The following piece was written by Danish Sheikh and first appeared on Kafila on 2nd July 2014.
“We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution.” Today marks 5 years of the Delhi High Court’s Naz Foundation v. Union of India judgment. Every year since the judgment came out, this has been a day marked by celebration. I remember this day in 2009 when the sheer novelty of the “decriminalized” tag reverberated through us in euphoric waves; the time in 2011 when we stood with flamboyant helium balloons in Bangalore’s Cubbon park, struggling with an untimely Bangalore drizzle; and then in 2013 in the same park, where the rain gave way to a too bright sun and lingering uncertainty about the fate of the judgment. It is now 2014 and we know its immediate fate. It has hit a bit of a, shall we say, roadbump.
Two judges in the Supreme Court decided to overrule it in December 2013 in a document almost clinically devoid of reason and empathy. We railed and protested, watched the case make its way through the limited appellate process, and now await the hearings on the curative petition in the matter. It is understood, meanwhile, that Naz Foundation continues to be overruled. And so when I told a few people about yet another event being held in Cubbon Park on the 2nd of July this year, a common reaction was: “Why? Why remember a judgment that doesn’t mean anything now?” Why indeed? Amongst the first pieces of legal jargon that students of law encounter are the obiter and ratio of a case. Remarks that judges make in a judgment in passing are the obiter; the binding principle that they lead to is the ratio.
Upendra Baxi notes: “Although the myth that every case has one binding ratio still holds, every lawyer and law student must know that it is only a myth …. a case has many rationes ….one can find as many rationes as one wants by reading a decision at several levels of generality”. To read Naz to its strictest ratio is to place sole reliance on the lines I begin this piece with: that insofar as Section 377 covered consensual sexual acts between adults in private, it was unconstitutional.
And yes, the Supreme Court overruled the decision on that point. Baxi’s rationes here are the lives of the judgment as legal precedent – what might we consider, however, of the rationes that we created in embracing the judgment? When the Supreme Court delivered its judgment in Koushal and we exploded in anger, it came from a place that the idea of Naz had helped us reach. It came from an understanding that we had of ourselves, and our friends and family had of us – an idea that we truly were equal citizens under the law.
The failure of Suresh Kumar Koushal was that it did not magically restore us to a time before July 2, 2009, it did not erase what the years since had meant. Before 2009, we’d merely been fighting for a legal identity we had not experienced; after 2009, we knew how it felt. The unprecedented anger at Koushal was the anger of that loss. If Naz is overruled, it is in the most technical sense of the term. And then of course, there are the parts of Naz that don’t stand overruled even in that technical sense. The Delhi High Court’s powerful invocation – “If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’” – is a sentence that has trickled off the pages of dry legal text into a rallying cry for the movement. And while the Supreme Court may have lost sight of this point, the idea that popular morality is an invalid justification for the restriction of fundamental rights continues to gather relevance. Naz Foundation used Ambedkar’s words from the Constituent Assembly in making the statement that “Constitutional morality is not a natural sentiment. It has to be cultivated.”
The unnaturalness of this sentiment can be seen by the Supreme Court’s refusal to even consider it, instead focusing on a very different idea of what constitutes natural behaviour (hint: not homosexuality). Going back to another speech of Baxi, he once said, “public memory is not short, but is rather made short by acts of dominance”. In the same speech, he goes on to invoke the words of Simon Schama: [the mediation between memory and power includes] … “the way in which construction of memory may be said to speak to the future, instead of being yet another explanation of what we have lost, it is an exploration of what we may find”.
In celebrating Naz Foundation today, we construct one vision of what this document means to us. We acknowledge what we have lost, but also keep hold of something that we cannot lose. We note the power of the law, and we take cognizance of its limitations. We remember a day that made us burst with pride, and we resolve unto ourselves that it will come again.
“Why remember a judgment that doesn’t mean anything now?”
We remember so that this question does not have to be asked again.