SEX AND THE

SUPREME COURT
How the Law Is Upholding
the Dignity of the Indian Citizen

Edited by
SAURABH KIRPAL
 First published in 2020 by Hachette India
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 Contents

Introduction

Sex and the Individual

Pride versus Prejudice: The Struggle against Section 377

Saurabh Kirpal

We Will Always Be Who We Are!

Keshav Suri

I Am a Chef Who Happens to Be a Lesbian

Ritu Dalmia

Transgender Rights and Wrongs

Justice M.B. Lokur

From the Margins to the Mainstream

Zainab Patel

Sex and the Community

Love and Marriage

Saurabh Kirpal
From Adultery to Sexual Autonomy: The Constitutional
Potential of Joseph Shine
Menaka Guruswamy and Arundhati Katju

Sex and the Workplace

The Beast in Our Midst: How India’s MeToo Movement Broke

the Silence on Workplace Sexual Harassment
Namita Bhandare

Sex and Religion

Triple Talaq
Madhavi Divan

Understanding Muslim Law in the Modern Context

Justice B.D. Ahmed

An Axis Shift: A Critique of the Sabarimala Case

Mukul Rohatgi

The Growing Signi cance of Dignity Jurisprudence in the Field

of Human Rights
Justice A.K. Sikri

Notes and References

Notes on Contributors

Acknowledgements
 Introduction

The law is ubiquitous. Yet, most of us go about our daily lives

not realizing the full import of the law. From the contracts we
enter into when we purchase groceries, 1 to the traf c rules we
obey when we drive to work, every aspect of our lives is touched
by the law. Given the important role that law plays in our lives,
we are curiously oblivious to its functioning. It is something as
real as breathing and yet equally far from our conscious minds.
The attempt of this book is to explain and examine the
impact that the law has had on different aspects of sex, sexuality
and gender. The agency through which this impact has been felt
most clearly is the Supreme Court. This book explores the
relationship between the law, that is, the Constitution, the rights
of an individual, and how these rights are enforced by the
Supreme Court.
An examination of the nature of the Indian Constitution, and
the rights and principles contained therein, reveals that the
Court has to perform a delicate balancing act between social
practices and personal rights. The Supreme Court has been
performing this task since its inception nearly 70 years ago.
However, it is only in the relatively recent past that it has woken
up to the enormous task ahead of it in relation to issues of sex,
sexuality and gender.
 The judgements, starting from the Vishaka judgement, 2
which concerns sexual harassment at the workplace, to the
recent judgements on Section 377, 3 the transgender
community, 4 interfaith marriages 5 and allowing women into
the Sabarimala temple, 6 have one thing in common: They place
the individual at the centre of the constitutional rmament. In
the tug of war between the demands of the traditional
conception of society and the rights of an individual to their
identity and dignity, the Supreme Court has come down rmly
in favour of the individual.
It is a matter of some debate whether these judgements have
had the desired impact on the systemic inequalities faced by
women and sexual minorities. There is also the vexed question
of the legitimacy of the Court in making these decisions, which
some believe should be in the domain of Parliament. These
aspects will be examined in this essay, as well as in other essays
in this anthology. However, given the current moral authority
enjoyed by the Court, there is no doubt that the judgements
handed down by it shape public discourse and play an important
role in transforming society.

THE LAW AND SOCIAL CHANGE

Perhaps one of the most fundamental ways in which the law

shapes us is in how we identify ourselves. Wife, mother,
employer, lover…each of these roles is not merely a societal
construct but a societal construct backed by a complex set of
legal rules. A whole ecosystem of laws and regulations governs
the interactions we have in such positions, with each other and,
inevitably, with ourselves.
Our very sense of identity is shaped by the law. For instance,
to be a Hindu wife before 1956 meant that the husband could
have other wives as well, and children from those wives. 7 A
woman’s right to property and inheritance was heavily
restricted; she was merely seen as chattel. 8
These laws not only determined the legal status of a woman
but inevitably devalued her self-worth. When people all around
you tell you that you are less than equal, coupled with the
sanction of the law, it is certain that a large number of women
will start internalizing and believing that. Men will, with no
apparent sense of irony about the gendered laws drafted by
them, rely on those very laws to seek to establish the second
class status of women. 9 To change the position of women as
well as sexual and other minorities, it is necessary to change
these laws.
The law, of course, is not static. Usually, the law re ects and
encapsulates the social and moral values of a society. It is
precisely for this reason that the law is an extremely important
tool for social change. Law and society have a symbiotic
relationship. The law is shaped by society and in turn shapes it.
When a society is hidebound by tradition and social stasis, any
reform has to come through the agency of the law.
The problem with changing the law is that the law is framed
by the very people who represent society. The representatives of
the people in Parliament are unlikely to think beyond that
which is desired by the vocal majority (or sometimes even a
socially powerful vocal minority). Even though women can
hardly be called a minority, given the systemic suppression of
their socio-political rights, they have virtually ceded political
power to the largely male members of Parliament.
How will the law then, as an engine for social change, deliver?
In the Indian context, at least in the recent past, the answer has
almost always been the Supreme Court. As the essays in this
book will examine, the Supreme Court has entered the eld in a
multitude of areas relating to sex, gender and sexuality. All these
interventions have the backing of what is possibly the soul of the
Constitution – the fundamental rights.
 Part III of the Constitution contains the fundamental rights of
every citizen. These rights are the legal armoury deployed by the
courts in the judgements delivered by them. In our system of
law, as in most systems governed by a written constitution, there
is a chapter that contains the fundamental rights possessed by a
citizen. But it is important to remember that this need not
necessarily be the case. Britain, the country from which our
Constitution derived the greatest inspiration, does not have such
a set of rights.
The chapter on Fundamental Rights in the Constitution was
shaped by the experiences of the freedom struggle. All the
members of the Constituent Assembly as well as the Drafting
Committee had been connected in some way to the freedom
struggle. They had lived life under a set of rules where no right
was guaranteed, and every person was at the mercy of the
British. The framers of the Constitution did not wish to replace
the dictatorship of the sovereign with the dictatorship of the
majority. So, an elaborate set of rights was framed. 10 These
rights were deemed fundamental in nature inasmuch as they
stem from the basic aspects of life, which an individual needs to
maintain for a digni ed and meaningful existence.
The fundamental rights are both ‘positive’ as well as ‘negative’
in nature. Negative rights are those that limit state interference
on the freedom of an individual. However, the fundamental
rights are more than a defence system against an overactive
Executive. Instead, these rights, coupled with the Directive
Principles of State Policy contained in Part IV of the
Constitution, exhort the State to act positively in the
furtherance of those rights. The State and all its institutions,
which include the courts, have the responsibility under the
Constitution to ensure the welfare of all individuals. It is
through the positive intervention of the agencies of the State
that the full potential of each individual can be realized. One of
the most important means of accomplishing that is through the
enforcement of the positive fundamental rights. 11
 This aspect of the Constitution is particularly clear in the case
of discrimination based on the grounds of sex. While most rights
are couched in negative language, restricting the power of the
State to act to the detriment of a particular right of a citizen,
Article 15 of the Constitution is worded in a manner that casts
an obligation on the State to frame laws restricting even private
individuals from discriminating against women (amongst other
groups). The Directive Principles of State Policy are even
clearer. 12 They lay down an obligation upon the State to ensure
that men and women have an equal right to an adequate means
of livelihood, a right to equal pay for equal work, rights to
humane conditions at work, and maternity relief. This is the
spirit and the soul of the Constitution.

THE HOLY TRINITY OF RIGHTS

If the chapter on Fundamental Rights is the soul of the

Constitution, then three fundamental rights are the arch-anchor
of that soul. 13 These are the right to equality (Article 14), the
right to freedom (Article 19) and the right to personal liberty
(Article 21). Each of these rights has its own facets, which have
been used to protect the rights of women and sexual minorities.
However, these three rights are often used together as a
framework to protect personal autonomy and dignity.

The Right to Equality

Three Articles together form the framework of equality. Article

14 is the basic right to equality, which prohibits discrimination
by the State in general. Article 15 prevents discrimination
speci cally on the grounds of religion, caste, race, sex or place of
birth. 14 Article 16 extends the protection against discrimination
to matters of public employment. 15
 The fundamental right to equality contained in the
Constitution seems to be quite clear. There appears to be no
room for any form of discrimination as is evident from the text
of the document. Then why does it require the Supreme Court
such a long time and such a vast number of judgements to
achieve full equality – why has equality not already been
achieved? It is one thing to say that society requires time to
change, but surely that change can come about immediately in a
formal legal system such as ours, by the one declaration of
equality contained in the Constitution?
This question hides in itself the nuanced debate about the
nature of ‘equality’ and the nature of discrimination. For
instance, the personal laws of any community are rarely
ungendered simply because society itself is in the grip of
patriarchy. Yet, in the exercise of personal law, there is a claim
to freedom of religion. There is then a con ict of rights – the
right to equality versus the right to profess the freedom of
religion. The most obvious example of this, of course, is the case
of the triple talaq, 16 which pitted the rights of equality (since
women could not divorce men in the same manner as men
could) versus the claimed right to freedom of religion. 17
In other cases there may be facial neutrality but substantive
inequality. What this means is that a law may be applicable to
all persons and hence seem neutral. Yet, the position of different
segments of society would be different, so the law might impact
them disproportionately and hence be discriminatory. An
instance of this is the Section 377 case. The law had
criminalized all forms of sodomy – generally understood to at
least include all forms of anal penetrative sex. 18 It was argued
that the law treated homosexual and heterosexual couples
equally by banning the same sexual conduct for both classes of
persons. However, since only the sexual interaction between
homosexuals would constitute sodomy, effectively all sexual
intercourse between homosexuals was made criminal. This
amounted to discrimination against the LGBTQ community at
large.
It is because of these nuances and insidious forms of
discrimination that the Court has to constantly come to the aid
of those discriminated against, and hence protect the equality
guaranteed in the Constitution.

