'Sex and the Supreme Court' : Book Review

The individual is at the centre of the constitutional firmament. Sex and the Supreme Court (2020), edited by Senior Advocate Saurabh Kirpal runs along this theme from cover to cover. This idea is brought to life more often by the Supreme Court of India or High Courts than the legislature. There is a growing trend in recent books to portray the courts, especially the Supreme Court, as an agent or vehicle of change. Institutions that Shaped Modern India: Supreme Court (2021) by Senior Adv. Ashok Panda is a book falling under this category. Similarly, Sex and the Supreme Court characterises the Supreme Court as an agent of change. These changes include framing of Vishaka Guidelines for prevention of sexual harassment at workplace, Supreme Court recognising the rights of transgender persons in NALSA case, striking down of Triple Talaq, Adultery and reading down of Section 377 of the Indian Penal Code, 1860.

The introduction lays down the basic principle of law driving social change in society and how the Indian constitution through 'the holy trinity of rights' (right to equality, freedom and life) and directive principles fulfils that principle. The courts play a pivotal role during this process. The book is divided into four parts with contributions from practising advocates (who were involved in the cases), High Court and Supreme Court judges, journalist and activists including Keshav Suri, Ritu Dalmia and Zainab Patel. A prima facie drawback of the book is lack of voice from academia.

Sex and the Individual

In Part I, Senior Adv. Kirpal and Justice Lokur take up the task of narrating the journey up to Navtej Singh Johar v Union of India (reading down of Section 377) and NALSA v Union of India (declaring transgender persons as the third gender and recognising their right to self-identification), respectively. Kirpal not only dissects the opinion of every judge but also argues that the moral force of the judgment will chip away discrimination faced by the LGBTQIA+ community. This argument counters the argument that the judgment did not stir a significant change in society. Similarly, Justice Lokur takes a step further to criticize the Transgender Persons (Protection of Rights) Act, 2019, for outsourcing the determination of gender to the bureaucracy and for relatively more minor punishment in cases of exploitation.

Three essays in this part tell a very personal story. Keshav Suri, an activist fighting for economic empowerment of the transgender community, sums up the impact of the verdict in Navtej Singh Johar when he writes- "The verdict was delivered with such beauty and purity that it made all the struggle worth it." Zainab Patel, a catholic male who transitioned to a transwoman, not only shares her story but also objects to the categorization of all transgender people as 'third gender'.

Ritu Dalmia, in her essay, "I am a Chef Who Happens to Be a Lesbian", talks about the struggles she faced in filing the petition, which indicated the fear among the community. She also stresses the right to property of a person in a same-sex relationship if their partner passes away. This is very idea which Senior Adv. Dr Guruswamy has emphasized upon that Navtej Singh Johar is not merely reading down of Section 377, it is a holistic realisation of citizenship for the LGBTQIA+ community.

Sex and the Community

In the essay "Love and Marriage", Saurabh Kirpal demonstrates that marriage has been used as a tool for subjugation of women rather than being a social contract that recognises the relationship between a man and a woman. The essay discussed the infamous Hadiya's Case as well as delved into the question of sagotra (same lineage) marriages and enforcement of the prohibition on sagotra marriages by khap panchayats. The central idea of the essay is that rule of law is threatened if power resides in non-state actors. It also points out that historically marriage was concerned with property rights and was always backed by social sanction. This is the precise reason why marriage becomes essential in such a society, and consequently, there is a need for marriage equality.

Senior Adv Dr Guruswamy and Adv. Arundhati Katju traces the history of adultery provision and challenges to it, including Yusuf Abdul Aziz v State of Bombay, wherein Justice Vivian Bose justified the exclusion of female from any prosecution by characterising it as protective legislation in favour of women. Explaining the ruling of the Supreme Court in Joseph Shine v Union of India, which decriminalised adultery, the authors argue that the case lays down a preliminary case for recognition for marital rape. The constitutional potential of Joseph Shine can be gauged from the lines- "curtailing the sexual autonomy of a woman or presuming lack of consent once she enters marriage is antithetical to constitutional values."

The authors also laud the judgment of Gujarat High Court in Nimeshbhai Bharatbhai Desai v State of Gujarat, which held that remedies under Section 354 and 377 of IPC could be invoked in cases of non-consensual intercourse by husband against wife.

Sex and the Workplace

Right to work aids in the fulfilment of autonomy. Thus, an unsafe work environment is one of the biggest hindrances in the fulfilment of the constitutional promise to at least half of the populace. This is one of the central ideas of a recently published book, "Her Right to Equality: From Promise to Power" (2021). In her contribution, Namita Bhandare has argued that the disillusionment with traditional forms of justice, like due process of law, leads to alternative remedial measures. MeToo Movement is an example of such an alternative measure. Due process can be fixed by men in power, who are more often than not upper cast men with minimal or no interest in creating a safe and just society for women.

It is unfortunate that this argument is not disproved by courts of law instead reaffirmed. The most recent being the judgment in the Tarun Tejpal rape case delivered in May 2021, which is a 500-page judgment based on stereotypes and an unnecessary attempt to draft an ideal rape victim manual! Critiquing the judgment Adv. Arundhati Katju remarked- "If the prosecution fails to prove its case beyond reasonable doubt, then justice demands the accused be acquitted. But acquittals based on stereotypes vitiate the faith of the public in the criminal justice system."

Sex and Religion

Senior Adv. Madhavi Divan calls out the Supreme Court for not engaging with other forms of gender discrimination under Muslim Law, including other forms of unilateral divorce. The reason for not engaging with personal law is the observation of the Bombay High Court in State of Bombay v Narasu Appa Mali that personal laws were intended to be left out of a challenge on the grounds of violation of fundamental rights. Senior Adv. Indira Jaising agrees with this argument. She wrote in 2018 that the Triple Talaq case presented an opportunity to the Supreme Court to exorcise the Ghost of Narasu Appa Mali, which still stalks it.

The book takes the opposite view in the following essay by Justice BD Ahmad, who advocates the use of the principle of takhayyur— the adoption of aspects of one school of law by another based on the requirements of modern society. Unlike Salman Khurshid— who in his book Triple Talaq: Examining Faith attempts to establish the justness of Islamic jurisprudence— Justice Ahmad agrees that the evolution of civilization and scientific achievements demand alteration of Islamic jurisprudence. However, such change must be achieved through ijtihad, i.e. intellectual exertion or effort and not through the sanction of law. A similar stance is taken by former Attorney General Mukul Rohatgi on the issue of Sabarimala when he argues against reading constitutional morality into Article 25 and 26 of the Constitution in order to ensure its pluralist nature. Even though the argument appears to be based on firm jurisprudence, constitutional morality in a liberal constitutional democracy cannot succumb to societal morality.

The concluding essay by Justice AK Sikri traces the dignity jurisprudence in India, which has been read into fundamental rights through interpretation. Justice Sikri believes that it is the concept of dignity that brings inclusiveness in our constitution by weaving liberal individualism and collective identity into 'We the People'. Thus, the essay brings the book back to the point from where it started, i.e. the individual is at the centre of the constitutional firmament.