Featured post

Press Release: Release of second edition (digital) of ‘Less than Gay’ – A Citizens’ Report on the status of Homosexuality in India

    The AIDS Bhedbhav Virodhi Andolan (ABVA) is releasing the second edition of ‘ Less than Gay ’ – A Citizens’ Report on the status of Homo...

Friday, 25 December 2020

ABVA's Reports

ABVA is in the process of digitizing its Citizens’ Reports brought out over the years. Following reports have already been digitized and can be read here:

 

1.   WOMEN & AIDS - DENIAL AND BLAME, 1990


2. AIDS & MANAVA ADHIKARON KA SANKAT (Hindi)

 

3.  BLOOD OF THE PROFESSIONALS, 1991

(A Report on the Exploitation of Professional Blood Donors by the Blood Banking      System in India)

 

4.   LESSTHAN GAY, 1991

(A Citizens’ Report on the Status of Homosexuality in India)

 

5.   THIS SUGAR IS BITTER, 1992

(A Citizens Report on the Status of Chemical Dependents and HIV Infection in India)

 

6.   VICTIMS’ VERSION, 1993.

(A citizens’ report on violence committed primarily against the Muslims of Seelampur, Delhi on 11 Dec 1992)

(A Citizens Report on the Status of Travellers with HIV/AIDS)

(A Citizens’ Report on the BIV Vaccine Trials In India)

 

9.  FOR PEOPLE LIKE US, 1999

(A Report of the fact finding team which enquired into the attempted suicide of Mamata and Monalisa in Cuttack, Orissa, India in 1998)

 

10. HUM JAISE LOG (Hindi)


11. endless and sickening therapies for AIDS

    (A Citizen’s report on Anti-AIDS drugs and the threat to public health)

Thursday, 24 December 2020

Press Release: ABVA releases digitized version of its Report ‘For People Like Us'

 

AIDS Bhedbhav Virodhi Andolan (ABVA, AIDS Anti-Discrimination Movement) is releasing digitized version of its March 1999 document titled ‘For People Like Us” – A Report of the fact finding team which enquired into the attempted suicide of Mamata and Monalisa in Cuttack, Orissa, India in 1998. In deep friendship for five years they had signed a Deed of Agreement before the Notary to remain as life partners. This is the first detailed enquiry report by a citizens group into an attempted lesbian suicide in India. Such cases continue to be reported despite the Supreme Court judgement of 2018 decriminalizing consensual adult homosexual act in private. Till date neither the Indian Parliament nor the Supreme Court of India have shown the courage to legitimize same-sex marriage.

 

The full report can be read here.

 

Shobha Aggarwal

On behalf of ABVA

Email: aidsbhedbhavvirodhiandolan@gmail.com


Saturday, 5 September 2020

Indian Parliament Must Apologize for Stonewalling Debate on Gay & Lesbian Issues Since Independence

 By Dr. P. S. Sahni & Shobha Aggarwal

  • The rights of people with different sexual orientations – Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, Asexual needs to be respected; all the laws that criminalise or discriminate against the LGBTQIA community should be abolished. India should pass laws that allows marriage among same sex and LGBTQIA communities.

–          A People’s Manifesto for Ecological Democracy by Countercurrents Collective released on August 15, 2020

  • The remedy against § 377 lies with the people through their Parliament, and not in the courts.

Since 1988-89 ABVA (AIDS Bhedbhav Virodhi Andolan) has been sending petitions to the Indian Parliament pertaining to all the alleged high risk groups for AIDS including gay community. The very first petition was addressed to the Speaker, Lok Sabha urging that the AIDS Prevention Bill, 1989 be not passed by Parliament as it stigmatized and scapegoated inter alia the gay community. The petition reached the then Chairperson of the Petitions Committee, Mr. Atal Bihari Vajpayee who sent a reply letter asking ABVA to give evidence in support of its contention. We duly complied and campaigned with 100 odd groups all over the country to object to the gay community and alleged other high risk groups being targeted by the proposed Bill. Within two years the Bill was withdrawn.

When ABVA released the report “Less than Gay” in November 1991 a petition was sent to the Petitions Committee appealing that the charter of demands (later referred to as the Gay Manifesto) be debated in Parliament and that Section 377, Indian Penal Code (IPC) should be repealed in toto. A number of similar minded groups affixed our petition with a covering letter urging for the same demand. No reply was received by ABVA nor did any debate take place in Parliament during the five year period of the government in power i.e. till 1996.

We at ABVA were absolutely clear that ultimately it is the people’s representatives in Parliament who will have to address the issue threadbare – shedding coyishness aside – and give justice to the gay and lesbian community as also the transgender community who till then had not even got the identity of the third sex. This happened through the NALSA judgement delivered by the Supreme Court (SC) in 2014. True in 1994 ABVA had filed a petition in the Delhi High Court asking for inter alia striking down of Section 377 IPC in its totality. For seven years we campaigned with the petition all over the country to sensitize activists on the issue and enlist support. We urged all groups to file similar petitions in their respective state’s high courts. The idea was to ensure that a section of the media would disseminate ABVA’s message which might reach the Members of Parliament. Not even one Member of Parliament (MP) – not even the communists/socialists – raised the issue in that forum. On the contrary a few organization related to the communists were even actively opposing the issue of sexual minorities. However we continued with our attempts because we could not come to terms with the fact that Parliament would refuse to even debate the issue since the time the country achieved its independence. We were clear that courts could at best provide a narrow, legalistic relief only.

Overtime we were sending letters to major political parties ahead of general and state elections with the ardent hope that the issues of sexual minorities would find place in their political manifesto. This happened to some extent only in the last general elections. We had even addressed open letters to Sonia Gandhi, Rahul Gandhi and Parliamentarians since 2014. There was masterly inactivity on behalf of all of them. In all fairness Mr. Shashi Tharoor, MP brought a private member’s Bill a few times in Lok Sabha during 2015 to 2018 to replace Section 377, IPC and to decriminalize consensual adult homosexual acts. Not surprisingly the Bill was not even allowed to be introduced in Lok Sabha principally by the vehement opposition of the BJP MPs. Overtime some noises in favour of gay community were made by Mr. Arun Jaitley, BJP MP, who opined that their human rights have to be respected. At least the issue of rights of transgender community have figured in Parliament in last decade or so and the Transgender Persons (Protection of Rights) Act, 2019 got passed; it is with the gay and lesbian issues that Parliamentarians cutting across all parties and ideologies have a problem. It is ironical that a country which boasts of Kama Sutra – which has a full chapter on gay sex – and which has been authored by an establishment person, Vatsyayana feels shy of discussing gay and lesbian issues affecting all aspects of their lives viz marriage, adoption, property rights; educational and job opportunities (full details in Gay Manifesto). Why, even Khajuraho temples – by all means Hindu and Jain ones – famous for their erotic sculptures show in full details the sexual act between two men and two women.