The Right to Freedom

The right to free speech is part of a broad panoply of rights

under the umbrella of Article 19, the right to freedom. These
rights include the right to free speech, 19 the right to assemble
peacefully, to form associations, 20 the right to move freely and
reside through the country 21 and the right to practise any
profession and carry on any trade and business. 22 These rights
are possibly the closest to the traditional conception of civil and
political rights. The very words ‘right to freedom’ embody the
idea that these rights are meant to protect the freedom of a
citizen 23 from encroachment by the State. Indeed, that is
precisely how the Article is structured.
The most precious of these rights is possibly the right to free
speech contained in Article 19 (1)(a). It is obvious that for a
democracy to thrive, free speech is necessary. However, this
right has another interesting facet, which has just begun to be
used by the Court. Article 19 (1)(a) is not merely a right to free
speech; it is a right to ‘free speech and expression’. This right to
expression is not just an oral or visual form of conveying thought
and ideas. Expression can also be a tacit assertion of one’s beliefs
and identity. In the Section 377 case, the Supreme Court has
held that the right to live an open and digni ed life and the
ability to express a same-sex relation freely is protected by this
right. This dimension of the right will surely be used in the
future to expand an individual’s rights to enable a full and
unhindered expression of their personality and identity, subject,
of course, to the restrictions stipulated in Article 19 (2). 24

The Right to Life

A close reading of the fundamental rights in the Constitution

shows them to be drafted in language far more limited in scope
than is commonly understood by people. For instance, the
pivotal right to personal liberty, the so-called ‘right to life’,
merely states that ‘no person shall be deprived of his life or
liberty except according to procedure established by law’. This
seems like a most tenuous protection. It seemingly gives the
Legislature powers to take away any personal liberty as long as it
makes a law on the subject. 25
However, Article 21 has proved to be the gift that keeps on
giving because of the imaginative interpretation of the Article by
the Court. This has been done through the process of reading
the words ‘life’ and ‘liberty’ so widely as to breathe life into
even the most sterile sounding words.
The US Supreme Court held that when the Constitution
protected liberty, it protected more general rights that were
‘implicit in the context of ordered liberty’. 26 The US Supreme
Court held that, ‘Although the Court has not assumed to de ne
“liberty” with any great precision, that term is not con ned to
mere freedom from bodily restraint. Liberty under law extends
to the full range of conduct which the individual is free to
pursue, and it cannot be restricted except for a proper
governmental objective.’ 27
The Indian Supreme Court has followed this mode of
reasoning and held that the word ‘life’ used in the Article is not
a mere inhibition on the State from killing people. The word
includes in its fold a wider manifestation of the concept of ‘life’.
The Court has said that the words ‘life’ and ‘personal liberty’
‘are used in the Article as compendious terms to include within
themselves all the varieties of life that go to make up the
personal liberties of a man and not merely the right to the
continuance of a person’s animal existence.’ 28 The right to life
through this mode of expansive interpretation now protects a
host of other rights, e.g. the right to health, 29 the right to a good
environment, 30 the right to privacy, 31 and so on.

THE CONSTITUTION AND THE COURT

When there are rights, there also has to be a mechanism for the
enforcement of those rights. The Constitution has ultimately
reposed faith in the courts, and particularly the Supreme Court,
to enforce the rights. 32 The mode and manner of the
enforcement, of course, depends on the nature of the right. No
right can be absolute, for instance, no one can claim a freedom
to incite hatred and violence against a particular community.
Generally speaking, rights have to be weighed against other
considerations, for instance, the maintenance of public order or
the sovereignty and security of the nation. 33
The task to protect the rights of the individual and to perform
a balancing act between the fundamental rights and larger
societal interests falls upon the constitutional courts. Typically, a
judge will have to decide on the validity of a social policy that
impinges on a personal right – for instance, the policy of
reservation mentioned above vis-à-vis the right to equality. Of
course, the judge will also have to determine the converse, that
is, the assertion of a personal right that seeks to displace or
invalidate a pre-existing social policy. The debate relating to the
right to equality of women versus the socio-religious exclusion
of women of a certain age from entering the temple at
Sabarimala is an example of such a task. 34
The balancing done by the Court is an inherently political task
performed by unelected judges. A question often asked is how
this can be countenanced in a democracy. The answer is
constitutionally simple but socially dif cult to understand.
Constitutionally, the power to determine the constitutionality of
any law is given solely to the courts. 35 They also have the power
to enforce the fundamental rights through the issuance of writs.
36 Thus, the Constitution speci cally empowers the judges to

strike down legislation in case it runs afoul of any fundamental

right.
The more problematic question is how society countenances
even controversial decisions by the unelected Court. I believe
that it stems from a fundamental commitment of the citizen to
the idea of the Indian State. Simply put, even if a citizen
disagrees with a particular judgement of the Court, they would
probably respect the Constitution, which gives the Court the
right to determine the question. A citizen may not like the
outcome, but will respect the determination because they
largely believe in the legitimacy of the institutions of the State.
This then brings one to the next question: What is it in the
Indian Constitution that compels citizens to respect it? After all,
we are a country of notorious divisions. Yet, almost all people
express a faith and allegiance to the Constitution. This can only
be so if the citizen, knowingly or otherwise, feels bound to and
connected with the values contained in the Constitution.
This is because the Constitution has become a document
embodying all that is aspirational in the Indian imagination.
Faced with injustice on a daily basis, citizens point to the
Constitution as the harbinger of all that is fair and just. The
Constitution is their ally; it is only the politicians, bureaucracy,
police and the other instruments of the State that have let us
down, or so it is believed. Consequently, citizens routinely
invoke the constitutional jurisdiction of the Court to seek
redress for the wrongs in icted upon them.
Rohit De argues that it is through the people’s use of the
Constitution as a tool that the Indian State has developed in the
manner it has. An interesting nding of his is that the minorities
and subaltern groups were over-represented in litigation before
the Court possibly because they ‘took the State’s obligations to
protect them seriously’. 37 Another explanation might well be
that it was the minorities and the subalterns who needed the
most judicial protection against an overreaching Executive.

RIGHTS AND SOCIETY

The Constitution is not merely a charter of rights. At the time of

its drafting it was seen as a text promising social revolution. For
a deeply poor colonized country there was an urgent need to
uplift the community at large, and the historically oppressed
communities in particular, to ensure the stability of the newly
born union. There were calls to put the interests of the
community over that of the individual. A person no less than
Mahatma Gandhi did not support election by direct suffrage,
preferring instead the indirect method of creation of the
Panchayati Raj system. 38
In this paradigm, the State was almost to disappear rather like
in the Communist system. The philosophy was that ‘the State
that governs the best, governs least’. In such a system, the
individual was to be the master of his or her own destiny, with
the role of the State being kept to a minimum. Every person was
to be largely responsible for their own empowerment and well-
being. The community in the village was to be the engine of
social reform.
However, such a view was rejected by, amongst others, people
like Dr B.R. Ambedkar. Dr Ambedkar believed the village to be
a ‘den of ignorance, narrow mindedness and communalism’. He
famously said that ‘unlike a drop of water which loses its
identity when it joins the ocean, man does not lose his being in
the society in which he lives. He is born not for the
development of the society alone, but for the development of
his self’. Perhaps this was the result of his experiences of
oppression faced in the village.
 Be that as it may, in the con ict between the two opposite
ideals of the relationship between the State and the individual,
and the role of the individual within the State, it was Dr
Ambedkar’s view that prevailed. Our Constitution then gave the
fundamental rights to the individual and recognized his or her
autonomy and dignity. It also enjoined the State to ensure that
those rights would be protected and furthered to enable a
person to achieve their full potential in life.
The story of the enforcement of fundamental rights in the last
few years then has been the story of the assertion of the right of
the individual to their dignity and autonomy against the actions
of the State and society. The chapters in this book are
fundamentally connected in that manner. They cover different
aspects of the sense of self and identity of the individual, and
their interaction and interplay with different social constructs,
that is, the community, religion, autonomy and the workplace.
These are not watertight compartments just as no one part of
the personality is fully distinct. The narratives, both judicial and
personal, of any of these aspects are bound to be interwoven.
However, a rough division and examination of each of these
strands of the human condition is still possible and desirable.

