After 377, opening up to a new imagination

A court at war with itself is already an object of interest and curiosity. Sadly, it is not its judgments that the audience is interested in, but the factionalism within. The judge’s mask is off and one sees a set of human beings struggling with each other. A court with a lame duck Chief Justice is even more intriguing. One knows Dipak Misra is retiring in a few weeks and Ranjan Gogoi has already been anointed. The timing seems immaculate for a historic judgment, a chance to go beyond acrimony. The five-judge bench in the Navtej Singh Johar case did just that: it decriminalised homosexuality in India.

The question is how does one look at a judgment like this? The history is already in the decision and the headlines become the reason for a festival across India. The long and desperate battle of the LGBT community has virtually come home. The decision becomes the event and the text, a set of quotable quotes. Yet what one misses in newspaper reports is an analysis. What was the logic behind the law? Did the quality of argument rise to the decision?

This is more an analysis of the text of the judgment. Three judgments in particular stand out, Misra’s piece, one of his last as CJ, and the accompanying essays of Rohinton Nariman and Dhananjaya Chandrachud. Each plays a soloist of law before the logic of the judgment as a symphony brings them together.

To a lay reader, what is fascinating is the variety of traditions they invoke and appeal. Justice Misra is appealing to the whole realm of law and he opens out with a fusillade of quotations from Goethe and Schopenhauer. Quotations are a style of citing genealogy and the CJI’s genealogy as a constitutionalist is clear. The outlawing of Section 377, for Misra, is a goodbye signature, an attempt to state his faith in the Constitution and its dynamism. For Nariman, there is an evocation of memory, of stories of Oscar Wilde and Alan Turing, of the tragedies that littered the long career of law. For Nariman, the judgment becomes an exorcism of memory, a return to the normality of citizenship. Chandrachud is more imperious and interrogative as a scholar, providing a linguistic and conceptual analysis of the legal terrain. Each begins as a strand, becomes a braid. Indu Malhotra’s final statement — that the court owes an apology to the LGBT community — caps a stellar performance with an act of generosity.

Each judge brings a different style of analysis to the challenge. For Misra, the LGBT community is almost a pretext to validate the court as a text. His emphasis is on the creativity of the Constitution. He makes two arguments that are central in this age of majoritarian and demographic logic. First, he differentiates the vitality of constitutional morality from social morality as the lowest common denominator polity. The latter is subject to the vagaries of majoritarianism, populism where democracy is indifferent or callous about margins and minorities. For Misra, constitutional morality, unlike social morality, is plural and inclusive, not subject to the vagaries of a brute demographic majority. A constitutional morality is a corrective, cybernetic force that makes transformationalism possible.

While echoing his enthusiasm of LGBT reform, what Misra is creating is an edifice for privacy, seeing privacy needs a stronger sense of home and homecoming. For Misra, the slogan “liberty, equality, fraternity” has to be reworked twice: once as an architectonic of public space, once as an insulation of private space. To the first triangle embodying the French Revolution’s slogans, Misra adds a second insulation, a cocoon for private space where a man not only has a right to be alone but where sexual intimacy, choice and freedom is viable. The LGBT community needs this space for freedom and dreaming to live with dignity. Dignity becomes a new key term signalling this transformation, where acts of sexuality, once seen as bestial and unnatural, acquire dignity, the essential skin of humanity. For Misra, it is this dream of a vibrant transformational Constitution that is critical. LGBT freedom is not the goal, but the test of this creativity.

Nariman evokes a different world, a world of memories, the tragic world of Oscar Wilde, a world that celebrates puns and language. For example, to be earnest in the language of the London underworld was to be gay, and Wilde wickedly made it the innocuous title of his play The Importance of being Earnest.

Nariman’s exorcism begins by showing how the stigma of homosexuality had to run the gauntlet of a Judeo-Christian world, pass through Victorian puntarism, and rid itself Macaulaylite vestiges of the Indian Penal Code. For Macaulay, homosexuality was so horrendous a fact that Macaulay did not want to discuss it. Even a discussion of the gay world became polluting to the father of Indian colonial education. Nariman’s act of exorcism is poetic and scholarly as he traces how homosexuality goes through the grid of sin, crime and illness. It begins as sodomy, is criminalised in Victorian England and colonial India, and was long seen as a pathology, a mental illness. It is when it is purged of all these stigmas that the gay world becomes ready for the entitlements of citizenship.

Chandrachud brings a different mastery of law and maps the terrain of such a possibility by interrogating concepts and examining linguistic politics behind every keyword. While Nariman explores the conceptual historicity of the gay world, Chandrachud outlines a conceptual examination of the lifeworld of homosexuality. Between the rigour of these experiments he creates a poignant moment where Justice Leila Seth talks about the gay world of her son Vikaram. The power of the analysis lies in its poignancy and poetry. Chandrachud virtually conducts a conceptual pilgrimage through the law which is worth imitating.

What the court does is to exorcise a world of treatises but the life of the book has to encounter the book of life. Scholarship and jurisprudence has to meet politics. Text has to breathe politics into the struggle on the ground. The challenge now is for activism and institutions to recreate this world in every nukkad. The world is opening up to a new imagination.