Under the Indian Constitution and Parliamentary Procedure and Practice there is no way a call attention debate can be disallowed on gay and lesbian issues. Only one MP needs to give a simple notice asking for such a debate to take place. In practice it is better if four or five MPs send separate notices. The Speaker / Chairperson can fix a day and time for the same. It is no one’s case that the entire Gay Manifesto be accepted. If after 73 years of independence the Indian Parliament refuses to let such a debate take place where should the eighty million people belonging to sexual minority go for redressal. It may be recalled that the then Chief Justice of India while delivering the judgement modifying Section 377 IPC to exclude consensual adult homosexual acts from its ambit had taken a clear stance that the apex court would not be taking up the issues of marriage, property rights and so on. The minor concession by the court should not lead to complacency within the gay and lesbian community. The struggle for equality in all spheres of life – publicly and not just in private – must continue.

Occupy Parliament Street

The only option left for the gay community is to mobilize all civil society organizations, come under a common coalitional umbrella organization and Occupy Parliament Street indefinitely. All participants should be prepared for coercive action of the administration and the police. There is no substitute for struggle and non-party political action; this needs to be stressed on the second anniversary of the SC judgement.

Bob Dylan’s inspiring lines come to mind:

“… Come senators, congressmen
Please heed the call
Don’t stand in the doorway
Don’t block up the hall
For he that gets hurt
Will be he who has stalled
There’s a battle outside and it is ragin’
It’ll soon shake your windows and rattle your walls
For the times they are a-changin’ …


First published: https://countercurrents.org/2020/09/indian-parliament-must-apologize-for-stonewalling-debate-on-gay-lesbian-issues-since-independence/

Friday, 4 September 2020

Constitutionality of Section 377, Indian Penal Code – A Case of Misplaced Hope in Courts

 

CONSTITUTIONALITY OF SECTION 377,

INDIAN PENAL CODE – A CASE OF MISPLACED HOPE IN COURTS

M.P. Singh[1]

Amidst strong reactions against the decision of the Supreme Court in Suresh Kumar Koushal v. Naz Foundation, this paper argues that the Court has done all that it is expected to do under the Constitution and the law established under it. The respondents, especially the Union of India, have unsuccessfully asked it to do what the Constitution does not expect it to do. The remedy against § 377 lies with the people through their Parliament, and not in the courts.

“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.”

—Judge Learned Hand, The Spirit of Liberty[2]

I. INTRODUCTION

Before contextualising the foregoing statement, in view of sharp

reactions to my comment on the decision of the Delhi High Court,[3] let me clarify that I am neither insensitive to the issues of LGBTs or LGBTQs, nor am I opposed to their claim for rights and liberty in their private and personal lives. As a student of constitutional law, my limited concern is to examine whether the courts have the power to invalidate § 377 of the Indian Penal Code (‘IPC’). In my understanding of the Constitution and its interpretation, the courts lack the power to invalidate the section.[4] I am not surprised that on appeal in Suresh Kumar Koushal v. Naz Foundation (‘Koushal’)[5], the Apex Court has also come to the same conclusion.

Sharp reactions against Koushal in the mass media and a few aca-

demic writings reminded me of the above mentioned words of Judge Learned Hand which he spoke to a gathering of United States citizens at the Central Park of New York towards the end of World War II. A few days after Koushal, I chanced to watch a meeting of a group of LGBTs at Delhi University campus during which, following expressions of disappointment and anger against the decision by several speakers, the convener of the group said something similar to what Judge Learned Hand had said. He asked his co-workers and the audience not to rely too much on the courts. The rights of LGBTs could not be realised through court decisions, he said; they required an attitudinal change in the society at large, which was possible only by informing and enlightening people about the legitimacy of their claims. In Koushal, the Supreme Court also seems to be expressing a similar view when in response to some allegations of discrimination by the first respondent – Naz Foundation – it says: “These details are wholly insufficient for recording a finding that homosexuals, gays, etc. are being subjected to discriminatory treatment either by the state or its agencies”.[6]

II. ANALYSIS OF THE ROLE OF THE

GOVERNMENT AND THE COURT IN THE PRESENT CASE

While the outrage in the media and amongst legal scholars is un-

derstandable, the claims of the Attorney General induced by the Government of the day, first to only assist the Court in the hearing of the appeal and later for the review of the decision, are unprecedented and unprincipled. The government is expected to honour and defend the Constitution as much, if not more, as the Court and to insert and retain in the statute book only such laws which it considers constitutional, and to ask the Attorney General to defend them against any challenge before the courts. In Koushal, on the contrary, the government admits its law to be unconstitutional, and instead of removing it from the statute book, asks the Attorney General to get it struck down by the Court. How strange is it that a government which often blames the courts of overreach and excessive interference with laws and policies, unprecedentedly asks the Court to invalidate a legislation, which the Constitution allows to “continue in force…until altered or repealed or amended by a competent legislature or other competent authority”?[7]

 A CASE OF MISPLACED HOPE IN COURTS 571

At one point of time, the Attorney General asked the Court to hold

that not only liberties but even life of any person could be taken by the petty police officers without any procedure established by law.[8] It is incomprehensible that the Attorney General now expects the Court to invalidate a law which has remained unaltered in the statute book for over one hundred and fifty years, including sixty four years since the commencement of the Constitution. Except in a federal arrangement where the Centre and the States can challenge each other’s laws on the ground of encroachment in the jurisdiction of one by the other, only an individual or a group of individuals who perceives an unconstitutional encroachment on their rights or interests by such laws are entitled to get them invalidated by the courts.[9] Even in this limited field, Justice Holmes advised that the nation could not come to an end if the courts lost the power to declare federal legislation unconstitutional but it could be imperilled if the courts could not make that declaration as to the laws of several states.[10] The Attorney-General’s approach in the present matter implies the government’s lack of both confidence in itself and faith in democracy – the cornerstone of the Constitution and one of its basic features – and expects the courts to do what the Constitution assigns to the people’s elected representatives. It amounts to subversion of the Constitution and beginning of the end of our liberty.

As custodian of the Constitution, the Court in Koushal, on the

other hand, has performed its job of protecting and preserving the Constitution from this kind of unexpected and unacceptable design of the government in refusing to invalidate or even read down § 377 of the IPC. Admitting its plenary power of judicial review, it clarified that “keeping in mind the importance of separation of powers and out of sense of deference to the value of democracy that parliamentary Acts embody, self-restraint has been exercised by the judiciary when dealing with the constitutionality of laws”.[11] Alluding to the presumption of constitutionality and the doctrine of severability, the Court admitted that “[d]eclaring the law unconstitutional is one of the last resorts taken by the courts”[12] and they “would preferably put into service the principle of ‘reading down’ or ‘reading into’ the provision to make it effective, workable and ensure the attainment of the object of the Act”.[13] Applying these principles to § 377 of the IPC, which has survived as such ever since the making of IPC even though it has been amended about thirty times and the Law Commission recommended its deletion, the Court concluded:

“It is, therefore, apposite to say that unless a clear constitutional violation is proved, this Court is not empowered to strike down a law merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose and its needs”.[14]

On examining the prosecutions and convictions under § 377 of

the IPC in the light of these principles, the Court found that all these cases related to “non-consensual and markedly coercive situations and keenness of the Court in bringing justice to the victims who were either women or children cannot be discounted while analysing the manner in which the section has been interpreted” and expressed its doubt “whether the court would rule similarly in a case of proved consensual intercourse between adults”.[15] However, going by the plain meaning and legislative history of the section, it held “that § 377 of the IPC would apply irrespective of age and consent”.[16] The Court further clarified that:

“Section 377 IPC does not criminalise 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”.16

The Court also found that the petitioners before the Delhi High Court did not produce adequate proof of the fact that “homosexuals, gays, etc. are being subjected to discriminatory treatment either by the State or its agencies or the society”.[17] In my view, even if discrimination by society is established, invalidity of § 377 will not help LGBTs because the section empowers the state or its agencies to take action and not the society.

