasoned conclusion as to whether the right to privacy was violated. It cited Maneka Gandhi while acknowledging that the standard of substantive due process (evolved by the U.S. Supreme Court) has been read into the Indian Constitution and that this is governed by principles of legitimate state interest and proportionality. The Court also mentioned the privacy-liberty-dignity link and referred to two crucial cases on the right to privacy - Kharak Singh and Gobind. However, it did not complete the logical flow of its statement by applying its reading of these cases to the facts in Koushal. It merely cited Para 46 of Kharak Singh and Para 47 of Gobind as if it were self-evident why privacy and liberty arguments do not apply here, thus, indicating poor judicial craftsmanship. After multiple paragraphs on the vital significance of the right, the Court dismissed the argument by stating that even if Section 377 has been used to perpetrate harassment, blackmail, and/or torture of persons belonging to the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community, “this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is mixed by police authorities and others is not a reflection of the vires of the section.”
iii. Constitutional morality vs. Public morality
A core question that the judges had to answer in Naz Foundation related to whether the state can infringe fundamental rights to protect the larger interest of ‘public morality’. The court asserted that constitutional rights can be infringed only to serve a compelling state interest but safeguarding popular morality cannot amount to such interest.
The doctrine of constitutional morality implies that constitutional guarantees will lose their significance if these are given majoritarian interpretations. The phrase was invoked by Ambedkar in a famous speech delivered on 4th November, 1948. The principal object of constitutional morality is to prevent any branch of government from asserting that it could exclusively represent the will of the people.
Pratap Bhanu Mehta further built upon the idea of constitutional morality, suggesting that there were specific elements of constitutional morality which B.R. Ambedkar, as the Chairman of the Drafting Committee, was concerned with during the proceedings of the Constituent Assembly - liberty tempered by self-restraint, respect for plurality, deference to processes, skepticism about authoritative claims to popular sovereignty, and the concern for an open culture of criticism. Further, Kalpana Kannabiran, in Tools of Justice: Non-Discrimination and the Indian Constitution (2012) explored in great detail two dimensions of constitutional morality, namely, the principles of non-discrimination and liberty. She asserted that the reference to minorities during the making of the Constitution referred not only to religious minorities but also to all classes that had been pushed to the margins. Further, she argued that while public morality is based on a society that is characterised by systematic discrimination against and exclusion of vulnerable people and communities from the ‘mainstream’, constitutional morality contemplates a society that is inclusive, peaceful, and concerned with the well-being of the dominant as well as marginalised sections of society.[31]
The judgement of the apex court in Koushal completely set aside any consideration of justice determined within the four corners of the Constitution. It entirely ripped apart the struggle for decades to recognise the idea of justice and constitutional morality.
Developments post Koushal judgement
While the review petition against the Supreme court ruling was dismissed, a bunch of curative petitions were admitted in addition to several fresh writ petitions that were filed by queer individuals to challenge the validity of Section 377. In the period between 2013 and 2018, the landscape of constitutional law in India had transformed, with the advancements in transgender rights and self-determination of gender identity and the recognition of the right to privacy as a fundamental right. Two significant court judgements merit a mention. In a significant ruling in April 2014, National Legal Services Authority (NALSA) v. Union of India and Others[32] (‘NALSA’), the Supreme Court, stressing on the significance of self-determination under Article 21, observed, “the gender to which a person belongs is to be determined by the person concerned” and that this may or may not correspond with the sex assigned at birth, including the personal sense of the body which may involve a freely chosen modification of bodily appearance or functions by medical, surgical or other means and other expressions of gender, including dress, speech and mannerisms.
In an expansive reading of the freedom of expression under Article 19(1)(a), the court in NALSA reiterated the freedom to express one’s self-identified gender through ‘dress, words, action or behaviour’, thereby giving a new dimension to this right.[33]
The other significant judgment was that of K Puttaswamy v. Union of India (2017) which laid down that the right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the constitution. The elevation of the right to privacy to the stature of a fundamental right was intended to protect it from majoritarian attacks and transformed it into a right for all to enjoy, irrespective of ethnicity, race, class, caste, gender, language sexual orientation, religion or political views. The court further noted that the right to privacy recognises personal choices governing a way of life, that it is not lost or surrendered merely because an individual is in a public space. This articulation allows us to imagine a range of future possibilities as far as the intersection of rights of queer persons and the right to privacy is concerned. Thus, privacy is not always about space.
