Category Archives: Sexuality

Section 377 Referred to a Constitution Bench: Some Issues

In an order passed today, a three-judge bench of the Supreme Court, headed by the Chief Justice, referred the correctness of the judgment in Suresh Kumar Koushal vs Naz Foundation to a Constitution Bench. Because of the complex history of this case, some background is essential to understand the implications of today’s order. Recall that on December 11, 2013, a two-judge bench of the Supreme Court, in Koushal, had upheld the constitutional validity of Section 377 of the Indian Penal Code, which criminalises carnal intercourse against the order of nature. In doing so, the Supreme Court overturned the 2009 judgment of the Delhi High Court in Naz Foundation vs NCT of Delhi, which had read down Section 377 and decriminalised consensual same sex relations between adults. Although the Supreme Court did not specify what constituted “carnal intercourse against the order of nature”, its judgment was widely understood to recriminalise homosexuality in effect, if not in so many words.

Soon after the judgment in Koushal, a different two-judge bench of the Supreme Court delivered judgment in NALSA vs Union of India, where it upheld and affirmed the constitutional rights of transgender persons under Articles 14, 15, 19 and 21 of the Constitution. As I argued at the time, Koushal and NALSA rested on mutually irreconcilable foundations – the exact arguments that had been rejected in Koushal had been accepted in NALSA, and so, the only way out was to review the correctness of Koushal.

In the meantime, review petitions contesting the correctness of Koushal had been dismissed. Petitioners then took the last route open to them: they filed curative petitions. A curative petition is an extraordinary remedy developed by the Supreme Court in its 2002 judgment in Rupa Ashok Hurra. It is basically a remedy of the last resort: even after a review is rejected, the Court may still reconsider its judgment in certain exceptional circumstances. Hurra set out the exceptional circumstances:

“… this Court, to prevent abuse of its process and to cure a gross miscarriage of justice, may re-consider its judgments in exercise of its inherent power. The next step is to specify the requirements to entertain such a curative petition under the inherent power of this Court so that floodgates are not opened for filing a second review petition as a matter of course in the guise of a curative petition under inherent power. It is common ground that except when very strong reasons exist, the Court should not entertain an application seeking reconsideration of an order of this Court which has become final on dismissal of a review petition. It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained. Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgement adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner… we are of the view that since the matter relates to re- examination of a final judgment of this Court, though on limited ground, the curative petition has to be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of, if available. It is only when a majority of the learned Judges on this Bench conclude that the matter needs hearing that it should be listed before the same Bench (as far as possible) which may pass appropriate orders.”

The rarity of the curative remedy is reflected by the fact that in the fifteen years since Hurra, only four curative petitions have been allowed. However, in 2014, Petitioners won a significant victory when the Court agreed to hear the Naz curative in “open court” – most curative petitions are dismissed by circulation in judges’ chambers.

The Naz curative was then listed for hearing on the 2nd of February, 2016, before the three senior-most judges at the time – Chief Justice Thakur, and Justices Dave and Khehar. After some oral argument, the Court passed the following order:

“All that we need say is that since the issues sought to be raised are of considerable importance and public interest and since some of the issues have constitutional dimensions including whether the Curative Petitions qualify for consideration of this Court in the light of the Judgment in Rupa Ashok Hurra’s case (Supra), it will be more appropriate if these petitions are placed before a Constitution Bench comprising five Hon’ble Judges of this Court.”

In other words, all questions – including the question of whether the curative petition could be admitted for hearing – were to be decided by a five-judge bench.

Later that year, however, a fresh petition was filed challenging the constitutional validity of Section 377.  Navtej Johar vs Union of India was filed by five LGBT individuals as a writ petition under Article 32 of the Constitution (and not a public interest litigation, like Naz Foundation was), alleging direct violation of fundamental rights. When this petition came before a two-judge bench of the Court on 29th June 2016, the Court passed the following order:

“The issue pertains to the validity of Section 377 of the Indian Penal Code. We are informed that the Constitution Bench of this Court is hearing the issue. Post this matter before Hon’ble the Chief Justice of India for appropriate orders.”

Both the curative petitions and this petition then went into cold storage. In late August 2017, however, the nine-judge bench of the Supreme Court handed down the famous “Privacy Judgment”. As we have discussed before, the a majority of judges in the privacy judgment directly held that sexual orientation was a facet of privacy, and very publicly doubted the correctness of Koushal. In his plurality, Justice Chandrachud observed:

…  we disagree with the manner in which Koushal has dealt with the privacy – dignity based claims of LGBT persons on this aspect. Since the challenge to Section 377 is pending consideration before a larger Bench of this Court, we would leave the constitutional validity to be decided in an appropriate proceeding.” (para 128)

While, therefore, judicial propriety and discipline prevented the nine-judge bench from overruling Koushal, there was little doubt that the bottom was entirely knocked out of that judgment – and it was only a question of when – not if – Koushal would be overruled.

It is in this context that we must understand today’s referral order. The order was made in the Navtej Johar petition, which had been filed after the initial curative hearing, and had not been tagged with the curative petitions. In the order, the Court observes the existence of the NALSA judgment, and also Puttaswamy. It then notes:

“… the said decision [Puttaswamy] did not deal with the constitutional validity of Section 377 IPC as the matter was pending before the larger Bench. The matter which was pending before the larger Bench is a Curative Petition which stands on a different footing.”

After noting that the issue of consensual same-sex relations “needs to be debated”, the Court concludes as follows:

“Taking all the aspects in a cumulative manner, we are of the view, the decision in Suresh Kumar Kaushal’s case (supra) requires re-consideration. As the question relates to constitutional issues, we think it appropriate to refer the matter to a larger Bench.”

