Report: Parents & Family Support Meet by DU Queer Collective

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The Delhi University Queer Collective (DUQC) organised the third edition of its Parents and Relatives of Queer Persons Meet with Mumbai-based wellness counsellor and psychologist, Deepak Kashyap, known for his support and valuable research of the LGBTQIA community. The event took place at Max Mueller Bhawan on January 13, 2018 and saw participation of people from across all age groups and domains, from students to teachers to jounalists and professionals. DUQC member Anmol Chowdhury commenced the meet by giving a brief introduction of DUQC and Deepak’s association with the collective since the past three editions.

The session kicked off with an immensely powerful documentary by Sopan Muller – My Child Is Gay And I’m Happy. It dealt with coming out stories of people in all parts of the country interspersed with excerpts of reactions of the general public towards homosexuality in India.

CAT-TY MERA INDIA

Deepak took over after the documentary, comparing Indians to cats, in that cats are never ready to listen, not there to suit your opinions and are a mixed bag of differing personalities (but they’re lovely!) in contrast to dogs, who attempt to please you. He went on to state that a person’s socio-economic stature is never indicative of their outlook. There is hardly any association between socio-economic conditions and the acceptance of queer identities, as was evident from the documentary that we’d just watched.

He cited the example of Abhina Aher, who’s story was shown in the documentary. Her mother, who is a Dalit and didn’t receive any formal education, accepted her child’s sexuality wholeheartedly. Her social standing, and the social exclusion she’s faced all her life, did not prevent her from supporting her child. Deepak mentioned how he frequently hears his clients refer to their families as “conservative”, and questioned the meaning of the term.

One of the audience members spoke of how his parents asked him to move to Canada when he came out of the closet, subtly expressing their displeasure in a sugarcoated manner. It was his sister’s unwavering support that helped him navigate through tough times.

FIGHT FOR ACCEPTANCE

Another audience member who’d waited to attain financial security and become independent before disclosing his sexual orientation to his brother, was of the view that freedom of sexual identity can come at too heavy a price. At this point, a participant enquired if Canada and other Western countries are safe havens for LGBTQIA individuals, as is widely believed, to which Deepak responded in the negative. Yes, they can be more accepting, but fighting for human rights can prove to be a highly expensive affair. He also stressed on how Indians are largely more accepting of transgenders than Western countries.

An upper caste, upper class, working person of the community has no reason to leave the country, as that might only lead to further oppression and sense of isolation. Some participants were doubtful as to how they should respond when their friends ask them if they’re sure about the sexual orientation or if it is simply a phase. “How do I tell them that it is not a choice, it’s me?”, one of them enquired. Deepak playfully replied that one should either answer such ignorant and insensitive questions with sass, or may resort to anger.

A member of DUQC raised an issue wherein even after coming out, the family still might be in denial of your identity; forcing you to retreat into the closet. He also expressed his dismay over popular fiction’s unrealistic portrayal of the coming out process, usually shown in its two extremes- wonderfully easy or extremely tedious and disheartening.

Deepak spoke at length about how our need for validation and urgent happiness act as a burden. Advising a change in thought process, he reminded everyone that the romantic idea of a partner completing our own selves was borrowed from Europe more than 400 years ago, and that the Indian idea depicts a wildly different picture. Shiva and Shakti dance together, but are not dependent on each other for their individual happiness and are separate entities.

Another participant raised their apprehension about how gender dysphoria might need a different kind of acceptance as compared to other queer issues. Deepak motivated them by stressing that though the journey of gender transformation won’t be without its hardships, it is not impossible. He also asked the participant to not make their physical transformation a prerequisite for acceptance; both self and societal. He went on to state the difference between “if I get your approval, then I will be happy” and “if I get your approval, then I will be happier”, emphasising on how vital the latter outlook is for one’s own mental health.

