The Supreme Court does more than decriminalise consensual homosexual sex and attempts to look beyond the mere sexual self of India’s LGBTQ people. Although the Court assiduously avoids the subject of gay marriage, in the choice of some of its words, it could have consciously laid the groundwork for gay marriage equality in India
On September 6, 2018, one of the most venerable institutions of India—the Supreme Court—committed an act of institutional self-catharsis and wrote a long, unanimous poetic apology for subjecting India’s LGBTQ people (lesbian, gay, bisexual, transgender, queer) to a historical association of judicial stigma. The Supreme Court un-constitutionalised the provisions of Section 377 of the Indian Penal Code, a British imposed law, which criminalised “unnatural sex” between consenting adults, and was, for over a century, used to criminalise homosexual relations in India.
The Supreme Court also overruled its own 2013 decision, which had validated the constitutionality of Section 377 after being provisionally invalidated earlier in 2009. The cruel 2013 decision had forced the Indian LGBTQ people to internalise a spoiled constitutional identity of shame—ruling that they were a “minuscule fraction” of the Indian society, too small to warrant any constitutional protection, and their demand for civil liberties too facetious within the legal design of an ordered liberty. That the Supreme Court got a chance to self-correct is a poignant reminder of how the nation’s highest court is supreme, but not infallible.
In a 493-page judgment of remarkable eloquence and scope, the justices invoked dignity and constitutional morality to realise the rights of equal citizenry of India’s LGBTQ community with others. The Supreme Court, recognising the symbolism of the community’s rainbow flag, emphasised the importance of diversity and human rights, and using their knowledge of law, psychology, science and literature, reasoned with the nation to move “from bigotry to tolerance,” to serve “as the herald of a new India” and be the “harbinger of liberation” and provide “emancipation from a certain bondage” of denied love to a historically-marginalised community.
The Supreme Court’s invocation of dignity is not uncommon as it has become a central theme of adjudication of LGBTQ rights across nations, although never a legal ground on which such cases are adjudicated. Dignity functions as the judicial vocabulary that translates sociocultural change into legal change, of theorising and enforcing principles of social justice, through which LGBTQ individuals are transformed into full citizens, able to benefit from the same liberties and rights as others, without being discriminated by virtue of their sexual orientation.
Dignity captures what philosopher Martha Nussbaum describes as the transition from “disgust” to “humanity” based on revised social perceptions of homosexuality. Dignity serves as a proxy of according a form of respect to the personhood of LGBTQ people, as equal citizens, and of possessing of equal rank in a liberal society, deserving protection from institutional humiliation.
The Supreme Court invokes human dignity as the core value of the Constitution’s equality, life and liberty clauses, where all are created equal and are endowed by the Constitution of equal rights towards the full development of their personality. It is to protect this dignity of India’s LGBTQ community that the State must be precluded to intrude into the deeply personal realms of consensual adult expressions of intimacy and of one’s choice of an intimate partner.
But dignity is a double-edged sword. While in its use the Supreme Court attempts to cleanse the shame and indignity of India’s LGBTQ people through marginalisation by law and non-acceptance by majoritarian social mores, but the same could infect a rhetoric of injury and run the risk of reinforcing “wounded attachments” for future generations of India’s LGBTQ community.
As explained by political theorist Wendy Brown: “Wounded attachments” arise when a past injury becomes an important constituent of individual and group identity. These attachments could deprive such identity groups of their ability to articulate new values, new ideas, new morality and new alternatives. It is a paradoxical legal moment, where the Supreme Court, at the same time, cures an injustice, but may have planted the seed for future feelings of self-resentment among the Indian LGBTQ community.
The Supreme Court also magnanimously reminds the nation the optimism of the Constitution and its power to accommodate the ever-changing collective consciousness of the Indian society. In its repeated exhortation that courts need to view the original intent of India’s founding fathers through the lens of contemporary society, creates a beautiful imagery of a “living Constitution”—which is “dynamic, vibrant and pragmatic,” responsive to its citizens, and not a lifeless text. It is the morality of this living Constitution, the Supreme Court explains, which must protect its citizens against oppressive majoritarian traditions and be the sole spirit of societal transformation—guiding India’s ever incremental journey towards a fuller and more equal nation.
In its final ruling, the Supreme Court does more than decriminalise consensual homosexual sex and attempts to look beyond the mere sexual self of India’s LGBTQ people. Although the Supreme Court assiduously avoids the subject of gay marriage, but in the choice of some of its words, the Supreme Court could have consciously laid the groundwork for gay marriage equality in India.
Could the usage of the words that India’s LGBTQ people are entitled to the “full range of constitutional rights”, to the “benefit of an equal citizenship” and to the “equal protection of law” mean anything less than the steppingstones to marriage equality? But in the Supreme Court’s riotous triumph of demonstrating the power of law to build a better society, lies the failure of its people. It lays bare their callous willingness to outsource the task of challenging oppressive traditions to only our courts, rather than engaging with them as a polity, where the random judicial instincts of a few unelected people could reorient the destiny of our society.
The Author is Associate Professor of Law, Jindal Global Law School