A few questions arise from this. The first and most important is: what is status now? In Puttaswamy, the Court specifically declined to overrule Koushal on the basis that it was already being considered by a Constitution Bench. Today’s order effectively authorises the Chief Justice to set up a parallel Constitution Bench that will also consider Koushal. In that case, what happens to the curative proceedings? Today’s order observes that the curative proceedings “stand on a different footing”; that is, of course, true. The curative petitions have to be argued according to the very strict Hurra standard (see above), and cannot also invoke NALSA or Puttaswamy. A judgment asking for reconsideration of Koushal, however, is not bound by the Hurra standard.

That, however, leads to a conceptual problem: given that a curative petition in Koushal is pending and has been specifically referred to a Constitution Bench, clearly, Koushal is already under reconsideration. Or, to put it another way, the judgment in Koushal has not yet attained finality – it is subject to the outcome of the curative proceedings. From that perspective, today’s order appears to either mandate the reconsideration of a judgment that is already being reconsidered (if you take the judgment itself as final), or to mandate the reconsideration of a judgment that is not yet final (if you take the conclusion of curative proceedings as the point of finality).

The situation is further clouded when you consider the fact that – as the Court held in Hurra “the curative petition has to be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of, if available. It is only when a majority of the learned Judges on this Bench conclude that the matter needs hearing that it should be listed before the same Bench.”

In other words, the task of a curative bench, if the curative petition succeeds, is to send the matter back for a fresh hearing (and not to decide the case on merits itself). That is, if a curative petition succeeds, then the judgment under challenge is to be reconsidered.

But that is exactly what today’s order, in effect, achieves, when it says that “the decision in Suresh Kumar Koushal’s case requires reconsideration.” Or, in other words, today’s order effectively allows the curative petitions by a side-wind. Suddenly, the most difficult hurdle before the original petitioners – to meet the threshold requirements under Hurra – has been swept away.

The upshot, therefore, is this: the pending curative petitions have now been made effectively infructuous (by that I mean that while the curative petitions are still pending, and technically due to be heard, their subject matter – crossing the Hurra threshold – has effectively been decided separately now, so in substance, there is nothing that remains to be argued when they do come up for hearing). By virtue of today’s order, the issue of the constitutional validity of Section 377 is to be heard afresh, and the correctness of Koushal to be reviewed from scratch. There will of course be some procedural issues to untangle – the petitioners in the curative petitions will now have to either get those petitions tagged with Johar or file fresh intervention applications. The basic point, however, is that today’s order marks a very significant advance in the legal struggle against Section 377.

One last point: today’s order calls for a reconsideration of Koushal primarily by invoking the judgments in NALSA and PuttaswamyPuttaswamy, of course, was entirely about the right to privacy, and the relevant portion of NALSA cited by the Court also refers to privacy (in the context of Article 21). This should not result in the future Supreme Court hearing reviewing Koushal only on the grounds of privacy; Koushal‘s analysis of Articles 14 and 15 was every bit as wrong-headed as its “understanding” of Article 21. If the Court is now going to hear the case afresh, then it will, hopefully, rule not only on Article 21, but on issues of equality and non-discrimination as well.

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Guest Post: The Trans Bill and its Discontents – I

(This is a guest post by Vasudevan Devadasan.)

This week the Transgender Persons (Protection of Rights) Bill is up for vote in the Lok Sabha. The Bill has had a comparatively short but turbulent history. On the back of the National Legal Services Authority v UoI (NALSA) judgement and an Expert Committee Report by the Ministry of Social Justice and Empowerment (here) the Bill was first introduced and passed as a Private Member Bill by the Rajya Sabha in 2015. A year later however, the Ministry introduced a modified version of the Rajya Sabha Bill and referred it to committee. The Standing Committee (whose report can be found here) lambasted the Bill on several points that we will discuss here and on subsequent posts. Despite the Standing Committee’s report, the provisions of the bill have not been modified and continue to raise some troubling constitutional issues.

Beginning with the distinctions of ‘sex’ and ‘gender’, as well as ‘gender identity’ and ‘gender expression’, this post examines the interpretation of Articles 19 and 21 in NALSA. While there are a host of practical and legal ramifications of introducing such legislation, this post focuses on the constitutional issues raised by the definition of “transgender” in the current Bill and the ‘screening process’ that individuals have to undergo to secure legal recognition of their gender identity.

The constitutional framework

Before looking at the multiple definitions of “transgender” that have been used by the bills in parliament, its crucial to understand the constitutional framework created by NALSA and Article 19 and 21. (There are other judgements before and after that contribute to this framework, but the relevant principles are discussed contextually in NALSA.) Firstly, the Court distinguishes between ‘sex’ and ‘gender’. The former is determined by biological characteristics such as chromosomes and internal and external sex organs, and is assigned to individuals at birth while the latter is constituted by an individual’s own experience, developed through innate belief, upbringing, society and culture. In the case of a transgender person there is a conflict between their “gender identity” assigned to them at birth, and the one they develop through the course of their life. Secondly, while ‘gender identity’ refers to an individual’s internal experience of gender, ‘gender expression’ refers to their outward expression, as perceived by society.