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HEALING MECHANISMS

After a short 10-minute break, the discussion resumed and this time, tackled the subject of depression in the community. Ancient Indic philosophies around the meaning of happiness and acceptance were put forth. He talked about the Maharashtrian philosophy of Abhanga which is woven in Marathi Bhakti poetry (anything that takes away from the division, the like, the zero, the null, the circle), and how it is entirely upto us to determine which part of the circle we give meaning to.

There are three things we harshly judge in life: Ourselves, others, and life. If we choose to give in to our victim narrative when we know that we are capable of successfully diverting our minds away from it and dealing with the root problem, we are in the wrong. “Persecution Olympics will not lead us anywhere. One has the option to choose between conquering the world and wanting to conquer the desire to conquer.”

He also introduced the interesting thought experiment of Tourist Lover. Imagine you meet someone who you really like and would love to spend time with, but are told that you only have three days with that person. You’ll discover that you’ll be ready to forgive your partner a lot more than had you not known that your time was limited. Deepak urges us all to always remember that we’re all tourists here, living on borrowed time. Nature doesn’t care what you want, and more often than not, nor do other people. So instead of demanding others’ approval, we can invest our time in making certain and small adjustments that may help us live happier lives.

Deepak was quick to point out the difference between compromise and adjustment; making sure that no one misinterpreted his words. He cautioned everyone against accepting abuse in any shape or form. He talked about purposefully putting yourself in uncomfortable positions and then letting go, which struck a chord with many participants.

He went on to emphasise the importance of meditation and physical exercise in the healing process along with introducing a very interesting concept of NARA (Notice, Accept, Re-evaluate, Action) which he mentioned as a simple but powerful way to deal with any issue one encounters in life.

On talking about the queer culture, he caught most of the participants by surprise on his mention of the Kothi culture that has been a part of the Indian queer family system since ages, wherein older feminine gay men adopt younger feminine gay men. On enquiry, he explained how this has been perfectly underground in almost all areas of the country. Another member from the DUQC raised a fundamental concern regarding what could be the best and safest way of coming out to his family. Deepak gave him a very concrete and satisfactory answer, that is to first earn sufficient amount of money, be at a good place in life and then come out as a confident person to your family.

He also mentioned ‘Pink booklet’, a book authored by him as a good reading material for parents to broaden their mental horizons towards accepting queer identities. He went on to talk about the general pursuit of happiness and motivated all the participants with his powerful and inspiring thoughts. The session concluded with all the participants applauding Deepak for his impactful thoughts, everyone in the room filled with a fresh feeling of love, knowledge and contentment.

(Report by Aswathy Nair and Yash Chaudhary)

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‘Contestations within the Queer Movement in India’: A Report from DUQC’s Student Panel

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The Delhi University Queer Collective (DUQC), in collaboration with the Ramjas Gender Forum, held a panel discussion on ‘Contestations Within The Queer Movement’ on November 3, 2017 in Ramjas College. The panelists  were Aman Sinha, Sreshtha Bhattacharya, Aarav Singh, and Rajendrani Sarkar. The panel saw a packed room in attendance, and moderator Anmol brilliantly drew us all in with his short yet impactful introduction.

Sreshtha, who is pursuing Sociology Honours from Miranda House, kicked off the discussion by stating that she’d perfectly understand if one finds it difficult to relate to what she had to say. She identifies as bisexual, and read out the lexicographer’s definition of the word. Dispelling the widespread myth that bisexuals are promiscuous, and the opposition she’s had to face for “not looking bisexual enough”, she moved on to the topic of gender. Gender is usually placed within an airtight container which can’t be nudged open. Sreshtha pointed out that while some people can confrom to the societal expectations of gender, many can’t, and it becomes problematic for them. As someone who has been questioning her gender identity for years, Sreshtha believes that there is no binary division and that masculinity and feminity, man and woman, are both ideological constructs; a point which she supported by stating the case of inter-sex individuals.