The Puttaswamy ruling set the tone for the decriminalisation of same-sex relationships.
III. Section 377 Read Down
On 6th September, 2018, the Supreme Court in Navtej Singh Johar v. Union of India & Ors.[34] (‘Johar’), overruled its earlier decision in Koushal and held Sec 377 to be unconstitutional in so far as it penalises consensual sexual acts. A five-judge bench of the Supreme Court unanimously held that Sec 377 violates the right of equal citizenship as it marginalises the LGBTQI population and marks them “less than human”. Provisions of Sec 377, however, remain applicable in cases of non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality. The impact of the judgment was unprecedented and it was, indeed, a watershed moment in the history of Indian jurisprudence. In many ways, the Supreme Court reaffirmed the right to love and made a strong case for precedence of constitutional morality over social morality.
Relying on the NALSA judgement, the Supreme Court held that ‘identity’ as it appears in Article 15 of the Constitution, includes ‘gender identity’ and ‘sexual orientation’. Therefore, discrimination against the LGBTQI community on account of their being gender non-conforming would violate Article 15 which prohibits sex-based discrimination. The court explicitly laid down that the individual is the basic unit of the constitutional scheme and therefore, the Constitution plays a counter-majoritarian role.[35]
Further, the right to choose which was brought under the ambit of Article 21 of the Constitution in Common Cause v. Union of India[36] and extended to the choice of partner in Hadiya’s case[37] has now also been applied to transgender persons and the queer community. The court also discussed the need for reforms to protect male survivors of sexual assault. The five judges delivered four separate judgments that favoured the reading down of Sec 377 but differed in terms of reasoning.
Justice Dipak Misra invoked Johann Wolfgang von Goethe, Arthur Schopenhauer, and John Stuart Mill to emphasise the two aspects of freedom emanating from the fundamental right to privacy – the freedom to express one’s sexual identity and the freedom to choose one’s partner. Sexual orientation is an essential characteristic of privacy which considerably shapes individual identity. The thrust of his judgment was the place of freedom in our constitutional set-up. He held Sec 377 to be unconstitutional since it impinges on both these aspects of individual freedom and quite succinctly stated that the Constitution was an instrument or agency for achieving constitutional morality and a means to discourage the prevalent social morality at that time.[38] The purpose of constitutionalism is, therefore, to transform society.
He also severely criticised the Koushal verdict that described Sec 377 as affecting only a minuscule part of the population, since such an approach was violative of Article 14 and the fundamental obligation of constitutional courts to protect the rights of each citizen. Justice Rohinton Nariman, in his judgement, underlined the fundamental rights to autonomy and privacy in intimate matters. He reasoned that “unnatural sex” can no longer be identified as immoral since medical knowledge treats homosexuality as a natural tendency and has also acknowledged that discrimination on grounds of sexual orientation could harm the mental health of individuals. In order to further substantiate his argument, he draws a reference to Sections 21 and 120 of the Mental Healthcare Act, 2017 which guarantee non-discrimination in treatment on grounds of sexual orientation and provide that the Act shall override all other laws respectively.
He further adds, “Victorian morality must give way to constitutional morality” (Nariman J, Para 78). Cognizant of the challenges that lie ahead, Justice Nariman directed the Union of India to widely publicise the judgement and conduct sensitisation programmes for government officials and particularly, police officials.
Justice Chandrachud pointed out that the case was more than just decriminalising a provision. It was a desire to realise constitutional rights and equality for the LGBT community since denial of their sexual identity constituted a denial of citizenship rights. He also provides an expansive definition of the right to privacy as one founded on the right to autonomy of a free individual and must capture the right of persons of the community to navigate public places on their own terms, free from state interference.[39]
Justice Indu Malhotra also noted that same-sex relationships have been accorded protection across the world. She drew attention to the dichotomy in law which punishes same-sex intercourse, even among consenting adults under Sec 377, while the same is exempted from punishment in the case of rape under Sec 375 of IPC. Further, she quite rightly points out that contrary to the arguments in the Koushal case, discrimination based on an intrinsic and core trait of an individual cannot pass as a constitutionally permissible classification. However, what constitutes an ‘intrinsic’ and ‘core’ trait can only be decided in future cases.