It is the right of transgender persons to choose their gender identity that the Supreme Court upheld in NALSA. In the Court’s own words, “self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed by Article 21”. Additionally, the Court held that ‘gender expression’ by way of dressing, speaking, or behaving was protected under Article 19. The invocation of ‘personal autonomy’ and ‘self-expression’ is crucial, because this means that the decision of a transgender person in choosing a gender (whether male, female) is made is made by the individual, as an expression of personal choice. In fact, the Court explicitly rejected an objective ‘medical’ or ‘pathological’ standard to determine an individual’s gender (¶75) The Court also recognised that “transgender” constituted its own, standalone, gender for individuals who did not wish to associate themselves with either the male or female gender. In summary, a transgender person could choose to be recognised as either male or female based on their choice, or alternatively could choose to be recognised as transgender.

Self-identification is a promising idea in principle and may work in practice as well. For example, Argentina passed a statute that recognises an individual’s right to gender identity, and allows a person to change their sex in public records by filing an affidavit. However, this is clearly more helpful to individuals who want to change their gender identity than individuals who wish to identify outside the male-female binary. Additionally, the Court in NALSA sought both non-discrimination and affirmative action to be taken for transgenders. To secure these goals, there needs to be some practicable process or method by which the State can identify transgender persons. The crux of the matter then becomes the suitable level of State-scrutiny over an individual’s decision to identify with a gender, be it male, female, or transgender. It is important to note that the purpose of scrutiny must not reach a level so as to interfere with the individual’s autonomy to choose a gender, but sufficient to enable recognition and efficient governance.

The (current) Transgender Bill

The primary issue with the current bill stems both from its definition of the term “transgender person”, but also from the fact that to be recognised as a “transgender person”, one must undergoe a ‘screening process’ conducted by, inter alia a medical officer and a psychologist/psychiatrist. Section 2(i) defines a “transgender person” as one who is:

  • Neither wholly female nor wholly male; or
  • a combination of female or male; or
  • neither female nor male; and

whose sense of gender does not match with the gender assigned to that person at the time of birth, and includes trans-men and trans-women, persons with intersex variations and gender-queers.

The use of the word “and” after clause (c) makes the definition conjunctive. Thus, to fall under the definition both the sexual characteristics and the gender characteristics of the definition must be met. By adding a pathological aspect to the definition of transgender, the Bill continues to view transgender as a medical or biological anomaly outside the normal duality of male and female. As we noted earlier, sex and gender are two distinct concepts; yet the definition in the Bill conflates them, both narrowing the scope of people who fall under the Bill’s protection, and distorting the definition of a transgender person in the national discourse. The definition also runs contrary to the rationale espoused in NALSA which explicitly ruled out the use of a ‘biological test’ to determine if a person is transgender. When looked at in contrast to the definition provided by the Expert Committee Report and the Rajya Sabha Bill, the conflation of ‘sex’ and ‘gender’ is apparent. They specifically dispensed with the male/female binary, and defined “transgender person” as:

a person, whose gender does not match with the gender assigned to that person at birth and includes trans-men and trans-women (whether or not they have undergone sex reassignment surgery or hormone therapy or laser therapy etc.), gender-queers and a number of socio-cultural identities…

In addition to the definition, the current Bill sets up a ‘screening procedure’. Section 4 states that a transgender person “shall have a right to self-perceived gender identity”. However, the recognition of this freely chosen gender identity is only possible when the procedures that the Bill stipulates are completed. Under Sections 5 through 7, a transgender person must approach a District Magistrate, make an application for issuing a ‘certificate of identity as a transgender person’. The application shall be evaluated by the ‘District Screening Committee’ which as noted above includes medical personnel. The inclusion of medical personnel as part of the identification procedure again hints at the legislature’s conflation of ‘sex’ and ‘gender’. By not specifying the criteria upon which the ‘Screening Committee’ shall grant or reject an application, the Bill risks the identification procedure, (a deeply personal choice originating in an individual’s internal experience of gender) morphing into an objective medical assessment. In NALSA the Court also grounded the principle of self-identification in an individual’s dignity. The Bill runs the risk of violating this principle by subjecting transgender persons to unnecessary medical scrutiny.

The Bill also makes the State (through the ‘Screening Committee’), as opposed to the individual, the final arbiter on an individual’s gender identity. Under the Bill, the Screening Committee acts as a gatekeeper to an individual being able to fully experience their self-perceived gender identity in society. This runs against the rights of ‘self-expression’ and ‘personal autonomy’ that Article 19 and 21 confer on citizens. As ‘gender expression’ is protected under Article 19(1) and the Supreme Court has recognised that individuals have a ‘positive right to make decisions about their life’ under Article 21 the constitutional validity of the ‘Screening Committee’ will certainly raise some constitutional questions as it poses a restriction on the legal recognition of an individual’s gender identity.

Lastly, Section 7 allows the District Magistrate to grant a “certificate of identity as [a] transgender person…” seeming to negate the possibility that a transgender person may choose to identify as a male or female. At its core, the idea self-identification would allow a transgender person to choose to identify with either the male, female, or transgender identity. Section 7 seems to relegate transgender persons as explicitly and eternally outside the male female binary that Indian society deems normal.

Conclusion

The current version of the Bill has received a lot of criticism on a wide range of issues. Since its inception it has seen the loss of several prominent aspects including exclusive courts for transgenders, reservation in educational institutions and incentives to the private sector to employ transgender persons. While these are notable lapses, far more troubling is that the Bill seems to misunderstand the very individuals it seeks to protect. By conflating the concepts of ‘sex’ and ‘gender’, and imposing an opaque recognition procedure, the Bill does little to uphold the core principle of self-identification and dignity as articulated in Article 19 and 21.

