In this piece, Siddharth Narrain draws some of the threads of these arguments together, juxtaposing these observations with related developments in these areas in the 15 months since the verdict, arguing that the judgement has reignited debates around discrimination, privacy and new forms of gender politics.
On July 2nd, 2010, LGBT groups across the country celebrated the first anniversary of the Naz Foundation judgement that decriminalised homosexuality and extended the scope of the equality and privacy jurisprudence in the country. The immediate reactions to the judgement ranged from uninhibited joy to vociferous protest. While the focus of the media’s coverage of this ‘judicial event’ was largely on the impact of the case on lesbian, gay, bisexual and transgender (LGBT) persons in the country, it soon became clear that the judgement went beyond. Legal commentators, and those who have remarked on the impact of the judgement have pointed out to us that the Naz Foundation case far from just the gay case; as it was called in some legal circles- - the case was as one commentator put it “about all of us”.
“This judgement is first and foremost a defence of liberty, equality, privacy, and a presumptive check on state power. It is a feature of these values that they are secure only when they are enjoyed by all. Privacy cannot be genuinely protected if the state is given arbitrary power over some groups; equality cannot be realized if invidious distinctions between citizens persist; rights of liberty cannot be genuine if they apply only to all those who are alike. The essence of toleration is that each one of us can be safe from the fear of stigma and discrimination, persecution, only when all of us are safe; otherwise what we get is a counterfeit toleration. So let it be clear: this judgement is not about a minority, not about valorizing a lifestyle, it is about the values that made us who we are as a nation. Neither the detractors of this judgement, nor its defenders for that matter, should forget that it is in the name of a genuine common morality that this decision can be defended.” (Pratap Bhanu Mehta, “It’s About All of Us” , Indian Express, 4 July, 2009)
In a sense, some of these of these instinctive reactions have been proved to be bang on. In the Naz case the judges declared the law that criminalized homosexuality unconstitutional by saying that this legal provision were in violation of the rights to equality, non-discrimination, privacy, liberty and dignity. Of these grounds, legal scholars point out that the judges’ reading of the non-discrimination clause in our constitution (Article 15) to include discrimination based on sexual orientation were one of the boldest aspects of the case. This was because the judges interpreted the word discrimination based on ‘sex’ to include discrimination based on ‘sexual orientation’. The judges explaining their reasoning say that forcing someone to behave in accordance with predefined notions of what it means to be ‘man’ and ‘woman’ can be considered discrimination analogous to discrimination based on the grounds of sex.
“The purpose underlying the fundamental right against sex discrimination is to prevent behaviour that treats people differently for not being in conformity with generalization concerning “normal” and “natural” gender roles. Discrimination based on the basis of sexual orientation is itself grounded in stereotypical judgements and generalization about the conduct of either sex.”(para 99)
Potentially this kind of reasoning, could be used to address a vast landscape of issues that are at the core of how we see “masculine” and “feminine”, “blue” and “pink”, opening up the space for a much more fluid approach to gender. The transgender child who is harassed at school, the woman who is not allowed to pilot a plane, the hijra who is unable to access medical services, the man who faces resistance from his family for choosing to be a nurse, or the young couple who do not want to marry-- all of them stand to gain from the reasoning in this judgement.
Interestingly, one of the cases that were cited in the arguments in the Naz proceedings, which the judges use in the final analysis of the case, deals with a similar issue. In the Anuj Garg case, decided by the Supreme Court, a few months before Naz, the court struck down an archaic provision of law that prevented women in Delhi from becoming bartenders. The Naz judgement, builds upon the logic of ‘gender stereotyping’ to creatively give fresh meaning to the anti-discrimination clause in the Constitution. Potentially, this could mean that besides sexual orientation, the court has opened the doors to other analogous forms of discrimination like discrimination based on gender identity, disability, and other forms of social exclusion.
Similarly, the Naz Foundation’s case reading of the right to privacy guaranteed by the constitution focuses on ‘decisional privacy’ rather than ‘spacial privacy’. The Court was conscious of the fact that for a large number of working class LGBT persons, the comfort of having a private space, or a house of their own, was just not possible. For a large number of LGBT persons, it is public spaces like parks, railway stations, or isolated areas that serve as a meeting space. Further for transgender persons, or those whose appearance does not fit gender stereotypes, the discrimination that they face is often in public spaces. The judges, by stressing on decisional privacy, pre-empt the argument that society will tolerate these transgressions as long as they are behind four walls.