On the question of discrimination, relying upon the established

law, the Court came to the conclusion:

“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 and the people falling in the latter category cannot claim that § 377 suffers

 A CASE OF MISPLACED HOPE IN COURTS 573

from the vice of arbitrariness and irrational classification.… Therefore, the High Court was not right in declaring § 377

IPC ultra vires Articles 14 and 15 of the Constitution”.[18]

The miniscule population of LGBTs and the fact that there were

less than 200 prosecutions, also weighed in the mind of the Court in rejecting the plea of invalidity under Articles 14, 15 and 21.[19] I need not repeat what I had said in reaction to the Delhi High Court decision in arriving at the same conclusion.[20] Contrary to my understanding of the judicial decisions and their application, the Court read substantive due process in the combined reading of Articles 14, 19 and 21. But without arriving on any conclusion on that issue, even on the allegations of torture, harassment and blackmail of LGBTs on account of § 377, it held that “this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection on the vires of the section”.[21] Mere possibility of abuse of law, the Court observed, does not per se invalidate a law.

Professor Baxi has strongly argued against the understanding and

application of Article 14 by the Court to different kinds of sexual acts,[22] but as I have said before, until a bench of nine judges changes the existing law on Article 14, the smaller benches are bound by the decision.[23]

Finally, on the question of foreign precedents and laws, the Court

expressed “grave doubts about the expediency of transplanting Western experience in our country”.24 Citing the example of the death penalty and the Law Commission’s views on it and some cases in which the Court has cautioned against being blinded by foreign precedents, the Court concluded that “§ 377 IPC does not suffer from the vice of unconstitutionality”.[24] It further stated that “the competent legislature was, however, free to consider the desirability and propriety of deleting § 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General”.26 I add that, on the lines of Justice Holms’ advice cited above, the Court shows due deference to major pre-Constitution codes and Acts of Parliament. Even § 303 IPC was invalidated because it encroached upon the judicial power. All other challenges have uniformly been rejected. In the United States of America, same sex relationships in State laws have been the subject matter of litigation[25] and in most other jurisdictions in the West, change has been brought by legislation.

III. CONCLUSION

To conclude, in Koushal, the Court has lived by its dharma of

upholding the Constitution and the laws consistent with it even in the face of government’s collusion with the respondents. The stand of the government has, however, gone against its dharma of defending its laws or to repeal them if it considers them to be unconstitutional. The media and scholars must enlighten the people, including the legislators, about the plight of LGBTs and the injustice, if any, to which law subjects them instead of pinning all the hopes in the courts.[26]



[1] Chancellor, Central University of Haryana. Formerly, Professor of Law and Vice-Chancellor, W.B. National University of Juridical Sciences, Kolkata, India and Professor of Law, University of Delhi.

[2] Judge Learned Hand, The ‘Spirit of Liberty’ Speech presented during the annual ‘I am an American Day’ event (May 21, 1944).

[3] Naz Foundation v. Govt. (NCT of Delhi), (2009) 160 DLT 277.

[4] See M.P. Singh, Decriminalisation of Homosexuality and the Constitution, 2 NUJS L. Rev. 361 (2009).

[5] (2014) 1  SCC  1.

[6] Id., ¶ 63. The expression ‘the society’, which I have omitted from the quote, in my view, means society as an organisation as opposed to families and small groups of people.

[7] Constitution of India, 1950, Art. 372. The continuation is, however, subject to the Constitution.

[8] See ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521. For some revealing details see

H.R. KHaNNa, NeitHeR RoSeS NoR tHoRNS 82 (2010).

[9] The statement may be read subject to the practice of public interest litigation, in which any person or body of persons having sufficient interest in the matter may also approach the courts for the invalidation of laws.

[10] See O.W. Holmes, Law and the Court in CoLLeCted LegaL PaPeRS 295 (1920).

[11] Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, ¶ 32 (emphasis supplied).

[12] Id., ¶ 40.

[13] Id., referring to and relying upon the principles laid down in Namit Sharma v. Union of India, (2013) 1 SCC 745. See also summarised version of the principles at Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, ¶ 44.

[14] Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, ¶ 46.

[15] Id., ¶ 60.

[16] Id. 16 Id.

[17] Id., ¶ 63.

[18] Id., ¶ 65.

[19] Id., ¶ 66.

[20] See Singh, supra note 3, 361.

[21] Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, ¶ 76.

[22] Upendra Baxi, Naz 2: A Critique, 49(6) EPW (February 8, 2014).

[23] See Singh, supra note 3, 361, 371, 380 as well as the discussion on reasonableness in Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 352. 24 Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, ¶ 77.

[24] Id., ¶ 80. 26 Id., ¶ 82.

[25] However, the United States Supreme Court, by a majority of 5 to 4, has invalidated a federal law which for claiming tax benefits, defined marriage only between a man and a woman. The reasons for such invalidation were multifarious, though the main reason appears to be the violation of liberty without due process of law that included equal protection of laws also. See United States v. Windsor, 186 L.Ed 2d 808: 570 US 12 (2013).

[26] At the time of writing this comment, elections were due for Parliament. The people could have asked the political parties to include the demand for repeal of §377 in their manifesto as the Communist Party of India (M) did or after the constitution of new Parliament they should ask their elected representatives to repeal that section.


Reproduced from NUJS Law Review for educational and non-commercial purposes. Cite as: M.P. Singh, Constitutionality of Section 377, Indian Penal Code – A Case of Misplaced Hope in Courts, 6 NUJS L. Rev. 4 (2013)

Link: http://nujslawreview.org/2016/12/04/constitutionality-of-section-377-indian-penal-code-a-case-of-misplaced-hope-in-courts/

Wednesday, 2 September 2020

COVID-19 Pandemic: A Joint Nobel Prize For Trump, Bolsonaro, Modi – Truly Deserved!

  by Dr P S Sahni 


An emergency meeting of the 50-member Nobel Assembly at Karolinska Institutet, Stockholm – responsible for the selection of Nobel laureates in physiology or medicine – is having grave deliberations.

Chairperson: An unprecedented situation has arisen after we received an email from the aforesaid aspirants for the Nobel Prize; the rules do not allow nomination by the potential laureates. I beseech the wisdom of this assembly to tide over the crises bigger than the COVID-19 pandemic itself!

Member 1 (M1): Sir, the situation being delicate – what with the background of these three characters – it is best if we go about the proceedings in a dispassionate manner.

M2: Sir, the credentials of the aspirant from India states that he was instrumental in dispatching the drug Hydroxychloroquine (HCQ) to about 100 odd countries to save the lives of hundreds of thousands of people. Secondly, he submits that he has allowed the production and stockpiling of Oxford vaccine (backed by British government) at Pune, India at the very centre where Phase II, III, IV clinical trials of this vaccine are still in progress! Additionally he has dispatched paracetamol medicine to many countries for control of fever in COVID-19 infection! Besides he is said to be the original proponent of social distancing; sir, he has socially distanced himself from his better half for decades. Speaks volumes for his sacrifice. He faces a crucial provincial (Bihar) election in October 2020; would love to conquer Bihar close on the heels of the announcement of the prize.