 

 

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T. Sareetha vs T. Venkata Subbaiah: Remembering a Revolutionary Decision

On July 1, 1983, Justice P.A. Choudary of the Andhra Pradesh High Court struck down Section 9 of the Hindu Marriage Act, which allowed the Court to pass an order for ‘restitution of conjugal rights.’ In simple language, if the Court was convinced that either a husband or a wife had ‘without reasonable cause, withdrawn from the society‘ of their spouse, then it could decree that the defaulting spouse was required to go back to the company of their partner – a decree that could be enforced by attaching the defaulter’s property. Justice Choudary held that Section 9 violated the rights to equality and privacy under the Constitution, and was accordingly void. Within five months, the Delhi High Court handed down a judgment disagreeing with this conclusion. And a little over a year later, the Supreme Court affirmed the judgment of the Delhi High Court, bringing the legal controversy to a close.

Sareetha remains as a footnote in family law courses, a passing reference in discussions about the restitution of conjugal rights. This is a pity. Sareetha was one of those rare cases in Indian constitutional history where a Court understood the Constitution as a radically transformative document, and struck out in a direction that was unfamiliar, bold, and creative – while remaining constitutionally tethered. Its interpretations of equality and privacy anticipated similar developments in other jurisdictions by years, or decades; and in some respects, it is still ahead of the time. Quite apart from the actual decision, it is its reasoning that constitutional lawyers should not forget; because even though the Supreme Court overruled the judgment, and perhaps closed off the window to a certain kind of legal change, Sareetha’s reasoning remains a template for other cases that might attempt to shape equality and privacy in an emancipatory and progressive direction.

Polis and Oikos: The Privacy of the Ancients

To understand the radicalism of Sareetha, we need to begin at the beginning. The distinction between the public and the private sphere, which is one of the most controversial issues today, and which was at the heart of Sareetha, had its origins in classical Athens.  As Don Slater writes, “The public sphere – the polis or res publica – was the realm of free association between citizens. Men [and only men] were deemed free in the polis not because it was unregulated, but because it was kept rigidly separated from the private sphere of the household and the domestic economy (oikos): the domestic sphere was regarded as the realm of mere physical reproduction, and therefore of the compulsion and slavery of needs.” In her book, The Human Condition, Hannah Arendt records that the public sphere (which Humphrey’s defines by its ‘impersonality’) was the arena of “equals” – men, who came together to debate and discuss issues affecting their City-State were neither “to rule, nor to be ruled.” In fact, the very idea of ‘rule’ was at odds with the idea of the polis. In the oikos, on the other hand, the male head of the household had absolute dominion over his slaves, the women, and the minor children. It was these who would ensure the satisfaction of his bodily needs, thus liberating him from ‘necessity’, and freeing him to participate in the public sphere with other, equally situated men.

The public/private divide, therefore, mapped on to the dichotomy between freedom and necessity, equality and inequality. The claims of equality were restricted to the public sphere (polis), and simply weren’t applicable to the household (oikos), which was defined by its inequality.

Public and Private: The Privacy of the Moderns

The public/private divide largely disappeared during feudal times (the manorial households, in a sense, came to embody characteristics of both spheres), and then made a reappearance after the Enlightenment and the revolutionary era. The modern era – Arendt argues – saw economic activities and market transactions taken out of the domain of the private sphere, which was now defined as the site of intimacy, or intimate relationships. At this time, as Seyla Benhabib records, the American and French Revolutions had brought into public consciousness the ideas of basic rights, and the idea of autonomy. Quoting the philosopher Lawrence Stone, she observes that:

“… from the beginning there were tensions between the continuing patriarchal authority of the father in the bourgeois family and developing conceptions of equality and consent in the political world. As the male bourgeois citizen was battling for his rights to autonomy in the religious and economic spheres against the absolutist state, his relations in the household were defined by nonconsensual, nonegalitarian assumptions. Questions of justice were from the beginning restricted to the ‘public sphere’, whereas the private sphere was considered outside the realm of justice.”

Unlike the Ancients, who accepted that the private sphere was essentially inegalitarian, the moderns held that it was simply not subject to the claims of equality. Benhabib further points out that “power relations in the ‘intimate sphere’ have been treated as though they did not even exist.” It is this idea of privacy that culminated in judicial holdings in the 20th century that viewed privacy as a question of a space of seclusion, a space that the State could not enter. After Warren and Brandeis wrote their famous article at the end of the 19th century, viewing the right to privacy as a right to seclusion, or a right to be let alone, the American Supreme Court held that the right extended to “areas” where there was a “reasonable expectation of privacy.”

It was this spatial concept of privacy that was strongly criticised by feminist legal scholars over the second half of the 20th  century. In light of the fact that the “private sphere” is itself a hierarchically structured space, Martha Nussbaum points out that “recognizing a sphere of seclusion into which the state shall not enter means that males may exercise unconstrained power.” A classic example of this is the marital rape exception which deems that forcible sexual intercourse within the marital relationship does not amount to rape.

Community and Individual: Privacy in Colonial India

In colonial India of the late nineteenth century, where – in the words of historian Tanika Sarkar, there first began to emerge a “pre-history of rights“, privacy took on yet another form: here, it became the right of communities to determine certain issues – including the treatment of women – free from the interference of the colonial State. Tanika Sarkar, Lata Mani, Partha Chatterjee, and other scholars recount the debates around the abolition of Sati, the raising of the Age of Consent, and indeed, on restitution of conjugal rights. Chatterjee notes, for instance, that “the so-called women’s question in the agenda of Indian social reform in the early 19th century was not so much about the specific condition of women as it was about the political encounter between a colonial state and the supposed “tradition” of a conquered people.” In other words, community “traditions”, which centrally involved the rights, positions, and social roles of women, were deemed to be off limits, since they came to represent, or embody, the “inner life” of the community. So the idea of privacy (although it was not framed in so many words) became connected with group rights; or, it was groups that – as bearers of value in themselves – that became the holders of something like a right to privacy.

