Posted by Trisha Pande
Sex and the Supreme Court: How the Law is Upholding the Dignity of the Indian Citizen is a primer on all cases around sexuality and gender which have been momentous in the apex court of India. Edited by Saurabh Kirpal, who is a senior advocate at the Supreme Court of India, the book is a collection of essays penned by lawyers, journalists, activists and judges who have moved the Court on equal rights for women and sexual minorities. The book focuses on public debates which have historically had no easy answer: triple talaq, sexuality, gender identity, love jihad, the Sabrimala issue, India’s MeToo movement, adultery, privacy and sexual harassment at the workplace, among others.
Edited by Saurabh Kirpal, who is a senior advocate at the Supreme Court of India, Sex and the Supreme Court is a collection of essays penned by lawyers, journalists, activists and judges who have moved the Court on equal rights for women and sexual minorities.
Many of these movements are ongoing, and Sex and the Supreme Court defines important moments in their shape through cases which have left feminists hopeful or change. The text also points out what more needs to be done: where the gaps in judgments lie, and the relationship between an evolving society and the Constitution of India.
The Introduction of Sex and the Supreme Court acknowledges that the law is not static, but attempting to alter it is a task which takes time, effort, political will and money, since the concerns of minorities (in this case, women and sexual minorities) are overlooked by men who mostly constitute the Indian Parliament. The wording of the Constitution is progressive and there are three Fundamental Rights which provide a framework to protect the personal autonomy and dignity of citizens. These are often called the ‘golden triangle’ or ‘holy trinity’ of Fundamental Rights — the right to equality, right to freedom and the right to personal liberty (Articles 14, 19 and 21). Sex and the Supreme Court explains that these three Articles have been used in India to protect the rights of women and sexual minorities, over the years.
The problem arises where some of these rights conflict with others. For example, in the case of triple talaq or Sabrimala, the right to equality clashes with the right to profess the freedom of religion (Article 25). On the question of enforcing these rights in society, there have been debates among the framers of the Constitution. The central question in a country becoming independent of colonisation was how to uplift society at large. What was the best way to ensure India’s free citizens did not need to worry about the same social problems as their colonised predecessors? On this, Ambedkar and Gandhi differed because Gandhi wished to put the interests of the community above that of the individual. He hoped to see the Panchayati Raj system flourish, as compared to direct suffrage, and empower the village to make collective decisions. Ambedkar disagreed, because he believed the village to be ignorant and narrow-minded, and collective identity counterintuitive to the development of self. Ambedkar’s view gave rise to the concept of fundamental rights to the individual, and put the onus on the State to ensure that autonomy and dignity was enjoyed by every citizen.
It is this backdrop which paves the way for the chapters of Sex and the Supreme Court to explore themes which women and sexual minorities have to fight for their rights in. The workplace, the community, religion – all have patriarchal notions of gatekeeping and curb the rights of women and sexual minorities. The laws which free India inherited shackled the ankles of some more unfairly than others. Bounded in Victorian notions of morality, the India of 2020 is ready to fight, organise and demand reform – not only through protests on the streets and online, but through courtrooms. To that effect, Sex and the Supreme Court is divided into four parts which concern sex and gender: the individual, the community, the workplace and religion.
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Sex and The Individual
The section contains essays on Section 377 of the Indian Penal Code, which criminalised homosexuality. The authors include Saurabh Kirpal, Keshav Suri, Ritu Dalmia, Justice MB Lokur and Zainab Patel. Many of these are people who have been at the heart of the National Legal Services Authority v. Union of India and Navtej Singh Johar vs Union Of India, cases which secured the rights of transgender people and overturned the decision that only the parliament could decriminalise homosexuality.
Each author describes the struggle that was involved in getting these cases to the courtroom. After the Delhi High Court read down Section 377, self-appointed gatekeepers of public morality challenged it in the Supreme Court (in Suresh Kumar Koushal vs. Naz Foundation) – which led to the apex court reversing the Delhi High Court’s judgment. Five individuals got together to file a Writ Petition and challenge the constitutionality of Section 377, because it impacted their lives. They came from different walks of life: Navtej Singh was a classical dancer, Sunil Mehra a journalist, Aman Nath a hotelier, Ritu Dalmia a chef and Ayesha Kapur a businesswoman.