The Individual and Autonomy

Autonomy implies the right to choose and decide the course of

one’s life for oneself. That freedom, however, is meaningless
without the ability to act upon it. For instance, a person may
identify themselves as a homosexual, but if the law prohibits
homosexuality, that identi cation is merely a chimera.
The Supreme Court af rmed the autonomy and dignity of the
individual as well as the rather uid nature of sexuality when it
delivered the transgender judgement in 2014. Justice Madan
Lokur’s essay dwells not merely on why the Supreme Court
judgement was delivered but also discusses the political and
institutional developments since the judgement. The essay notes
that it is the southern Indian states which have taken the
greatest impetus from the judgement, and put in place policies
for the advancement of the constitutional rights of transgender
people.
However, the essay also notes the recent Transgender Person
(Protection of Rights) Act, 2019 passed by Parliament and
noti ed into law. The Act appears to dilute the judgement of the
Supreme Court inasmuch as there is a watering down of the
principle of self-identi cation of gender. This is a classic instance
of a step forward by the Court and then a step back by
Parliament.
It is not merely the Government that can take a step back
though. As the essay on Section 377 notes, the bitter battle for
decriminalization of sodomy was a tale of the courts taking a
step forward and then taking a massive jump back. The essay
recounts the history of how the Delhi High Court initially
decriminalized homosexuality in 2009 only to recriminalize it in
2013. It is only recently that the Supreme Court has undone the
historic wrong done to the members of the LGBTQ community
and delivered a judgement that holds the promise of justice and
equality to the community by striking down Section 377.
The judgements of the Supreme Court have been delivered,
but have they made any difference to the lives of the people?
The compelling personal essays in this anthology narrate the
experiences of three individuals, each of whom come from very
different socio-economic positions. Zainab Patel was born a
Catholic male in a conservative family. She transitioned, and is
today a powerful and independent transwoman and an activist
ghting for the rights of the larger transgender community.
Ritu Dalmia, noted chef and restaurateur, tells her story about
what compelled her to le the case that eventually led to the
decriminalization of Section 377. Keshav Suri writes as a gay
man who has actively fought for the economic empowerment of
the transgender community through initiatives like the
PureLove campaign. He works with his LaLiT Group of Hotels
to make it an inclusive and welcoming environment for sexual
minorities.
The common feature in all these essays is the idea that the
journey towards self-acceptance has been furthered by the
judgements of the Supreme Court, but there is also the
recognition that the path towards full equality is still a long way
away. For instance, sexual autonomy is not achieved merely
through decriminalization. Other issues faced in various areas of
one’s life also need to be addressed. In matters of employment,
health and personal relationships, there is still a lot of
discrimination against sexual minorities. It is only when these
problems are adequately addressed will a person be able to enjoy
full autonomy.

The Individual and the Community

The right to choose or act upon your sexuality has meaning and
purpose only if society allows you to be with the person you
love. But who decides whom you can love? And if you can love
the person you choose, can you marry him or her? The
community often imposes its rules in the choice of a spouse by
citing public interests and claiming that those trump the
freedom of the individual. Caste and religious groups seek to
deny people the freedom to marry, claiming that these
individual actions have a deleterious impact on them.
In recent years, the issue of love jihad has captured the
imagination of the media and also the country at large. There
has been fearmongering alleging an ostensible and concerted
practice of religious conversions of women. Women are sought
to be protected against allegedly predatory men whose only
intention is to propagate their religion through duping innocent
women into religious conversions.
The fact that this fear requires an immensely sophisticated,
and as yet undiscovered, mastermind does not allay the doubts
of the conspiracy theorists. Even the sheer statistical
improbability of making any change in the religious make-up of
the community through these inter-religious marriages does not
detract the alarmists. Of course the rst victims of this love jihad
are women since they are the pawns in the game that men play
in the name of religion.
The essay titled ‘Love and Marriage’ examines this issue as
well as the decision in the case of khap panchayats. It traces the
idea of marriage through history. Marriage has been a subtle
social tool that has often been used for the subjugation of
women rather than simply being a social contract recognizing
the love between two people. It is for this reason that society
has sought to control marriage by imposing various restrictions –
the prohibition of intra-caste and inter-religious marriages. The
courts have had to come to the aid of young couples whose only
crime is to seek to marry for love rather than for societal reasons.
The essay examines Hadiya’s case – where a young woman
from Kerala converted from Hinduism to Islam and sought to
marry a man of that faith. In the face of outrage by Hindu
groups, the Supreme Court nally ruled that Hadiya was an
adult and hence entitled to change her faith and marry
whosoever she wanted. Also discussed here are the attempts by
social groups, which routinely try to block inter-caste or intra-
gotra (a form of endogamy) marriages. The courts here have to
come to the aid of young people who have to ee from societal
oppression in order to marry for love.
Nowhere is the concept of marriage as a social tool more
apparent than in the crime of adultery. The law on adultery till
2018 viewed a woman as the chattel of a man, the criminal law
being used to protect the man’s property, i.e. the woman. This
was because Section 497 of the Indian Penal Code stated that
‘whoever has sexual intercourse with a person who is and whom
he knows or has reason to believe to be the wife of another man,
without the consent or connivance of that man, such sexual
intercourse not amounting to the offence of rape, is guilt of the
offence of adultery.’
 Implicit in this offence is the idea that the wife is the property
of the husband and the lover who has sex with the wife of the
other man impinges on that man’s proprietary rights. The essay
by Menaka Guruswamy and Arundhati Katju examines the
decision of the Supreme Court in the case of Joseph Shine , 39
the case that struck down this section. The judgement is
important not merely for the striking down of the section but
also for recognizing the importance of choice and autonomy
within the framework of marriage. This, of course, will probably
be a precedent that will be used when the matter in relation to
the prohibition of marital rape is ultimately heard by the courts.
The essay notes that the judgement was not merely about the
right to equal treatment, but concerned the larger issue of a
woman’s sexuality within marriage.
Both these essays ultimately focus on a larger issue in the
public domain relating to same-sex marriage. Once the courts
recognize the foundational values of marriage as well as the
autonomy inherent in every individual, making the case for
same-sex marriage is the logical next step.

The Individual and the Workplace

Jesus is said to have told the Devil that ‘man shall not live by
bread alone but by every word that comes from the mouth of
God’. That might well be true, but it is tough to imagine being
able to lead the constitutionally guaranteed digni ed life
without bread or, in more recent times, money. Having access to
adequate income is almost a necessary condition to be able to
lead a ful lled life. For most people that income comes from the
work that they do.
The right to work is thus a means to achieve the ful lment of
one’s autonomy. Of course, for most people, the ability to work
also has an intrinsic value. The work that people do de nes
them and often gives their life meaning and purpose, and even if
it doesn’t most people wish that they can do work that interests
them.
For women though, there is a double whammy. First is the
patriarchal bias against women, which results in them getting
lower paid jobs. Secondly, even when they do get the jobs they
look for, there is the ever-present possibility of sexual
harassment. The Supreme Court has had occasion to deal with
these aspects in the cases relating to equality of pay as well as
sexual harassment at the workplace. However, Namita
Bhandare’s essay on the MeToo movement elaborates that
changing the law is not suf cient. She traces the history of the
movement and nds its origins, in India at least, in the Vishaka
case, where the Supreme Court rst laid down guidelines in
relation to sexual harassment at the workplace.
The law, however, has often been a hindrance than an aid for
women. This essay notes that powerful men use and abuse the
very system of law that is supposed to come to the aid of the
disempowered. The MeToo movement was thus born partly as a
consequence of disillusionment with the traditional forms of
justice. It is through the use of alternative mechanisms,
including social media, that justice is sometimes delivered.
It is true that some men will use all the legal loopholes to
avoid accountability. Yet, even in these instances, the law is still
required. Crimes against women cannot simply be condemned
in WhatsApp groups or on social media. They need to be
adjudicated upon in the courts of law. This essay is thus also a
call for the speedy delivery of justice in matters that are pending
before the courts.

The Individual and Religion

Religion has been said to be the opium of the masses. As one of

the oldest societal constructs, it is also one of the most powerful
and insidious means through which society itself has been
shaped and controlled. It is on the battleground of religion that
the clash between the individual and society is at its most stark.
The issue of marriage, as noted above, is an instance of men
asserting their power over women. When religion is added to
the mix, it becomes a heavy and intoxicating cocktail. In that
instance, the ght is not merely portrayed as one between an
individual and society, but as one between an individual and
God. The litigation relating to the prohibition on instant triple
talaq, as examined by Madhavi Divan in her essay, was just such
a case. An argument was raised that triple talaq was an ‘essential
religious practice’ of the Muslim community.
Thus, even though the practice was discriminatory against
women, it was constitutionally protected because it was part of
the freedom of religion. Two of the ve judges in the Supreme
Court Bench accepted this argument. However, the majority
verdict struck down this practice, even though the theme of
gender equality is noticeably absent from a large part of the
judgement. The essay notes that the Court did not fully engage
with other forms of gender discrimination in Muslim law, for
instance, polygamy or other forms of unilateral divorce, and
con ned itself to the ‘low hanging fruit’ of instant triple talaq.
The reason for judicial deference appears to be the reluctance to
delve into matters of personal law through judicial intervention.
A slightly different view on the issue of instant triple talaq has
been proposed by Justice Badar Ahmad in his essay. He points
out that the Shariah is far more malleable than has been
suggested and thus gender justice may be achieved within the
community through reforming the law. This is important
because perceived injustices to women are often cited as a
reason for the imposition of a Uniform Civil Code upon a
community, which may be able to redress issues through
internal reform.
Balancing the rights between gender justice and religious faith
is a delicate task. To always rule in favour of the former may, in
some cases, severely prejudice the latter. One such instance is
the case of the entry of women into the Sabarimala temple.
Women between the ages of 10 and 50 have not been allowed to
enter the temple. This impinged on the rights of women and,
accordingly, the matter went to the Supreme Court. On the
other hand, it was contended that the devotees of Lord Ayyappa
constituted a separate religious denomination. It was also
claimed that this denomination had an essential religious
practice whereby women were not allowed to see the deity since
it was a ‘naishtik brahmacharya’ or ‘eternal bachelor’.
These claims were rejected by the Supreme Court. Mukul
Rohatgi in his piece argues that the Court erred in this ruling. To
always expect rationality in religion, which is essentially a matter
of faith, might be a tough task. His essay traces the history
behind Lord Ayyappa’s temple in Sabarimala. Ultimately, it
notes that the followers of Lord Ayyappa are a distinct
denomination or a subset of Hinduism. Maintaining the sanctity
of the idol as an eternal celibate can only be achieved by
restricting the entry of women. This religious belief has to be
constitutionally protected. While supporting the entry of
women might be a reformative act, it could disturb the pluralist
nature of the Constitution.