M1: Sorry for the interruption but it needs to be pointed out that even the World Health Organization has concluded that HCQ is useless and dangerous when given to patients with serious pneumonia. On this ground alone the prize cannot be awarded. Secondly sir, while it is courageous for this aspirant to allow production and stockpiling of the vaccine even before the trials are successfully completed, what if the results of these trials are anything but? Thirdly, around 80,000 doctors, nurses, voluntary workers in India alone have got infected with the virus even though health care service providers are given HCQ as a government policy. Clearly HCQ does not have even a preventive role.

M3: I am aware, sir, of the way things get done in India. You can be sure that results of the trial would be as required by the Oxford University and Astra-Zeneca. The British PM has himself put in a word to his Indian counterpart. Moreover the institute undertaking the trial has had a call from Bhai log (mafia) in Mumbai that the trials have to be shown to be successful. So there should be no doubt on this score. For the uninitiated Bhai log are more feared than the Italian godfathers and resourceful too! A negative point though, is that the aspirant from India was accused of genocide of Muslims in Gujarat in 2002 though the judiciary gave him a clean chit later! After being denied visa for visit to USA for over a decade Trump personally invited Modi and embraced him in pre-COVID times!

M4: Sir, the aspirant from USA asserts that he should be lauded for projecting the COVID-19 infection – right in the beginning of the pandemic – as a simple flu. This ensured that mass depression and suicides got avoided in USA – a no mean achievement during the nation’s hour of greatest crises. Like the aspirant from India he too, had been a strong votary of HCQ. Rumours have it that he himself had consumed this medicine for prevention of infection. In fact his concern for the people of his country can be gauzed from the fact that he had threatened to bomb India to Stone Age at a time when Modi had dared to put an embargo on the export of this drug for a few days. Sir, we have to appreciate the spirit of this character and the passion with which he steered the country through this pandemic. Remember, too, he could pressurize Modi – who never tires of reminding all and sundry that his chest circumference measures 56 inches – to lift the embargo on HCQ. The aspirant has tagged a few recommendatory letters from dozens of women who cheerfully testify to his virility in all honesty. Moreover, sir, he faces a re-election in the first week of November; his name being declared in October as per our protocol would steer him through the tumultuous electoral process! Keep in mind sir, that this time Russia may not be able to manipulate the elections in USA through social media. Our little bit of help would get him past the goal post. If we don’t, he may resort to the usual tactics – imposing sanctions, tariffs; what is more he may bomb the Nobel assembly at Karolinska Institutet, Stockholm out of existence!

M5: Sir, let me brief this august gathering on the third aspirant: you have to admire the bravado of the Brazilian president; Bolsonaro has been moving around publicly throughout the length and breadth of the country often without as much as a mask and occasionally hugging the populace at public places. Never mind that all this has resulted in Brazil having the second highest number of COVID-19 cases in the world but the risk he took personally cannot be ignored. Besides he is the original propagator of HCQ which he prefers to call by the Hindu mythological connotation of being Hanuman ji’s sanjeevni buti. Such creative and innovative mind would be hard to locate in CDC, Atlanta, USA. I wish to bring to your notice that Father Damien worked amongst leprosy patients and contracted leprosy; likewise sir, Bolsonaro contacted COVID-19 infection in July 2020 purely because he dared to mingle with the Brazilian people when they were in need of emotional support. This selfless act of Bolsonaro qualifies him to be an aspirant.

M6: What if in spite of the best efforts of Bhai log in India the results of Phase II to IV point towards the vaccine being useless.

M7: Sir, once we have given the award to these three aspirants we need not worry if the Oxford vaccine discovery is found to be bogus. Remember sir, that in the year 1926 we had awarded a Nobel Prize in medicine to Johannes Fibiger which was later found to be a discovery of dubious nature. So we have a precedence to fall back upon. We shouldn’t worry about such niceties.

M8: Sir, in any case in Putin’s Russia the vaccine has not only not completed the full mandatory trials but has also been produced and stockpiled. In fact people have even been vaccinated with this new vaccine. One of Putin’s close relative has received a shot and Putin insists that all is fine. Luckily for us at the Nobel Prize committee Putin has not projected himself as an aspirant to the Nobel Prize. You know sir, how these wretched communists – present and erstwhile – look at the Nobel Prize, to wit, an instrument of decadent western capitalist world order. Same goes for China where the vaccine trials are in an advanced stage. Before I end my statement I wish to chip in – and we must collectively confess in this august gathering – that at the behest of USA and western Europe we have used the Nobel Prize to create dissenters within the iron curtain countries in the past. This was in line with the long term objective of the west to have a communist-mukt world order.

Chairperson: I have given a patient hearing to the worthy opinion of the members of this assembly; yet I must express myself clearly that I feel strongly that the soul of Alfred Nobel would never rest in peace if the likes of Trump were to be bestowed with the Nobel Prize in medicine. The very thought is discomforting to me.

Dissenting member: Since this is a closed door meeting and our corporate press will never get wind of the ongoing proceedings here – which as per protocol are kept secret for 50 years in any case – let the truth be out. I have no hesitation in reminding you that Alfred Nobel made his money out of the invention of dynamite and an explosive device called a blasting cap which inaugurated the modern use of high explosives. Sir, dynamite has created more death and destruction in this world than all the havoc caused by the USA in the two dozen odd countries which it had invaded since World War II for a variety of reasons viz oil; regime change; locating non-existent weapons of mass destruction; defeating communism and at times even to win presidential elections within USA not to speak of enlarging the business of the MNCs manufacturing war weaponry. So if Trump shares this prize, Alfred Nobel’s soul is more likely to rest in peace permanently. I think your fears are totally unfounded. We will be able to kill two birds with one stone if the name of the Indian aspirant stays included; do you recall that the name of the company started by Alfred Nobel for manufacture and sale of weapons including canons and other armaments. Yes, I am referring to Bofors – which put the grand old Indian National Congress (INC) in disrepute for decades. Poetic justice would be done to the Indian aspirant. Besides, letting him share the award would provide ammunition to the INC to regain its lost political hold. You may announce the award jointly to the three aspirants at the scheduled ceremony in October – the month earmarked as per the protocol of the Nobel Committee.

Namaste!

Dr. P. S. Sahni is a member of ABVA.