The Ambiguity of Gobind v State of MP

Therefore, when the Indian Supreme Court began to take up issues relating to the right to privacy, it was adjudicating in the context of a number of different – although somewhat complementary – traditions. The case that first held that there existed a constitutional right to privacy in India reflected this problem. In Gobind v State of MP,  the Supreme Court held, in sphinx-like tones, that:

“Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing.”

As I have noted before, part of the reason why this definition sounds confusing is that it was lifted by the Supreme Court from an American decision delivered in an entirely different context – that of adult theatres. In any event, a quick reading of this sentence reveals at least four possible underlying themes:

(a) A spatial idea of privacy, flowing from the use of the word “home”, and the fact that all the terms that follow it refer to activities normally undertaken within the home

(b) An institutional, or relational idea of privacy: the home (in the sense of a household), the family, marriage, and motherhood are all social institutions. The right to privacy, then, protects the sanctity of these institutions by insulating them against State interference.

(c) A functional idea of privacy: motherhood, procreation, and child-rearing, in particular, seem to suggest domestic activities (and the absence of ‘fatherhood’, in turn, suggests the gendered nature of the division).

(d) An individualistic idea of privacy that focuses upon bodily integrity and decisional autonomy: a few years before Gobind, the American Supreme Court in Griswold v Connecticut and Roe v Wade  had upheld the right to contraceptives and the right to abortion, on grounds of privacy; privacy, here, refers to the right of the individual to make her own choices about decisions that directly affect her bodily integrity.

As we can see, while the first three interpretations reflect the various conceptions of privacy discussed above, the fourth marks something of a break. In Sareetha, the Justice Choudary would take this fourth idea, and use it to develop a transformative vision of privacy.

Sareetha; Reasoning and Outcome

A. Privacy as Individual Dignity

Justice Choudary held that “a decree of restitution of conjugal rights thus enforced offends the inviolability of the body and the mind subjected to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of such a person.” According to him, at the heart of the issue was the fact that the law, essentially, was a law compelling sexual intercourse. “The consequences of the enforcement of such a decree”, he observed, “are firstly to transfer the choice to have or not to have marital intercourse to the State from the concerned individual and secondly, to surrender the choice of the individual to allow or not to allow one’s body to be used as a vehicle for another human being’s creation to the State.” 

Notice, however, that the law itself does not require sexual intercourse. It only authorises a decree for cohabitation, which can be enforced through attachment of property. This is why Justice Choudary spoke of the consequences of enforcing a decree – and it is here that we see the first major break with traditional conceptions of privacy. Because Justice Choudary was not content simply to end his enquiry at the point of cohabitation – but to go further, to find that given the deeply unequal structure of the family, and given the myriad pressures – not simply physical, but of every other kind – that could be brought to bear upon a woman who is shorn from the protection of her own family, a decree for cohabitation would, in all likelihood, lead to compelled intercourse. Taking the example of a Madhya Pradesh High Court decision where a woman called Tarabai was required by decree to go back to her husband, Justice Choudary observed that “what could have happened to Tarabai thereafter may well be left to the reader’s imagination.” This, for him, was completely unacceptable, because:

Sexual expression is so integral to one’s personality that it is impossible to conceive of sexuality on any basis except on the basis of consensual participation of the opposite sexes. No relationship between man and woman is more rested on mutual consent and freewill and is more intimately and personally forged than sexual relationship.”

And for a women, who would be the one to conceive, “in a matter which is so intimately concerns her body and which is so vital for her life, a decree of restitution of conjugal rights totally excludes her.” Here, for the first time, we see a vision of privacy that focusses upon a combination of bodily integrity and decisional autonomy. Soon afterwards, Justice Choudary cited Gobind, and then focused on one particular line in Gobind:

“There can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior.”

Latching upon the concept of privacy-dignity (and dignity, it will be noticed, speaks to the individual), Justice Choudary then noted “any plausible definition of right to privacy is bound to take human body as its first and most basic reference for control over personal identity… [the] right to privacy belongs to a person as an individual and, is not lost by marital association.”

This is a crucial observation, since it completely rejects the view that the site of privacy claims are social institutions, such as the marriage or the family, and accepts, instead, the opposite claim that the right-bearer is the individual. Privacy, therefore, is to be understood not as an exalted space within which the State cannot enter (no matter what happens within that space), but as a right accorded to each individual, which guarantees her autonomy in all fundamental decisions concerning her body.

B. Justice Brandeis and the Balance of Power

Interestingly, during the course of his argument, Justice Choudary also referred to Justice Brandeis’ dissenting opinion in the case of Olmstead vs New York.  Olmstead was a 1928 American Supreme Court decision concerning the admissibility of evidence obtained through a wiretap. The majority held that the wiretap did not offend the Fourth Amendment, which was limited to  prohibiting illegal searches of “persons, houses, papers, and effects”. Justice Brandeis, however, refused to read the Fourth Amendment in such a literal way. He observed:

“When the Fourth and Fifth Amendments were adopted, “the form that evil had theretofore taken” had been necessarily simple. Force and violence were then the only means known to man by which a Government could directly effect self-incrimination. It could compel the individual to testify — a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life — a seizure effected, if need be, by breaking and entry. Protection against such invasion of “the sanctities of a man’s home and the privacies of life” was provided in the Fourth and Fifth Amendments by specific language. But “time works changes, brings into existence new conditions and purposes.” Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.”

