Love, law and society
“In the tug of war between the demands of the traditional conception of society and the rights of an individual to their identity and dignity, the Supreme Court has come down firmly in favour of the individual,” writes Saurabh Kirpal, a Delhibased lawyer who has been practising at the apex court for over two decades now, and is also the editor of a new book titled Sex and the Supreme Court: How the Law is Upholding the Dignity of the Indian Citizen.
Mr Kirpal was part of the legal team that fought for the reading down of Section 377 of the Indian Penal Code in 2018. He has been in the news recently for speaking up about the fact that he has been prevented from becoming a judge at the Delhi High Court though his name has come up for consideration three times. He believes that his sexual orientation as a gay man, rather than a lack of professional competence, may have been used to block his career prospects.
Given this context, the book is of professional and personal significance to Mr Kirpal, who wants “to explain and examine the impact that the law has had on different aspects of sex, sexuality and gender.” His admiration for the fundamental rights articulated in the Constitution of India, and the Supreme Court’s role in protecting them, are the driving force behind this volume. It is not just a collection of essays; it is a love letter to the highest court in the country.
There are four sections here: Sex and the Individual, Sex and the Community, Sex and the Workplace and, finally, Sex and Religion. The essays under these sections have been written by Keshav Suri, Ritu Dalmia, Justice M B Lokur, Zainab Patel, Menaka Guruswamy, Arundhati Katju, Namita Bhandare, Madhavi Divan, Justice B D Ahmed, Mukul Rohatgi, Justice A K Sikri, and Mr Kirpal. They address judgments in cases related to transgender rights, adultery, triple talaq, khap panchayats, decriminalisation of “carnal intercourse against the order of nature,” women’s entry into the Sabarimala temple, and sexual harassment at the workplace.
The strongest aspect of this book is the concept holding it together. By putting these essays in conversation with each other, Mr Kirpal gives readers an opportunity to see how these cases point to an inter-related set of issues in Indian society: The patriarchal mandate to control women’s sexuality and curtail their economic independence, the stigma around non-procreative sex, the worship of marriage as an institution, and the clever use of religion to perpetuate misogyny, homophobia and transphobia. A complex picture emerges from this juxtaposition.
Ritu Dalmia strikes a candid note with her essay “I Am a Chef Who Happens to Be a Lesbian”. It works because the author talks about the vulnerabilities of her cocooned existence. She opens up about what it meant to be with a closeted partner who was “very upset about her family and friends joining the dots,” and to have journalists call her “not to ask for my favourite recipe but to ask who I was sleeping with.” She allows readers to see how even a person as affluent as herself was riddled with doubt about speaking openly about her sexual orientation.
Zainab Patel’s essay “From the
Margins to the Mainstream” is an engaging account by a transwoman who writes about being “the only out and open transgender hire in the UN system in India.” It registers an impact because her personal accomplishments do not overshadow her advocacy about the larger issues faced by community members who are not as well-off as she is. She draws attention to “young transgender persons (who) are kicked out of their home and have to rely on sex work and begging to stay alive, vulnerable to being targeted by the police.”
Namita Bhandare’s essay “The Beast in Our Midst: How India’s Metoo Movement Broke the Silence on Workplace Sexual Harassment” traces how the failure of due process in cases of sexual harassment compelled women to name and shame powerful men like Ranjan Gogoi, Subodh Gupta, M J Akbar, Alok Nath, Gautam Adhikari, Nana Patekar and Rajendra Kumar Pachauri. She also acknowledges the exclusions in the Metoo movement that was defined by “urban, heterosexual, male-female binaries.” It left out “women who work in the informal sector” and “Dalit voices, trans voices, voices from small towns.”
As an editor who cites B R Ambedkar in his introduction, and speaks of the Constitution as “not merely a charter of rights” but “a text promising social revolution,” Mr Kirpal has mostly picked the crème de la crème of society to write rather elegantly about these court rulings instead of inviting authors such as Grace Banu, Kiruba Munusamy, Akhil Kang, Gee Imaan Semmalar, Dhrubo Jyoti and Vikram Aditya Sahai who write about the same issues from an intersectional lens where sex, gender, sexuality and marriage are deeply entangled with caste. Legal scholars who want to build on Mr Kirpal’s work must engage with this absence, and correct it.