Two years ago, the Delhi High Court upheld the spirit of the Indian Constitution. In the midst of our contemporary society that is today so scarred by entrenched and deepening inequalities, it brought an old document alive. It reminded us that the Constitution still holds the promise and possibility of justice. “If there is one constitutional tenet,” Justices AP Shah and S Muralidhar argued, “underlying the Indian Constitution, it is that of inclusiveness”. This value, they said, is “deeply ingrained in Indian society and nurtured over several generations”.
Today, these words are welcome and relevant in so many contexts — from movements on caste, gender, and socio-economic exclusion to debates on the rights to food, work, health and education. Structures of discrimination and exclusion work both similarly and simultaneously, no matter what their basis. On July 2, 2009, the justices were speaking about Section 377, an 1861 law that criminalised gay, lesbian, bisexual, and transgender citizens. However, they could just have easily been speaking of caste or religion.
Just as they argued that “Indian constitutional law does not permit criminal law to be held captive by popular misconceptions of who the LGBTs are,” they also reminded us, more generally, that, “discrimination is the antitheses of equality and that it is the recognition of equality which fosters the dignity of every individual.”
The Naz judgement that read down Section 377 three years ago on this day is not just a judgement about gay rights — it is a judgement about who we are as a society and who we want to be. That’s why it has been such a celebrated judgement, embraced by an astonishing variety of people from across Indian society, which in itself indicates the fallacy that India remains uniformly opposed to sexual freedom and rights.
In an interview after the judgement, Justice Shah said that he didn’t turn the television on that day, afraid of what the reactions might be. He knew he was writing a judgement that would meet stiff resistance. Yet, this is why this judgement is about so much more than gay rights. It is a judgement about how to uphold the ‘last word’ of the Constitution and our non-negotiable commitments to dignity and equality for all, especially when it is presumed (and it is, let us remember, only a presumption) to go against the majority public opinion and dominant interests. The judges reminded all of us that beyond our personal moral opinions, we bear the responsibility to simultaneously hold a “constitutional morality” — a morality as citizens where we hold the dignity and rights of our fellow citizens above all else.
Nowhere is constitutional morality more difficult but also more necessary than within sexuality. This is true not just of same-sex desiring people but of all Indians.
Today, the right to live one’s desire stands fragile and threatened. To love across caste, religion, region, language, community and gender is often just as dangerous for those desiring people of the opposite sex. From khap panchayats and the ridiculously named ‘honour killings’ to the everyday violence of how we separate from each other on caste, religious and class lines, the policing and criminalising of desire is one of the most powerful yet unseen ways in which inequality and injustice are maintained in our society. Unlike other, more familiar forms of exclusion, however, discrimination on the basis of sexuality is often trivialised, reduced to something ‘private’, dismissed as something ‘elite’, or confined to the lower rungs in hierarchies of grief in the real battles of poverty, work, violence and hunger.
It is important that we do not allow sexuality to be reduced to sex or private acts better left unspoken. Sexuality is about every aspect of our lives — from our ability to seek healthcare to hold jobs, to find a place to live, to not be subject to violence within our own minds, our homes as well as on the streets, in police stations or in public spaces. Sexuality is about work, food, bread, hunger, pleasure, rights, ration cards, passports, safe schools, self-esteem and dignity.
The stories of thousands of queer people in this country have repeatedly testified to how Section 377 is one important part of how their dignity is taken from them. The Naz judgement could not — and did not — change the world overnight, but it gave queer people a foothold. It gave us a tool to fight back with, a place to start, an answer to the questions silently and violently posed to us everyday of our lives. It reflected a new set of words with which queer people had begun to speak of: rights, dignity, equality, citizenship.
Friendship and love are powerful political forces. The 17 appellants who moved the Supreme Court against the Naz judgement know this. As our most intimate discriminations begin to fall, traditional structures of power that have excluded so many in our society shake.
It is this that the Supreme Court must remember it has been asked to protect. It has been asked to keep the spirit of the Constitution alive in a moment where it would be so easy to consider it an irrelevant document. The queer movement will not stop or wait for the court but it turns to it today with a single hope: that the Supreme Court of India will rise to truly be a Supreme Court for all Indians.
Gautam Bhan is a sexuality rights activist
The views expressed by the author are personal