Justice Brandeis’ basic point was that as invasive State technologies increase in scope and reach, the law must correspondingly evolve to continue effectively protecting the individual. Underlying this is the idea that there must, at all times, remain a balance of power between State and individual. The more power the State acquires, the further must the law reach to constrain its use, lest we arrive at a totalitarian society in which State power has completely overwhelmed the individual.

The innovation in Sareetha is that it takes Brandeis’ idea of a parity of power between individual and State, and extends that to apply horizontally, in the private realm. The link between cohabitation and compelled intercourse is based upon a difference in power: and Sareetha’s striking down of S. 9 is a Brandeisian attempt to restore the balance. In a truly radical fashion, therefore, Justice Choudary’s attempt was to bring about – in the smallest of ways possible – a democratisation of the private sphere.

C. Article 14 and Indirect Discrimination

Justice Choudary’s last argument was with respect to Article 14. Section 9, of course, was facially neutral: the remedy, in theory, was open to both husbands and wives. But, Justice Choudary held, ” “Bare equality of treatment regardless of the inequality of realities   is neither justice   nor homage to the constitutional principle”… the question is how this remedy works in life terms In our  social reality, this matrimonial remedy   is found used almost exclusively by the husband  and is rarely resorted to by the   wife. A passage in Gupte’s Hindu law in British India’ page 929 (second edition) attests to this   fact…  the reason for this mainly lies in the fact of the differences between the man and the woman. By enforcing a decree for restitution of conjugal rights the life pattern of the wife is likely to be altered irretrievable whereas the husband’s can remain almost as it was before this is so because it is the wife who has to beget and bear a child. This practical but the inevitable consequence of the enforcement of this remedy cripples the wife’s  future  plans of life and prevents her from using that self-destructive remedy… The pledge of equal protection of laws is thus inherently incapable of being fulfilled by this   matrimonial remedy in our Hindu society. As a result this remedy words in practice only as an engine of oppression to be operated by the husband for the benefit of the husband against the wife.”

On this blog, we have often discussed the question of whether, to prove discrimination, once must show that the law was intended, or had a motivation to, discriminate; or is it adequate to show that the law, although neutral in its terms, has a disproportionate impact upon a certain group of people. The former views discrimination as a result of a discrete, intentional act; the latter, as the result of long-standing structures and institutions. The former understands social realities as independent of law, providing a neutral background within which law operates; the latter insists that these social realities are always constructed by, and complementary to, the legal system – and that therefore, laws which reproduce or endorse such social realities are equally suspect (or, in the words, of Justice Albie Sachs, the purpose of a Constitution is to transform “misfortune to be endured into injustice to be remedied“). In his analysis of the differential effects of Section 9 based upon a social reality that placed the cost of child-bearing and rearing disproportionately upon women, Justice Choudary firmly endorsed the latter, more nuanced understanding, of equality.

The Radicalism of Sareetha

We are now in a position to understand the full extent to which Sareetha was a transformative and radical judgment. In specifically applying Article 14 to the private sphere, Justice Choudary repudiated the privacy of the Ancients, according to which equality was a value only in the public sphere. In specifically invoking the power hierarchies and inequalities in the private sphere to justify his decision, he repudiated the spatial conception of the privacy of the moderns, that turns a blind eye to the realities of domination and subordination within the home. In invoking Justice Brandeis, he brought the idea of maintaining an egalitarian balance of power between State and individual into private relationships, and took a small step towards the democratisation of the private sphere. And in finding an Article 14 violation, he advanced a view of equality that was grounded in structures and institutions, rather than individual acts. One may disagree with his final conclusion – and in fact, Flavia Agnes, among others, has made arguments defending S. 9 – but the reasoning remains powerful, and a clarion call for a progressive vision of privacy and equality.

Aftermath

Soon after Sareetha, the Delhi High Court came to the opposite decision. In Harvinder Kaur v Harmender Singh Chaudhary, it held that:

“Introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and the married life neither Article 21 nor Article 14- have anyplace. In a sensitive sphere which is at once most intimate and delicate the introduction of the cold principles of constitutional law will have the effect of weakening the marriage bond. That the restitution remedy was abolished in England in 1970 by Section 20 of the Matrimonial Proceedings and Properties Act 1970. on the recommendation of the Law Commission headed by Justice Sharman is no ground to hold that it is unconstitutional in the Indian set-up. In the home the consideration that really obtains is that natural love and affection which counts for so little in these cold courts. Constitutional law principles find no place in the domestic code.” 

In its blanket refusal to apply equality and privacy to the “home”, the Delhi High Court reinstated the traditional, spatial view of privacy, that closed off a physical space from State intervention. This was upheld by the Supreme Court, which also added that “the right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself” – thus reinforcing the position that the sanctity of privacy is accorded not to the individual, but to the institution of marriage.

Conclusion

Sareetha, undoubtedly, was buried thirty years ago, and cannot be brought back to life. But while a judgment remains in ashes, its arguments can certainly become phoenixes and rise again. Justice Choudary’s insights are relevant for the ongoing struggle against the non-criminalisation of marital rape, against numerous inequitable provisions in personal law codes, and for the continuing efforts to persuade the Court to understand Articles 14 and 15 in structural terms (another, abortive, effort was made in Naz Foundation, which was also overruled). At the very least, Sareetha should not be forgotten: it should remain in historical memory as a landmark of Indian constitutional law, taught and discussed as a brilliant – if unsuccessful – attempt at radically transforming our constitutional jurisprudence of privacy and equality.