CONCLUSION

The cases that form the subject matter of this book are the
result of the adjudicatory process of the Supreme Court. In a
way, the Court, the Constitution and the judicial decision-
making process are inextricably linked. The Constitution
proclaims grand fundamental rights. However, these rights take
shape and have a practical impact only when applied by the
Court on a case-by-case basis. How the Court reads and
interprets those rights is a result of the extremely malleable
judicial process. The methodology employed for the
interpretation of the written text of the Constitution determines
the outcome of the case.
 The wordings of the fundamental rights, like the rights
contained in many constitutions across the world, are
majestically vague. 40 The text of the right is the same for all to
see, but what it means for a particular case depends vastly on
the person reading it. As the persons reading and applying those
rights change, so does the content of that right, even though the
words remain static. Judges will often hold in their judgements
and say that they are merely declaring the law as it is and not
creating any new laws.
However, that does gloss over the inherent creative
component in the interpretative process. As Justice Arjan Sikri
observes in his essay on the concept of ‘dignity’, the underlying
theme of the recent jurisprudence of the Court has been the
attempt to esh out a concept of dignity that values
autonomous choices and the right to self-ful lment. Justice Sikri
notes that the right to dignity, which all of us take for granted, is
not actually speci ed as a fundamental right at all in the
Constitution but has been read into it through a process of
interpretation. This is really creation through the means of
interpretation.
But how does this creation really occur? Interpretation does
not happen in a vacuum. Typically, the process of interpretation
would require the text of the Constitution to be read in
conjunction with the precedent. This process of reading a law in
the context of other laws is not unique or recent, but is a
fundamental feature of all judicial reasoning.
Yet, in a modern, organic constitution, precedent alone will
not determine outcome. The Constitution has to be read in the
context of its underlying egalitarian principles, that is, through
the prism of what is now called ‘constitutional morality’. This
overarching principle of constitutional morality nds a mention
in most progressive judgements and has been used to imbue
rights with greater meaning than their literal text might suggest.
This has been possible largely because the Supreme Court
enjoys a unique prestige and legitimacy in India. There are few
other institutions that are respected as much as it is, even if one
disagrees with its decisions. It has therefore been able to expand
the fundamental rights by relying on the moral authority it has.
The Court regularly intervenes in matters of public interest
through its judgements and orders. In fact, these days, even
casual observations of judges on the Bench make front-page
news.
However, the actual judgements of the Supreme Court and
their impact on society are not fully understood or appreciated
by the general public. Information about the Court’s judgements
are heavily edited by newspapers and electronic media, or in
some cases completely misinterpreted on social media. In the
process of dissemination of information to the public, there is
almost a game of Chinese whispers. The powers of the Court
and what it actually decides gets transformed into something
quite different from what the Court actually held.
It is hoped that this book will help the general public better
appreciate the issues at stake and how the Court shapes the
discussion around them. This is important because the
reformation of society is a largely un nished task. Many
challenges lie ahead and it is only through the understanding of
the working of the institutions of change that we can see a road
map for the future. The voices in this book are not merely those
of legal experts. These are voices that have personally
experienced or seen discrimination at close quarters. Positive
change will only happen when the legal universe inhabited by
the judges listens to these voices and acts in furtherance of the
promises contained in the Constitution.
SEX AND THE INDIVIDUAL
 Pride versus Prejudice
The Struggle against Section 377

SAURABH KIRPAL

What does it mean to be human? What is the relationship

between the State and the individual? These are not merely
metaphysical questions meant to be discussed and debated in
classrooms and lecture halls. They have a real and immediate
impact on how people live, how society is organized, and the
health and happiness of millions. Nowhere is this more apparent
than in the case of the criminalization of ‘carnal intercourse
contrary to the order of nature’, 1 or homosexual acts.
Section 377 of the Indian Penal Code made homosexuality an
offence. It made criminal a sexual act that was founded on
homosexual love, for which a person could be incarcerated for
life. The Indian Penal Code, enacted in 1860, was a legacy the
British left us. We had to wait till 2018 when, nally, the
Supreme Court declared that consensual acts of homosexual sex
would not be a crime. This judgement was passed in the case of
Navtej Singh Johar v. Union of India or the ‘Navtej judgement’. 2
In a way, Section 377 was not only about a sexual act. It was
about so much more. By prohibiting homosexual sexual acts, the
very identity and sense of self-worth of an individual was stripped
away and negated. One was, in a sense, dehumanized. The State,
through the means of coercive criminal law, imposed its version
of morality and its conception of how an individual should
behave. Criminalization was a signal by the State that a
homosexual was not an equal citizen of the country, but was the
child of a lesser god – a deviant.
In reading down Section 377, the Supreme Court has sought to
restore the dignity of the individual and also hold that the State
has no business interfering with the most intimate aspects of a
person’s behaviour and way of living. The judgement is thus not
just a charter of freedoms for the LGBTQ community but also a
beacon of hope for every person who has borne the brunt of
oppression.
This essay will trace the history of the rather odious provision
and its ultimate reading down in the case of the Navtej
judgement.
The Navtej judgement resulted in four separate judgements, all
agreeing with the nal decision to read down Section 377. Yet
each judgement had its own philosophy and ethos, which
encapsulated different arguments and issues surrounding the
LGBTQ community. They each tell a story that relates to the
history of the effort to decriminalize homosexuality, the
constitutional analysis of the issues involved and the future of the
community. The theme of each judgement is neatly captured by
a memorable quote, mentioned in each judgement, ranging from
the literary to the metaphysical, from the political to the
emotive.
So much has been written about the judgement, yet there has
not been an analysis of the judgements separately to explain and
understand the variation of the judicial reasoning contained in it.
Judgements, like judges, are not a monolithic whole. They are, to
use an appropriate analogy, multicoloured like the rainbow. Till
we understand and appreciate this, we cannot fully envisage the
future course of judicial action. This essay is an attempt to
understand the variations in the judicial reasoning.
Deconstruction of the judgements will make us realize that the
cases that arise in the future will also be deeply in uenced by the
beliefs of the judges hearing the cases.

A BRIEF HISTORY OF THE ‘CRIME’

Criminal law in ancient India was never uniformly codi ed and

applied by a central authority gure through the use of coercive
state power. Even though Islam and later Christianity had come
to Indian shores by the 12th and the 15th century respectively,
given the lack of a cohesive state, no uniform criminal code
existed.
In the Hindu tradition, there was no clear cut proscription of
homosexual acts, much less criminalization. The Kama Sutra ,
possibly the authoritative text on matters relating to sexual
desire, categorizes various forms of sexual activities. Sutra 36 of
the text is particularly informative. It talks of oral sex between
males in connection with the word ‘sadharana’, which means
‘ordinary’. This indicates that sex between males was considered
ordinary rather than a form of deviance.
Certain scholars have remarked that the Kama Sutra was not a
symbol of sexual liberation and that same-sex relations were
‘accommodated rather than authorized’. 3 Be that as it may.
Accommodation is a form of tolerance and certainly not an
attempt to criminalize. Similarly, stories of gender uidity
abound in the scriptures and the Puranas. No less than Lord
Shiva and Lord Vishnu ‘in the avatar of Mohini’, the greatest
gods in the Hindu pantheon, were said to have had intercourse
through which a child was born. Shikhandi, a man born in a
woman’s body, was a central character in the Mahabharata and
was responsible for Bhishma Pitamah’s death (Arjuna used
Shikhandi as a shield to short him). Such stories show that in
Hindu mythology, homosexuality was not seen as a perversion
requiring imprisonment.
All this changed not through the evolution of cultural or
religious mores, but through the imported prejudice of the
Victorians. In 1833, during the rule of the British East India
Company, it was decided to set up an Indian Law Commission
chaired by Thomas Babington Macaulay. The draft for the penal
code was revised repeatedly, nally presented to the Legislative
Council, and passed in October 1860. As an aside, it is interesting
to note that in 1860, the Legislative Council consisted of
members elected by the Board of Directors of the East India
Company, and certainly had no Indian members.
Lord Macaulay claimed himself to be a man of great precision.
In a letter to Lord Auckland, the Governor General in Council,
he claimed that the two qualities of a law were precision and
intelligibility. The letter said that ‘a law, and especially a penal
law, should be drawn in words which convey no meaning to the
people who are to obey it, is an evil. On the other hand, a loosely
worded law is no law, and to whatever extent a legislature uses
vague expressions, to that extent it abdicates its functions, and
resigns the power of making law to the Courts of Justice.’ 4
One would have thought that given this devotion to precision,
the offences contained in the Act would have been drafted
carefully and clearly. Indeed this was the case. However, there
was one class of offences that Macaulay found so abhorrent that
it was left delightfully vague. This was the provision that became
Section 377.
In the introductory report, Macaulay stated:
[the acts] relate to an odious class of offences respecting which is it desirable
that as little as possible should be said… [We] are unwilling to insert, either in
the text or in the notes, anything which could give rise to public discussion on
this revolting subject; we are decidedly of opinion that the injury which would
be done to the morals of the community by such discussion would far more
than compensate for any bene ts which might be derived from legislative
measure framed with the greatest precision.

