A response to Ashley Tellis’ “Why I can’t join the party” on the reading down of Section 377, published on July 12.
As the implications of the Delhi High Court’s verdict in Naz Foundation vs Union of India, in effect decriminalising homosexuality in India, begin to sink in, it might be worthwhile to sort through the trends among the responses to the verdict. Couched somewhere between the euphoria of the activists who had spent long years building the constitutional case against Section 377 of the Indian Penal Code and the vocal outrage of the verdict’s more strident religious opponents, there have emerged a range of yes-but and no-but responses. Many have admitted the propriety of the verdict in its most general form, but taken issue with aspects of the reasoning the judges used to arrive at it. One such response, from the activist Ashley Tellis, appeared in these pages, arguing that the verdict ought to have been based primarily on “analogous reasoning with various other minorities like Dalits, adivasis and religious minorities”, in a manner that “would have set the platform for the coming together of minorities of different kinds”.
The simple response to Tellis’s point is to point out that it might be rather churlish to take issue with a verdict and the lawyers’ courtroom arguments given the many compromises that are inevitably part of any litigation strategy. This is especially the case in a case where the lawyers concerned could not start with the presumption that the court would view their case with anything approaching sympathy. However, we can offer an even better response: as it happens, a careful reading of the text of the judgment will reveal it to do exactly what he accuses it of failing to do — build bridges with other minorities.
Liberty and autonomy
Critics of the liberal orientation of the judgment have argued that the liberty protected by the Constitution is not license to do whatever one wants. As a matter of fact, they are right, but no liberal need claim any such thing. The liberty for which self-professed liberals clamour consists, on the contrary, in personal autonomy — in being a self-governing rational agent. We exercise our autonomy in a variety of ways, among them in choosing with whom to form the deep personal relationships that give our lives meaning. Section 377 was deemed to be discriminatory precisely in that it denied a class of Indians a crucial precondition for such autonomy.
The court held autonomy, in a progressive but not unreasonable interpretation, to be “inherent in the grounds [against discrimination] mentioned in Article 15” of the Constitution. This should make the many of us sit up and listen who are ourselves neither gay nor activists, but simply citizens with a commitment to the Constitutional morality that drove the decision.
Denials of autonomy
Section 377 is far from the only thing that denies large groups of Indians their autonomy, and gays and lesbians are far from the group most seriously affected by such denial. On the contrary, every time a Muslim family is denied housing by a landlord for no other reason than their religion, every time a woman is fired from a job for the mere fact of being pregnant, we are witnessing a denial of autonomy that should concern us all, even those of us who are neither Muslim nor female.
Every time we are denied an adequate range of valuable options, we are to that extent less autonomous, and our lives deprived of the things that make them worth living. Housing is one such sphere, employment is another.
Each one of us is vulnerable, if not now, then potentially. In a plural society like ours, there is no one who is not at some point the member of some minority. I might be young and able-bodied today, but I will not be forever — neither will you. The judgment extends to us all the explicit protection of the Constitution against unjustifiable discrimination, both from the State and from fellow citizens.
The court’s use of the concept now opens the space for litigation against the indignities that the most vulnerable in our society must face because other people regard them, their ways of life, their very existence, with a disgust that impairs clear moral thinking.
Not Nehruvian nonsense
The quotation in the judgment from Nehru’s speech moving the objectives resolution about “the magic of the human spirit and of a Nation’s passion” is partly the statement of an infant nation-state’s resolve to do better than the colonial government it replaced. But it is equally a pledge on behalf of generations yet unborn to be a better people. The words of the Constitution, at their most inspiring, make us want to be better citizens, better Indians, better human beings.
The Constitutional morality that the judgment extols above the public morality to which the judgment’s opponents appeal is one not of laxness but of clarity, unclouded by irrational disgust — at the way other people look, the way their food smells, and whatever they might do with the full consent of their partners. The judgment forces on to our attention the analogous nature of these different kinds of discrimination — whether against Dalits, women, or the disabled. It remains for us to confront our disgust and acknowledge the equal moral worth that comes from our common humanity and our shared vulnerability.
Nakul Krishna is a post-graduate student of philosphy at the University of Oxford.