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A large number of present-day Indian laws owe their origins to British rule. Section 377 of the Indian Penal Code, which made punishable by law any sexual act that was “against the order of nature,” was one such controversial law. Its code included everything from oral and anal sex to intercourse between people of the same sex. In 2013, the High Court of Delhi initially read down the section (“reading down” is legalese for determining the law is no longer valid), but it was later reinstituted by a bench of the Supreme Court of India. In 2019, however, Section 377 was finally struck down by a larger constitutional bench of the Supreme Court.

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Over the last decade, India’s vibrant and thriving LGBTQIA+ community has moved the courts to fight for recognition of its legal status and all the rights that should accrue to them as they do to other citizens, including the right to live together, marry, adopt, and have children through surrogacy. Recently, LGBTQIA+ petitioners filed a new case for the recognition of the right to marry members of their own community. In this case, however, the Supreme Court provided no relief, recommending instead that the question should be referred to Parliament to decide. However disappointed the community may have been by this ruling, many were appreciative of the fact that their pleas were heard and debated in the highest court of law, especially since the original legal battle was a long and arduous one.

In a 2019 article published in the National Law School of India Review, Kalpana Kannabiran examines the legal journey of this community at length. She particularly focuses on the “far-reaching influence of peoples’ movements on courtroom cultures in India,” which she arrives at by examining the use of “song, performance, poetry and the outpouring of emotion.”

Kannabiran “trace[s] an intellectual history of rights on the Indian sub-continent that undergird and anticipate the constitution, and cut a path through the dense, thorny thickets of ‘tradition’ towards the rainbows on the horizon.” Her legal entry point is the Supreme Court of India’s aforementioned reading down of Section 377 in Navtej Singh Johar v. Union of India. She asserts that

important as this judgment is, it needs to be situated within the larger discourse of civil and political rights imperiled in the present moment of right wing Hindu majoritarianism and its dismantling of constitutional regimes at different levels in India today.

Kannabiran draws attention to various sources to which individual judges of the bench referred while delivering the judgment. These included philosophical entreaties by Goethe and Shakespeare’s timeless lyricality as well as pop culture references with lyrics by Leonard Cohen. Works by Oscar Wilde and his alleged lover Alfred Douglas also made an appearance, as did more contemporary writings by Indian author Vikram Seth and Indian playwright Danish Sheikh.

Lauding the judgment for its “reflection on the power and place of the literary in our constitutional imaginary [which] takes us to a long history of resistance against authoritarianism, arbitrary rule and the orders of caste and brahmanical patriarchy,” she hopes that the court continues to “interrogate punitive and regressive legal regimes” so it may “keep sight of its own moral moorings.”

During her examination, she quotes the 2013 judgment delivered by the Supreme Court in Suresh Kumar Koushal vs. Naz Foundation, which had overturned the High Court’s original ruling. Here, the judge observed, “carnal intercourse was criminalized because such acts have the tendency to lead to unmanliness and lead to persons not being useful in society.” The bench also made the erroneous observation that only a few hundred people from this community had suffered from the application of this section. In the process, it discounted the humiliation and emotional suffering of this section of society for a long period of time.

The tide changed with Johar. Quite significantly, Kannabiran notes, it was “the acknowledgment of sexual intimacy and desire—and indeed unfulfilled longing (‘the love that dare not speak its name’) within court-speak,” which was “virtually unheard of prior to Johar,” that became a beacon of hope to future sections of society battling disempowerment of various kinds. She further asserts that

perhaps one of the most significant interventions made in Johar is the affirming of the rights of minorities. […] The interlocking between caste orders, majoritarianism and heteronormative regimes produces specific proscriptions of speech and curtailment of liberties not confined to minorities but extending to those who speak with them.

Kannabiran ends on a poignant note, calling attention to the “perils and pitfalls that majoritarian rule poses to the futures of the Constitution” by quoting Dr. B. R Ambedkar, the father of the Indian Constitution:

“If things go wrong under the new Constitution, the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile.”

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National Law School of India Review, Vol. 31, No. 1 (2019), pp. 1–31
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