Thread by @ProfSunnySingh

I LOVE that #Section377Verdict starts with a quote from Goethe (also Schopenhauer and Stuart Mills but GOETHE): barandbench.com/wp-content/upl…

#loveislove #lovewins

"...the sustenance of identity is filament of life. It is equivalent to authoring one's own life script where freedom broadens everyday. Identity is equivalent to divinity."

#Section377Verdict

"Denial of self-expression is inviting death."

This!!!! This.

"An individual in exercise of his choice may feel that he/she should be left alone but no one, and we mean, no one, should impose solitude on him/her."

Am loving CJI today

Glad that the judgement kicks off with reference to NALSA case with Radhakrishnan's judgement on trans rights.

CJI basing this judgement trans rights - and thus emphasising complexities and nuances of gender and sexual identities - is the right step.

And it's very interesting given that the judgement opens with quotes from Western thinkers because this conceptualisation of genders/sexualities/identities is founded in decolonising and decolonised thinking.

Trans rights are human rights. More importantly, trans rights are not in conflict with any other human rights. Glad this is the foundation for the current verdict!

At the core of the concept of identity lies self determination, realization of one‘s own abilities visualizing the opportunities and rejection of external views with a clear conscience that is in accord with constitutional norms and values or principles...

Orientations as "natural variations of expression and free thinking process and to make it a criminal offence is offensive of the well established
principles pertaining to individual dignity and decisional autonomy"

Am so glad that the CJI did not just stop with the the easy (and problematic) 'born this way' logic.

1/2: "That apart, the phrase "order of nature" is limited to the procreative concept that may have been conceived as natural by a systemic conservative approach and such limitations do not really take note of inborn traits....

2/2: "...or developed orientations or, for that matter, consensual acts which relate to responses to series of free exercise of assertions of one‘s bodily autonomy."

YES! This also has impications for gender rights (important as they are under threat globally)

"The petitioners have highlighted that the rights of the lesbian, gay, bisexual and transgender (LGBT) community, who comprise 7-8% of the total Indian population"

That is about a 100 MILLION PEOPLE!

THIS IS WHY THIS IS SUCH A HUGE DEAL!

"The impact of sexual orientation on an individual‘s life is not limited to their intimate lives but also impacts their family, professional, social and educational life."

EXACTLY

"Compulsory alienation due to stigma and threat is contrary to the fundamental principle of liberty."

This! Exactly why marginalisation (of any kind) is incompatible with liberty.

Brilliant point by petitioners: "There is no difference between persons who defy social conventions to enter into inter-religious and inter-caste marriages and those who choose a same sex partner...society may disapprove...but this Court is for enforcing constitutional rights"

Keep noticing headlines classifying today's verdict - yes, Western press, I am mostly looking at you - as 'overturning the sodomy law' or 'decriminalisation of homosexuality' but this verdict goes WELL beyond.

The petitioners' arguments are based on fundamental rights. They show the ludicrous nature of Koushal ruling. But given the verdict today, they are also brilliant for opening the pathways to more progressive legal steps.

"A democratic Constitution like ours is an organic and breathing document with senses which are very much alive to its surroundings, for it has been created in such a manner that it can adapt to the needs and developments taking place in the society."

The rights that are guaranteed as Fundamental Rights under our Constitution are the dynamic+timeless rights of 'liberty'+ 'equality' +it would be against the principles of our Constitution to give them a static interpretation w/out recognizing their transformative+evolving nature

The argument does not lie in the fact that the concepts underlying these rights change with the changing times but the changing times illustrate and illuminate the concepts underlying the said rights.

THIS!!!!!

The Constitution has been conceived of and designed in a manner which acknowledges the fact that 'change is inevitable'.

It is the duty of the courts to realize the constitutional vision of equal rights in consonance with the current demands and situations and not to read and interpret the same as per the standards of equality that existed decades ago.

1/2: "There is a constant need to transform the constitutional idealism into reality by fostering respect for human rights, promoting inclusion of pluralism, bringing harmony, that is, unity amongst diversity, ...."

2/2: "...abandoning the idea of alienation or some unacceptable social notions built on medieval egos and establishing the cult of egalitarian liberalism founded on reasonable principles that can withstand scrutiny."

You tell em, CJI!

YES! Transformative constitutionalism!!!

Yes, I am a sad geek but this makes me SO happy.

"...the purpose of having a Constitution is to transform the society for the better and this objective is the fundamental pillar of transformative constitutionalism."

"The concept of transformative constitutionalism has at its kernel a pledge, promise and thirst to transform the Indian society so as to embrace therein, in letter and spirit, the ideals of justice, liberty, equality and fraternity..."

"Equality does not only imply recognition of individual dignity but also includes within its sphere ensuring of equal opportunity to advance and develop their human potential and social, economic and legal interests of every individual..."

Page 71. And am again in tears:

1/2 "The freedom that is required to be attached to sexuality still remains in the pavilion with no nerves to move."

2/2 "The immobility due to fear corrodes the desire to express one‘s own sexual orientation as a consequence of which the body with flesh and bones feels itself caged and a sense of fear gradually converts itself into a skeleton sans spirit. "

Smart again in the constitutional morality section to raise caste based exclusions as equally unacceptable.

The impact of this verdict cannot be overstated.

OK. That's page 80.

Will take a break. This is an amazing, historical decision. I can't believe I live in a time where I can read this verdict on the day it happened.

My brain is on fire!

When biological expression, be it an orientation or optional expression of choice, is faced with impediment, albeit through any imposition of law, the individual‘s natural and constitutional right is dented.

I love the inclusion of 'optional expression of choice'

Repeatedly the verdict has shown that CJI is not going down the sole 'biological imperative' route but consistently emphasising the right to choose

"...it is our constitutional duty to allow the individual to behave and conduct himself/herself as he/she desires and allow him/her to express himself/herself, of course, with the consent of the other. That is the right to choose without fear.

"It has to be ingrained as a necessary pre-requisite that consent is the real fulcrum of any sexual relationship. "

I am so hoping this presages criminalising marital rape in India!

This made me laugh:

1/2: "The word 'Queer' is sometimes used generically, usually by younger people, to include the members of all of the sexual minorities. I usually avoid this expression because of its pejorative overtones within an audience unfamiliar with the expression..

2/2 "...However, it is spreading and, amongst the young, is often seen as an instance of taking possession of a pejorative word in order to remove its sting."

Yes, still made me grin.

"To compel a person having a certain sexual orientation to proselytize to another is like asking a body part to perform a function it was never designed to perform in the first place. "

I never thought I would see CJI write this! Incredible

The clincher in this section:

1/2: "Apart from orientation, as stated earlier, there can be situations which influence the emotional behaviour of an individual to seek intimacy in the same gender that may bring two persons together in a biological pattern...."

2/2 "...It has to be treated as consensual activity and reflective of consensual choice."

May be I should have said SHOT...Chaser! Whoa!

OK folks. That's upto page 96. That's where the privacy section begins and I need a clear head to make sense of it.

Watch this space as this VERY long thread will continue as I read through the #Sec377Verdict