On Wednesday, the Supreme Court set aside the historic Delhi High Court decision in Naz Foundation vs Union of India, one of the most celebrated constitutional decisions in Indian judicial history.
At its heart, Naz makes a simple argument: that inclusivity is at the heart of the Indian constitution and that lesbian, gay, bisexual, transgender (LGBT) and hijra citizens are unequivocally equal citizens worthy of every respect, dignity and right as other Indian citizens. It is in its simplicity that it captures the spirit of the Constitution. Equality and dignity, at their heart, are simple, human and indivisible.
We have not yet been able to see the arguments made by the Supreme Court. We struggle to imagine which of the tenets of the Naz argument the court saw as “constitutionally unsustainable.” It is important to remember that the Union of India did not oppose the Delhi High Court judgment. The Attorney General of India said clearly that the government found no legal error in the Delhi High Court judgment. This judgment is a deep betrayal of the Constitution and of the judicial process. It stands against the long durée of human history and Indian jurisprudence where rights have always grown and been expanded. For the apex court of this country to retract rights, to take us backward, is unprecedented.
In 1973, the Supreme Court stood as the guardian of our fundamental rights as enshrined in what they called the Basic Structure of the Constitution. It said that it would be “the last resort of the bewildered and oppressed.” The Delhi High Court judgment exemplified the role of our judiciary in upholding and expanding rights, of moving towards the idea of India imagined in our Constitution. The Delhi High Court did so also seeing what was happening outside its door. For the last decade, Indian society — across region, class, city and village – has moved, slowly but steadily, towards an increasing acceptance of all sexualities. Since 2009, this change has been dramatic — in the everyday lives of LGBT people, in their workplaces, their sense of self, within their families, in their schools, and within their intimate relationships. The Supreme Court has ignored these tides of change. Rather than leading us towards a greater equality and emancipation, it has forgotten its primary role as the protector precisely of those that are presumed to stand against majoritarian statement.
Yet the near unanimous anger at the judgment tells the Supreme Court otherwise. It tells the court that the judgment does not speak in our name and that, as even the Union of India recognises, Indian society has grown and continues to grow more accepting of diverse sexualities. It tells this court that our democracy runs deeper than just the letter of the law or the pronouncement of a single judgment. It tells the court that the citizens of this country recognise that if some of us are unequal, then all of us are unequal.
The Naz judgment reminded us that the court does not confer rights, it merely confirms them. Our rights as LGBT Indians were not given to us by the courts, nor can they be taken away. Our faith in our rightful place in the Constitution remains unbroken despite this temporary setback and, as a community, we will continue to strive for greater equality and inclusiveness for all regardless of their sexuality. The LGBT community was on the streets across Indian cities yesterday. We are not voiceless, our dignity and our presence cannot be wished way. A win would not have changed our fight overnight, a loss will not be the final word. Step by step, we will move on for dignity and rights that cannot, in time, be denied.
Gautam Bhan and Arvind Narrain are gay rights activists
The views expressed by the authors are personal