The Aakhya Weekly #51 | Pride and Sub-judice

Jun 09, 2023

In Focus: The Supreme Court and LGBT+ rights

In recognition of this June as Pride month, in this edition, we cover the Supreme Court’s growing recognition of LGBT+ rights.

There is a fiction at the heart of our nation, inscribed in the very preamble of its Constitution. It is that India is the creation of her people; that its people gave unto themselves the instrument of its creation. In coming together to form this polity, the fiction goes, the people struck a bargain. They would, together, make something bigger than the sum of its parts, that each of them would owe fealty to. At the same time, they would not give everything away. There would be a sphere where the people could make demands and the nation would have to concede. These were the ‘fundamental rights’ – parts of their lives where Indians would have absolute sovereignty, where nobody, not even the State, could interfere.

I call this a fiction for two reasons. Of course, it is a fiction as all ideas are fictions – they do not exist outside the human mind. It is also a fiction, however, because when one looks hard, its limits become clear. The constitution is not the only body of ideas that governs the country. Its ideals routinely clash with other ideas that draw from religious, social and cultural mores. Often, it is the latter that prevail.

This realisation would have shocked many on December 11, 2013, when, after four and a half glorious years of freedom, the Indian state re-entered the bedroom.

Koushal vs. Naz

Koushal came to the Supreme Court on appeal from the Delhi High Court’s landmark 2009 judgment in Naz Foundation vs. Union of India. The High Court had read down Section 377 of the Indian Penal Code, which criminalised “carnal intercourse against the order of nature”, to exclude sexual acts between consenting adults.

Unlike most crimes, at least when consenting adults were involved, this one did not have a victim. It hurt nobody. Like other ‘victimless’ crimes, such as drug use or gambling, it was wrong because people considered it wrong, not because any individual was worse off for it. But it struck deeper than other victimless crimes. It hit at that which is the most intimate about a person. With this law in place, the state staked its claim on the domain of sexual intercourse, taking for itself the right to deem some of it “against the order of nature”. To its sexual minorities, India offered meagre options: celibacy or crime.

The provision, though rarely enforced, had long been used to harass and target India’s sexual minorities. With Naz, it appeared, this era had come to an end. More importantly, however, it was a symbolic victory. The State, the High Court had declared, did not in fact have the authority to regulate the sexual lives of adults.

The victory was short-lived. In Suresh Koushal vs Naz Foundation, the Supreme Court claimed that the Delhi High Court’s finding in Naz was ‘legally unsustainable’. Through arguments riddled with inconsistencies and non sequiturs, it skirted the fundamental rights the respondents asserted, to find that the Section suffered ‘no constitutional infirmity’. The judgment betrayed a contempt for the idea that the State ought not be all-pervasive, focusing much more on exceptions to fundamental rights than the content of the rights themselves. At one point, it dismissed the concerns of sexual minorities for the mere reason that they were minorities.

Koushal was a dent in the Supreme Court’s legacy that it has spent many years trying to repair.

NALSA vs. Union of India

Less than a year after Koushal came a sprinkling of hope for trans Indians, in a seminal judgment delivered by a two judge bench of the Supreme Court, in NALSA vs. Union of India.

NALSA, unlike Koushal, paid heed to the constitutional fiction. It found support for the trans identity in many fundamental rights. The constitution promised all citizens moral equality, in the view of the Court, and protected them from discrimination. It guaranteed that one could express themselves as they wished, protected from any intervention in how they dressed or acted. Implicit, in the right to life, was the right that individuals could live a life of dignity, and gender was a fundamental part of that dignity. With these observations, the Supreme Court recognised those outside the gender binary as a “third gender”, and allowed individuals to self-identify as a gender of their choosing.

Without sexual rights, however, this was only a partial victory. The Indian state would now officially recognise trans people, and give them various social protections. Before it, they would be equal to all others, free to express their gender identity in whatever way they desired. At the same time, the State would continue to claim a right over their sexual lives, criminalising their bodies for “carnal intercourse against the course of nature”. This cognitive dissonance is evident in the judgment, which briefly mentions how Section 377 harms trans people, before declining to express a view on Koushal.