Aman Sinha, an English Honours student from Ramjas, talked at length about how cisgender masculine men within the spectrum sometimes tend to become propagators of patriarchy. Though he admitted that discussions have evolved, he expressed his displeasure over the fact that not everyone realises that patriarchy affects and represses both men and women.
Not just women, but men and people of various other gender manifestations including agender and genderqueer  people. He asserted that the narrative has always been dominated, if not hijacked, by the more privileged. For white middle class feminists, home was full of restrictions. But the same home gave comfort to black feminists. Basically, when one narrative dominates the other, or one accesses spaces at the cost of the other, it speaks of a much bigger and a much larger problem, of how even while defying patriarchy, we tend to become patriarchal in our ways. He also discussed stereotypes within the community (bisexuals are greedy) and the subjugation of the lesser feminine by the more feminine. Questioning gender roles, he talked of labels. An event that he had attended, focusing on the lgbtqia+ in the north-east, taught him about how labels are sometimes institutionalised to serve one’s purpose, post which they end up losing their true essence.

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Rajendrani Sarkar of Miranda House, who identifies as asexual, had always viewed the movement from a distance; that was until she became a part of the community.  Objectively defining asexuality, she mourned the absence of the word in the Oxford dictionary. Informing us about the highly informative and instrumental AVEN, an authentic site for asexuals which provides a lot of valuable information. There is no thumbrule of being asexual. The spectrum accomodates a wide range of asexuals, from aromantics, heteroromantics, and homoromantics to greys and queer platonics. On a personal level, Sarkar is repulsed by sex; echoing the feelings of hundreds of anti-sexual people who believe sex is unnecessry. She drew the asexual flag for everyone to observe, and explained the color coding and its significance. The asexual logo, the spade, was also discussed. It is perfectly natural for asexuals to feel aroused, as it is more of a biological reaction than a romantic or sexual one.One may choose not to act on it. She concluded her talk by emphasising on the problem that arises for asexuals by being a part of the movement on account of the absence of the very thing that the movement is all about – sexuality.

The final panelist, Aarav Singh, began by asking the audience if they were aware of the term ‘Transgender’, and what their perception was. He argued that trans urgently need more visibility and recognition. The exhorbitant cost of getting surgery,which cannot be borne by all, was also a part of the discourse that ensued. He talked about his own experience, and how he was unfortunately forced to drop out of college due to the ever-present snickers and judgements. Singh wasn’t even allowed to withdraw money from his own account, as the bank officials refused to identify him according to his orientation.

Following the panel discussion, a very interesting interaction took place between the panelists and the audience. An audience member, Dhruv Trehan, questioned Sarkar about her views on sex and sexuality, and the dilemma that one faces as an asexual when sexuality is forced upon them by society. Another person enquired about the legitimacy of the claim that black feminists found solace in their homes, to which Aman responded satisfactorily. The double oppression that lesbian women was another point that garnered unanimous consensus. Victor, a Brazilian studying in JNU, initiated talks on religion and queerness, to which Vikramaditya Sahay had a lot to add, resulting in the uncovering of new and educating facts. Dalit queer representation was also hotly and passionately debated, which reminded us of how, for certain groups, finding their own place and an equal standing even within the queer community is a mammoth task. Intersectionality might be too new to be adapted to the queer movement, but unless and until we don’t talk about it, we also shall not claim the moral high ground of inclusivity,  as we ourselves are not really being inclusive, not at least in true sense of the word.