It is also imperative to note that despite the fact that the judgement is a landmark on several counts, it also has an obvious loophole. Saptarshi Mandal in an article titled “Section 377: Whose Concerns Does the Judgment Address?” raises a pertinent question. He argues that while the Johar judgment advances the constitutional ideal of equality, it does not speak of Sec 377 as a symbol of state authoritarianism and the negative impact of this colonial relic on groups such as working-class transgender persons and effeminate gay men who are subjected to police abuse not only on account of Sec 377 but also laws concerning public nuisance and sex work.[40]
Nevertheless, the judgment privileges the ideal of constitutional morality and transformative constitutionalism and rejects the notion that majority opinion should override the right to dignity and liberty of the LGBTQI community thus, paving the path for the formation of a constitutional democracy.
IV. The Path Ahead
The court in Johar had quite aptly remarked: “this is the beginning of the end of prejudice”.
While Johar has upheld the fundamental rights and dignity of the LGBTQI community, some key aspects need a relook - personal laws related to marriage, adoption and succession, change in immigration laws to provide visas to same sex partners etc. Despite the decriminalisation of Sec 377, stereotypes and assumptions surrounding the identity of the LGBTQI community abound and homophobia and transphobia have legitimised horrific practices.
Corrective rape, for instance, is an abhorrent practice that involves lesbian women being sexually assaulted, sometimes even by their family members, in order to change their orientation to heterosexual.[41] A report from the International Commission for Jurists titled ‘Unnatural Offences: Obstacles to Justice in India Based on Sexual Orientation and Gender Identity’ [42] details the experiences of marginalised gender identities and sexual orientations and observes that even when stringent provisions are put in place and the law formally recognises their rights, police aid is rendered inaccessible as a result of discriminatory attitudes and widespread police harassment. The report also elucidates in great detail the rampant abuse that the queer people are subjected to within the family and in institutions such as the workplace, especially in precarious and lower-income livelihoods based on their sexual orientation.
That apart, most of us lack knowledge of queer rights vocabulary, primarily because laws such as Sec 377 have socialised us into promoting binaries of male and female or masculine and feminine. As a result, use of pronouns such as "he" or "she" in casual conversations often exclude the queer community entirely.
Further, even more than two and a half decades after the World Health Organization ceased to view homosexuality as a disease in 1990, doctors continue to offer various types of therapy, including electroshock therapy, to cure Lesbian, Gay, Bisexual, Transgender and Queer individuals. The ‘QueersAgainstQuacks’ campaign initiated by Humsafar Trust, a non-profit community-based organisation in Mumbai provides instances of doctors offering gay conversion therapies which have been clearly declared as harmful by the World Psychiatric Association and the Indian Psychiatric Society.[43]
Therefore, without a formal set of legal rights and protections, sexual minorities will continue to face abuse and discrimination. Justice, as they say, is a journey and not a destination. The fight against heteronormativity has only just begun. The onus now lies on the legislature to establish a legal framework within which the LGBTQIA+ community can truly exercise its right to love and privacy. A question that begs consideration is, 'will this happen and when?'. The government's refusal to take a stand on this issue, leaving it to the court's wisdom in the case of Johar, raises some uncomfortable questions about its commitment to issues of homo-normativity.
The enactment and passage of the controversial Transgender Persons (Protection of Rights) Bill, 2018 by the Lok Sabha last December is a case in point. It conflicts with the basic principles of NALSA and JOHAR. While prima facie it appears to be an effective measure, it in fact undoes several years of progressive judicial precedent. The Bill reinforces heteronormative standards and is ignorant and apathetic to the realities of the LGBTQIA+ community. Further, its definition of "transgender" is problematic on several counts. Gender identity, in the understanding of a queer theorist is a fluid concept, a personal experience that can be decided solely on the basis of self-identification, since gender identities cannot be strictly compartmentalised into boxes of male, female and transgender.
