At 12.12 p.m. on 6 September 2018, the Supreme Court of India created history by reading down Section 377—reversing an archaic law laid down by the British in 1860 and decriminalizing homosexuality for the first time in modern India.
Yet, this is not the only ruling that the Supreme Court has made in recent times championing the rights of an individual to her or his identity and dignity. From empowering the transgender community and lending teeth to the prevention of sexual harassment of women at the workplace, to protecting the privacy, rights and dignity of women and minorities on issues such as interfaith marriages, entering the Sabarimala temple, the controversial triple talaq and the striking down of the adultery law—the highest court of the land has firmly placed the individual at the centre of the constitutional firmament, and set a course for progressive societal reform.
This remarkable collection of writings by legal luminaries is the only book to offer sharp insights into each of these crucial rulings. Justice M.B. Lokur writes on the issues that affect the transgender community; Justice B.D. Ahmed elucidates on Muslim law in the modern context; and Justice A.K. Sikri addresses the fundamental concept of dignity, which binds together all the essays in this book.
Some of the best-known names in Indian law—Mukul Rohatgi, Madhavi Divan, Menaka Guruswamy, Arundhati Katju and Saurabh Kirpal—offer legal perspectives of judgements on sex, sexuality and gender.
From petitioners like Ritu Dalmia, Keshav Suri and Zainab Patel, we hear personal narratives of being a part of the LGBTQ community in India, while journalist Namita Bhandare provides a powerful account of the struggle against sexual harassment.
An unprecedented documentation of the rulings that have set a standard for the rights and liberties of sexual minorities and women in India, Sex and the Supreme Court is also an invaluable record for posterity—for it reveals the power of the country's courts to uphold the privacy, dignity and safety of its citizens.
Check out that subtitle. I saw it on a bookshop shelf and took it to the till without pausing for breath. This is a book about gender and sex and how there is a distinct line in modern Indian jurisprudence that is committed to the dignity of the individual. There's a chapter about that concept alone, what it means to be allowed to live with dignity. Mostly the book is about section 377, and as well as legal analysis it includes accounts from the individual named plaintiffs, which I thought was a really lovely touch. Imagine being the named person in the s377 case - this explains how these people found themselves in this situation and I found it really moving. There are also chapters about trans and hijra rights, which I found fascinating, and chapters about adultery and three-times-talaq. It's a really good book, and hopeful about India and Indians and even about the dignity of the individual.
The book contains a brilliant collection of essays on the transformative role undetaken by the Courts in upholding sexual liberty and dignity of the citizens. I highly recommend this book!
Covering sex in relation to the individual, community, workplace, religion, as well as the law of the land, Sex and the Supreme Court: How the Law Is Upholding the Dignity of the Indian Citizen (Hachette, 2020), edited by Saurabh Kirpal is an engaging and informative book. It’s devoid of legal jargon and is teeming with notes, making it an easy read for a layperson.
In its introduction, Kirpal writes that the law is woven intricately with all of our lives in ways we don’t seem to fully imagine. He also affirms that “the Constitution has become a document embodying all that is aspirational in the Indian imagination,” transferring much-needed hope and confidence to its interpretation by the judicial system in contemporary times.
Individual and the law
In the first essay, Kirpal takes us through the struggle against Section 377, beginning from the first attempt that was made to get it scrapped in 1994 by the AIDS Virodhi Bhedbhav Andolan (AVBA) to its reading down on September 6, 2018. In a short chapter, he traverses the lengthy journey from the formulation of this law by Macaulay, who found it “so abhorrent that” he left it “delightfully vague,” to the four-part judgment that rendered hope, courage, and apology in equal measure.
In subsequent essays, Keshav Suri, the executive director of the LaLit Suri Hospitality Group, also shares his story and LaLit’s journey of creating a diverse and inclusive work culture. Celebrated chef, Ritu Dalmia, also shares how a comment from her friend Ella inspired her to act and fight to get Section 377 scrapped.
Though this draconian law has been read down, the widely-protested and ironically named Transgender Persons’ (Protection of Rights) Act was introduced in 2019 and is exists to be fought against, among other rights that are crucial to pave the way to citizenship for all queer bodies. Zainab Patel, who now heads the diversity and inclusion chapter at KPMG, covers this in the essay “From the Margins to the Mainstream,” calling the Bill what it is: “purely tokenistic.”
Sex and the society
Recently, the Indian government has argued that allowing same-sex marriages will threaten the “Indian family unit concept.” The state, in a sweeping statement of transphobia, then went to say that it recognizes marital relationship only “between a biological man and a biological woman.” With this, it delegitimized the right to live with human dignity enshrined in the Constitution of India.
