Review: Sex and the Supreme Court edited by Saurabh Kirpal
From the reading down of Section 377 to the Vishakha judgement, and the triple talaq decision, this book takes an expansive view of the top court’s interventions in the field of gender and sexualityUpdated: Oct 01, 2020, 16:58 IST
At 12.12pm on September 6, 2018, a five-judge bench of the Supreme Court unshackled millions of lesbian, gay, bisexual and transgender Indians by reading down Section 377 of the Indian Penal Code that had bound them in shame and fear for 160 years. Roughly three weeks later, the court struck down a Victorian law criminalizing adultery; and a day later, the court swam against conservative religious beliefs and lifted a bar on women of menstruating age from entering the Sabarimala temple in Kerala.
For these three weeks, in which the court also delivered other crucial judgments, the SC transfixed the nation. Live commentary of explosive courtroom exchanges, and breathless media coverage showed people, hitherto unfamiliar with the law, the unique power of the apex court to shape lives – from the bedroom to the boardroom.
Sex and the Supreme Court takes off at this point, but doesn’t limit itself to it. Edited by Delhi-based advocate Saurabh Kirpal, one of the lawyers who argued against Section 377, the book takes an expansive view of the top court’s interventions in the field of gender and sexuality.
From the 1997 Vishakha judgment that formulated guidelines for protection against workplace harassment to the 2014 Nalsa verdict that confirmed the rights of transgender persons and the 2017 triple talaq decision, the book looks at important apex court judgments in the realm of the individual, the community, the workplace and finally, faith, with individual essays taking the reader into the legal minutiae of the decision, the history of the case, and the impact it had.
Lucidly written and with little legal jargon to impede the non-initiated reader, the book shines because Kirpal takes pains to set up the broad points of the law, what’s at stake and the delicate balancing act that is required of judges when deciding on questions of rights and community, and on religious edicts vs individual freedoms or autonomy.
A big chunk of the first half of the book is devoted to the fight against Section 377, which consumed the LGBT movement for the better part of two decades, and a discussion of transgender rights. The essays do well to steer clear of the tropes of queer representation that present LGBT people as grotesquely violated or hapless victims. Indeed, the personal narratives by petitioners in these two important cases fade in comparison to the meaty insights offered by the legal essays.
The middle section is particularly exciting. In an essay on love and marriage, Kirpal deliciously grapples with the perennial power of marriage and looks at how the Supreme Court has dealt with the institution. Particularly interesting is his reading of the 2018 Hadiya case, where the marriage of a 24-year-old woman who converted to Islam was challenged by her father. This section makes the reader see how judges decide a case where the facts are under a fog of communal suspicion and where claims of individual autonomy are fended off with terror charges.
The next essay, by Menaka Guruswamy and Arundhati Katju, is superlative in its navigation of the history of adultery law. I learnt multiple judgments held that the provision was valid because it was pro-women in shielding the wife from prosecution in an adulterous relationship, and in unfurling the possibility that the 2018 SC decision can end legalised marital rape.
There are number of good essays in the book, including one with the powerful words of Bhanwari Devi anchoring the fight against sexual violence and harassment, and another that deepens an understanding of the history of Muslim personal law. I finally also understood why Twitter legal ninjas keep quoting Narasu Appa Mali.
I wish the book had made more space for personal narratives of people whose love lives or marriages are torn apart by caste-based hate crimes. After all, as Kirpal notes while writing about khap panchayats, inter-caste marriages are vanishingly few. I also wish the exploration of the Criminal Tribes Act – which criminalised not just many marginalised tribes but also transpersons – included recent scholarship on how the British were influenced by caste notions of purity of birth, or the claim that ancient India was accepting of homosexuality and that transpersons were engaged with more critically, especially through the lens of caste.
Sex and the Supreme Court underlines the power of the law. In a way, it also shows its limitations. The top court’s decision spurred Kochi Metro to hire trans persons but social taboo ensured that they were forced to quit within a year. Welfare boards are set up but state apathy sees them defunct for years. The rate of progressive judgments is beaten only by the rate of the murder of inter-caste couples. The absence of Section 377 doesn’t stop parents from forcing queer children into electroconvulsive therapy to “cure them”.
In the coming months, two landmark cases will play out in our courts. One is a petition seeking the legalization of gay marriage that has already drawn howls of protest from the government and conservatives. The other is a challenge to the acquittal of the accused in the daylight killing of a Dalit man in Tamil Nadu in 2016. The man’s crime: marrying a woman of a caste higher than his. Regardless of the outcome, the cases will continue to remind us – as does the book, repeatedly – that when it comes to the law interacting with gender, sexuality, marriage and society, often the deepest personal matter is the most political.