Thread by @ProfSunnySingh

Reading #Sec377Verdict. This thread will pick up my reading from Page 96 and section on privacy. The first thread upto this point here:

https://twitter.com/sunnysingh_n6/status/1037650456531619841

"...within the compartment of privacy, individual autonomy has a significant space. Autonomy is individualistic. It is expressive of self-determination and such self-determination includes sexual orientation and declaration of sexual identity."

"Under the autonomy principle, the individual has sovereignty over his/her body."

Although this section is on privacy, this sentence stands out because of its implications for other areas of civil rights, including future body data rights.

Read @redlightvoices on body data and 'body as data.' It is an area we will need to address comprehensively and this sentence in the verdict made me think (also as the verdict explicitly asserts the opening of pathways into future)

1/2: "There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage, though marriage is a union."

2/2: "As a concept, union also means companionship in every sense of the word,
be it physical, mental, sexual or emotional. "

I for one never imagined CJI writing this. EVER!

"The LGBT community is seeking realisation of its basic right to companionship, so long as such a companionship is consensual, free from the vice of deceit, force, coercion and does not result in violation of the fundamental rights of others."

Note emphasis on consent.

This verdict has repeatedly emphasised consent throughout. It has also suggested that consent must exist within a 'union.'

I think this has implications for gender rights, including again, an argument for criminalising marital rape.

Interesting reference to South Africa and apartheid anti-miscegenation laws as example of state's invasion of privacy.

Am thinking back to petitioners raising caste and religion:

https://twitter.com/sunnysingh_n6/status/1037673320139902976

"The fact that a law prohibiting forms of sexual conduct is discriminatory does not, however, prevent it at the same time from being an improper invasion of the intimate sphere of human life...."

"The offence which lies at the heart of the discrimination in this case constitutes, at the same time and independently, a breach of the rights of privacy and dignity which, without doubt, strengthens the conclusion that the discrimination is unfair."

Preceding that sentence, CJI notes the violations and "just how egregious the invasion of the constitutional rights of gay persons has been..."

Quite an acknowledgement that!

Oooh Justice Chandrachud going in full blast on the Koushal decision!

Reference to raising right to privacy to status of fundamental rights. And followed again by a passage that I think is significant

Note this: 1/2: "...the purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular..."

2/2: "...and the guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion."

Seems like a rebuke to the majoritarian Modi government. But also impacts minorities on multiple other axes.

Significant to dwell on the earlier judgement:
"The test of popular acceptance, in view of the majority opinion, was not at all a valid basis to disregard rights which have been conferred with the sanctity of constitutional protection."

1/2: "The Court noted that the discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the 'mainstream', ..."

2/2: "...but in a democratic Constitution founded on the Rule of Law, it does not mean that their rights are any less sacred than those conferred on other citizens."

Exactly!

"The rights of the lesbian, gay, bisexual and transgender population...cannot be construed to be "so-called rights" as the expression "so-called" seems to suggest the exercise of liberty in the garb of a right which is illusory."

"The Court regarded such a construction in Suresh Koushal‘s case as inappropriate of the privacy based claims of the LGBT population, for their rights are not at all "so-called" but are real rights founded on sound constitutional doctrine."

And Justice Kaul concurs: "the right to privacy cannot be denied even if there is a minuscule fraction of the population which is affected."

"....the majoritarian concept does not apply to constitutional rights and the Courts are often called upon to take what may be categorized as a non-majoritarian view."

Protection of minorities is crucial for a democracy so this is important.

"The constitutional framers could have never intended that the protection of fundamental rights was only for the majority population."

Hallelujah!

1/2: "Instead, the provisions have employed the words 'any person‘ and 'any citizen' making it manifest that the constitutional courts are under an obligation to protect the fundamental rights of every single citizen..."

2/2: "...without waiting for the catastrophic situation when the fundamental rights of the majority of citizens get violated."

Now can ALL courts (and all parts of government) understand this. This should be put on posters in every govt office

"Such an approach reflects the idea as also mooted by Martin
Luther King Jr. who said, "Injustice anywhere is a threat to justice
everywhere."

This verdict is also a brilliant civil rights history lesson.

Ooooh! A whole section on "the doctrine of progressive realisation of rights."

YES!!!!

1/2: "When we talk about the rights guaranteed under the Constitution and the protection of these rights, we observe and comprehend a manifest ascendance and triumphant march of such rights which..."

2/2: "...in turn, paves the way for the doctrine of progressive realization of the rights under the Constitution."

Oh man, I so hope this presages a huge expansion of civil rights along with bulwarking against rights erosion by current regime.

Oh hello, Edmund Burke. How nice to see you here...

"It is a Constitution made for a progressive society and the working of such a Constitution depends upon the prevalent atmosphere and conditions."

SUCH a relief to see this given the overwhelming American 'founding fathers' fanaticism...

The discussion of the nature of the Constitution is intended to emphasise: "that rights under the Constitution are also dynamic and progressive, for they evolve with the evolution of a society and with the passage of time."

THIS!

1/2: "Therefore, it is necessary for the constitutional courts to inculcate in their judicial interpretation and decision making a sense of engagement and a sense of constitutional morality so that they...."

2/2: "....with the aid of judicial creativity, are able to fulfill their foremost constitutional obligation, that is, to protect the rights bestowed upon the cit
izens of our country by the Constitution."

