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The Law, the Courts, and Queer Bodies – Law School Policy Review & Kautilya Society

Sarthak Virdi

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There exists a plenitude of literature that analyses the reasoning, impact and transformative potential of Navtej Singh Johar v. Union of India and NALSA v. Union of India. However, the existing literature fails to capture the shift that happens in the judiciary’s reasoning and conception of queer rights from Naz to Navtej. This paper aims to highlight what a shift away from spatial notions of privacy to decisional privacy does to the vocabulary of queer rights. Further, the paper argues that this has been complemented by a conception of queer emancipation that is not limited in its demand for a right to engage in consensual sex but rather views queerness as a way of life and places identity at the centre of the discourse; broadening the challenge against S. 377 to a claim for equal citizenship.

Introduction

Queer bodies are political subjects, for they threaten the heterosexual social order on an everyday basis.[1] The law, of late, has been a space within which the community has been making rights-based claims and finding a voice. This paper analyses the arc of judgements – Naz Foundation v. Government of NCT of Delhi and Ors., National Legal Services Authority v. Union of India and Ors., Navtej Singh Johar and Ors. v. Union of India and Ors  – to present how the law has responded to these claims. It grounds the movement for queer rights within the understanding of queerness as a way of life and locates queer emancipation within the claim for ‘equal citizenship’ made by Chandrachud J. Further, it focuses on the conception of privacy as laid down in Justice KS Puttaswamy (Retd) and Anr. v. Union of India and Ors. (Para 373).

It does so, first by looking at how S. 377 of the Indian Penal Code has been tested against Article 14 and brings out how the act-identity dichotomy has been dealt with. Second, it analyses what the courts have held on the question of privacy and critiques the focus on spatial notions of privacy. Third, it analyses the question of sexual orientation and gender identity under Article 15. It attempts to show how placing identity at the centre of all these issues has allowed for the building of a liberatory judicial discourse, one that protects the expression of sexual orientation and gender identity in all its manifestations.


Article 14 and the Act/Identity Dichotomy

In Naz, the court did accept that the law ends up targeting homosexuals as a class, but it reasoned that S. 377 violates Article 14 for it makes no distinction, neither between consensual and non-consensual acts, nor acts done in the public sphere or the private sphere (Paras 88-89). Further, consensual acts of adults done in private cause no harm to anyone else, and thus S. 377 fails the test of reasonable classification. This analysis of the court is reflective of an act-identity dichotomy,[2] where S.377 is understood to target private acts, not identities. This act-identity dichotomy is visible in Suresh Kumar, where the reason why the court upheld the validity of 377 was that it made an allegedly reasonable classification between acts against the order of nature and those that are not, without caring to define ‘order of nature’ (Para 65). There was no recognition of the fact that this classification primarily and disproportionately affects those who engage in non-heterosexual sex and thus does target identity.[3]

In NALSA, gender identity was construed to be inherently tied to its expression (Para 72). In Navtej, the sexual act was understood to be one of the most basic expressions of sexual orientation and criminalization of the same altered the prism through which the identity was viewed, thus stigmatising queer identities (Para 233). Simultaneous reading of NALSA and Navtej thus leads to the conclusion that gender identity and sexual orientation are not independent of their expression and criminalization of this expression invariably attacks the identity. Resolving the act-identity dichotomy is not saying that the act is the identity, but that penalising the act targets the identity and the same allows building a challenge against the law on the ground of Articles 14 and 15.

In Navtej, the analysis was grounded in the issue of identity. The court held that after the 2013 Amendment to S.375 of the IPC, certain acts which were understood to be against the order of nature were de-criminalized if done consensually between heterosexuals (Paras 423–425). However, S.377 continued to criminalize the same acts when done between two queer individuals. The target of 377 was thus not merely to regulate non-procreative sex, rather to eliminate any possibility of non-heterosexual intimacy and was clearly violative of Article 14.

However, even in Navtej, Justice Mishra, though analysing the law keeping in mind a claim for equal citizenship and the stigma created by 377, did focus heavily on private acts within private spaces. In his conclusions, he held 377 to be violative of Article 14 in as much as it criminalized consensual sexual acts done in private spaces, that ‘do not in any way harm public decency or morality’ (Para 268.16). The same thus leaves the question open, can a non-heterosexual couple in the public sphere, be subjected to treatment different from a heterosexual couple? However, an answer in the negative to the same can be found in his opinion, for he clearly argued for constitutional morality to prevail over social morality, when the rights of a population despite its numerical strength, are at stake (Paras 123-136).

Further, Justice Indu Malhotra held that discrimination on grounds of an ‘intrinsic and core trait’ is violative of Article 14 (Para 637.14). The same has been critiqued for being fairly wide and restricting these core traits only to those that have been sources of discrimination, like sexual orientation. However, the same can be used to argue against discrimination against queer individuals in matters of employment, housing and marriage.


Privacy – People, not Places

Zaid Al Baset offers a critique of the closet as a ‘non-space’ – a space that queer bodies have to deny the existence of, but also exist within.[4] The whole world becomes the closet, from the patriarchal household to the heteronormative public sphere. Even the private thus is a political space, for it is structured on a heterosexual framework. Queer emancipation is thus not about the right to decisional privacy only in matters of sex within private spaces, rather a broader claim for equal citizenship – the right to lead queer lifestyles.