This idea is a core component of the NALSA judgment as well. However, the definition of transgender person in the Bill over-emphasises a such person's biological dimension, pays little attention to dilemmas faced by transgender persons with respect to their social identity and provides a scanty explanation of a complex concept like gender identity, for instance, inclusion of intersex persons within the ambit of "transgender". It fails to give adequate importance to significant aspects of transgender identity like how trans-persons view themselves vis a vis other; how the society views a trans-person; how trans-persons conduct themselves as well as interact with others and yearn to get a stamp of approval from the society at large.[44]
Secondly, the Bill mandates the separation of a transgender person from their families only under a judicial order, subsequent to which, the person may be placed in rehabilitation centres. This is an extremely regressive provision that disempowers the transgender community. The family of a transgender person is often a site of violence and abuse, and in order to escape this humiliation and coercion, many transgender persons find shelter in Hijra communities. However, the Bill takes away their choice to separate from their families. In doing so, it is both patronising and oppressive. Further, rehabilitation centres are infamous for instances of violence and abuse, more particularly, sexual violence and appalling living conditions.[45]
Another shocking provision is the constitution of district screening committees to "certify" a person who wishes to transition to another gender, as male or female, after they have undergone a sex reassignment surgery. This gives a largely homophobic and prejudiced bureaucracy the power to control a deeply personal experience. This procedure is not only vague but also exploitative and intrusive. It allows the identities of transgender persons to be questioned, unless approved by designated officials despite the fact that the NALSA judgment had clearly laid down that “any insistence on surgery for declaring one’s gender is immoral and illegal”.[46] Further, while the transgender community is routinely subjected to acid attacks, voyeurism, stalking, sexual violence, and other similar forms of vilification, the Bill does not fully recognise the entire spectrum of violence that they face and the forms of discrimination that are specific to the lower classes and lower castes even within the transgender community.
The Bill further seeks to criminalise begging which is the primary source of income for most transgender persons in India. In the absence of a viable alternative, transgender persons often resort to begging and sex work to earn a living. In fact, a survey had found that 92% of transgender persons are subjected to economic exclusion owing to their exclusion from various forms of employment (Times of India, 2018). In these circumstances, the more reasonable measure should have been providing employment and other economic opportunities for the transgender community. Criminalisation of begging will quite obviously provide ample scope for the police to harass and intimidate transgender persons with relative impunity in the absence of any arrangement to prosecute police officials who misuse their powers.
Instead of undoing decades of efforts by the queer movement, the Bill should focus on affirmative action (such as reservation in jobs and educational institutions as recommended by the Parliamentary Standing Committee), provisions for inclusive education, incentives for employment of transgender persons in the private sector, healthcare, financial assistance along with housing, and gender sensitisation in schools and universities. Civil rights related to marriage, adoption, divorce, etc. should also be incorporated into the legislation. Even though the Johar judgment recognises the sexual rights of transgender persons, neither the Bill nor the judgment makes any provision for granting legal recognition and protection to transgender persons who are in marriage-like relations or wish to register for adoption. The need of the hour, therefore, is to recognise as legally binding civil partnerships in case of adoption, insurance and inheritance, without any discrimination.
Thus, the Supreme Court verdict reading down Sec 377 is only the first step and the road to true equality is still a long and arduous one. The next step should naturally be aimed towards dismantling heteronormativity, gender binary and the persecution of the LGBTQIA+ community. How does one unlearn years of conditioning? Heteronormative campuses, curriculum, pedagogies, structures and spaces, and systems of jurisprudence have to be disrupted. Heteronormativity, indeed, exists as a powerful structuring force in our lives and is reflected through numerous social structures and institutions such as marriage, monogamy parenting and even the law. For instance, under the Workmen’s Compensation Act, 1923, the implicit condition for granting compensation is that the worker must be a member of a heterosexual family or a relative by marriage. Similarly, under insurance laws, nominations are restricted to blood relatives and relatives by marriage (Narrain, 2010).[47] However, it is interesting to note that while criminal law is largely gender neutral, mostly using the word “persons” to indicate perpetrators of crimes, personal laws on the other hand are chiefly gendered, so that various state benefits or legal statuses such as marriage, adoption, guardianship and succession will take the male-female binary into account.
In the current socio-political atmosphere vitiated with mob lynching, homophobia, violence against women and hate against religious minorities, this task is fraught with humongous challenges. The court has decided on the constitutional validity of the law, a rights-based framework must now be adopted to safeguard the fundamental and human rights of sexual minorities.
An important aspect of this entire discourse is the need to recognise differences and diversity within the LGBTQI. The LGBTQIA+ population does not represent a homogenous entity and therefore, it is imperative to recognise differences along caste/class/religious lines and understand how these differences might intersect to produce multiple and interpenetrating bases of oppression. The various communities that come under the rubric of queer for instance, kothi, gay, lesbian, intersexed, pansexual are not similarly placed. One must see how these categories intersect with other inequalities like marginal caste and community locations to produce constraining effects. Sumit Baudh uses the lens of intersectionality to show how intersectional subjects like trans-women, queer Dalits, Dalit Christians, disabled Dalits are 'othered' and rendered invisible.[48]
V. Conclusion
The history of Indian jurisprudence bears testimony to the yawning gap between legislative intent and everyday realities. Will our courts, legislature and police pay heed to a social movement advocating gender fluidity? The efficacy of law to effect social change is often questioned given its propensity to homogenise and erase complexities especially in relation to gender identity and sexual orientation. Nonetheless, what we need at the moment is a politics of hope and optimism. An enormous responsibility rests on the State and Civil society actors to work towards the ideal of transformation as envisaged by the constitution and to build a constitutional democracy as opposed to a majoritarian one. A transformed popular morality, neither whimsical nor transient, but one in sync with the principles of constitutional morality is what we seek.
