Supreme Court of India on sex, sexuality and gender

At 12.12 p.m. on 6 September 2018, the Supreme Court of India created history by reading down Section 377 – reversing an archaic law laid down by the British in 1860 and decriminalizing homosexuality for the first time in modern India.

Yet, this is not the only ruling that the Supreme Court has made in recent times championing the rights of an individual to her or his identity and dignity. From empowering the transgender community and lending teeth to the prevention of sexual harassment of women at the workplace to protecting the privacy, rights, and dignity of women and minorities on issues such as interfaith marriages, entering the Sabarimala temple, the controversial triple talaq and the striking down of the adultery law – the highest court of the land has firmly placed the individual at the center of the constitutional firmament and set a course for progressive societal reform.

This remarkable collection of writings by legal luminaries is the only book to offer sharp insights into each of these crucial rulings. Justice M.B. Lokur writes on the issues that affect the transgender community; Justice B.D. Ahmed elucidates on Muslim law in the modern context; and Justice A.K. Sikri addresses the fundamental concept of dignity, which binds together all the essays in this book. Some of the best-known names in Indian law – Mukul Rohatgi, Madhavi Divan, Menaka Guruswamy, Arundhati Katju, and Saurabh Kirpal – offer legal perspectives of judgments on sex, sexuality, and gender. From petitioners like Ritu Dalmia, Keshav Suri, and Zainab Patel, we hear personal narratives of being a part of the LGBTQ community in India, while journalist Namita Bhandare provides a powerful account of the struggle against sexual harassment.

Unprecedented documentation of the rulings that have set a standard for the rights and liberties of sexual minorities and women in India, Sex and the Supreme Court is also an invaluable record for posterity – for it reveals the power of the country’s courts to uphold the privacy, dignity, and safety of its citizens.

After studying physics at St. Stephen’s College in Delhi, Saurabh Kirpal read law at the University of Oxford and did his masters in law at the University of Cambridge. He worked briefly with the United Nations in Geneva before returning to Delhi. He has been practicing law at the Supreme Court for well over two decades and has appeared in a range of matters involving fundamental rights. His clients across the political and ideological spectrum. He was the counsel for Navtej Johar, Ritu Dalmia, and others in the case that led to the striking down of Section 377 of the Indian Penal Code.

Contributors

Justice B.D. Ahmed is a former judge of the Delhi High Court and the Chief Justice of the Jammu and Kashmir High Court. He is a renowned scholar of Islamic law. He authored the judgment in the case of Masroor Ahmad in 2007, which had declared that instant triple talaq ought to be considered as a single revocable divorce, thereby mitigating its harshness.

Namita Bhandare has a master’s degree in journalism from Stanford University and closes to 30 years of reporting experience. She was appointed India’s first gender editor for the newspaper Mint and, as an independent journalist, continues to write on issues relating to women and gender.

Ritu Dalmia is a noted chef with restaurants spread across India as well as Italy. She, along with Navtej Johar, was the petitioner in the lead petition which led to the reading down of Section 377.

Madhavi Divan is a Senior Advocate and the current Additional Solicitor General for India. She appeared for the Government in the Shayara Bano case, which led to the invalidation of the practice of triple talaq.

Dr. Menaka Guruswamy is a Senior Advocate at the Supreme Court of India. Her litigation practice includes successfully seeking reform of the bureaucracy in the country through fixed tenure, defended federal legislation that mandates that all private schools admit disadvantaged children and, most recently, the overturned Section 377, the colonial-era law which criminalizes consensual same-sex relations. Dr. Guruswamy is amicus curiae appointed by the Supreme Court in a case concerning 1,528 alleged extra-judicial killings by security personnel. Dr. Guruswamy’s most recent publications include a co-edited volume of essays on Founding Moments in Constitutionalism (Hart/Bloomsbury, 2019), an essay on constitution-making in South Asia in the Handbook on Constitution-Making (Edward Elgar, 2019) and an essay titled ‘From the Movement Party to Movement Court’ in Revolutionary Constitutionalism (Hart/Bloomsbury 2020). Dr. Guruswamy was educated at Oxford University, Harvard Law School, and the National Law School of India. She was the B.R Ambedkar Research Scholar and Lecturer in Law at Columbia Law School from 2017 to 2019 where she taught constitutional design in post-conflict democracies.

Arundhati Katju is a lawyer in the Supreme Court of India, practicing white-collar defence, civil and commercial law. In 2018, Arundhati successfully represented the lead petitioners in the Indian Supreme Court’s judgment in Navtej Singh Johar and others v. Union of India, where the Court struck down India’s 157-year-old sodomy law. She holds a BA LLB (Hons.) degree from the National Law School of India University, Bangalore, and an LLM from Columbia Law School, where she was a Human Rights Fellow, Herman N. Finkelstein Memorial Fellow, and a CLAGS Duberman-Zal Fellow. In 2019, she was named one of TIME Magazine’s 100 Most Influential People of the Year. Alongside her litigation practice, she is presently a Senior Fellow at the Center for Contemporary Critical Thought at Columbia University.

Justice M.B. Lokur is a former judge of the Supreme Court of India and is currently a judge of the Supreme Court of Fiji. He was a member of the Social Justice Bench in the Supreme Court and is the author of many landmark judgments, including the judgment that declared that sex with a wife who was a minor amounted to rape.

Zainab Patel is a transgender woman and human rights, activist. She impleaded in the NALSA judgment, where the Supreme Court recognized transgender persons as a distinct gender and constitutionally guaranteed their social and political rights.

Mukul Rohatgi is a Senior Advocate in the Supreme Court of India and is a former Attorney General for India. He appeared for the government in the triple talaq case and for the petitioners in the Navtej Johar case.

Justice A.K. Sikri is a former judge of the Supreme Court of India and is currently a judge at the Singapore International Commercial Court. He was the author of many path-breaking judgments, including the case of NALSA where the Court recognized transgenders as a separate gender.

Keshav Suri is the youngest executive director at The LaLiT Suri Hospitality Group. He is involved in the Group’s expansion, quality management, building marketing strategies, operations, and F&B revenues. A firm believer in responsible entrepreneurship, Keshav Suri has been working with several NGOs and activists to help mainstream marginalized communities. He is also one of those who petitioned to revoke Section 377 in the Supreme Court of India. Under his leadership, the Group has provided opportunities to more than 100 queer people and has established itself as one of the safest places in the country. Having taken up the cause of building an inclusive nation, he launched the Keshav Suri Foundation, with a mission to embrace, empower, and mainstream the LGBTQ+ community. He was also instrumental in setting up the D&I task force with FICCI, which he co-chairs.