Report by Aswathy Nair, Ramjas College

A Poem for Bi Visibility Day, September 23

Bi Visibility Day
(Picture Courtesy: Tumblr, Ordinary Jeremy)
 
 
 
 
It is a world booming for binaries
 
Love exists inside golden cages
It yearns to be free and fly
Kissed by fire, detested by ice
Eternity is too short a time
 
Be calm and breathe, I tell myself
Or they will brand you with their words
Yet I find myself on starless nights
Sad and inconsolable about reality
 
 
 
It is a world consumed with congruity
 
Love exists within boundaries
Inhibited by ancient regulations
Killed in womb before it can blossom
Easy to condemn and trivialize
 
Give me a long life of obscurity
It is the only solution I accept
Right or wrong is always subjective
Let me just live in peace
Serenity ruling over conflict
 
 
 
It is a world drunk on dichotomies
 
Love exists throttled to death
Inside my heart, it burns bright
King not of your own life
Especially when you subvert the norm
 
Better be quiet in the shadows
Open mouths lead to abuse
Terrible times will soon be past
Hoping for a grand reversal
 
 
 
 
(Originally titled “Atomic No. 83”, this is a poem by a super creative DU Queer Collective member, who chooses to be anonymous.)

Panel on Queer Identities in Northeast India – A Report

Stephens Panel on Queer Northeast

The Delhi University Queer Collective (DUQC), in association with Zubaan Books and the Gender Studies Cell at St. Stephens College, held a panel discussion on ‘Queer Identities in the Northeast’ on September 21, 2017 as part of Zubaan’s Cultures of Peace festival on Northeast India. The panel, introduced jointly by writer and publisher, Urvashi Butalia and DUQC founding member, Rafiul Alom Rahman, turned out to be very informative. The panelists for the afternoon, Diti Lekha Sharma, Pavel Sagolsem and Dona Marwein, and moderator Gertrude Lamare, spoke about queer activism and their participation in it, in the specific areas of Northeast India they belonged to. In conclusion, it was realized that there are several strands of the LGBTQI movement in the Northeast that separates it from ‘mainland’ India.

‘Xukia’, in Assamese means unique or different, and fits precisely, as the name of the organisation, that was started as the first ever queer collective in Northeast India, following the Supreme Court verdict of 2013 that recriminalized homosexuality. Xukia has worked extensively for LGBTQI rights in Guwahati, from organising workshops, to film festivals, to press conferences. In the beginning, as Diti, an active member of Xukia, recalled, when they used to have press conferences, reporters present would turn their backs as soon as the question of sexuality or gender identity came up. Nonetheless, members of the collective have consistently engaged with media organizations to dispel some of the myths around LGBTQI lives. For collectives like Xukia, which are not registered organisations, funding becomes a major issue. The only prominent source then, apart from personal contributions, is crowdfunding. The reliance on crowdfunding for queer events, in spaces where the difference between the terms transgender and gay is not even perceived, let alone understood, can easily be imagined. And yet, in spite of all these struggles, Xukia continues to grow and provide a platform to voices that go unheard.

Dona Marwein, a transgender activist from Shillong, associated with Samakami, a community-based organization working for the rights of transgender people, noted that she found the usage of the word ‘Transgender’ new to some extent, when used within the sphere of queer activism in the northeast. On a personal level, she recounted her horrific experiences at school that forced her to drop out at the young age of fourteen. People in the church her family went to, often confronted her mother regarding the ‘abnormal’ and ‘unconventional’ behaviour of her child, which she often handled powerfully. While some of these struggles continue, some others have translated into fruitful outcomes for Dona, she noted. Gertrude, also from Meghalaya, added a layered perspective to the discussion.

Pavel, who has actively been involved in the queer activism circles in Delhi, had a shock when he went back to his home, in Imphal. The exposure that he had in Delhi, did not reflect a single bit when he went back. It was very difficult for him to find like-minded gay men, who were comfortable with their identities, while accessing common public spaces. He realised, with time, that to communicate and interact, there was a certain code to be followed, one that did not involve much of a non-deliberate revelation. It was particularly interesting to see the contrast with LGBTQI spaces in ‘mainland’ India. Manipur has a vibrant transgender movement. Unlike in ‘mainland’ India, where transgenders (hijras) mainly make a living out of performances on special occasions at people’s homes, sex work or begging on the streets or trains, transgenders in Manipur mostly operate in the beauty industry alongside other traditional professions. For cisgendered gay and bisexual men, it is extremely difficult to participate in any public form of LGBTQI activism. Recently, the All Manipur Nupi Manvi Association (AMANA) helped form Empowering Trans Abilities (ETA), a group focused on queer women and trans men.