Macaulay’s opinionated homophobia led to a blanket refusal to

phrase the law with precision for fear that it may lead to a
discussion in society. 5 Mere discussion appeared to be an
abomination in the mind of this esteemed law maker. And the
wording of the section was even more curious. The section stated
that ‘whoever voluntarily has carnal intercourse against the order
of nature with any man, woman or animal, shall be punished
with imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years, and shall
also be liable to ne.’ What is therefore almost amusing is that a
law targeted against homosexuals cannot even bring itself to use
the words homosexual or sodomy.
What is now known as Section 377 did not explicitly target
homosexuals. Its use was most common for the persecution of
homosexual activity. 6 In the initial years, only acts of sodomy
were prosecuted and even homosexual acts of oral sex between a
minor and an adult was not seen as a crime as there was no
sodomy involved. 7
This view of the law changed in the early 20th century. In
1925, in a case titled Khanu v. Emperor, 8 a minor was forced to
perform oral sex on an older man. The interpretation of Section
377 was expanded beyond the act of sodomy. The explanation
that was given for the widening of the interpretation of this
provision was that ‘the sin of Gomorrah is not less carnal
intercourse than the sin of Sodom’. This preoccupation with the
act of sodomy and the kingdoms of Sodom and Gomorrah clearly
indicates that this provision was to apply to homosexuality rst
and perhaps other issues as an afterthought. More importantly,
the origins of the ‘crime’ in the Bible were laid bare.
The criminalization of homosexuality was now complete. All
forms of sexual intercourse between members of the same-sex
were now punishable. But the discrimination against the
community did not end there. In 1871, another law called the
Criminal Tribes Act was passed, with the explicit purpose of
‘registration, surveillance and control of…eunuchs’. 9 Eunuchs
who were ‘reasonably suspected of kidnapping and castrating
children’ or committing offences under Section 377 (virtually
every transgender person) were required to be registered with the
local government and also furnish details of their property! 10
Penalties were imposed on registered eunuchs who appeared in
female clothes, danced in public or performed for hire. 11
The Criminal Tribes Act was eventually repealed at
Independence. However, the colonial legacy of Section 377
continued. Even though the former colonial masters
decriminalized sodomy in Britain, 12 no such move ever gathered
much traction in India. It was as though we had forgotten our
rich cultural tradition of tolerance, and fully imbibed the worst
facets of colonial prejudice. Even though the 172nd report of the
Law Commission of India recommended the amendment to
Section 377, the report was met with the same dusty le room
future as most progressive Law Commission reports.
However, though the law stood still, society did not.
Unfortunately, in this case, society seemed to fall further in its
regressive outlook to the issue of homosexuality. The ’80s and
early ’90s were the times of the beginning of the AIDS epidemic.
A bill called the AIDS Prevention Bill was introduced in the
Rajya Sabha in 1989. The provisions of the Bill were extremely
draconian and required medical practitioners to inform the local
health authority of the presence of an AIDS patient; the Bill also
allowed the health authority to question, test and isolate the
patient in hospital. Further, the provision permitted the
Government to seek information about all past sexual partners of
the patient. Though the Bill was eventually dropped in 1991,
discrimination against patients with HIV/AIDS has remained rife.
The LGBTQ community was ostracized even by other
disempowered groups. In 1994, the Sakhi Collective, a lesbian
organization, wrote that they had not received any support from
an Indian feminist organization. 13 Some self-proclaimed
feminists are supposed to have said that there were no lesbians in
India!
This hatred of the LGBTQ community extended to the
political groups as well. The National Federation of Indian
Women, an organization associated with the Communist Party of
India, condemned the holding of the South Asian Gay
Conference, and asked the Prime Minister ‘not to follow Bill
Clinton’s immoral approach to sexual perversions’. 14 An MLA of
the Shiva Sena also wrote a warning letter against the conference.
In 1994, a group of physicians recommended that condoms be
distributed in Tihar jail due to the high reportage of
homosexuality. The prison authorities, however, refused to allow
condoms to be distributed because it would have amounted to an
explicit recognition and even condonation of homosexual acts,
and this would be in contravention of Section 377, IPC. This led
to an NGO, the AIDS Bhedbhav Virodhi Andolan (ABVA), ling
a Public Interest Litigation before the Delhi High Court, calling
for the repeal of Section 377 on the grounds that it violated the
right to privacy. 15
But even though the case was led almost 25 years before the
Navtej judgement, the grounds raised in the petition were almost
prescient. At a time before the Supreme Court had held that
there was a fundamental right to privacy, the petition urged the
Court to strike down the section on the basis that the privacy
rights were inherent in the right to life and liberty recognized in
Article 21 of the Constitution. The petition also alleged that the
section was arbitrary and violative of the equality clause of the
Constitution, particularly since it was drafted in 1833 and was
archaic.
The petition came up for hearing in 2001 and, by then, the
movement had lost some of its momentum. Since the ABVA is
run by unpaid volunteers and since it did not have a full-time
paid lawyer, when the matter nally came up, it failed to appear.
The case was, therefore, unfortunately, dismissed.

THE DELHI HIGH COURT VERDICT

It has been said that in India, the high courts often do more to
protect the civil rights of the citizens than even the Supreme
Court. 16 This was clearly the case, at least initially, in the case of
Section 377. After the dismissal of the petition led by the
ABVA, it took another courageous NGO to le a petition before
the Delhi High Court.
The Naz Foundation was set up in 1994 by Anjali Gopalan and
a few others. The main focus of their work was HIV/AIDS
prevention and care. This being the ’90s, it led them to work
closely with the gay community. In 2000, a young man came to
see them and recounted his horri c tale: He had been forced to
receive electro-shock therapy at a government hospital to be
cured of his homosexuality. When Naz tried to register a
complaint with the National Human Rights Commission, they
were rebuffed as it was pointed out that Section 377 made
homosexual acts a criminal offence. 17
This led the NGO to le a petition in the Delhi High Court
challenging this interpretation. The petition was dismissed at one
point of time by the High Court, which said that since Naz was
not personally affected by the provision, it had no standing to
challenge it. This decision was reversed by the Supreme Court,
which directed the High Court to hear the matter. 18
The case was nally heard by the Delhi High Court in 2009 by
a bench comprising Chief Justice Ajit Prakash Shah and Justice
Muralidhar. The rst interesting feature in the case was the
contradictory stand taken by the Union of India. Those of us who
practise in the courts are not particularly surprised by this. The
government is not a single entity and it sometimes seems that its
various branches act in virtual ignorance of one another.
The Ministry of Home Affairs led an af davit in the Court
supporting the retention of Section 377. The Home Ministry
argued that homosexuality was against public morality and hence
should remain criminal. The National AIDS Control Authority
(NACO) led quite a different af davit, signed by the Under-
secretary to the Ministry of Health and Family Welfare. NACO
stated that AIDS was dif cult to prevent and treat since the
criminalization of homosexual conduct was pushing everything
underground. It therefore sought for decriminalization of Section
377. In the end result, the High Court, in an erudite judgement,
read down Section 377 and said that consensual homosexual
conduct in private was not a crime. 19
The sensitivity displayed by the High Court in its ultimate
judgement was possibly fashioned by its reaction to the abhorrent
allegations of sexual abuse against the LGBTQ community that
had been placed before it. In this regard, the Delhi High Court
judgement is different from even the Navtej judgement of 2018,
which does not explicitly discuss the tremendous violence against
members of the LGBTQ community.
Two particularly striking examples of sexual violence were
mentioned in the High Court judgement. In July 2001, the police
in Lucknow were investigating a complaint under Section 377.
They went to the headquarters of a local NGO called the
Bharosa Trust, which was engaged in the area of HIV/AIDS
prevention amongst the gay community. There they seized
educational material, which they claimed to be pornographic
material, and sex toys. This false story was published with great
relish in the local newspapers. The police then arrested the
director and other employees of the Trust (as well as of cers of
the Naz Foundation, which had an of ce in Lucknow) and
alleged that a sex racket was being run.
The arrested persons were allegedly beaten up by the police
and their of ces were sealed. 20 They spent 47 days in jail before
being granted bail by the High Court. The Chief Judicial
Magistrate as well as the District and Sessions Judge had earlier
denied them bail and held that ‘the work of the accused is like a
curse on society’. The prosecution had urged that the accused
‘were a group of persons indulging in these activities and are
polluting the entire society by encouraging young persons and
abetting them for committing the offence of sodomy’.
Then there was an instance of custodial torture of LGBTQ
persons. In Bangalore in 2004, a eunuch was standing at a public
place dressed in female clothing. A group of young men accosted
her and subjected her to gang rape, forcing her to have oral and
anal sex. She was later taken to the police station where, rather
than being given protection, she was stripped naked, handcuffed
to the window, grossly abused and tortured.
With this background, the High Court rejected the argument
of the Home Ministry as well as some private entities who had all
sought retention of Section 377 citing largely religious reasons.
The Court held that in the case of fundamental rights, if there
was a clash between public morality and constitutional morality,
it was the latter that would prevail. This was possibly the rst
time that the concept of constitutional morality was used by
Indian courts. The elaboration of the concept of constitutional
morality was greater in the Navtej judgement, and is hence
discussed in greater detail later in the essay.
The Court also held that the right to privacy and dignity
required that consensual sexual acts in the privacy of the home
could not be proscribed by law. Of course, privacy did not merely
imply a physical space but also the privacy of a person in the
sense of their dignity. Quoting Justice Albie Sachs of the South
African Constitutional Court, the High Court held ‘for every
individual, whether homosexual or not, the sense of gender and
sexual orientation of the person are so embedded in the
individual that the individual carries this aspect of his or her
identity wherever he or she goes. A person cannot leave behind
his sense of gender or sexual orientation at home. While
recognizing the unique worth of each person, the Constitution
does not presuppose that a holder of rights is an isolated, lonely
and abstract gure possessing a disembodied and socially
disconnected self. It acknowledges that people live in their
bodies, their communities, their cultures, their places and their
times. The expression of sexuality requires a partner, real or
imagined. It is not for the state to choose or to arrange the choice
of partner, but for the partners to choose themselves.’ 21
The High Court eventually read down Section 377 and held
that consensual homosexual sex between two adults in private
was not a crime.
 THE KOUSHAL ABERRATION