Even so, Koushal was at odds with how the Supreme Court otherwise saw the fundamental rights. The two were about to come to a head.

The Privacy Right and Navtej Johar

For a long time, the Indian Supreme Court had been ambiguous on the constitutional protection of a citizen’s privacy. It would occasionally mention it, even rely on it, while stopping short of giving it the full status of a fundamental right. In 2017, however, a five-judge bench of the Supreme Court recognised it in full, in KS Puttaswamy vs. Union of India.

Privacy, though intuitive, is a difficult idea to grasp. It is, in some fashion, a right to hide things from the world. But that is a reduction. Privacy is, rather, an endorsement of a worldview that we are not for public view; that there are spheres of our lives where invitation is not freely given, but must be earned. What is kept hidden is immaterial. If I were to walk naked on the street, my own body would not be private. If I were being pursued by a stalker, even my name would feel so.

Naturally, one does not have the right to hide everything they wish. An employer may legitimately demand to know your criminal history. A bank may rightfully ask your financial records before giving you a loan. That they may demand highly personal details does not, however, entitle them to everything. Your bank manager may know of every purchase you made in the last six months, but they still cannot insist that you tell them your plans tonight. There remain spheres of your life from which they are closed off.

As it is with bank managers, so it is with the State. Puttaswamy recognised that State did not have untrammelled authority – that there were parts of people’s lives where it could not intrude. Sexual orientation, the court decided, was one of them. In a way, the right to privacy is a distillation of the very idea of fundamental rights: that in a certain intimate sphere, an individual has greater authority than the State. Puttaswamy struck a ‘discordant note’ with Koushal, criticising it heavily, but stopped short of deciding on its validity. That job was left for a later judgment, one which came a little more than a year hence – Navtej Johar vs. Union of India.

“I am who I am, so take me as I am,” the court would open, in Navtej. Between quoting from Goethe and Shakespeare, it drew, clearly, the lines between ‘social morality’ and ‘constitutional morality’ – the heart of India’s foundational fiction. In the end, constitutional morality prevailed. One’s personal morals, to the court, were immaterial to its criminalisation. The more important question was the extent to which the State had a right to intervene in the lives of a person, a question determined solely by the Constitution.

The court answered, by over-ruling Koushal.

Supriyo vs. Union of India

The Supreme Court is now faced with another question: that of whether same-sex marriages should be recognised under law. Specifically, in Supriyo vs. Union of India, it is considering whether the Special Marriage Act, which contains references to “the male” and “the female”, should be read in a manner that accommodates same-sex marriages as well.

Naz, Koushal and Navtej dealt with the criminalisation of homosexuality. In these cases, the judiciary was grappling with whether the State could interfere with the lives of sexual minorities. Recognising same-sex marriages, on the other hand, would require the State to endorse such unions. It remains, however, a question about the nature of the relationship between the Indian State and its people. Once more, one’s personal morality is irrelevant. It is the constitutional framework that matters.

After all, the fact that India’s constitutional fiction is a fiction does not make it irrelevant. Ideas are always powerless without people who believe in them. The constitution will always be an aspirational document, but it is imperative that we keep aspiring.

This Week in Policy

Economy and Taxation

India reported GST collections of ₹1.57 lakh crore in the month of May - an increase of 11.5% from the previous year. While this marks a three month low in absolute figures, and the lowest uptick in six months, it marks for the 5th occasion that collections crossed ₹1.5 lakh crore.
The OECD has raised India’s growth forecast marginally to 6%, from its previous estimate of 5.9%.

Sustainability and Energy

Ministry of Steel gets 30% of the pilot projects budget of INR 1,466 Crore as part of the National Green Hydrogen Mission. INR 455 Crore has been been allocated, and a call for proposal for Research, Development, and Demonstration project has been launched.
Union Cabinet approves City Investments to Innovate, Integrate and Sustain Project 2.0 for integrated waste management and climate oriented reform in 18 cities. It will span from 2023-2027, and will include a loan of Rs. 1760 crore from AFD and KfW, split equally, and a technical assistance grant of Rs. 106 crore from the European Union.