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The panelists also discussed the importance of language in reclaiming spaces and building narratives. While cultural encoding of languages has led to the proliferation of terms like ‘Homo’, hurled as abuses, traditional Assamese words like Dangkati, implying someone who has crossed the threshold, could be owned up by the queer movement, as Diti explained. We are not really re-claiming these words that define us, they said, causing a lack of effective terminology, which at one level could be liberating, but is also leading to a reliance on words like gay, lesbian, bisexual etc., that are already in use, and carry negative connotations and stereotypical notions, due to their culturisation.

It’s important to understand that anything that does not fit into contemporary heteronormative and patriarchal structures is queer. Hijacking narratives, monopolizing avenues and mediums, is never going to render any help. It seems that activism in the northeastern states of the country, have already started, to at least try and take into account the intersections that happen, with race, ethnicity, class etc., which hopefully will lead to creation of spaces that are inclusive and open. Identities don’t work in the duality of gender and sexuality, as there are multiple layers to one’s identity, none in operation with the exclusion of the other. Like intersectional feminism, there is a slowly emerging wave of an intersectional queer movement in the country, one whose possibilities needs to be recognized.

Report by Aman Sinha, Ramjas College.

Second Edition: Parents & Relatives of LGBTQI Individuals Meet

Following the hugely successful and empowering Parents and Relatives of Queer Persons Meet in 2015, a first-of-its-kind event organised in Delhi, the Delhi University Queer Collective came up with the second edition of the meet on February 15, 2016. The interactive session took place at the Max Mueller Bhawan in Delhi. There were about 7 parents, including three couples. Despite being a working day, there was a total footfall of 40 queer individuals, who were keen on participating in the interaction. The event started with a welcome note to all the parents and LGBTQI individuals by DUQC member, Manvi Arora. The session was facilitated by Mumbai-based counselling psychologist, Deepak Kashyap.

Deepak initiated the session by narrating a tale by Devdutt Pattanaik and invited the parents in the room to share their views on it. During the discussion, the father of a queer boy, raised his concerns on homosexuality posing a threat to Hindu culture and how it could potentially bring about social anarchy or even lead to the end of human race. The questions and doubts opened the floor for discussion on similar parental concerns. A healthy and open conversation amongst our facilitator, moderator and fellow queer persons in the room helped parents, majority of whom had never been to any LGBTQI event before, reach clarity on such issues and understand the true purpose of the event.

Deepak followed up the discussion with information about the various possibilities of the spectrum of gender and sexual identities. A couple of videos about homosexuality being a part of our cultural heritage was played. Deepak also showed us the story behind PFLAG, which has successfully mobilized parents of LGBTQI individuals in the US. Subsequently, parents and queer persons present, were asked to share their comments, deep-seated emotions, or questions. The parents discussed their journey or on-going struggles with their child’s sexuality/gender identity, one by one. This made other people in the room understand the struggles of parents, as there are hardly any spaces for parents of LGBTQI individuals to mobilize around sexuality-related issues. Parents also came up with particular instances where they were unable to find common grounds with their children, and were given possible solutions by Deepak, our counsellor.

A free circle time, group activity where participants were divided into groups of 7, with 2 parents and 5 queer persons in each group, was organised for unstructured interaction. Later, one member from each group presented crux of their free circle time discussion with the larger group. The session concluded with suggestions like the need for closed WhatsApp or Gmail groups for parents of LGBTQI individuals to stay in touch. The need was also felt for more such meetings where parents could express themselves.