Email: aidsbhedbhavvirodhiandolan@gmail.com


First published: https://countercurrents.org/2020/09/covid-19-pandemic-a-joint-nobel-prize-for-trump-bolsonaro-modi-truly-deserved/

Friday, 21 August 2020

Rest Assured, HM’s Recovery Is Assured

by Shobha Aggarwal


HM has been reportedly readmitted to the hospital for post-COVID care (and continues to work from there).  Even as the whole country is praying for his speedy recovery, Sarkari facts and statements issued ad infinitum should give him a reason to cheer viz:

  • The recovery rate for COVID-19 has improved and reached 73.64 % because of ‘active intervention treatment strategies’.
  • The mortality rate has decreased to 1.91%. This is apparently the lowest in the whole world.
  • India has one of the lowest rate of death of elected representatives due to COVID-19. (Cf. Iran where about 2 dozen legislators had died.)
  • India has the plasma therapy in place which can increase life span albeit for a few days.
  • Indian Government has played a pioneering role by advocating HCQ and dispatching it to half the world as a curative cum preventive therapy.
  • Anti-AIDS drugs have been given a green signal by the Drug Controller of India. Indian health authorities have stocked a huge amount.
  • Over 50,000 ventilators are available in India right now; PM Cares Fund has contributed Rs. 2000 crore for this life saving gadget. Even as the wag says: ventilators not needed in mild, moderate cases; are useless in severe cases.
  • India reached the figure of 50,000 deaths in the longest period of time i.e. in 156 days. (Cf. USA reached the figure in 23 days.)
  • More and more people are testing positive but that is because testing has been ramped up due to the sustained campaign for improvement of health infrastructure.
  • The number of laboratories testing for COVID-19 – both private and government – have reached a record 1400 plus. Courtesy: Union Government, State Governments & UT administrators.
  • India has recorded the highest number of tests ever conducted in a day viz 9 lakhs in 24 hours.
  • India has recorded the highest number of patients being discharged from the hospital viz 57381 in one single day.
  • While India has third highest number of cases in the world it needs to be emphasized that this is only on account of its huge population.
  • Even as the concerned governments are doing their best, the PM said in his ‘mann ki baat’, that some people are seen to be off their guards risking infection. Credit to governments; blame to ‘we the people’.
  • The policy of WFH (work from home) includes WFH (work from hospital).
  • COVID-19 Vaccine is around the corner; just as AIDS vaccine has been around the corner – for the last four decades!

Inanity of Sarkari statistics notwithstanding, rest assured, given India’s stellar role as a global leader in the fight against COVID-19 pandemic HM’s recovery is assured.


First Published: https://countercurrents.org/2020/08/rest-assured-hms-recovery-is-assured/

Tuesday, 18 August 2020

The lack of honest toil by ASHLEY TELLIS

 I encourage liberals who wish to argue against, for example, the criminalization of homosexual sex, to engage with the honest toil of arguing that the reason such conduct ought not to be criminalized is that there is nothing immoral in it.

– Gerald Dworkin1

THE Supreme Court, on 6 September 2018, overturned the Koushal judgement on Section 377 of the Indian Penal Code.2 Predictably, the media erupted in celebration of the ‘decriminalization of homosexuality in India’ (something they had done with the Naz judgement too nine years ago), despite the fact that in both cases no such thing had happened. Criminal law experts continue to argue that homosexuality is decriminalized because they collapse acts with identity. Section 377 talks only about acts but was always read by criminal law experts as a penal provision for homosexuals, though the corpus of case histories under it show this was not necessarily the case. While decriminalization does not only mean striking down a provision in toto, the burden of the argument here is to show that what was needed was an engagement with the identity of homosexuality at the legislative and executive levels3 through a collective struggle and not a short-circuiting of the struggle via an emendation of Section 377 which actually does little for the LGBT cause in India.4

Consensual adult same-sex acts in private are now allowed, making it merely the equivalent of the Wolfenden Report in Britain in 1957.5 Britain took another ten years to turn the report into a law and that law too did not really legalize homosexuality. Indeed, the leglisation of homosexuality is still an ongoing process in Britain, partly due to the legacy of the Wolfenden report. India’s following this trajectory is limiting and the legal arguments for it convoluted, as is clear in the Navtej Johar judgement. Making something legal would mean positively legislating on the issue and extending other rights and benefits. Decriminalizing certain acts has a limited meaning, as acknowledged even by the court. The celebrations are wrongheaded and misguided.

As usual, scant attention was paid to the logic (or the lack of it) in the judgement, let alone the fact that the government had kept out of it and left it to the courts. This is not a merely pedantic quibble but goes to the heart of this otiose and pleonastic judgement. The judgement simply refuses to squarely face the question at hand – affirming a citizen’s right to be homo-sexual – settling instead for the heavy weather of the rhetorics of constitutional morality and transformative constitutionalism,6 to assert that right through a torturous route. While this route is necessitated by the frame of the juridical (the wrong frame for this assertion), the epigraph by philosopher Dworkin, revisiting the Devlin-Hart debate that followed the Wolfenden Report, articulates the problem with Hart’s (and subsequent liberal) arguments as the lack of honest toil. This is the case with Navtej Johar as well as is evident from its altogether inferior argumentation.

 

The judgement is quite at sea about how to define homosexuality – whether it is ‘natural’ or a matter of choice – and contradictions in the definition proliferate across all four opinions by Chief Justice Dipak Misra (and Justice Khanwilkar), Justice F. Nariman, Justice Chandrachud and Justice Indu Malhotra and run through the judgement to its conclusion. Once again, this is far from a minor definitional quibble as Section 377 hinges on the idea of unnatural sex or ‘sex against the order of nature.’

 

The first seventeen pages of the opinion by Chief Justice Misra and Justice Khanwilkar are riddled with irreconcilable contradictions and they do not cease there. Individuality, which is the idea on which the judgement opens, citing Goethe, Schopenhauer and Mill, is both inherent and inescapable but also the result of ‘self-determined design.’7 Shakespeare is invoked and ‘What’s in a name?’ is read as the essence and core of identity, ‘pivotal to one’s being’ even as it is satisfied only by ‘constitutional recognition.’8 Identity is individuality and signature but also ‘authoring one’s own life script where freedom broadens everyday. Identity is equivalent to divinity (sic).’9

Homosexuality is ‘equally natural and reflective of expression of choice’;10 identity is both ‘natural’11 and ‘absolutely essential’,12 on the one hand, yet non-acceptance affects it and renders it crushable on the other;13 gender is ‘intrinsic’14 and also the search for it is ‘a basic human ideal’;15 miraculously, ‘homosexuality, bisexuality and other orientations are equally natural and reflective of expression of choice’;16 both ‘natural variations and free thinking process’17 (emphases mine).

Yet the ‘freedom that is required to be attached to sexuality still remains in the pavilion with no nerves to move’18 and when ‘biological expression, be it an orientation or optional expression of choice, (sic) is faced with impediment, albeit through any imposition of law, an individual’s natural and constitutional right is dented.’19

 

Sexual orientation is defined in the most absurd way imaginable: every human being ‘has certain basic biological characteristics’20 (homosexuality) and acquires or ‘develops some facets’21 under certain circumstances (bisexuality) or has a ‘proclivity’ which is constant and unchanging (heterosexuality)22 (sic). This convoluted nonsense is to make the argument that the act, not the identity, is criminalized (Koushal’s argument) even as the whole drift of this judgement is to argue that the identity is criminalized.

Nevertheless, sexual identity is also ‘an essential attribute of privacy’23 and the ‘organization of intimate relations is a matter of complete personal choice’,24 though, finally, ‘sexual orientation is one of the many biological phenomena which is natural and inherent in an individual and is controlled by neurological and biological factors.’25

Justice Chandrachud, the new gender superhero of Indian law, who cites everyone from Leonard Cohen to Eve Kosofsky Sedgwick and Nivedita Menon to Vikram Seth, seems to fall more firmly on the side of a constructivist understanding of gender and claims that sexuality should be ‘viewed as fluid’26 though he begins by speaking of the simple right to ‘live, love and partner as nature made them’27 (italics mine). This contradiction persists right through his opinion as he simultaneously holds on to the ideas of compulsory heterosexuality, discrimination against the LGBT community and the closet, on the one hand, and autonomy, privacy and ‘deconstructing the polarities of binary genders’28 (sic) on the other.