In effect, the judges read the right to privacy to encompass the right to self-expression. In my favourite passage of the judgement they say
“For every individual, whether homosexual or not, the sense of gender and sexual orientation of the person are so embedded in the individual that the individual carries this with aspect of his or her identity wherever he or she goes. A person cannot leave behind his sense of gender or sexual orientation at home. While recognizing the unique worth of each person, the Constitution does not presuppose that the holder of rights is an isolated, lonely, and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times. The expression of sexuality requires a partner, real or imagined. It is not for the state to choose or arrange the choice of partner but for the partners to choose themselves.” (para 47)
This extract from the judgment link is especially important in the larger Indian reality of honour killings, khap panchayats, vigilante and cultural policing, and parents filing false charges of kidnapping against consenting couples. For instance, the People’s Union for Civil Liberties (PULC-Karnataka), in a report on ‘Cultural Policing in Dakshina Kannada’, referring to a range of actions by Hindu vigilante groups in the region says,
“The term that seems to best capture the range of illegal actions aimed at destroying the idea of fraternity in the Indian Constitution was communal policing. Communal policing, or the policing of the borders of the community, extended not only to social and romantic interactions across communal boundaries, but also to norms of dress and choice of entertainment of women within each community. The everyday actions of the women members of the community, be it the choice of who they fell in love with, or which entertainment they choose to attend, or what dress they choose to wear, were subject to violent attacks by self-appointed vigilante groups.”
When the lawyers in the Naz case argued that the state should act to prevent cases of lesbian suicides, and ensure that the law is not misused against them by parents, and relatives who do not wish to see them together, they are weaving in facts that may not have been familiar to the judges, but at the same time familiar to them through analogous situations. The (often violent) control that the ‘samaj’ exercises on those who wish to defy traditional norms of gender and patriarchy, is reflected in the reports of how families react to gay and lesbian persons coming out, or when they realize their children are transgender. The existing documentation of violence and discrimination that LGBT persons from in their families, schools, places of employment suggest that the fight for queer rights is intrinsically linked to existing familial and societal pressures that affect a much larger set of people.
The evidence produced of discrimination and violence faced by that LGBT persons from goondas, blackmailers, the medical fraternity, parents, and other parties who were not linked to the state in any way, pushed the court to look at what one commentator calls “horizontal forms” of discrimination. In the Indian constitutional framework, one can see this form of protection, in the law’s attempt to abolish untouchability or other social practices that are degrading to lower castes. The judges in the case were conscious of the similarities between discrimination based on caste and that based on sexual orientation and gender identity, and at one point in the final arguments of the case, specifically asked one of the lawyers if they could present before them material that would help make this clearer.
An example of how this judgement has proved useful to address discrimination from non state actors has been a case that captured the attention of the national media post Naz. This case had to do with the dismissal and invasion of privacy of Professor Ramachandra Siras from the Aligarh Muslim University (A.M.U.) when trespassers in his house circulated pictures of him having sex with a man in his home (within the university premises). The tragic twist in the tale was that Siras was found dead in mysterious circumstances after he decided to fight back. However, this happened after he won a significant victory in the Allahabad High Court, where the judges stayed his dismissal, and ordered the University to reinstate him on the rolls and allow him to move back on campus. The lawyers for Siras, while arguing his case, relied heavily on the Naz judgement. We were wondering if it would be important to give some details about the Siras case and how the judgement was used. Because this is an issue of privacy I think it may be important to the reader to be able to access the idea.
The last point about the judgement that I would like to highlight is the aspect of “constitutional morality” that the court quotes from Ambedkar’s speeches in the Constitutional Assembly debates. The court addresses the question of conservative religious and cultural beliefs, opinions or moralities that view homosexuality as a sin, by making the distinction between popular morality and what they call constitutional morality (based on the Founding Fathers’ vision of democracy, equality, inclusiveness and secularism). This move has significant implications for any human rights violation or discriminatory practice that is often justified on the basis of culture and religion. Contemporary examples that come to mind include the refusal of the government to recognize marital rape, the difficulties in enforcing anti-child marriage legislation, or horrific instances of caste atrocities that go unpunished even today.
In a sense then, the Naz Foundation case nudges us to go back to the values in our constitution. In their daring and courage, the judges have reminded us that the founding principles in our constitution are relevant to the challenges we face today. At the same time, the judges remind us that fundamental human rights belong to individuals simply by virtue of their humanity, independent of any utilitarian considerations:
“A Bill of Rights does not 'confer' fundamental human rights. It confirms their existence and accords them protection” (para 123)
While the LGBT community has plenty of reason to celebrate Naz, it is important to underline that it’s all of us, who should be celebrating. E.O.M.
Siddharth Narrain is a legal researcher with the Alternative Law Forum, Bangalore. His areas of research interest include sexuality rights, media law issues, and the politics of the Supreme Court.
This article has been taken from our publication Q Exploring Queer Identity