“Marriage lies at the intersection of society and the laws. Societal traditions are crystalized into the rules relating to marriage by law,” Kirpal writes in the chapter “Love and Marriage.” He argues that “[i]f dignity and autonomy are the pillars of the constitution, there is possibly no greater manifestation of that autonomy than the right to choose a sexual partner. And nothing is a greater expression of that choice than marriage.” He concludes by saying that, “The Constitution is ready for gay marriage. The question is whether the society and the courts are ready.”
I stand in partial agreement, as people wanting to exercise their right to marry is something worth acknowledging. But the institution of marriage is itself crippled by morality, casteism, and discrimination. Eulogizing marriage to the point that our very existence and acceptance depend on it is something I can’t fully grapple with. I wonder why we don’t imagine other forms of union than imitating age-old toxic practices — marriage being one of them — followed by the cisgendered heterosexual community.
Coming back to the book’s agenda, Supreme Court lawyers and real-life queer couple, Menaka Guruswamy and Arundhati Katju eloquently point out in an essay, the hesitance of the state to recognize marital rapes. They also bring home the dichotomy and challenge what marriage as an institution proffers: “Is marriage a private relationship or a public one? Marriage may be the most delicate and intimate of relationships, but it also enjoys social, political and economic functions.”
Sex and the workplace
I was overjoyed reading the expansive essay “The Beast in Our Midst” by Namita Bhandare, a well-known journalist, writing about India’s MeToo movement. She covers stories by women who broke their silences against the ever-prevalent, gendered harassment in the workplace. They were divided by the choice – as verbalizing would invite enough pressure from the family to leave their job – and letting it continue, which will allow these men to believe that they can get away with anything. But some of them publicly came forward, including Tanushree Dutta’s complaint against Nana Patekar, Ghazala Wahab and Priya Ramani’s against M. J. Akbar, a Tehelka employee’s narration of the time when Tarun Tejpal made a pass at her at a conference held in Goa, Vinta Nanda’s story of facing sexual misconduct perpetuated by Alok Nath, and a researcher’s account of being forced to leave TERI because of R. K. Pachauri.
Even after a flood of complaints, and huge media coverage of the MeToo and Times Up movement, workplaces continue to take this issue lightly. Highlighting the “New Deal where silence no longer has any space,” Bhandare notes that “[t]he issue is not taking down a few predatory men. If India’s MeToo is to succeed, then it must spell out a New Deal at work for all employees, regardless of gender or sexual orientation.”
Sex and the religion
A book of its time, Sex and the Supreme Court is still far from being a perfect anthology as it’s peppered with portions of essays — particularly in the section where the intersection between sex, religion, and law is discussed — that are evidently cis- and mansplaining.
One such instance shows up wherein the religious arena of marriage was debated upon by those on either side. Madhavi Divan in her essay on Triple Talaq highlights the counterarguments presented by the All India Muslim Personal Law Board in this case. She mentions AIMPLB issuing an “affidavit,” articulating how “denying a husband the right to divorce his wife by triple talaq may lead to instances where: [H]e may resort to illegal, criminal ways of murdering or burning her alive.” Justice B. D. Ahmed, however, holds a contrarian position. His essay on “understanding” Muslim law in the “modern” context seemed to be a plain justification of being attached to age-old traditional practices of discriminating against women. His writing reeks of mansplaining, disguised as his authority and scholarship on Muslim law, when he writes how the “Muslim law is being mistakenly perceived to be adverse to women.” In a country where an issue concerning women is heard by a mench — a term for an all-men constitutional bench — there’s less hope in being hopeful about women’s rights.
Writing about the Sabarimala Case, Mukul Rohatgi finds it “difficult to accept that the essential tenets of most temples of the Hindu religion can be imposed or serve as a yardstick for the practices of certain specific temples with variant practice.” He seems to be saying that this ‘unique’ practice of disallowing women in a temple must be preserved. I fail to register how one can explain the ignorance of the basic rights of a human being just because they menstruate. And whether the editor had no other person in mind to write about women’s rights, Divan being an exception
In the closing chapter, Justice A. K. Suri highlights the “growing significance of dignity jurisprudence in the field of human rights.” It perhaps was the perfect way to end a book that anthologizes the struggle to ascertain fundamental rights by various sections of society, but I am afraid the real-life situation continues to present a bleak future. Preserving hope for a better future requires recounting stories that bring about a mindset change, and to a certain extent, this book holds this promise.