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Filed under Article 14, Bodily Privacy/Integrity, Disparate Impact, Equality, Marital Rape, Non-discrimination, Privacy, Sexuality

Foucault, Rubenfeld, Naz Foundation, and Article 15(1)

In Naz Foundation vs NCT, the Delhi High Court famously held that the word “sex” in Article 15 included “sexual orientation” as a prohibited ground of discrimination. Unlike the South African Constitution, there is no support for this proposition within the four corners of the text. What, then, justifies this interpretation? Clearly, it must be shown that sexual orientation is in some way analogous to the stipulated Article 15 grounds: religion, race, caste, sex and place of birth. One popular argument is that Article 15 – and, more broadly, Part III of the Constitution, through other provisions such as Article 25 – protects personhood: i.e., it stipulates that one’s equal moral membership in society (or, one’s right to be treated with equal concern and respect) must not be made contingent upon those characteristics most fundamental to one’s sense of personhood, or the most basic markers of one’s identity: religion, race, sexual orientation etc.

The argument from personhood is a popular one. In the United States, it was used to uphold abortion laws in Planned Parenthood vs Casey,  and subsequently invoked by Justice Kennedy in Lawrence vs Texas, the American Supreme Court case which held that criminalising homosexuality is unconstitutional:

“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

In National Coalition for Gay and Lesbian Equality vs Minister of Justice, the case which struck down South Africa’s sodomy law, the Constitutional Court – speaking through Ackermann J., held:

The group in question is discriminated against because of the one characteristic of sexual orientation. The measures that assail their personhood are clustered around this particular personal trait.”

There is, of course, something intuitively attractive about the personhood argument. It is, for one, closely connected with other, similarly attractive ideals, such as autonomy and dignity. The idea that there is a core set of beliefs, practices and world-views that define who a person is, and must therefore be held inviolable and subjected to no interference by the State, seems a powerful one, and speaks deeply to our conceptions about what freedom means.

There may, however, be good reasons not to advocate a personhood-based justification for Naz Foundation, or, for that matter, for the philosophy underlying Article 15 and/or Part III in too facile a manner. One set of arguments to this effect are grounded in the work of the philosopher Michel Foucault.

In his three-volume series, The History of Sexuality, Foucault argues against what he called the “repressive hypothesis”; i.e., the idea that, in the eighteenth and nineteenth centuries, sexuality was systematically “repressed” through a practice of official censorship, legal prohibition (including the criminalisation of sodomy), and the dull compulsion of social relations – and that this repression is only now beginning to be shaken off. Foucault contends, on the other hand, that a closer look at historical evidence demonstrates that the eighteenth and nineteenth centuries witnessed a proliferation of discourses about sexuality:

“Under the authority of a language that had been carefully expurgated so that it was no longer directly named, sex was taken charge of, tracked down as it were, by a discourse that aimed to allow it no obscurity, no respite… rather than a massive censorship, beginning with the verbal proprieties imposed by the Age of Reason, what was involved was a regulated and polymorphous incitement to discourse.”

This happened through numerous practices of surveillance, taxonomy, the re-classification of sins as medical aberrations, religions confessions, and so on (the complete argument may be found in chapters two and three of Volume 1). Foucault then lists four ways in which there was an “incitement” to sexualised discourse. In the second category, which he calls “a new specification of individuals”, he deals with homosexuality. In an extended passage, that deserves quoting, Foucault observes:

“As defined by the ancient civil or canonical codes, sodomy was a category of forbidden acts; their perpetrator was nothing more than the juridical subject of them. The nineteenth-century homosexual became a personage, a past, a case history, and a childhood, in addition to being a type of life, a life form, and a morphology, with an indiscreet anatomy and possibly a mysterious physiology. Nothing that went into his total composition was unaffected by his sexuality. It was everywhere present in him: at the root of all his actions because it was their insidious and indefinitely active principle; written immodestly on his face and body because it was a secret that always gave itself away. It was consubstantial with him, less as a habitual sin than as a singular nature. We must not forget that the psychological, psychiatric, medical category of homosexuality was constituted from the moment it was characterized – Westphal’s famous article of 1870 on “contrary sexual sensations” can stand as its date of birth – less by a type of sexual relations than by a certain quality of sexual sensibility, a certain way of inverting the masculine and the feminine in oneself. Homosexuality appeared as one of the forms of sexuality when it was transposed from the practice of sodomy onto a kind of interior androgyny, a hermaphrodism of the soul. The sodomite had been a temporary aberration; the homosexual was now a species.”

But this is precisely the personhood argument writ small. What Foucault is describing (and perhaps, at the same time, warning us against) is the dangers of allowing a set of acts or practices to become the full measure of human beings.

And because of this, Foucault goes on to write, “scattered sexualities rigidified, became stuck to an age, a place, a type of practice.” What is crucial to understand, ultimately, is that subordination must depend, primarily, upon classification and definition: and there is no more effective way of classifying than by holding that a certain set of actions define, or constitute, what a person is. Seen this way, personhood suddenly becomes less of an emancipatory tool, and more of a trap. It also, as Foucault points out, both ossifies and excludes: by holding that one, defined set of practices constitutes the core, immutable being of an individual, it denies the possibility of the practice itself being malleable (for instance, by excluding other forms and conceptions of sexuality) and open to change, as well as denying the same to the “individual”.