Emerging Technology and Media

Cyber Swachhta Kendra is offering free botnet detection and malware removal tools as part of MeitY's Digital India initiative. Click here to find out how to download and use them.
Major OTT platforms like Netflix, Amazon, Disney and Viacom18 are considering initiating legal proceedings to challenge the Health Ministry's new rules concerning depiction of tobacco products in content streamed on their platforms.

International Trade and Foreign Affairs

India and the US are on track to negotiate a Reciprocal Defence Procurement (RDP) Agreement and a Security of Supply (SoS) Agreement to promote long-term supply chain stability, and are also set to finalise a deal for assembling the General Electric GE-414 jet in India - which is likely to be concluded on PM Modi's upcoming visit to the US later this month.
India and the UAE will hold their first joint trade committee meeting next week to review progress under the free trade agreement (FTA) signed last year.

Healthcare

India plans to join the Pharmaceutical Inspection Co-operation Scheme, a global scheme for cooperation between countries and regulatory bodies to improve the quality of medical products.

Banking, Finance and Insurance

RBI has proposed to establish robust governance mechanisms for authorized non-bank payment system operators (PSOs) in order to constructively convey emerging cybersecurity risks. The central bank also issued directives on cyber resilience and digital payment security controls, laying out governance mechanisms to mitigate such risks.
The stand-off between SEBI and the Securities Appellate Tribunal (SAT) over the evaluation of a specific provision of the securities law has now reached the Supreme Court. SAT has overturned more than half a dozen SEBI orders related to listing-agreement violations, and Sebi has now appealed these judgements in the Supreme Court.

Logistics and Infrastructure

The Uttar Pradesh government is working to create a hub of warehouses along the state’s expressways. So far, 800 acres of multimodal logistic hub with water, land and air transportation have been developed in Dadri in Gautam Budh Nagar.
The Maharashtra State Road Development Corporation (MSRDC) plans to set up at least five logistics hubs along the 172km Pune ring road.

Tracking the G20

This week in India’s G20 presidency saw a virtual roundtable - Regulators' Perspectives on Climate Risks and Sustainable Finance in Emerging Economies, on 8th June, 2023. The discussion was aimed at addressing the growing concerns from central banks, finance ministries and financial regulators about the physical and transition risks corresponding with climate change, as well as increasing appetite to enhance the volume of finance flowing to promising green sectors, assets and activities. Also, The 3rd Health Working Group meeting concluded this week in Hyderabad. The meeting focused on R&D and innovation, along with health emergencies prevention, preparedness and response.

Upcoming Events

Closed Door Interaction on Digital India Act

June 9 | New Delhi

Nishith Desai Associates, along with DSCI, is hosting a closed door Interaction on Digital India Act on 9th June, 2023 in New Delhi. The Digital India Act is a future-ready legislation that aims to replace the existing IT Act and provide a strong legal framework for protecting the rights of Digital citizens while ensuring an enabling environment for innovation and growth. More Information

Blue Economy Taskforce 3.0 Meeting

June 15 | FICCI Federation House, New Delhi

FICCI, under the Taskforce 3.0 on Blue Economy initiative (launched in 2016) will be organizing its sixth meeting on 15th June, 2023 at FICCI Federation House in New Delhi. The blue economy has the potential to create jobs, stimulate economic growth, minimize the effects of climate change, and assist in meeting the food requirements of a growing global population. More Information

A Few Good Reads

What if the victims of the Balasore tragedy could have been compensated with just 35 paise? A lesson in the utility of nudges, by Kumud Das.
The Asia Society Political Institute looks at how the personal and the political intersect in China.
Rowan Atkinson, donning his less well known electrical engineering hat, presents a critique of the electric vehicle revolution.
After years of critique, Noah Smith is cautiously optimistic for the return of a new and more helpful libertarianism.
Vivek Kaul points to the gaps in the Morgan Stanley report on the Indian economy.

Tweets of the Week

If there’s one thing to watch in Indian foreign policy:

A different Kerala story:

Japan is trying out bank stablecoins:

Key Notifications and Reports

The International Labour Organisation has released the eleventh edition of its ‘Monitor on the world of work.’

The Aakhya Weekly