This book is a compilation of essays from different dignitaries edited by Saurabh Kirpal who is a senior advocate at the Delhi High Court and also an LGBTQ rights activist. The introductory line of the book ‘The law is ubiquitous’ got me hooked and there was no turning back. The essays focus on understanding the role of the Supreme Court as an agent of social change on gender and sexuality including rights of the LGBTQ community, decriminalisation of homosexuality, rights of Muslim women in regards to triple talaq and ancestral property, sexual harassment and much more. This book holds a special place in my heart as my family includes a homosexual, a transgender and a person from the Hijra community. Kudos to the Supreme Court for upholding the dignity of each and every person and taking the society forward away from the dark ages.
This book is a collection of different chapters by different authors. Authors include petitioners of various important cases as well as judges. Topics range from homosexuality & transgender issues to workplace harassment to the relation between sex & the community/religion/self. Some chapters were really well-written & enlightening. But the book overall was a little inconsistent for me, mainly due to a lack of flow in between chapters within the same theme. Also, some chapters were written in a very journalistic way & some were devoid of any analysis with respect to the theme or were based only on personal lives. But if you are new to these issues & seek general understanding, this book is good enough for that. But if you're seeking deeper analysis, you may not enjoy this book so much.
Brings a perspective which seems very obvious yet took these many years to perceive in the society. A must read to all who wish to see the change in our society.
"Manzil toh mil hi jayegi, bhatak kar hi sahi, Gumrah toh woh hai, joh ghar se nikle hi nahi."
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"He woke this morning Another night of her dreams
He glanced into the mirror She's not real it seems
Society unknowingly accepts The image presented Unaware of the damage Being self-inflicted
He hides her for fear of rejection She battles for her reflection."
••••••
The above two poems perfectly describe what one can expect from 'Sex and The Supreme Court' by Saurabh Kirpal which has also been longlisted for #bangaloreliteraturefestival
Collection of essays from legal luminaries, the book is an invaluable record for posterity- for it reveals the power of the country's court to uphold the privacy, dignity and safety of its citizens.
Kirpal himself had been the counsel for section 377 and therefore the reader can be assured about the first-hand experience from an expert.
It talks about all the commendable verdicts of the court and even the battles that are yet to be fought and conquered. For example, LGBTQ marriages and their right for an insurance, child adoption and every thing that a normal couple can avail.
The best part about the book is that it's not just limited to Indian laws but also strikes a comparison between international laws of the same verdicts.
What makes this book different? Well, the essays are from the petitioners themselves, which gives the reader an understanding of their back story and what led them to fight for their rights. It makes you feel empathetic and gives you a glimpse about their first-hand problems and achievements, something that cannot be presented by a Google search or any other media organisation
It's a great read even for the one's who are not well-versed with legal terminologies.
Bits of brilliance:
•Perhaps our greatest distinction as a species is our capacity, unique among animals, to make counter-evolutionary choices.
•The optimism of the Beatles who sang "The long and winding road that leads to your door will never disappear" will remain.
All the above definitions of constitutional morality refer to a concept of morality that is closer to being the conscience or the spirit of the Consitution and is necessary where the text is not specifically provided. However, as against that, the concept of morality has been laid down under Articles 25 & 26, debated by the Constituent Assembly, and tested by the Supreme Court in various judgments, has stood the test of time. To introduce and replace the concept of 'morality' with that of 'constitutional morality' would be to undo the same.
This collection of essays is significantly stirring. It touches upon vistas of issues associated with the interpretation of the Constitution by the apex court on issues including but not limited to gender justice, rights of the third gendered community, women, etc. The essays, while encompassing the myriad of issues, on one hand, try to appreciate the court's stand on numerous issues when looked at from a liberal perspective. While on the other hand and where it is so needed the authors do not hide their dissonance and put the views in a candid manner. One of the most categorical discussions relates to the issue of adultery and the marital relationship between husband and wife and the second categorical discussion is related to the concept of constitutional morality as discussed and applied by the courts in the Sabrimala case. The book highlights how certain prejudices underline the progressive judgments and even with a more progressive outlook, these judgments do not touch upon some of the major elements of promoting equality, within the ambit of the Constitution.
The book is also academic in the sense that it fuels the thought about how Constitutional provisions must be read and how the interpretation by the courts must be seen, not only from the literal sense of the judgments but from the underlying facets of these interpretations.
A series of essays that talk about how the Supreme Court has dealt with the issues of gender, sex and sexuality. This book talks about the idea of constitutional morality. It shows how the court through its various judgements has laid stress upon dignity of an individual and it's ever expanding scope which the state, it's organs and the citizens should be conscious about.
A book on Gender Jurisprudence, Rights and Rulings of the Supreme Court. A collection of essays from Top Legal Minds across generations in India. The book is a must read for lawyers and law students !