The High Court judgement was pronounced on 2 July 2009. Its

effect was electrifying. Anecdotal evidence aside, there was a
substantive shift in the attitudes of persons to their own sexuality
as well as that of society towards them. A study published in
2012 assessed the impact of the Naz Foundation judgement by
interviewing members of the LGBTQ community. 22 It found
that post the judgement, there was increased self-acceptance and
con dence, reduction in police harassment and greater societal
acceptance. The report, however, did nd that there was no
greater acceptance by the family.
The mood in society after 2009 therefore started changing. I
believe the judgement did a lot to accomplish that, as did the
activism of members of the LGBTQ community. Pride marches,
seminars and other sensitization efforts resulted in society
grudgingly accepting the judgement. This also had an effect on
the Government. During the hearing before the High Court, the
law of cer of the Union of India had made outrageous and
constitutionally completely in rm arguments in Court, for which
he was duly chastised by the Court. 23 However, after the
judgement, the Government decided to accept the verdict and
not challenge it in appeal before the Supreme Court.
Though the Government decided not to challenge the High
Court verdict, that did not deter self-appointed guardians of
public morality from challenging it. One part-time astrologer by
the name of Suresh Kumar Koushal sought the permission of the
Supreme Court to challenge the verdict, and was permitted to do
so. All sorts of religious groups then led challenges – there was,
in the case of the hatred of the LGBTQ community, a true unity
in diversity. Even members of the minority community, without
any sense of irony, actually petitioned the Court to emasculate
the rights of another minority!
However, given the fact that the judgement of the High Court
was so well written, the Government had not challenged it and
public opinion had seemed to move on, there was hope that the
Supreme Court would also come down on the right side of
history and uphold the Delhi High Court verdict. That this
would prove to be a false hope is clear from examining the
proceedings before the Supreme Court.
When the case was being heard, one of the judges repeatedly
asked whether a person could ask for a fundamental right to
commit an act that was contrary to the order of nature. This
barely disguised hostility showed the contempt of the Court
towards an oppressed minority. In fact, this nally resulted in the
Court giving gems of dictums in its nal verdict when it held that
‘In its anxiety to protect the so-called rights of LGBT persons and
to declare that Section 377 IPC violates the right to privacy,
autonomy and dignity, the High Court has extensively relied
upon the judgements of other jurisdictions.’
The judges probably felt that the LGBTQ community had no
rights, though how that would square with the most cursory
reading of the Constitution truly baf es the mind. Perhaps if time
had been spent reading Part III of the Constitution (the
Fundamental Rights chapter) rather than expressing disdain on
foreign scholarship, the decision might have been different.
Several other instances should have rung alarm bells. Mr P.P.
Malhotra, the same learned Additional Solicitor General who had
argued the matter before the High Court, now argued in favour
of allowing the appeals even though the Government had
decided not to le an appeal. This was clearly erroneous, and yet
the judges do not seem to have questioned it. When the Attorney
General asked another Additional Solicitor General to appear in
Court and point this out, the judges got visibly upset and said
that they would refuse to take cognizance of the Attorney
General’s instructions! 24
The judgement was reserved on 27 March 2012. Even though
the hearing had had a few hiccups, the lawyers arguing for the
reading down of Section 377 were hopeful. Surely the Supreme
Court would not reverse course on its historic commitment to
human rights. They would await the judgement.
 However, that wait would prove to be very long indeed. The
judgement did not come for weeks or even months. Then a year
passed and there was still no judgement. One of the members of
the Bench, Justice G.S. Singhvi, was due to retire on 11
December 2013. Had he failed to pronounce the verdict then,
the matter would have had to be reheard. So, on that very date,
almost 20 months after the verdict had been reserved, the
judgement was pronounced. 25
The judgement was read out in Court and there was stunned
silence. The Supreme Court had reversed the judgement of the
Delhi High Court and had made millions of Indians criminals
again. The Court had not really decided any of the arguments
based on fundamental rights (possibly because they had forgotten
them given the huge delay). They merely held that it was not for
the Courts but for Parliament to decide on the issue of
decriminalization. 26
The dejection that followed the judgement actually spurred
further growth of the LGBTQ movement. Too many people had
come out and tasted freedom after the High Court judgement.
The activists who for decades had fought for the cause of the
LGBTQ community, as well as the younger generation, got
together to protest the decision of the Supreme Court. A social
media campaign called ‘no going back’, which eventually
morphed into a sort of an umbrella movement against the
Koushal judgement, started.
The Central Government, which had permitted its Additional
Solicitor General to make arguments in favour of the retention of
Section 377, also nally woke up and led a review petition
before the Court. Since the author of the Koushal judgement had
retired, by this point of time, the review petition was placed
before another Bench comprising Justice H.L. Dattu 27 and
Justice Mukhopadhyay. The review was summarily dismissed.
Thereafter the lawyers for the case tried the ultimate legal
recourse that they had – the ling of a curative petition.
A curative petition is a method devised by the Supreme Court
to take a relook at a judgement that has been completely
erroneously decided and is violative of all norms of justice, for
instance, a judgement passed without hearing one of the parties.
28 The jurisdiction of the Court in allowing a curative petition is

extremely restricted because the Court wishes to generally

uphold the nality of its judgement; any other view will possibly
open the oodgates of curative petitions. After all, every losing
party probably thinks that there has been gross injustice in their
case.
In order to discourage its use, the Supreme Court’s rules
require that a senior counsel certify that the curative petition
needs to be led. These certi cates are not easy to come by.
However, in a heartening move, there was a deluge of certi cates
from the top senior counsels of the Supreme Court in the 377
case. This showed a uniform displeasure of the Supreme Court
bar with the decision in the Koushal case. Not only did the senior
counsels give the certi cates, they did another unprecedented
thing: K.K. Venugopal, Ashok Desai, Mukul Rohatgi, Harish
Salve, C.U. Singh, Meenakshi Arora, Shyam Divan and Anand
Grover, to name a few top counsels (three of who were or are
Attorney Generals of India), walked to the Chief Justice’s Court.
There they mentioned the matter of the curative petition to the
Chief Justice and said that the matter related to the soul of both
the Constitution and the Supreme Court, and ought to be heard
in open court. One can only imagine that this had its required
impact because a short order was passed by the judges in their
chamber directing that the matter be listed in Court.
Two further developments had occurred after the decision of
the Supreme Court in the Koushal case. Virtually
contemporaneously, the Court had decided the NALSA case
where the rights of transgender persons were given constitutional
recognition. 29 This was in direct contrast with the decision in the
Koushal case, which had failed to recognize these very rights.
Secondly, the Supreme Court had given its ruling in the privacy
case. In the privacy case, a bench of nine judges had virtually held
the Koushal judgement to be bad law but had not performed the
formal task of overruling the case since the curative petitions
were at that time pending before the Court. 30
Eventually, the curative petitions were referred to a ve-judge
bench. 31 However, there were two problems with the curative
petitions. First, the jurisdiction of the Court in a curative petition
is extremely limited. Even if the Court felt that the judgement
was wrong, they could not correct it unless the error was of an
extreme magnitude. Secondly, none of the petitions before the
Court that were pending had been led by any member of the
LGBTQ community. This was possibly because when the
petitions were rst led in the Delhi High Court in 2001, no
member of the community was willing to come forward.
But things had changed by 2015. Five courageous individuals
got together to le a Writ Petition before the Supreme Court
directly, challenging Section 377, as it impacted their lives. 32
These individuals were not merely people of eminence, but were
ordinary people who, through the dint of hard work, had become
mainstream success stories. They gave a human face to the
problems posed by Section 377. These people were Navtej Singh,
classical dancer; Sunil Mehra, journalist; Aman Nath, hotelier,
Ritu Dalmia, chef; and Ayesha Kapur, businesswoman.
The Navtej Johar case was listed in Court in June 2016. When
the matter rst came up before the Court, it noted that since the
issue was pending in the curative petitions, the petition should be
placed before the Chief Justice. The presumption was that the
case would be heard along with the curative petition.
Even though the curative petitions were referred to a
Constitution Bench in February 2016, not much seemed to have
happened. However, almost suddenly and much to our surprise,
the Navtej Johar petition was listed in the Chief Justice’s Court
in January 2018. At the hearing, the Court noted that the
decisions in the transgender and the privacy case had cast some
doubt on the correctness of the Koushal decision. The case was
directed to be heard by a bench of ve judges of the Court – the
so-called Constitution Bench. 33
 Matters referred to the Constitution Bench of ve judges are
not often heard immediately. This is because of the tremendous
backlog of cases. So, it was presumed that the case would take
quite some time before it would be heard. However, the case was
listed for hearing in Court shortly after the summer vacation in
2018. It was apparent that the Court was keen to deal with the
issues as it was placed for hearing ahead of a raft of matters that
had been pending in the Supreme Court for a much longer
period of time.
The hearing of the case started and it was apparent from the
beginning that the judges were quite sympathetic to the cause of
the LGBTQ community. The Government’s position was not
clear as no af davit had been led in response to the petition.
However, a day after the hearing of the case had started, the
Government led an af davit in Court. Since the UPA
government had been replaced by the NDA government, the
stance that the Government would take was not certain.
However, it was heartening to note that even the NDA
government did not oppose the decriminalization of
homosexuality.
The af davit on behalf of the Government left it to the
wisdom of the Court to decide the matter in the manner that it
thought t. There was a sting in the tail though; the af davit
stated that in case the Court was to decide any issue other than
mere decriminalization (i.e. issues like gay marriage), the
Government would le another af davit in response to that.
The hearing of the case was completed on 17 July 2018. The
wait for the judgement began. In complex constitutional matters,
judgements are expected to take some time to be written,
deliberated and discussed amongst the judges. However, Chief
Justice Misra was due to retire from the Supreme Court on 2
October so the judgement had to be delivered before that time.
On 6 September, the judgement was nally delivered in a
packed courtroom. The Chief Justice said that there were to be
four judgements, all concurring in the outcome. As each of the
judges read the judgements, the euphoria in (and outside) the
Court was increasing. The judgements had not merely read down
Section 377, but had proved to be a charter of rights for the
LGBTQ community.