A couple of parents also offered help and assistance to LGBTQI individuals in the room who were not confident or prepared enough to come out to their parents and were ready to talk to their parents, if the need arose. By the end of the session, one of the fathers, who had various questions regarding the socio-cultural genesis of homosexuality, appreciated the fact that counter-questioning or debates were not allowed and one-one discourse with the counsellor helped him reach clarity. In a similar vein, all other parents admitted to be going back home, more informed, sensitive to and supportive of the non-normative sexuality/gender identity of their children.

Queer Parents and Relatives Meet

In a first-of-its-kind event in Delhi, duqueercollective, a group of students and teachers of Delhi University supporting LGBTQ rights, organised “Queer Parents and Relatives Meet” at Max Mueller Bhavan on Sunday, 9 March, 2014. The meeting was a concerted effort to reach out to parents and relatives of lesbian, gay, bisexual, transgender and queer individuals, and address their concerns, anxieties and insecurities pertaining to the sexuality of their children/siblings/relatives. The meet was a grand success and received a very enthusiastic response, with approximately 50 people, including 10 parents, attending it. It was facilitated by Deepak Kashyap, a Mumbai based counselling psychologist.

The meet proceeded in three parts: counselling, group activities and question and answer session. Parents and relatives of queer children shared their personal stories about coming to terms with their children’s sexual orientation. While some of them expressed how difficult it was for them to do so, most articulated the ease with which they wholeheartedly embraced their child for who he/she was. One parent couple said that their son’s smoking habits was a greater concern for them than his sexuality! Another highlight of the event was the group task where one parent was made to become a foster parent for a bunch of 5-6 children, leading to uninhibited discussions and creation of new bonds and friendships. Deepak enlivened the discussions with a vibrant power-point presentation that included a general introduction to key terms such as sex, gender, sexuality and sexual orientation and inspiring videos of interviews of parents and relatives in similar situations. 

The two hour meet ended with heart-warming applause from the attendees. Nearly all participants expressed hope that such events will be organised more frequently in future. 

‘What happens to a dream deferred?’ Arvind Narrain on Law and Love

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On 11 December, 2013, Justice Singhvi’s decision in Suresh Kumar Koushal v. Naz Foundation upholding the validity of Section 377, effectively recriminalized the lives of  millions of LGBT citizens of India. This was most eloquently described by Vikram Seth as a ‘bad day for law and love’. Why was  this decision the bad end of a very bad year which began ominously enough with the brutal gang rape of a young girl in Delhi on December 16, 2012 ?

The decision in Suresh Kumar Koushal fails the law in three important ways. It ignores the fact that reasoned decision should underly judicial decisions, it fails to appreciate the philosophy underlying the Indian Constitution and it is profoundly lacking in any sense of constitutional humanism.

At its most basic level, law is a child of  reason and judgements are nothing if not reasoned decisions. When judges pronounce their verdicts, what they demonstrate is the power of reasoned argument, of how they have come to a conclusion after considering all sides to a vexed question. It  is in fact  the power of  this form of deliberative reason, which  nourishes and sustains the legitimacy of the judiciary.

It is in exercising this most fundamental tool of a deliberative democracy which is public reasoning that the judges in Suresh Kumar Koushal fails. On the three key limbs of the case of the respondents the judges choose not to come to a reasoned finding. The key questions before the Court was whether Section 377 did violate the right to equality, the right to privacy and dignity as well the right to non discrimination.

With respect to the right to equality, under Article 14, the courts have laid down two tests. For a law to be valid under Article 14 it can classify between groups or classes but the classification must be based upon intelligible differentia. Secondly the classification must have a reasonable nexus to any objective. The Court comes to the conclusion that there is a valid classification between ‘carnal intercourse in the ordinary course’ and ‘carnal intercourse against the order of nature’. Its debatable whether this classification lacks any kind of intelligible differentia particularly as the judges go on to say that, it is ‘difficult to prepare a list of acts which would be covered by the section’. What however is astounding is the failure to even apply the second limb of the test and even attempt to link this differentiation to any objective. This failure to address the question of the objective of the classification, leads one to speculate that the reason the judges do not address the second limb of the test is because then they will be forced to publicly state that it is morality which is their  reason for  upholding the law. This the judges seem unwilling to  do.

