After the Supreme Court delivered its verdict in Suresh Kumar Koushal v. Naz Foundation (2014) overruling the Delhi High Court’s decision, the National University of Juridical Sciences brought out a special law review issue assessing the judgment. Prof. M.P. Singh, the constitutional scholar and former vice chancellor of the university, wrote an article praising the judgment for its judicial restraint, in which he described the use of constitutional litigation by sexual minorities as a case of “misplaced hope in courts”. Prof. Singh prefaced his article with a cautionary extract from Judge Learned Hand that warns us against “placing our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes”. Prof. Singh similarly suggests that what activists ought to do is to educate legislators rather than pin their hopes on the judiciary. Underlying these opinions seemed to be an unwritten rule of an economy of hope (that one could have a little but not too much of it) but the essential trait of hope is that it is greedy sentiment that demands the impossible, and the Naz judgment with its rich evocation of dignity, liberty and equality had already proven that we could not just demand but hope for the impossible.
In December 2015, Shashi Tharoor attempted to introduce a private member’s bill in Parliament to amend Section 377 of the Indian Penal Code and give effect again to the overruled Delhi High Court decision. The bill was supported by a grand total of 24 MPs, a good indication that it is unlikely that we will see any reform of the law in Parliament in the near future. And credit must be given to all the LGBT activists, their supporters and lawyers who refused to lose hope despite all the setbacks from the judiciary and the legislature, proving that hope is precisely what one maintains against all evidence to the contrary. They held on to their conviction that they would take their struggle right to the very legal end, and that even if Naz had been overruled legally, it could not be overruled socially.
‘Minuscule minority’ In the aftermath of the Supreme Court’s admission of the curative petition and its decision to refer the matter to a constitutional bench, it is not surprising that the word hope has resurfaced again in media coverage and analysis (‘hope rekindled’, ‘hope flickers again’). The hearing before the three-judge bench did not go on for very long and the judges did not dwell on whether the conditions for a curative petition had been satisfied, but from reports it appears that they agreed with the submission of Kapil Sibal that sexuality is a matter of serious constitutional importance and that the Koushal decision impinges on the liberty of individuals, violates their fundamental identity and has the ability to affect not just current but also future generations. The decision to refer the matter to a constitutional bench (which should have heard it in the first instance) is therefore a welcome corrective after the glaring wrongness of the Koushal judgment.
Koushal got many things wrong and much has been written about its constitutional failures. (One of the few times that a court narrowed down the scope of fundamental rights after they have been expanded by the judiciary, prejudice masked through an enthusiastic if inconsistent judicial restraint, the flawed presumption of the constitutionality of a pre-constitutional colonial law, the narrow technical claim that Section 377 merely criminalises an act and not identity and hence not violative of the doctrine of “reasonable classification” in Article 14.) But none was as problematic as their characterisation of sexual minorities as a “minuscule minority”.
The reference to the size of a vulnerable community is simultaneously a matter of legal as well as political and ethical perspective. While the Delhi High Court saw that “the criminalisation of homosexuality condemns in perpetuity a sizeable section of society and forces them to live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery” (paragraph 52), the Supreme Court reduced not just the population of sexual minorities but also managed to shrink our collective vocabulary of personhood. Ignoring the evidence placed before it, the courts chose to deploy an algorithm of subtraction where size does matter in questions of justice.
This has in turn prompted a number of critics to point out that sexuality minorities are not as minuscule a minority as the court believes. But rather than pointing out the obvious to the courts, what would happen if we were to turn their descriptive error on its head and make it the basis of our political and constitutional demands? If the Supreme Court is supposed to be a counter-majoritarian force in democratic politics, then shouldn’t our criteria for judging the judiciary be their commitment to protecting and enabling the minuscule minority? The reference of the issue to a constitutional bench affords the court an opportunity to articulate a political vocabulary of dignity and personhood which is good not just for sexuality minorities but for all minorities who have been historically discriminated against.
The Rohith backdrop Even as we celebrate this moment, we cannot but place it within the context of the deep anger and pain that Rohith Vemula’s suicide has provoked. To be able to think from the perspective of a minuscule minority may sometimes not even involve communities (regardless of their size), but to recognise that constitutional lessons about dignity and human rights can be learnt from many sites. In his letter Vemula states, “The value of a man was reduced to his immediate identity and nearest possibility. To a vote. To a number. To a thing. Never was a man treated as a mind. As a glorious thing made up of star dust. In every field, in studies, in streets, in politics, and in dying and living.” If judges are willing to learn from the singular, the minuscule minority and the multitude about what it means to live without a sense of liberty and dignity in the deepest sense of the term, then there is a profound constitutional lesson to be learnt from Vemula’s words.
This was indeed a lesson that was sought to be imparted to the judges through the sharing of personal testimonies and where the Delhi High Court empathetically translated these voices into an inclusive jurisprudence of dignity, the Koushal bench obsessively sought clarification on what “carnal intercourse against the order of nature” actually meant. It is worth recalling paragraph 26 of the Delhi High Court judgment where relying on a South African case the judges ruled, “It is clear that the constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society. It recognises a person as a free being who develops his or her body and mind as he or she sees fit. At the root of the dignity is the autonomy of the private will and a person’s freedom of choice and of action. Human dignity rests on recognition of the physical and spiritual integrity of the human being, his or her humanity, and his value as a person, irrespective of the utility he can provide to others.” There are striking resemblances between Rohith’s plea not to be reduced to an identity, a number or a thing, and the court’s understanding of the dignity of an individual beyond their utility. The letter offers us a tragic perspective of what it may mean to be unconstituted through a devaluation of our being just as the judgment affirms a complex sense of selfhood — one in which liberty, dignity and integrity combine to produce glorious things made of stardust.
A politics of being Constitutional lessons are often learnt too late and at too heavy a price, but when grasped with integrity, they can become the basis of a transformative politics of immense significance. Naz was partially the outcome of the tragic price paid by people, many of whom were not even around to celebrate it. When judges stitch together Articles 14, 15, 19, and 21, they are engaging in more than legal interpretation, they produce a legal poetics and politics of being, and to refuse to engage with such questions through the guise of judicial restraint is to do a disservice not just to the experience of people but also to the court’s philosophical responsibility. So let’s not be mistaken — the reference to a constitutional bench is an acknowledgment that the Supreme Court in Koushal had not really treated the arguments made before it with the seriousness it deserved.
By referring the matter to a constitutional bench, we can only hope that the court recognises that a grave injustice was done, not just to sexuality minorities but to a judgment that had articulated a rich and nuanced understanding of what it means to achieve full personhood. That it is hope that we come back to is not surprising, but hope for whom? The obvious answer is for millions of sexuality and other minorities but equally hope for a constitutional vision, and hope for the Supreme Court that it does not betray itself a second time around.
(Lawrence Liang is a co-founder of Alternative Law Forum and is currently an independent legal scholar and writer in Bengaluru.)