It is heartening to read Ritu Dalmia’s experience locating her choice to fight for legalising her sexuality and her right to be with women, and her essay in Sex and the Supreme Court locates her excitement when she was in London and heard the Supreme Court’s judgement decriminalising homosexuality in 2018.
Justice Lokur describes the exclusion faced by transgender people – in employment, the right to marry, health services, obtaining identity cards and occupying public spaces in Sex and the Supreme Court. His essay locates Kamala Jaan, who was the first transgender person in 1999 to contest an election with her female identity. Although she won the seat, the Madhya Pradesh High Court declared it invalid in 2003, on the count that the seat was reserved for a female candidate, and she was registered as male. Similarly, trans people such as Shabnam Mausi, Asha Devi and Kamala Kinnar faced public struggle trying to participate in politics, despite being elected.
Zainab Patel narrates a personal journey of identifying as trans, and what that process entailed medically and societally in Sex and the Supreme Court. Being privileged as compared to other trans people made her feel as if society was pedestalising her, expecting trans people to secure jobs and admissions, regardless of their unprivileged identities. As a petitioner in NALSA v. Union of India, she recounts the landmark decision that not recognising gender identity violates the right to equality granted by Article 14. Plus, Article 19 (1) (a) includes the right to expression – which covers self-identified gender. Lastly, Article 21 allows for a fundamental right to dignity – which is the basis of gender identity.
Sex And The Community
Marriage, khap panchayats, adultery and marital rape are the features of this section. Kirpal elaborates on autonomy and the right to choose a partner, and how the right to live a family life ultimately is decided by the individual. The reverse (collective family having rights over an individual) is not applicable. The privacy judgement enabled individuals to make choices about their own lives, and the State was envisaged to be a mere facilitator of this right. The judgment explained that privacy includes the ‘preservation of personal intimacies, the sanctity of family life, marriage, procreation, home and sexual orientation.’
This reasoning is contrary to the reasoning of the Kerala High Court in Hadiya’s case. Formerly a Hindu, Hadiya willingly converted to Islam and came with her husband to court to challenge her father, who wanted to restrain her from travelling abroad. The court observed that women in their twenties are at a “vulnerable age” and “as per Indian tradition, the custody of an unmarried daughter is with the parents, until she is properly married”. In using these words, the Court deemed that her own agency was not ‘proper’ and that women in their twenties are susceptible to love jihad. After this, the matter was referred to the Supreme Court, where Hadiya was allowed to choose her faith and her partner – since every citizen enjoys individual autonomy.
The book goes on to discuss khap panchayats, which are informal groups, that seek to impose their own version of the law on society. They impose coercive social and economic boycotts. In Shakti Vahini v. Union of India, the NGO Shakti Vahini succeeded in moving the court to ban the sitting of a khap panchayat in case of a sagotra marriage.
Maneka Guruswamy and Arundhati Katju write about marriage and adultery in Sex and the Supreme Court, through Joseph Shine v Union of India – where Section 497 of the IPC (adultery) was decriminalised. The Section did not criminalise adultery on the grounds of damaging marriage, but it implied that when a man has sexual intercourse with ‘the wife of another man’, without his permission (and when it is not rape), then that man is guilty of adultery. It reduced women to being the property of their husbands, and only exempt them from being charged under the law by virtue of being seen as less than equal.
Sex And The Workplace
In the opening chapter by Namita Bhandare covering India’s MeToo movement, Sex and the Workplace is a section which concerns all working women. It recounts the trigger for the movement in India: a list by Raya Sarkar accusing sexual harassers in academia. Older feminists like Nivedita Menon wrote an open letter against the list, saying that it could delegitimise the feminist struggle against sexual harassment in India so far, whilst others such as journalists like Anoo Bhuyan disagreed with them, saying that the due process of law takes more time than many can afford.