*Shreya Mohapatra is a student at the National Law Institute University, Bhopal.
[1] W. P. (Crl.) No. 76 of 2016.
[2] Alok Gupta, Sec 377 and the Dignity of Indian Homosexuals, EPW 4815, 4815-4821, (2006).
[3] High Court of Delhi, Naz Foundation v. Government of NCT of Delhi and Others (SLP No. 7217-7218 of 2005), Rejoinder to Government of India, http://www.lawyerscollective.org/files (accessed August 15, 2008).
[4] Alexander Bubb, Blustering Sahibs and Sec 377, 44 EPW, 25 August, 2009.
[5] Cl 361: “Whoever intending to gratify unnatural lust, touches for that purpose any person or any animal or is by his own consent touched by any person for the purpose of gratifying unnatural lust, shall be punished with imprisonment of either description for a term which may extend to 14 years, and must not be less than two years”.
[6] Subhash Gatade, Orthodox of all religions unite! – Who is celebrating the judgement on Sec 377, KAFILA, (Jan. 26, 2017, 9. 09 A.M.), https://kafila.online/2014/01/31/orthodox-of-all-religions-unite-who-is-celebrating-the-judgment-on-article-377.
[7] J. Puri, Sexualizing the state: sodomy, civil liberties and the Indian Penal Code. In: Contesting Nation: Gendered Violence in South Asia: Notes on the Postcolonial Present. Chatterji AP, Nazir Chaudhry L, editors. NEW DELHI: ZUBAAN BOOKS/KALI FOR WOMEN, 2009.
[8] Child rights activists have, for long, insisted that the law should not be done away with since it also punishes sodomy, that is, coerced sexual assault of children, which was the only law that punished pedophiles before the enactment of the POCSO Act in 2012 (which protects children against offences of sexual abuse and harassment). Another argument in favour of reading down of the law as opposed to complete decriminalization is that it has the potential to provide adequate redress to men who are victims of sexual assault. See https://timesofindia.indiatimes.com/india/after-long-battle-itll-be-another-fight-for-right-to-marry-or-adopt/articleshow/64954252.cms.
[10] Suresh Kumar Koushal v. Naz Foundation, Arising out of SLP (C) No.15436 of 2009.
[11] Supra n. 32.
[12] Poulomi Banerjee, Decoding Sec 377: How the verdict erased basic human rights, H.T., December 22, 2013, at 11.
[13] Para 18, NALSA v. UOI.
[14] S. Khanna, Gay rights, IN HUMJINSI: A RESOURCE BOOK ON LESBIAN, GAY AND BISEXUAL RIGHTS IN INDIA, Fernandez B, editor. Mumbai: INDIAN CENTRE FOR HUMAN RIGHTS AND LAW; 2002. p.55–65.
[15] Humjinsi — A Resource Book on Lesbian, Gay and Bisexual Rights in India. Mumbai: India Centre for Human Rights and Law; PEOPLE’S UNION FOR CIVIL LIBERTIES (PUCL)- Karnataka, 2003.
[16] C. Mridula, Arrests for unnatural sex soar, so do cases of gay people being blackmailed, SCROLL, (28 Oct, 2018, 10.59 P.M.), https://scroll.in/article/700121/arrests-for-unnatural-sex-soar-so-do-cases-of-gay-peoplebeing-blackmailed.
[17] Ryan Goodman, “Beyond the Enforcement Principle: Sodomy Laws, Social Norms and Social Panoptics” in 89 Cal. L. Rev. 643.
[18] Arvind Narain, Rethinking Citizenship: A Queer Journey, I4 IIJ 61, 2007.
[19] According to a study conducted by Swasti Health Resource Center in 2015, spanning 7 months and covering 5 Indian states, 14% of 8,549 respondents had faced some form of emotional violence, 8.9% were survivors of sexual violence while 9% had faced physical violence.[19] A study conducted by the Karnataka branch of the People’s Union for Civil Liberties of the hijra community in Bangalore in 2003 brought to light the “cultural and social contexts that inform the limited choices, for example, of sex work and begging”.