With respect to the question of privacy, the High Court had noted the development of the  law on privacy by stating that what was protected under Article 21 was not just the right to privacy as the right to freedom in the zone of your home but equally the right to make decisions about your intimate life. As such, Section 377 violated both the zone of the home as well as unconscionably intruded into the realm of decision making about such intimate questions as who one’s partner might be. The Supreme Court did not engage with the debate on privacy initiated by the High Court and came to no finding as to whether the right to privacy (both zonal and decisional) was violated at all.

The question of dignity formed the mainstay of the opinion of the Delhi High Court. As far as the Naz Court was concerned, Section 377 by criminalizing an intimate aspect of the human personality, in effect ‘denied one the right to full personhood’. This argument of the link between privacy and dignity and how both formed an integral aspect of the right to life under Article 21 formed a key argument of the Naz court. However when it came to the Supreme Court, inspite of voluminous submissions on how Section 377 was an attack on the very selfhood of individuals, the Court did not come to any finding at all.

The answer Suresh Kumar Koushal gives to  narratives of toture, rape and violations all of which demonstrate the impact of Section 377 on the right to life of LGBT persons is to blandly conclude that  ‘harassment, blackmail and torture’ of LGBT persons is ‘neither mandated nor condoned’ by Section 377 and the mere fact of misuse is not a ‘reflection of the vires of the section’.

The other important innovation of the Naz Court was to read sexual orientation as an analogous ground to sex and hence opening out Article 15 to possibly protect ever kind of group facing discrimination not currently expressly covered by the Constitution. This was an important jurisprudential innovation and was hailed as perhaps the central and most far reaching ruling of Naz and had the potential of being good for all minorities.[1] It was intriguing to see that the Koushal Court did not even reason the question of why Article 15 did not apply and baldly concluded that ‘High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution’

As an exercise in reasoning, the Koushal judgment failed to demonstrate why it reached the conclusion that Section 377 was constitutionally valid. However the failure of Koushal goes beyond the failure of reasoning to questions which get to the heart of what the Indian Constitution means. Perhaps even beyond the questions of equality, privacy and dignity, the one concept which Naz developed which has travelled far and wide is the notion of constitutional morality. In an inspired move, Justice Shah went to the Constituent Assembly Debates and looked to Dr. Ambedkar’s notion of constitutional morality to make the point that a notion of public morality cannot be used as a basis to deprive a minority of rights. In other words, if India was a form of democracy based upon majority rule only, then  ‘any legislative  transient majority in tantrums against any minority’ could discriminate at will against women, Muslims, Christians and disabled people. However what the Naz court underlined is that India was a constitutional democracy rooted in a tradition of inclusiveness which meant that the fundamental rights of all persons of whatever stripe or persuasion was non- negotiable.

What the Naz Court did was to extend this notion of constitutional morality derived from Dr. Ambedkar and the notion of inclusiveness as derived from Jawaharlal Nehru to LGBT persons. As such the ruling was based on a profound appreciation of the deepest meaning of the Indian Constitution’s commitment to protect the fundamental rights of all persons and groups however ‘miniscule’ they might be.

It is this particular understanding of the role of the Constitutional Court that the Koushal judgement  failed to appreciate. By arguing that it was duty bound to respect the will of parliament which represented the ‘will of the people’ it abdicated the responsibility of the judiciary to protect all minorities from the vicissitudes of majority opinion. Its conclusion that a  ‘miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders’ and hence it was unnecessary to adjudicate the validity of Section 377 did  profound disservice to the very meaning of Indian constitutionalism.