‘I AM WHAT I AM’

Chief Justice Dipak Misra started his and Justice Khanwilkar’s

judgement by quoting the famous German poet and philosopher
Arthur Schopenhauer, who said: ‘I am what I am, so take me as I
am.’ The import of the poem, as well as that of the judgement,
was to af rm the identity and individuality of members of the
LGBTQ community. The thrust of the judgement of the Chief
Justice was to recognize that a person of alternative sexuality had
the right to choose their own partner.
In a series of earlier judgements, the Supreme Court had
recognized the right of a woman to marry a man of a different
caste 34 or religion. 35 This right to choose one’s sexual partner
was held to be part of the right to privacy and had its
constitutional basis in Article 21 of the Constitution. The
argument, which was accepted by the Court, was that to have
the right to life implied the right to live life with dignity and
autonomy. After all, it is meaningless to say that you have a right
to live your life if that life is stripped of all freedom, individuality
or choice. The right to life has to be meaningful and one of the
most important aspects of that would be the right to live with a
person of your own choosing.
Privacy and autonomy were ultimately parts or facets of the
right to live with dignity. The Court had this to say about dignity:
Dignity is that component of one’s being without which sustenance of his/her
being to the fullest or completest is inconceivable… The purpose of saying so
is that the identity of every individual attains the quality of an individual being
only if he/she has the dignity. Dignity while expressive of choice is averse to
creation of any dent. 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.
Such a situation urges the conscience of the nal constitutional arbiter to
 demolish the obstruction and remove the impediment so as to allow the full
blossoming of the natural and constitutional rights of individuals. 36

Though cast in ornate language, the passage contains the heart

of the reasoning of the judgement. It basically says the following:

1. An individual has the right to live with dignity.

2. The right to dignity contains a right to make a free choice about
one’s self.
3. The law cannot curtail such a choice.
4. It is the obligation of the constitutional courts to ensure that any
invalid restrictions on such choices are struck down.

‘THE LOVE THAT DARE NOT SPEAK ITS NAME’

Justice Rohinton Nariman started his judgement by quoting the

famous lines of Lord Alfred Douglas’s poem ‘Two Loves’. This
poem was sought to be used as evidence against Oscar Wilde in
his trial for gross indecency. 37 The poem is about an older man
who sees two younger men, the rst of whom claims to be Love,
presumably between ‘a boy and a girl’. The second man also calls
himself Love, but is accused by the rst man of not being love,
but shame. At this point, the second man dejectedly says that he
is not shame but love, but a ‘love that dare not speak its name’.
The poem, even though disavowed by Oscar Wilde, speaks of the
ignominy of homosexuality that people dare not even mention its
existence.
This poem captures the essence of the judgement of Justice
Nariman – a judgement with rich historical context but at the
same time one that looks towards the future. It is a judgement
that neatly wraps its value judgements in constitutional theory
and practice.
The judgement also brings out the argument that in our
constitutional democracy, when ascertaining the content of any
right, it is ‘constitutional morality’ that is the touchstone upon
which any law is to be judged. The judgement holds as under:
 It must not be forgotten that Section 377 was the product of the Victorian
era, with its attendant puritanical moral values. Victorian morality must give
way to constitutional morality as has been recognized in many of our
judgments. Constitutional morality is the soul of the Constitution, which is to
be found in the Preamble of the Constitution, which declares its ideals and
aspirations, and is also to be found in Part III of the Constitution, particularly
with respect to those provisions which assure the dignity of the individual.
Given…the right of every citizen of India to live with dignity and the right to
privacy including the right to make intimate choices regarding the manner in
which such individual wishes to live being protected by Articles 14, 19 and
21, it is clear that Section 377, insofar as it applies to same-sex consenting
adults, demeans them by having them prosecuted instead of understanding
their sexual orientation and attempting to correct centuries of the stigma
associated with such persons… The fundamental rights chapter is like the
North Star in the universe of constitutionalism in India. Constitutional
morality always trumps any imposition of a particular view of social morality
by shifting and different majoritarian regimes.

This elevation of constitutional morality as a legal tool nds its

echoes in the other judgements in the 377 case too. Some
commentators question the precise meaning of the term
‘constitutional morality’ and even go on to say that there is no
sanction for such a concept in the explicit text of the
Constitution. This ignores the fact that the Constitution is an
organic document – a living text. Its meaning has to be developed
and expanded with the changing times.
However, there are certain values that the Constitution always
espouses. The ideas of justice, liberty, equality and fraternity
contained in the Preamble and the fundamental rights chapter
are just such values. They form the immutable core of the
Constitution, and these values will always be enforced by the
Court.
Another interesting point about Justice Nariman’s judgement is
the nal order he passed. The judgement directed the Union of
India to give the judgement ‘wide publicity through the public
media, which includes television, radio, print and online media at
regular intervals, and initiate programmes to reduce and nally
eliminate the stigma associated with such persons . Above all, all
government of cials, including and in particular police of cials,
and other of cers of the Union of India and the States, be given
periodic sensitization and awareness training of the plight of such
persons in the light of the observations contained in this
judgement.’
The judgement was thus forward-looking and not merely
reactive. Unfortunately, however, it appears that this direction
seems to have been ignored as no publicity, much less
sensitization and awareness training, appears to have been
undertaken by the Government since then.

DEMOCRACY IS COMING

Justice D.Y. Chandrachud used a song by Leonard Cohen to

make a point about the issues in the case. The song, written by
Cohen in 1992, goes a bit like this:
Democracy
It’s coming through a hole in the air…
It’s coming from the feel
that this ain’t exactly real,
or it’s real, but it ain’t exactly there.

From the wars against disorder,

From the sirens night and day,
From the res of the homeless
From the ashes of the gay:
Democracy is coming…

The precise meaning of the words is not exactly clear. One

reasonable interpretation, however, is about the fact that
democracy is not merely something that’s imposed by a powerful
state or organization. Instead, it is something that often comes
through ‘a hole in the air’, that is, through the small acts of
individuals whose lives need to change. The song seems to
capture the idea of democracy as a participative concept rather
than the majoritarian juggernaut that it is sometimes understood
to be. 38
The judgement is also a testament to the idea of the individual
as the centre of the constitutional rmament who enables
democracy through the protection and enforcement of
fundamental human rights.
 Our Constitution, above all, is an essay in the acceptance of diversity. It is
founded on a vision of an inclusive society which accommodates plural ways
of life. The impact of Section 377 has travelled far beyond criminalizing
certain acts. The presence of the provision on the statute book has reinforced
stereotypes about sexual orientation. It has lent the authority of the state to
the suppression of identities. The fear of persecution has led to the closeting of
same-sex relationships. A penal provision has reinforced societal disdain…
Above all, this case has had great deal to say on the dialogue about the
transformative power of the Constitution. In addressing LGBT rights, the
Constitution speaks – as well – to the rest of society. In recognizing the rights
of the LGBTQ community, the Constitution asserts itself as a text for
governance which promotes true equality. It does so by questioning prevailing
notions about the dominance of sexes and genders. In its transformational role,
the Constitution directs our attention to resolving the polarities of sex and
binarities of gender. In dealing with these issues we confront much that
polarises our society. Our ability to survive as a free society will depend upon
whether constitutional values can prevail over the impulses of the time.