[20] The Third Sex, 43 EPW, October 26, 2013.
[21] Jain Dipika, Shifting Subjects of State Legibility: Gender Minorities and the Law in India, Berkeley Journal of Law, Gender and Justice, 39-70 32(1), 2017.
[22] 1978 AIR 597.
[23] Writ Petition (Civil) no. 494 of 2012.
[24] Javed v. State of Haryana AIR 2003 SC 3057, Gopi Chand v. Delhi Administration, AIR 1959 SC 609. See also Laxmi Khandsari v. State of UP, AIR 1981 SC 873, Babulal v. Collector of Customs AIR 1957 SC 877, Budhan Choudhry v. State of Bihar, AIR 1955 SC 191, State of West Bengal v. Anwar Ali, AIR 1952 SC 75, R.K Garg v. Union of India AIR 1981 SC 2138.
[25] AIR 2003 SC 3057.
[26] Siddharth Narrain, We Dissent, ALTERNATIVE LAW FORUM, (Jan. 20, 2017, 8.30 A.M.), http://altlawforum.org/publications/we-dissent.
[27] Sheikh Danish, Queer Rights and the Puttaswamy Judgment, EPW, 52 (51) December, 2017.
[28] AIR 2005 SC 186.
[29] 1975 SCR (3) 946.
[30] AIR 1975 SC 1379 at para 24.
[31] As cited in V. Venkatesan, Three Doctrines, FRONTLINE, Mar. 10-23, 2012.
[32] National Legal Services Authority (NALSA) v. Union of India and Others, Writ Petition (Civil) No. 400 of 2012 (‘NALSA’).
[33] Arvind Narrain, Third, But Not Separate, ALTERNATIVE LAW FORUM, (20th December, 2017, 7.45 P.M.) http://altlawforum.org/publications/third-but-not-separate/.
[34] W. P. (Crl.) No. 76 of 2016.
[35] Rights Over Wrong, THE INDIAN EXPRESS, (Oct 27, 2018), 09.48 P.M.), https://indianexpress.com/article/opinion/columns/rights-over-wrong-section-377-homosexuality-5345713/.
[36] Writ petition (civil) no. 215 of 2005.
[37] SLP (Crl.) No. 5777 of 2017.
[38] P. Suhrith, Drawing a Curtain on the Past, THE HINDU, (Nov 1, 2018, 7.33 PM), https://www.thehindu.com/todays-paper/tp-opinion/drawing-a-curtain-on-the-past/article24939069.ece.
[39] Baset Al Zaid, Supreme Court Judgment against Section 377 The Tasks Ahead, EPW, 53(39), September, 2018.
[40] M. Saptarshi, Section 377: Whose Concerns Does The Judgment Address?, EPW Engage, (15th September, 2018, 9:30 pm), 53 (37) https://www.epw.in/engage/article/section-377-whose-concerns-does-the judgment address.
[41] Ipsita Chakravarty, Ruling upholding gay sex ban sparked rise in homophobia in India, says activist, (Jan. 28, 2017, 9.18 P.M.), https://scroll.in/article/809921/indian-judgment-upholding-gay-sex-ban-sparked-rise-in-homophobia-says-activist.
[42] Report of the International Commission of Jurists, February 2017.
[43] Rhema Mukti Baxter, #QueersAgainstQuacks: Gay community reminds Indian doctors that there is #NothingToCure, (Jan. 28, 2017, 7.35 P.M.), https://scroll.in/article/808048/queersagainstquacks-gay-community-reminds-indian-doctors-that-there-is-nothingtocure.
[44] M. Faizan, D. Prerna, Bill of Wrongs, THE INDIAN EXPRESS (Accessed on: March 23, 2019, 7:27 PM). https://indianexpress.com/article/opinion/columns/trangender-persons-bill-parliament-winter-session-5510949/.
[45] ibid.
[46] Review and Revise, THE INDIAN EXPRESS (Accessed: March 23, 9:37 PM).
https://indianexpress.com/article/opinion/editorials/review-and-revise-transgender-bill-5499490/.
[47] Arvind Narrain, Rethinking Citizenship: A Queer Journey, IJG, October 6, 2010.
[48] Baudh, Sumit. 2017. ‘Legal Invisibility of “Other” Dalits’, Biography,40(1): 222–243.