'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...

'Sex and the Supreme Court' : Book Review

Prakhar Raghuvanshi

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