While reason is a key component of the law, emotion is not alien to it as well. Judicial decisions at their best are not cold and unfeeling but display a profound empathy for human suffering. A court which is moved by human suffering produces judgments like the pavement dwellers judgment (Olga Tellis) and bonded labourers judgment (Bandhua Mukti Morcha). One can argue that by responding to human suffering, judges embody a form of  humanism which should really be at the heart of the judicial function.

This idea of humanism as central to the very purpose of the Constitution finds a place in the famous ‘Tryst with Destiny’ speech welcoming India’s independence by Jawaharlal Nehru in the Constituent Assembly. Nehru said, referring to Gandhi  that, ‘the ambition of the greatest man of our generation has been to wipe every tear from every eye. That may be beyond us but as long as there are tears and suffering, so long our work will not be over.’[2]

Clearly constitutional functionaries like the judges of the Supreme Court are enjoined to keep in mind the idea that they have a high constitutional responsibility to redress the causes of ‘tears and suffering’. In Suresh Kumar Koushal, the court turns a blind eye to human suffering. The narratives of rape, torture and harassment suffered by LGBT persons do not move the court, nor do narratives of parents of LGBT persons who state that the law induces a profound sense of fear and is destructive of the ability to peacefully enjoy family life. As such the judgment embodies a profound failure of Constitutional humanism.

Beyond the question of law, Suresh Kumar Koushal also does disservice to the idea that there is a plane where law and love can meet. The unspoken articulation in Naz was of the right to love. Though Naz never used the phrase right to love, what in effect it did was open out an imaginative horizon where law could meet love. Till the Naz judgment, the question of the lives of LGBT persons was understood in terms of the freedom to perform certain sex acts in the privacy of bedrooms. What Naz was instrumental in doing was breaking upon the closet doors and strongly asserting that ‘the sense of gender and sexual orientation of the person are so embedded in the individual that the individual carries this aspect of his or her identity wherever he or she goes’. From this articulation of sexual orientation and gender as an integral aspect of personhood, the judges go on assert that, ‘it is not for the state to choose or to arrange the choice of partner, but for the partners to choose themselves’.

Thus Naz developed the right to love as a public right, and succeeded in asserting that questions pertaining to sexual orientation and gender identity were not really about the freedom to perform sexual acts in private but rather about the identity and personhood which flows from the freedom to form profound intimate attachments with those of one’s choice. It is this right to love regardless of the barriers of gender identity and sexual orientation which is deeply imperilled by the judgment in Suresh Kumar Koushal. For all those who believe that  the right to love should not be constrained by the barriers of caste, religion and sexuality, the decision in Suresh Kumar Koushal represents an undeniable set back.

However, what does give rise to hope is the very strong and public response to the judgment. It has been subjected to scathing critique by lawyers, jurists, academics, film and theatre persons and even political leaders. What perhaps is a barometer of how much things have changed is the fact that even a mainstream political party like the Congress felt compelled to came out in support of the LGBT community.

The overwhelming response leads one to ask the question, along with Langston Hughes as to

What happens to a dream deferred?

            Does it dry up like a raisin in the sun

……………

Or does it explode?

Can this defeat now be converted into a victory ?

 

End Notes:

[1] Tarunabh Khaitan,  Reading Swaraj into Article 15: A new deal for all minorities, http://www.nujslawreview.org/pdf/articles/2009_3/tarunabh-khaitan.pdf accessed on 27.12.13

[2] http://www.svc.ac.in/files/TRYST%20WITH%20DESTINY.pdf accessed on 27.12.13

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(A founder member of the Bangalore based law collective, Alternative Law Forum, Arvind Narrain pursued bachelor’s in law from NLSIU followed by a masters in the University of Warwick on a Chevening scholarship. He also taught courses at the NLSIU on human rights law and ideology, ethnic conflict, law, poverty and development. Arvind now works full time at ALF dividing his time between litigation on the criminal side and research and advocacy on sexuality and minority related issues.)