Yes, dear reader, I giggled at 'judicial creativity'

"This also gives birth to an equally important role of the State to implement the constitutional rights effectively....The State has an obligation to take appropriate measures for the progressive realization of economic, social and cultural rights."

Btw the State there means the legislature, executive and judiciary

"The doctrine of progressive realization of rights, as a natural corollary, gives birth to the doctrine of non-retrogression. As per this doctrine, there must not be any regression of rights."

Given the erosion of rights in US and UK, am awed reading this!

2016 election in US was the first without full cover of the VRA. And we saw voting rights eroded. ALL civil rights will be under threat if GOP pushed through Kavanaugh. Brexit is stripping Britons of fundamental rights as well.

So non-retrogression becomes ever more crucial to any discussion of rights. Am feeling light-headed reading CJI assert it

"The doctrine of non-retrogression sets forth that the State should not take measures or steps that deliberately lead to retrogression on the enjoyment of rights either under the Constitution or otherwise."

Can we send this to politicians in UK and USA?

Homosexuality as against 'order of nature' section is problematic at the outset. Am not quite sure of the comparison of IPC sections 375 (rape) and 377 but hoping it doesn't go where I fear it may....

OK more about consent (which frankly I have issues with given that 375 has a clear exception for marital rape) and contradictions raised by 375 and 377.

Fair enough but disappointing as this could have been a moment to open pathways for further change.

Am not a lawyer so not sure if there is another specific law regarding male rape in India but if there isn't, 375 needs to be amended and expanded to cover all citizens, regardless of gender identity

Well done to refute the ludicrous idea that somehow 377 was to protect women and children!

"Section 377 IPC, so long as it criminalises consensual sexual acts of whatever nature between competent adults, is manifestly arbitrary."

And as CJI notes before, arbitrariness and democratic rule of law are fundamentally incompatible.

"Respect for individual choice is the very essence of liberty under law and, thus, criminalizing carnal intercourse under Section 377 IPC is irrational, indefensible and manifestly arbitrary."

Specific discussion of how Section 377 oppresses trans people:

"The very existence of Section 377 IPC criminalising transgenders casts a great stigma on an already oppressed and discriminated class of people."

1/2: "This stigma, oppression and prejudice has to be eradicated and the transgenders have to progress from their narrow claustrophobic spaces of mere survival in hiding with their isolation and fears..."

2/2: "...to ejoying the richness of living out of the shadows with full realization of their potential and equal opportunities in all walks of life."

Unusually clunky phrasing there in a document that is so careful and considered.

And back on track:

1/2: "The ideals and objectives enshrined in our benevolent Constitution can be achieved only when each and every individual is empowered and enabled to participate in the social mainstream and...."

2/2: "...in the journey towards achieving equality in all spheres, equality of opportunities in all walks of life, equal freedoms and rights and, above all, equitable justice."

Equitable justice. Necessary ideal.

"This can be achieved only by inclusion of all and exclusion of none from the mainstream."

Amen!

"We must realize that different hues and colours together make
the painting of humanity beautiful and this beauty is the essence of
humanity."

"To change the societal bias and root out the weed, it is the foremost duty of each one of us to "stand up and speak up" against the slightest form of discrimination against transgenders that we come across."

There is an acute awareness through out this document that this verdict is just the first step. That the bigger challenge is to change minds. But it also asserts ideals that could and should be worked towards...

There is something wonderfully idealistic in exhorting citizenry to weed out bigotry, prejudice, to 'stand up and speak.' Especially in our cynical times.

So despite the clunky language, there is something moving about this....

1/3: "It is through times of grave disappointment, denunciation, adversity, grief, injustice and despair that the transgenders have stood firm with their formidable spirit, inspired commitment, strong determination and infinite hope and belief...."

2/3: "...that has made them look for the rainbow in every cloud and lead the way to a future that would be the harbinger of liberation and emancipation from a certain bondage indescribable in words - towards the basic recognition of dignity and humanity..."

3/3: "....of all and towards leading a life without pretence eschewing duality and ambivalence."

Wow! And wait for the next sentence......

"It is their momentous "walk to freedom" and journey to a constitutional ethos of dignity, equality and liberty and this freedom can only be fulfilled in its truest sense when each of us realize that the LGBT community possess equal rights..."

OK section on bestiality still being criminal. Boggles the mind that this was lumped together with consensual sexual activity between humans.

Victorians were nuts and had shit sex lives, frankly!

But can I just go back and make a note of how cool it is that CJI referenced Mandela to talk about #transrights.

AHA! Remember that point on male rape? Here it is:

"Any act of the description covered under Section 377 IPC done between the individuals without the consent of any one of them would invite penal liability under Section 377 IPC."

Note the gender neutral language there!!!!

Looking through the summary, I can't help keep noticing how long this fight has been going on and how many prior cases led to this verdict.

I know 'incrementalism' is a bad work amonst many on the left. But that's exactly how this change happened.

And even in these 167 pages, it is clear that this document is part of that 'incrementalism' towards expanding civil rights into the future.

We HAVE to start talking about politics and change in nuanced, complicated ways.

That btw got me to page 167. Next up is the judgement itself, starting with Justice Nariman who kicks off with a quote from Oscar Wilde.

But am going to take a break. And end this thread here. I will contine reading the judgement in a new thread later.

Here by the way is the first thread on the judgement covering until page 96:

https://twitter.com/sunnysingh_n6/status/1037650456531619841

Until later!