State has no Business Interfering with Most Intimate Aspects of Living: Saurabh Kirpal

saurabh kirpal sex and the supreme court

Sex and the Supreme Court, edited by Saurabh Kirpal is an anthology of essays which sheds light upon the ways the Supreme Court of India has been upholding the dignity of the Indian Citizen. The underpinning of the book is decriminalisation of Section 377, it explores various judgments and movements which has championed the rights of the individual. The idea of dignity being central to human autonomy is one of the major threads that runs across the book. Justice A K Sikri in one of the essay writes “The basis of human rights is dignity. The right of choice and right of self-determination are facets of human dignity”.

Individual Dignity and Section 377

There has been a surge of judgments which has expanded the categories of sexual orientation, gender identity and exercising the right to privacy. Kirpal speaking to SheThePeople says, “In the last few years a series of judgments have come out which relate to the idea of sex as an umbrella term which includes sexuality, gender and other facets of sex. All of these were Supreme Court judgments and it was important to address these under the umbrella perspective of sex. Hence, the title Sex and the Supreme Court”. He further adds, “So the aim was to write a book written by lawyers  in layperson’s language to make these issues accessible to common citizens”.

Kirpal further adds on impact of law in social contexts, “We must also remember that judgment doesn’t act by itself, it acts in a context. It effects real people, it has a real world impact and has a real life impact. It is important to have a series of essays written by people to explain what they law meant to them personally or what they law means to a common person. So we have Keshav (Suri), Ritu (Dalmia) and Zainab (Patel) who have been petitioners themselves”.

The anthology has personal narratives of petitioners Keshav Suri, Ritu Dalmia and Zainab patel who petitioned for decriminalising Section 377. Suri captures for the readers the emotions he felt on the day of the judgment. He writes, “As the judgment was read out, I was stunned. It is one thing to have conviction in your dream, quite another to experience the gratification of the same”. Dalmia captures her thoughts on filing the petition by stating, “We weren’t just fighting for ourselves but for thousands that feared persecution because they dared to love someone of the same sex”.

Also Read: 5 Judgements that Paved the Way for LGBT Rights in India

Along with these ideas, the progress in the field of women’s rights and autonomy has also been chronicled. Advocate Menaka Guruswamy and Advocate Arundhati Katju write an essay about the decriminalisation of adultery. It is a chronicle of upholding women’s autonomy tracing it back from the colonial era adultery law that showed “the inability to appreciate a woman’s independent sexual autonomy”. The adultery provision of Section 497 of Indian Penal Code, 1860 was finally struck down in 2018 “in favour of recognising the integrity and autonomy of female sexuality”.

This is followed by Namita Bhandare’s powerful account of the MeToo Movement in India. Very powerfully, Bhandare captures, “The Constitution grants to women the right to work and the right to privacy and autonomy as a citizen. But on the ground, there is a struggle for a seat at the table”. She chronicles the journey of women publicly naming their perpetrators because “silence no longer has any space”

Also Read : Remembering Betu Singh- Leading activist for LBT groups in India?

Why It Matters

6th September 2018 will go down in history as the day Indian Supreme Court decriminalised homosexuality. It has been two years since the decriminalisation. In these judgments for the first time the Supreme Court recognised love as a constitutional right and a dignity issue. Hence, to be able to love and live freely form basic facets of human rights. This book starts a conversation around the idea of dignity and its centrality to human experience.

Post decriminalisation, there are many questions that have been raised.  What does the future look like? Is same sex marriage the next step? What about anti-discrimination laws and other protection rights for the queer members who are particularly vulnerable? Some of these questions have divided the queer community and a schism has been formed. So how do we forge the path ahead? These are some questions that only time and further decisions by the Courts of this country can answer.

Also Read: Supreme Court To Hear Transgender Woman’s Plea Against Job Denial By Air India