We may pause here to notice a moment of irony: in Koushal, when the Supreme Court overturned Naz Foundation, it rejected the Article 14 argument on the ground that S. 377 classified between acts and not between persons. This reasoning was excoriated on the ground that the Court simply ignored how central sexuality and sexual acts are to persons. But, as Foucault points out here, it is the acts-to-persons shift that is precisely what we should be wary about embracing too uncritically!

The application of the arguments in A History of Sexuality to personhood-based claims in constitutional law has not gone unnoticed. In a 1989 article called The Right of Privacy, Jed Rubenfeld subjected personhood-based definitions of privacy to a Foucauldian critique. As Rubenfeld reads Foucault:

“In Foucault’s description, the decision to give medical treatment to homosexuals, which became institutionalized medical practice in the nineteenth century, in fact created the “disease” of homosexuality. It generated a division be-tween homosexuals and heterosexuals that had never been absolute before, and at the same time created new institutional practices through which individuals would more and more sharply identify themselves, be identified, and be processed as homosexuals.

In a brilliant series of passages, Rubenfeld then explains the connection between classification and subordination, and how the personhood argument – by engaging in the former – undercuts its own emancipatory potential by facilitating the latter.

“Those who engage in homosexual sex may or may not perceive themselves as bearing a “homosexual identity.” Their homosexual relations may be a pleasure they take or an intimacy they value without constituting at least qua homosexual relations something definitive of their identity. At the heart of personhood’s analysis is the reliance upon a sharply demarcated “homosexual identity” to which a person is immediately consigned at the moment he seeks to engage in homosexual sex… thus, even as it argues for homosexual rights, personhood becomes yet another turn of the screw that has pinned those who engage in homosexual sex into a fixed identity specified by their difference from “heterosexuals.

Of course, it might be argued that there is no necessary connection between classification and subordination, and that identities, if put to emancipatory purposes, need not become the trap that Foucault describes them to be. To that, Rubenfeld says:

These two “moments,” [of classification and subordination] however, are not really distinct. Or rather, if we call them distinct, the impulse toward hierarchy actually precedes and produces the differentiation in identities. Obviously, differences of sexuality, gender, and race exist among us. These are not, however, differences in identity until we make them so. Moreover, it is the desire to count oneself “superior” to another, or even to count oneself “normal,” that converts such differences into those specified identities in opposition to which we define ourselves. To protect the rights of “the homosexual” would of course be a victory; doing so, however, because homosexuality is essential to a person’s identity is no liberation, but simply the flip side of the same rigidification of sexual identities by which our society simultaneously inculcates sexual roles, normalizes sexual conduct, and vilifies “faggots.” Thus personhood, at the instant it proclaims a freedom of self-definition, reproduces the very constraints on identity that it purports to resist. Homosexuality is but one instance of this phenomenon. The same flaw can be shown in the context of interracial marriage: once again, for the parties directly involved, to say that the challenged conduct defines their identity, and therefore should be protected, as-sumes that marrying out of one’s race is in some way the cataclysmic event its opponents pretend; it thus repeats the same impulse toward rigid classification presupposing the discrimination sought to be undone. Interracial marriage should be protected because it is no different from intraracial marriage, not because it is so different.”

A caveat is perhaps important here: this is not, by any means, an argument for “colour-blindness” – i.e., a legal system that ignores socially-constructed markers of identity altogether. Whether we like it or not, it is a simple truism that sexual orientation, race, caste, religion, sex and so on have been historical (and present) sites of oppression and subordination; and that subordination cannot be resolved by now ignoring their existence altogether. This is a well-worn argument in the affirmative action debate in the United States: the key, in reading Foucault, however, is the insight that in attempting to philosophically ground our anti-discrimination law in a manner that is sensitive to historical, group-based injustices, we should not fall into the trap of using “personhood” in a way that only entrenches and rigidifies group markers which – in the last analysis – cannot ultimately be the tools of emancipation.

If personhood is not the basis of Article 15, or other aspects of Part III, then what is? In his article, Rubenfeld advances what he calls the “anti-totalitarian argument“. Continuing within the broad, Foucauldian framework, he argues:

“The distinctive and singular characteristic of the laws against which the right to privacy has been applied lies in their productive or affirmative consequences. There are perhaps no legal proscriptions with more profound, more extensive, or more persistent affirmative effects on individual lives than the laws struck down as violations of the right to privacy. Anti-abortion laws, anti-miscegenation laws, and compulsory education laws all involve the forcing of lives into well-defined and highly confined institutional layers. At the simplest, most quotidian level, such laws tend to take over the lives of the persons involved: they occupy and preoccupy. They affirmatively and very substantially shape a person’s life; they direct a life’s development along a particular avenue. These laws do not simply proscribe one act or remove one liberty; they inform the totality of a person’s life.

Anti-totalitarianism, as a grounding for a right to privacy, is an interesting suggestion; for non-discrimination, it might not work so well. Another option – broadly on the lines of the South African Equality Act, is to simply identify the historic sites of discrimination, and prohibit practices that perpetuate such discrimination (South African hate speech law is expressly based on this premise), without any further assumptions about personhood. In this context, it might also be interesting to see what the Constitutional Assembly Debates have to say about historically-oppressive markers of identity, such as caste and sex, and their remedies for amelioration.

In any event, given the central place occupied by the idea of “personhood” in judicial decisions world-over (including India), this is a debate that will continue; nor is it a purely academic concern, because the philosophical ground if rights is, ultimately, what determines their reach and their limitations.

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Filed under Article 15 (general), Non-discrimination, Sexuality, Sexuality