 

Justice Malhotra falls back entirely on the sexual orientation is intrinsic, innate and immutable thesis. For her, this is the basis on which Section 377 violates Articles 14, 15 and 21. These positions taken by the three decisions are both internally and mutually contradictory. One wonders how Gautam Bhatia thinks that the judgement holds both ideas in an equilibrium. Such an equilibrium is unattainable as the positions are constitutively contradictory. Bhatia delineates CJI Misra’s untenable employment of both positions as judicious and also reads him on the crucial matters of acts vs. identities and dignity as settling for the choice-based argument, a wilful settling of Misra’s confused position.29

The implications of this confusion are many but the central one is that the question of the sexual acts in question in Section 377 is left unexamined. This points to a squeamishness in actually confronting what is at the heart of Section 377, which is sodomy. While the judges engage in conceptual muddles about whether homosexuality is natural or unnatural and the etiology of homosexuality, quite outside the scope of their expertise or ambit, what they do not confront is the sexual conservatism of Section 377. What they leave out of their critique of Koushal, for example, is the rank sexual conservatism of that judgement. For Koushal, fellatio and frottage are unnatural and against the order of nature. An open discussion of these acts along with sodomy, would have sufficed instead of reams of pages on whether or not homosexuality is natural.30 Does it really matter one way or another? The airy rhetoric of progressive Indian judges occludes any candid discussion of sex and sexuality. Indeed, Navtej Johar appears a more conservative judgement than Koushal.

 

This becomes clear in the judgement’s attempt to engage with the key question of the Christian and heteronormative basis of the phrase ‘acts against the order of nature.’31 While all the concurring opinions agree that the phrase lacks clarity and clear content, Vanshaj Jain reminds us that: ‘the phrase "carnal intercourse against the order of nature" forms the crux of s.377; it is the actus reus on which the crime is based. If the content is unclear as the judges rightly point out, only two consequences can follow: either the court provides a clear guiding principle to determine the content of this phrase for future use or it strikes down the entire provision for vagueness. Troublingly, the court does neither.’32

 

While Naz had not called for the striking down of Section 377 altogether, thereby not tackling the question of sodomy/homosexuality head on, this judgement repeats that but further confounds matters with all opinions participating in a troubling extended analogy with Section 375, arguing that the 2013 amendments to that section (on heterosexual rape) render most of Section 377 redundant. In doing so, the judgement, as Jain points out, ‘glosses over the conceptual boundaries of a criminal law provision whose content it was called upon to decide.’33

While all the judges claim that the concept is unclear and undefined, they do not define it either. If Justice Chandrachud accuses it of ‘vagueness of expression and indeterminacy of content’,34 Justice Malhotra deems it ‘too open-ended.’35 Jain calls this unimpeachable reasoning but this is far from the case. Vague criminal law provisions violate constitutional criminalization. What is meant by the term ‘acts against the order of nature’ is perfectly clear in actuality. Any sexual activity that is not heteronormative and procreative is unnatural. It is equally clear that the crux of the provision is a conception of sexuality that needs to be spelled out and instead it is poked at by a protracted and untenable analogy with Section 375. Section 375 is about coercion and violence; Section 377 is about consensual sexual intercourse. What is the point of this ludicrous analogy?

Jain shows the conceptual interdependence of Section 375 and Section 377 and the erroneous implications the opinions in Navtej Johar draw from the analogy. He does not, however, ask why they leave the normative content of Section 377 unclear. Why does the question of sodomy need to be approached from the quite different context of the rape provision? Heterosexual women are forced to use Section 377 against their husbands because there is no marital rape provision. Other than that there is no connection between the two provisions. The 2013 amendments do nothing to address the question of ‘unnatural acts’ or ‘acts against the order of nature.’ The amendments have to do with heterosexual rape and the broadening of the definition to include non-penovaginal activity. They do not address the quite different histories and contexts of sodomy between men. The judgement repeats the silence of patriarchal, masculinist society on the question of sodomy in a bizarre enactment of society’s codes of conservatism.

 

Building on the petitioners who take the eclectic set of arguments from Naz and add the cases since, there is no coherence in the argumentation of the judgement at all. All the opinions go through the same paces – from NALSA to Puttuswamy – and the same accounts – the history of Section 377, constitutional morality, transformative constitutionality, right to privacy, consent, international precedent, the Yogyakarta principles – with no real engagement with the contradictions in, or the implications of, each and between these accounts.

 

To take just one example, the question of privacy is not seriously engaged with at all. While the public nature of offence is acknowledged (which Naz had not acknowledged at all), it is simply asserted that privacy also implies safety in public.36 The question of hijra public sex work is still left unaddressed. While the judgement acknowledges the class and caste biases inherent in the idea of privacy, this is simply resolved by announcing that ‘the right to privacy must also be seen as the right to public spaces’,37 just as sex must be read as sexual orientation.38 These rhetorical sleights of hand do not constitute arguments; indeed they are merely assertions. Further, even as the private becomes the public, we are urged to see the private acts of LGBT adults as not only consensual but ‘innocent’39 (sic). We are also reminded that ‘a man’s house is his castle’40 and sexual orientation is an ‘innate facet of individual identity.’41

The conceptual contradictions in all these assertions remind us of the earlier definitional contradictions. They show no cogent thought process or argumentation. Just everything that might be got hold of is thrown into the mix even if it is contradictory and untenable, even across the length of one sentence.

If there is a contradiction between static and fluid conceptions of sexuality, the conception of constitutional morality is entirely static. It was one of the key ideas of the Naz judgement which gets carried over to Navtej Johar. The conceptualization of it strains to loosen itself from the muck of the social and the entanglements of the psychic. It is a curiously disembodied idea in both judgements and not theorized coherently either.

 

For Chief Justice Misra and Justice Khanwilkar, constitutional morality ‘cannot be martyred at the altar of social morality’42 though only ‘as long as its expression is not against decency or morality.’43 Apart from the tautology of this formulation, it is surely apparent that this separation is both philosophically and practically untenable. Desires are social and psychic and so is what is lawful and constitutional. For the judges, constitutional morality is pitted against social morality as if the former has no moorings in the social, let alone the psychic. The implicit idea is that social morality is regressive and constitutional morality per se progressive but worse, that constitutional morality hovers above the social and can be plucked in to smother the social at will.