In Naz, the court came to a conclusion that in as much as S. 377 criminalizes consensual sexual acts done ‘in private’ it is unconstitutional (Para 132). However, this is a misunderstanding of the issue as one being solely of a private act being criminalized. The focus on a private space takes into consideration neither the violence against queer bodies that is embedded within the heteronormative private space nor the gendered construction of the private space itself. Further, it ignores the lack of access to private spaces, especially within the Transgender community in India, as the court noted in Navtej. In Puttuswamy, the court moved away from a spatial understanding of privacy and took note of the fact that privacy does not become less valuable in public places, for ‘privacy attaches to the person and not the place’ (Para 297). This understanding of privacy has been used in Navtej, where the emphasis was on protecting autonomy for self-determination of sexual orientation. NALSA, even though decided before Puttuswamy, used similar reasoning to make a case for self-determination of gender identity (Paras 76-83). Through this reasoning, the sexual act is understood to be one subset of the various forms of expression that can exist, with the right to engage in these diverse expressions being attached to the individual, regardless of them being within a public place or a private space.

Thus, the issue is not merely the right to have sex in private but to express an identity through diverse mediums, one of them being sexual acts. The latter grounds the issue in terms of identity, while the former erases identity from the discussion. Further, moving away from spatial notions of privacy allows understanding privacy as having the autonomy to determine and express these identities, regardless of the nature of the space.


Article 15 – Sexual Orientation and Gender Identity

Article 15 which prohibits discrimination on grounds of (inter alia) sex, has been progressively read by the Courts to incorporate sexual orientation and gender identity within the meaning of ‘sex’. In NALSA, the court defined ‘sex’ to be inclusive of – first, biological characteristics and second, gender. It defined the latter to include ‘one’s self image, the deep psychological or emotional sense of sexual identity and character’ (Para 66). Sex and gender are interrelated for sex discrimination can be done not only on the basis of biological characteristics but also indirectly, on the basis of stereotypical generalizations of gender.

Discrimination on the basis of – first, sexual orientation and second, gender identity can be understood to be discrimination on the basis of sex, for it finds its rationale in the normative frameworks that are built around each sex. As for the former, S. 377 existed because the biological category of sex created norms expected of the body, reinforced through penalization of deviation. Non-heterosexual desire thus challenges the physical and sexual conduct expected of a body marked by a particular sex. Secondly, gender is expected to conform to the assigned sex. Butler has previously argued that ‘gender is always a doing’[5] – which is to say that norms attached to the body (read gender) are to be upheld by a continuous performance of them and the unity of gender is upheld through ‘compulsory heterosexuality’.[6] The experience and expression of gender identity that does not conform to the biological characteristics of sex defy the rigid imposition of a gender binary on the biological categories of sex. Reading gender identity into the meaning of the word ‘sex’ allows for protecting the various forms of expression of the same, including through attire, behaviour and ways of life. Discrimination on grounds of sexual orientation and gender identity does not stand against Article 15 (1), for both arise from certain physical, sexual and normative expectations from a particular sex, and violate the non-discrimination clause.

This reading of Article 15 when contrasted with that in Naz, is more expansive. In Naz, the court reasoned that for characteristics related to personal autonomy, but not mentioned in Article 15, discrimination on the basis of them can be held to be analogous to the grounds under Article 15 (Paras 111-114). Sexual orientation was held to be a ground analogous to sex, but not directly within the ambit of the word ‘sex’. When read against the emphasis on private spaces and private acts in Naz, this analogous ground of sexual orientation captures the issue within the act-identity dichotomy. The result is thus that first, sexual orientation is defined as an issue of choices in private spaces and second, by not bringing it within the sphere of sex but carving it out as an analogous ground, the ambit of the same is narrower than it would have been otherwise.

Further, the reading of the word ‘sex’ in Navtej and moving beyond spatial notions of privacy, allows the queer community to make claims on public spaces under Article 15(2) with their intrinsic identity being protected even in the public sphere.


Conclusion

On an analysis of judicial discourse, what becomes clear is that there is a shift away from spatial notions of privacy towards one that attaches the right to the individual. This reflects in the decisions around S. 377 for what was looked at as the criminalization of private acts has now been rightly understood to be the criminalization of identity, thus resolving the act-identity dichotomy. On all issues of privacy, non-discrimination and equality, this shift in approach has allowed the queer community to build a grammar of rights that can be used to make further claims, like marriage, adoption or simply equal citizenship. Sexual orientation and gender identity thus become the base from which various forms of expressions emerge, the right to protection of which can be located within this liberatory judicial discourse.


[1] ‘Political’ here refers to the claims made to recognize queer lives as legitimate, breaking away from heteronormativity – in all matters ranging from attire to marriage. For more, see, Shraddha Chatterjee, Queer Politics in India: Towards Sexual Subaltern Subjects (1st edn, Routledge 2018).

[2] The act-identity dichotomy is the view of the court in Suresh Kumar that since S.377 regulates sexual conduct against the order of nature, it targets certain sexual acts and not identities, which is an over-simplification of the issue, without looking at the implications of the law. For more, see, Siddharth Narrain, ‘Lost in Appeal: The Downward Spiral from Naz to Koushal’ (2013) 6(4) NUJS Law Review 575.

[3] It has been recognised by the Supreme Court in State of West Bengal v. Anwar Ali Sarkar (1952) AIR SC 75 that in cases where a classification made by the Legislature is under an Article 14 enquiry, it is the impact of such classification that is to be scrutinised and whether it perpetuates discrimination along prohibited markers or not; the intention of the Legislature does not matter.

[4] Zaid Al Baset, ‘The Myth of Heterosexuality’ (2012) 4 (1) Jindal Global Law Review 89.

[5] Judith Butler, Gender Trouble (Routledge 2021) 34.

[6] ibid 43.


Sarthak Virdi is a current undergraduate student pursuing a B.A., LL.B. (Hons.) at the National Law School of India University (NLSIU), Bengaluru.


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