The section then details the journey of Bhanwari Devi, who stirred a movement from the village of Bhateri, Rajasthan in 1992. She gives feminists today a reason to remember the price that women have paid through the years, to speak up against issues like child marriage, rape and sexual harassment. Her fire led to the Vishakha Directives, which served as the guidelines for what we know today as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal Act). Over the years, much of this discourse has shifted online: to social media platforms such as Twitter and Instagram. AIB, the comedy group, which built much of its standing on performative wokeness, was called out with one of its comedians being accused by many women, and the others could not deny being complicit in the knowledge of his actions.
This chapter in Sex and the Supreme Court reminds women of all age groups to speak up, even though the cost many women have paid is unfair and altogether too high. There is public support to be found, no matter the number of years since the occurrence of the event.
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Sex and Religion
The debate around Triple Talaq being criminalised has always had women at the centre, and Madhavi Divan’s chapter in Sex and the Supreme Court points the reader in an important direction – the difference between talaq-e-biddat (triple talaq), talaq-e-ahsan and talaq-e-hasan. The other two are not as instant as triple talaq, though they can similarly only be initiated by the husband. Divan argues that Muslim women wanted the State to interfere in Muslim Personal Law to defend their rights, even though activists have frowned upon this as being anti-secular. Writing on one of the perhaps one of the most religiously charged issues, Divan makes some interesting arguments about the history of Sharia law in India. However, where this section in Sex and the Supreme Court gets confusing for the non-lawyer reader is when Mukul Rohatgi (the then Attorney General) called her to draft a response on the behalf of the Indian Government.
It is confusing because Rohatgi later writes a chapter on the Sabarimala judgment, and there the argument is that the State should not interfere in the essential practices of a religious denomination (those who constitute the Ayyappan Dharma), otherwise that opens a gateway for the State to interfere in religious matters. Although the legal arguments might be sound, it seems like there are exceptions to be made for excluding women between the ages of 10 and 50 from a particular temple (Sabarimala) in Hinduism, but women to be protected when it comes to instant triple talaq. Which makes the reader wonder whether the question being considered is that of women and tradition, or majority versus minority, with women merely being used as a trojan horse to comment on the practices of a religious minority. As Justice BD Ahmed explains in his chapter in Sex and the Supreme Court, there were alternatives to criminalising talaq-e-biddat. It could have been held invalid, instead of being converted into a criminal offence. He also feels that takhayyur – where Muslims can choose which rules to follow from different sects, could have been a feasible solution to the problem.
Conclusion
For the layperson interested in law and public policy around gender in India, Sex and the Supreme Court excellently summarises some of the significant debates. Some of these debates are ongoing, and it allows the reader to engage with them meaningfully, be it following a case and being aware of the trajectory it has followed hitherto, or being more aware about historical injustices and one’s own rights.
One of the areas that could have been emphasised upon, though they feature in the sections on khap panchayats and Bhanwari Devi’s struggle, is caste. For instance, the implementation of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 is complicated on-ground when women want to invoke the act in cases of rape – which the public recently witnessed in the Hathras gangrape case.
One of the areas that could have been emphasised upon, though they feature in the sections on khap panchayats and Bhanwari Devi’s struggle, is caste. For instance, the implementation of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 is complicated on-ground when women want to invoke the act in cases of rape – which the public recently witnessed in the Hathras gangrape case. Similarly, more accounts of prostitution and sex work – which concern an intersection of women would have been informative if added in Sex and the Supreme Court– apart from other issues such as abortion.
Trisha Pande works as a Policy Manager at The Dialogue, with an interest in writing about policy issues at the intersection of development policy, gender and technology. She holds a Bachelor’s (Hons) in Sociology from Lady Shri Ram College for Women and a Masters in Public Policy from St. Xavier’s College, Mumbai. Prior to The Dialogue, she has studied development issues around public health, vaccination, ration delivery and education. Whilst interning with The Wire, she covered the issue of education for the Rohingya refugee children residing in camps within Delhi. She can be found on Twitter and LinkedIn.
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