Further, Chief Justice Misra and Justice Khanwilkar inform us that the concept of constitutional morality is ‘not limited to the mere observance of the core principles of constitutionalism’44 or constitutional provisions, but ‘rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time adhering to the other principles of constitutionalism.’45 The Constitution is the force which ‘ushers in’ pluralism and inclusivism even as it has fixed principles. Quoting Ambedkar, they argue constitutional morality is not Indian society’s ‘forte’ but it is the ‘duty’ of the state and the judiciary to strengthen it. Despite it not being their forte, miniscule minorities are allowed to aspire to ‘different things for themselves’46 provided, once again, that they are within ‘their legal framework and neither violates any statute nor results in the abridgement of fundamental rights of any other citizen.’47

 

Constitutional morality, to them, maintains the ‘heterogeneous fibre’48 in society curbing any ‘propensity or proclivity of popular sentiment or majoritarianism.’49 They write: ‘Any attempt to push and shove a homogeneous, uniform, consistent and a standardized philosophy throughout the society would violate the principle of constitutional morality. Devotion and fidelity to constitutional morality must not be equated with the popular sentiment prevalent at a particular point of time.’50

Yet it is precisely a standardized and homogeneous idea of constitutional morality that is being promulgated. Asymmetrical attitudes are to be fostered so long as they are ‘within the legal and constitutional framework.’51 Repeatedly, this idea of a framework independent of asymmetries contradicts the idea of ‘freedom and liberty’ which is apparently the ‘quintessence of constitutional morality.’52

Citing himself from another judgement, Chief Justice Misra defines constitutional morality through the example of generosity vs. justness. The former may have condescension but the latter has only ‘normative value’ and no ‘subjective exposition.’53 Constitutional morality is seen as purely objective, free from the mess of history, transcending the stuff of heterogeneity even as it upholds it. The courts are the independent and ‘final arbiter’ of the Constitution upholding its ‘cherished principles’ and not even ‘remotely guided’ by majoritarian and popular perceptions.54 Only constitutional morality ‘can be allowed to permeate into the Rule of Law.’55

The naivete and wishful thinking of this conceptualization apart, these pronouncements barely mask the anxiety around the social that lurks beneath them. They show that the normative is anything but objective (free of subjective exposition and not even remotely guided by the majoritarian and the popular) and nor are the Constitution and Rule of Law theorized as above; the social and the psychic only betrays the psychic anxieties of judges who see themselves as transparent receptacles of the pure air of constitutional morality.

 

Justice Chandrachud begins by acknowledging that people wrote the Constitution based on an idea of ‘collective destiny’56 even as he claims ‘the people may not have played any role in the actual framing of the constitution.’57 He then repeats the series of contradictions in the delineation of constitutional morality already seen: ‘ideals and vision’ vs. a past of ‘social inequality and prejudice’; ‘liberating society’ from ‘supremacist thought’; ‘vision’ vs. ‘reality’; ‘text and spirit’ vs. ‘popular notions’; ‘majoritarian vs. minority’.58

Justice Chandrachud also abrogates all claims of the social, giving the Constitution/constitutional morality the job of challenging, liberating, establishing, promoting, reversing, transforming, checking, guaranteeing, guiding, facilitating, vigilantly safeguarding, monitoring, preserving, fostering, authoritatively leading, assuring, declaring, impacting, superseding, requiring, discharging, just some of the verbs and verbal phrases he uses, all of which show the masculinist anxiety behind his theorization. Citing Naz, he also repeats the distinction between ‘popular morality’59 which is based on ‘shifting and subjecting notions of right and wrong’60 (sic) and by implication, objective and unshifting constitutional morality, a point also reiterated by Justice Malhotra and Justice Nariman.

 

If the conception of constitutional morality is static there is a self-propelling motor to the idea of transformative constitutionalism in Navtej Johar. If Naz went on about constitutional morality, Navtej Johar adds to it the artillery of transformative constitutionalism. If the first idea suffered from an abstract and static understanding of something called constitutional morality quite distinct from public morality, the latter tries imbues the Constitution with an immanent capacity to transform the world.

Chief Justice Misra understands it as the ideals of the Preamble of the Constitution which are a ‘guiding laser beam’61 (Star Wars, anyone?) to ‘make right’62 Indian society, ‘revolutionary’63 in its aim in transforming a ‘medieval, hierarchical society’,64 guiding the nation to ‘a resplendent future.’65 Transformative constitutionalism is, for him, the transforming of Indian society through the Constitution, a ‘pragmatic’ programme.66

For Justice Chandrachud, transformative constitutionalism is the Constitution asserting itself ‘as a text for governance which promotes true equality.’67 Further, ‘it does so by questioning prevailing notions about the dominance of sexes and genders’,68 whatever that means. It is quite clear that Justice Chandrachud understands the capacity of transformation as immanent to the Constitution. He claims that ‘in its transformational role, the Constitution directs our attention to resolving the polarities of sex and binarities of gender.’69 (sic)

 

In the rousing conclusive set of paragraphs of his opinion, he finally avers that: ‘For those who have been oppressed, justice under a regime committed to human freedom, has the power to transform lives. In addressing the causes of oppression and injustice, society transforms itself. The Constitution has within it the ability to produce a social catharsis. The importance of this case lies in telling us that reverberations of how we address social conflict in our times will travel far beyond the narrow alleys in which they are explored.’70

The smug assumption of the ‘us’ and the ‘we’ is only matched by the self-assurance of the homogeneous ideas of ‘human freedom’ and ‘social catharsis’ and outdone by the self-appointed superiority of how to address social conflict in our time, soaring out of the ‘narrow alleys’ in which the lesser among us are trapped.71

 

Are the courts competent to legalize homosexuality? Is it their job? The legislature and the judiciary have distinct functions and while legal scholars like M.P. Singh have argued that such a legalization is beyond the scope of judicial power in India,72 a powerful swathe of legal scholars, from Upendra Baxi to the swashbuckling hero-lawyers behind the Naz and Navtej Johar judgements would argue that the role of the courts is much wider.73

 

However, this wider scope has not been arrived at in the Navtej Johar judgement through any engagement with the social from which it emerges. Instead, it has sought to distill the social and offer pure pronouncements on constitutional morality and transformative capacity. This has necessitated an erasure of the messiness of the social and the psychic in the production of the Indian homosexual subject as much as subjects resistant to it. This necessity is determined by the frame of the juridical and its aims in the judgement. As Dworkin asked the liberals in the epigraph to this essay, it is important to engage with the question of the immorality of homosexuality, not paper over it with the rhetoric of morality of the Constitution. As B.R. Ambedkar reminded us, constitutional morality is merely the top dressing on a deathly, undemocratic Indian societal soil. That soil has to be dug up and grappled with.74

The honest toil on the question of homosexuality in India remains to be done.

 

* I would like to thank Latika Vashist, Nithin Manayath and, especially, Amit Bindal for critical comments on this essay. All errors that remain are mine alone.

Footnotes:

1. Gerald Dworkin, ‘Devlin Was Right: Law and the Enforcement of Morality’, William and Mary Law Review 40(3), 1999, p. 943.

2. https://www.sci.gov.in/supremecourt/2016/14961/14961_2016_Judgement_06-Sep-2018.pdf Henceforth Navtej Johar.

3. M.P. Singh has been the only legal scholar who argued ever since the Naz judgement that it is the job of the Parliament to review Section 377 and that doing it via the constitutional violation argument does not hold. See Mahendra P. Singh, ‘Decriminalisation of Homosexuality and the Constitution’, NUJS Law Review 2, 2009, pp. 361-380. See also, M.P. Singh, ‘Constitutionality of Section 377, Indian Penal Code – A Case of Misplaced Hope in Courts’, NUJS Law Review 6(4), 2013, pp. 569-574.

