Love, Sex, MeToo, And The Supreme Court

In its introduction, Kirpal writes that the law is woven intricately with all of our lives in ways we don’t seem to fully imagine. He also affirms that “the Constitution has become a document embodying all that is aspirational in the Indian imagination,” transferring much-needed hope and confidence to its interpretation by the judicial system in contemporary times.

Covering sex in relation to the individual, community, workplace, religion, as well as the law of the land, Sex and the Supreme Court: How the Law Is Upholding the Dignity of the Indian Citizen (Hachette, 2020), edited by Saurabh Kirpal is an engaging and informative book. It’s devoid of legal jargon and is teeming with notes, making it an easy read for a layperson.

In its introduction, Kirpal writes that the law is woven intricately with all of our lives in ways we don’t seem to fully imagine. He also affirms that “the Constitution has become a document embodying all that is aspirational in the Indian imagination,” transferring much-needed hope and confidence to its interpretation by the judicial system in contemporary times.

Individual and the law

In the first essay, Kirpal takes us through the struggle against Section 377, beginning from the first attempt that was made to get it scrapped in 1994 by the AIDS Virodhi Bhedbhav Andolan (AVBA) to its reading down on September 6, 2018. In a short chapter, he traverses the lengthy journey from the formulation of this law by Macaulay, who found it “so abhorrent that” he left it “delightfully vague,” to the four-part judgment that rendered hope, courage, and apology in equal measure.

In subsequent essays, Keshav Suri, the executive director of the LaLit Suri Hospitality Group, also shares his story and LaLit’s journey of creating a diverse and inclusive work culture. Celebrated chef, Ritu Dalmia, also shares how a comment from her friend Ella inspired her to act and fight to get Section 377 scrapped.

Though this draconian law has been read down, the widely-protested and ironically named Transgender Persons’ (Protection of Rights) Act was introduced in 2019 and is exists to be fought against, among other rights that are crucial to pave the way to citizenship for all queer bodies. Zainab Patel, who now heads the diversity and inclusion chapter at KPMG, covers this in the essay “From the Margins to the Mainstream,” calling the Bill what it is: “purely tokenistic.”

Sex and the society

Recently, the Indian government has argued that allowing same-sex marriages will threaten the “Indian family unit concept.” The state, in a sweeping statement of transphobia, then went to say that it recognizes marital relationship only “between a biological man and a biological woman.” With this, it delegitimized the right to live with human dignity enshrined in the Constitution of India.

“Marriage lies at the intersection of society and the laws. Societal traditions are crystalized into the rules relating to marriage by law,” Kirpal writes in the chapter “Love and Marriage.” He argues that “[i]f dignity and autonomy are the pillars of the constitution, there is possibly no greater manifestation of that autonomy than the right to choose a sexual partner. And nothing is a greater expression of that choice than marriage.” He concludes by saying that, “The Constitution is ready for gay marriage. The question is whether the society and the courts are ready.”

I stand in partial agreement, as people wanting to exercise their right to marry is something worth acknowledging. But the institution of marriage is itself crippled by morality, casteism, and discrimination. Eulogizing marriage to the point that our very existence and acceptance depend on it is something I can’t fully grapple with. I wonder why we don’t imagine other forms of union than imitating age-old toxic practices — marriage being one of them — followed by the cisgendered heterosexual community.

Coming back to the book’s agenda, Supreme Court lawyers and real-life queer couple, Menaka Guruswamy and Arundhati Katju eloquently point out in an essay, the hesitance of the state to recognize marital rapes. They also bring home the dichotomy and challenge what marriage as an institution proffers: “Is marriage a private relationship or a public one? Marriage may be the most delicate and intimate of relationships, but it also enjoys social, political and economic functions.”

Sex and the workplace

I was overjoyed reading the expansive essay “The Beast in Our Midst” by Namita Bhandare, a well-known journalist, writing about India’s MeToo movement. She covers stories by women who broke their silences against the ever-prevalent, gendered harassment in the workplace. They were divided by the choice – as verbalizing would invite enough pressure from the family to leave their job – and letting it continue, which will allow these men to believe that they can get away with anything. But some of them publicly came forward, including Tanushree Dutta’s complaint against Nana Patekar, Ghazala Wahab and Priya Ramani’s against M. J. Akbar, a  Tehelka employee’s narration of the time when Tarun Tejpal made a pass at her at a conference held in Goa, Vinta Nanda’s story of facing sexual misconduct perpetuated by Alok Nath, and a researcher’s account of being forced to leave TERI because of R. K. Pachauri.

Even after a flood of complaints, and huge media coverage of the MeToo and Times Up movement, workplaces continue to take this issue lightly. Highlighting the “New Deal where silence no longer has any space,” Bhandare notes that “[t]he issue is not taking down a few predatory men. If India’s MeToo is to succeed, then it must spell out a New Deal at work for all employees, regardless of gender or sexual orientation.”

Sex and the religion

A book of its time, Sex and the Supreme Court is still far from being a perfect anthology as it’s peppered with portions of essays — particularly in the section where the intersection between sex, religion, and law is discussed — that are evidently cis- and mansplaining.

One such instance shows up wherein the religious arena of marriage was debated upon by those on either side. Madhavi Divan in her essay on Triple Talaq highlights the counterarguments presented by the All India Muslim Personal Law Board in this case. She mentions AIMPLB issuing an “affidavit,” articulating how “denying a husband the right to divorce his wife by triple talaq may lead to instances where: [H]e may resort to illegal, criminal ways of murdering or burning her alive.” Justice B. D. Ahmed, however, holds a contrarian position. His essay on “understanding” Muslim law in the “modern” context seemed to be a plain justification of being attached to age-old traditional practices of discriminating against women. His writing reeks of mansplaining, disguised as his authority and scholarship on Muslim law, when he writes how the “Muslim law is being mistakenly perceived to be adverse to women.” In a country where an issue concerning women is heard by a mench — a term for an all-men constitutional bench — there’s less hope in being hopeful about women’s rights.

Writing about the Sabarimala Case, Mukul Rohatgi finds it “difficult to accept that the essential tenets of most temples of the Hindu religion can be imposed or serve as a yardstick for the practices of certain specific temples with variant practice.” He seems to be saying that this ‘unique’ practice of disallowing women in a temple must be preserved. I fail to register how one can explain the ignorance of the basic rights of a human being just because they menstruate. And whether the editor had no other person in mind to write about women’s rights, Divan being an exception [Editor’s Note: At Gaysi, we believe that there are several Muslim scholars of marginalized genders who could made the argument from lived experience as well as academic exposure].

In the closing chapter, Justice A. K. Suri highlights the “growing significance of dignity jurisprudence in the field of human rights.” It perhaps was the perfect way to end a book that anthologizes the struggle to ascertain fundamental rights by various sections of society, but I am afraid the real-life situation continues to present a bleak future. Preserving hope for a better future requires recounting stories that bring about a mindset change, and to a certain extent, this book holds this promise.

Disclaimer: This author received this book’s copy in exchange for a review. He has neither been influenced nor paid to write this review.

About the author

Saurabh Sharma

Saurabh is working as a writer in a research and advisory IT consultancy firm. He frequently writes about gender and sexuality, and book reviews on an array of platforms.