4. The AIDS Bhedbhav Virodhi Andolan (ABVA) in Delhi has launched such a struggle since the late ’80s and continues to do so. This legacy has been entirely ignored by the judgement. See http://aidsbhedbhav-virodhi-andolan.blogspot.com/2019/. See also P.S. Sahni, ‘An Open Letter to Indian Parliamentarians to get Section 377, IPC Repealed in Toto’, ABVA, New Delhi.

5. It is instructive to read this judgement in relation to the Wolfenden Report. The Wolfenden Committee had been formed because too many powerful men in Britain had been booked under the law for homosexual relations. Powerful men were also behind the petition to the Supreme Court on 377. This power explains the rather cautious demand that the petition makes instead of an outright demand that homosexuality be recognized and legalized. More importantly, this power made the judicial route the one chosen instead of a struggle on the ground, something which does not behove the powerful classes. It is this classist and closeted cautiousness that marks both the demand and the arguments made in favour of it.

6. If the Naz judgement was 100 pages too long, Navtej Johar is about 450 pages too long. It appears that while Indian judges can’t stop citing foreign judgements, they never learn anything from their length nor do they seem to have heard about the Plain English movement within legal writing begun decades ago. Almost 500 pages of contradictory, confused, repetitive argumentation spiked with purple rhetorical flourishes make the judgement painful to read but also shows the flailing around the elephant in the room – the question of homosexuality’s absence from affirmative identitarian and political discourse – which is avoided altogether, even as high flapping around it never ceases across the length of it.

7. Navtej Johar, CJI Misra and J. Khanwilkar at 3.

8. Id., p. 4.

9. Id., p. 4.

10. Id., p. 16.

11. Ibid.

12. Id., p. 6.

13. Ibid.

14. Ibid.

15. Id., p. 9.

16. Id., p. 16.

17. Ibid.

18. Id., p. 71-72.

19. Id., p. 85.

20. Id., p. 91.

21. Ibid.

22. Ibid.

23. Id., p. 104.

24. Id., p. 149.

25. Id., p. 160.

26. Navtej Johar, J. Chandrachud at 82.

27. Id., p . 5.

28. Id., p. 56. This is one of his subheadings.

29. Indeed, Bhatia even heroically re-writes J. Malhotra’s opinion for her, replacing immutability by arguing that hers amounts to a radical re-reading of Article 14 that ‘rules out certain kinds of classifications at the threshold. In her view, legislation based on an ‘intrinsic or core trait’ fails that threshold inquiry. I would put it slightly differently: legislation based on a core trait (related to personal autonomy) a trait that has been a historical or present site of systemic discrimination, is ruled out under Article 14’ (italics in original). It is unfortunate that Bhatia, an exemplar of the rhetorical heroes of constitutional morality, transformative constitutionality and so on, resorts to, bringing the contradictions of the judgement in line with their reasoning. See, ‘Civilization Has Been Brutal: Navtej Johar, Section 377, and the Supreme Court’s Moment of Atonement’, available at: https://indconlawphil. word press.com/2018/09/06/civilization-has-been-brutal-navtej-johar-section-377-and-the-supreme-courts-moment-of- atonement/

30. See my attempt at a more productive critique of Koushal in Ashley Tellis, ‘Violence Against the Law: Reading Sexual Minority Judgements in Contemporary India’, in Jyoti Dogra and Latika Vashist (eds.), Rethinking Law and Violence. Oxford University Press and the Indian Law Institute, forthcoming.

31. Navtej Johar, J. Chandrachud at 32-33.

32. Vanshaj Jain, ‘Navtej Johar v. Union of India – What Remains of Section 377?’ Available at https://indconlawphil.wordpress.com/2018/09/10/guest-post-navtej-johar-v-union-of-india-what-remains-of-section-377/

33. Ibid.

34. Navtej Johar, J. Chandrachud at 35.

35. Navtej Johar, J. Malhotra at 21.

36. Navtej Johar, J. Chandrachud at 76.

37. Id., p. 77.

38. Navtej Johar, CJI Misra and J. Khanwilkar at 22 (citing NALSA)

39. Id., p. 151.

40. Ibid.

41. Navtej Johar, CJI Misra and J. Khanwilkar at 18.

42. Id., p. 159.

43. Id., p. 97.

44. Id., p. 74.

45. Id., p. 74.

46. Id., p. 76.

47. Ibid.

48. Id., p. 77.

49. Ibid.

50. Ibid.

51. Ibid.

52. Id., p. 78.

53. Ibid.

54. Ibid.

55. Id., p. 159.

56. Navtej Johar, J. Chandrachud at 166.

57. Id., p. 167.

58. Id., p. 166-167, p. 169, p. 162.

59. Id., p. 162 (citing Hart).

60. Id., p. 173 (citing Naz).

61. Navtej Johar, CJI Misra and J. Khanwilkar at 65.

62. Ibid.

63. Ibid.

64. Ibid.

65. Ibid.

66. Navtej Johar, CJI Misra and J. Khanwilkar at 66.

67. Navtej Johar, J. Chandrachud at 179.

68. Ibid.

69. Id., p. 179.

70. Id., p. 180.

71. Gautam Bhatia, has offered a somewhat more historicized definition of transformative constitutionalism in his book, The Transformative Constitution. He maintains that it is an understanding that comes alive only in the context of broader historical and political demands from society. That this contradicts Navtej’s definition of it just outlined is the least of it. More disturbingly, while Bhatia’s account of Anuj Garg, his first chapter illustrating transformative constitutionalism, builds a large and catholic historical context for it, his account of Naz drops the idea of context altogether and sticks to theoretical/legal/philosophical concepts. This not only undermines his own idea of transformative constitutionalism, it shows scant respect for the complex histories – even purely in terms of legal cases that he might have read closely – of s. 377. The absence of these submerged histories is telling. It is not just his devaluing of various histories of homosexual struggle in India that is glaring here. It is the question of why the judicial route needs the heavy weather of constitutional morality and transformation to read down a Christian and sexually conservative penal provision. See Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts. Harper Collins, Delhi, 2019.

Indeed, surely the violations of Articles 14, 15, 19 and 21 of the Constitution are not reducible to the interdiction of some sexual acts in private. All the judges ignore the history of ABVA’s case calling for the repeal of s. 377 much earlier than the Naz petition altogether and the need to speak of same-sex subjects as equal under the law, as does Bhatia. The heavy weather of constitutional morality and transformative constitutionalism is surely wasted on merely some acts proscribed in private.

72. See footnote 3.

73. Gautam Bhatia, derides the PIL as a ‘wrong turn’, as ‘not consistent with the text’ of the Constitution (even as he has just told us that we must read the text in relation to the ‘broader canon’ of the social), that it takes on fully legislative and executive functions and ‘misunderstands the role of the courts in our constitutional scheme vis-à-vis popular democracy.’ He appears to forget that Naz was a PIL and that the Navtej Johar judgement does precisely all the things he decries. It demands that the court take on quasi-legislative and executive actions; it misunderstands the role of the courts which, as M.P. Singh has pointed out in relation to Naz and Koushal, is procedural and not substantive; and it attributes to itself powers to change society through a legal sleight of hand.

74. B.R. Ambedkar, Speech to the Constituent Assembly on 25 November 1949. Constituent Assembly Debates, Volume 12, 1978, p. 979.

Reproduced from http://www.india-seminar.com/2019/721/721_ashley_tellis.htm for educational and non-commercial purposes.