The above passage makes a statement as to the understanding

of the interaction between an individual and the society, as well
as the role of the Constitution and the Court in the course of
that interaction. Each individual is an autonomous person who is
entitled to live free from prejudice and inequality. Society is
envisaged as a pluralistic society – one where we rejoice, rather
than cower in fear of, variety and difference. It is not the role of
society to make life impossible for those who stray from the
norm, but instead, to be inclusive.
The Constitution is, so to say, the holy text; it does not merely
confer rights on individuals but also has the power to transform
the lives of oppressed people. And if the Constitution is the holy
text, the judges would be the high priests. Without a sensitized
and empathetic judiciary, the words of the Constitution would be
empty promises. It was judicial indifference that resulted in
Section 377 being retained on the statute books, and it was the
clear presence of empathy that resulted in Section 377 being read
down.

‘HISTORY OWES AN APOLOGY’

Nowhere was the empathetic attitude of the Court as apparent as
in the judgement of Justice Indu Malhotra. In the memorable
concluding words of her judgement, she said this:
History owes an apology to the members of this community and their families,
for the delay in providing redressal for the ignominy and ostracism that they
have suffered through the centuries. The members of this community were
compelled to live a life full of fear of reprisal and persecution. This was on
account of the ignorance of the majority to recognize that homosexuality is a
completely natural condition, part of a range of human sexuality. The
misapplication of this provision denied them the Fundamental Right to
equality guaranteed by Article 14. It infringed the Fundamental Right to non-
discrimination under Article 15, and the Fundamental Right to live a life of
dignity and privacy guaranteed by Article 21. The LGBT persons deserve to
live a life unshackled from the shadow of being ‘unapprehended felons’.

This was the crux of the matter. The Court recognized that
homosexuality was not some alien concept, but was part of the
human condition and a normal variation of sexuality. Once
sexuality is seen as an integral part of the identity of any person,
to criminalize it is to dehumanize a person and to render them as
a less than equal citizens. Every right that is available to an
average person should also be available to a member of the
LGBTQ community.
But these rights have always been there in the Constitution.
What changed with this judgement was the empathy that the
judges felt with the suffering and discrimination faced by the
members of the community. Empathy enables a person to see the
humanity in another person, and that is the rst step to accord
them the same rights and dignity that we show ourselves. The
ability to place yourself in the shoes of another makes you
understand how the shoe pinches.

CONCLUSION

Homosexual acts are no longer criminal offences as a result of the

Navtej Johar judgement. It is tempting to be cynical and say that
the lives of the people on the street have been largely unaffected
by the judgement and that discrimination against the community
is still rife. Another ground for the cynicism is the belief that the
Courts cannot be consistently relied upon to rule in favour of the
LGBT community when the need so arises.
What such a view fails to appreciate is that few changes in
society are instantaneous. Homophobia was not built in a day and
will not disappear with the ourish of a single judgement either.
After all, judgements are not magic wands that make
homophobes into empathetic individuals overnight. However,
the moral force of the judgement will begin to chip away at the
discrimination faced by the LGBTQ community.
Ultimately, however, the greatest hope for the community lies
with the young. The Delhi High Court judgement made the
LGBTQ community taste freedom. The Supreme Court
judgement has granted the community self-con dence to come
out and demand their rights. Pride marches and social gatherings,
speeches and seminars across the country have seen the increased
presence of out and proud youth. They are not likely to be
pushed back into the closet, at least not without a ght.
Young people, using the power of social media, will change
minds and attitudes of the next generation. In this interconnected
world, images of LGBTQ people are no longer overwhelmingly
negative. Across the world, the gay community is making strident
progress. India will not be left behind.
We Will Always Be Who We Are!

Keshav Suri

Judgement Day: 6 September 2018

It was bright and sunny as I looked out of my window. The sky

was daubed in bright, beautiful hues as though to announce,
‘This is a special day!’ We had to go to the Supreme Court as
this was the day of the judgement on Section 377. My husband,
Cyril, and I were ready in record time, and reached The LaLiT
New Delhi, my family-run enterprise.
I was very nervous. We had witnessed a long-drawn court case,
and weren’t sure if our basic rights would be returned to us, to
the LGBTQ community in India. To have Cyril by my side gave
me con dence. He was one of the main reasons that I stood
where I did – on the precipice of history, ghting for true
equality in our society. I will elaborate more on this later, but
let’s shift focus to the day at hand.
I, along with few close friends – Ishaan Sethi, Devdutt
Pattanaik and advocate Neeha Nagpal, who wrote my writ
challenging the criminalization of homosexuality, reached the
Supreme Court. It is a short journey to the Court from The
LaLiT, but it felt like years had passed by. We stepped out of the
car, without an ounce of knowledge of what was going to
transpire. But I told myself that no matter how the day went, I
was who I was: a worthy human being.
Outside the courtroom, I met media persons, and they all had
one question: Are you hopeful? In my mind, I knew there was
no alternative. We had to win this. The arguments in Court had
been powerful, and had spoken about a just and equal future.
Who could say no to that? So I answered with a resounding
‘yes’. I meant it. Was I anxious, I was asked. Yes, I was, but I
never wavered in my conviction, believing wholeheartedly that
we had the right to be equal in the eyes of the law and society.
I was supremely positive of the judgement going in favour of
the LGBTQ community, and I had already planned a celebration
at Kitty Su, my nightclub at the hotel. But even if that day’s
judgement went against us, I knew I would continue to ght for
our rights till we got full equality in the country we call home.
The freedom to love without the fear of persecution and
judgement is a basic fundamental right. I had decided I would
continue my work to make India more inclusive and to build an
egalitarian world. I had my hotel and the Keshav Suri
Foundation (more on that later) to ensure that marginalized
communities could be aided to lead a respectable life.
We walked into the courtroom and took our place at the back.
The room was packed and the atmosphere was electrifying.
Outside, there were huge crowds, with journalists, community
members and well-wishers lling the grounds. For a long time, I
could only hear the sound of my own heart. I grabbed Cyril’s
hand and was utterly grateful he was there. I couldn’t have done
it without him and needed his support and positive vibes more
than ever.
As the judgement was read out, I was stunned. It is one thing
to have conviction in your dream, and quite another to
experience the grati cation of the same. I had known in my
heart that it would be a favourable outcome, but what I hadn’t
expected was the kind of judgement that came out. I could hear
the sighs and gasps in the quiet courtroom. I was grasping each
and every word as it kept getting better, from one judgement to
another. In my head I was doing somersaults. I was elated and
relieved. I could have kissed everyone in Court that day, I was so
happy. The verdict was delivered with such beauty and purity
that it made all the struggle worth it.
The judges started with a profound quote by German
philosopher Arthur Schopenhauer: ‘I am what I am, so take me
as I am. No one can escape from their individuality.’ Even
British philosopher John Stuart Mill was quoted : ‘But society
has now fairly got the better of individuality; and the danger
which threatens human nature is not the excess, but the
de ciency of personal impulses and preferences.’
It made my heart swell with joy. No one could make us
ashamed any more. We didn’t have to fear the law. The
country’s highest court was standing with us.
After all the judgements had been read, I walked out of the
Court hand in hand with Cyril, relieved, ecstatic and feeling
more alive than ever. Much to the delight of the shutterbugs, I
kissed Cyril right on the steps of the Supreme Court. The
picture made it to several front pages, including that of the
Indian Express . In the hours following, my Twitter and
Facebook feeds showcased the pride our nation felt at the
Supreme Court’s decision.
With mixed emotions, we headed back to The LaLiT, which
was home to me. I wanted to celebrate the day with my team
there, who had stood by me through the years of ghting for the
rights of the LGBTQ community. The team members had
always backed my ideas for awareness drives and innovative
initiatives to encourage equality in society. They openly
welcomed members of the LGBTQ community in the
workforce and made them feel comfortable. It was nally time
for celebration.
Unfortunately, my mother was not in town that day, but the
entire hotel staff was in the lobby of the hotel when Cyril and I
walked in. They welcomed us with a ash mob, and a host of
media channels and journalists recorded the action. The team
broke into a song and dance that went viral on social media. We
also hoisted the pride ag.
The celebrations continued into the evening. I had never
experienced such a sense of liberation – yet the enormity of the
judgement hadn’t quite sunk in! It had been a long journey to
get here, and the real work would now begin…

BEGINNING

I came from a privileged background, but it wasn’t really all that

different from the thousands of other children struggling with
their sexuality. I went to an all-boys Catholic school in Delhi
and was mocked for my mannerisms. I was called every name in
the book. It isn’t easy for a child to fathom why he is being
targeted. I realized there was a perception about me being gay –
even though there was no such vocabulary back then – as all the
female roles in the school plays were given to me. I enjoyed
playing Mother Mary and Goddess Sita as a young boy – it was
my rst experience with drag, with my destiny, which eventually
led me to give birth to my drag alter ego, Kitty Su. Come to
think of it, it was considered okay or ‘natural’ for my school to
initiate us into cross-dressing, but it was not okay for them to
accept homosexuality. Due to a lack of awareness and
knowledge, most schools tend to have a homophobic stance.
Mine did too, but it helped me develop a thick skin.
For my graduation, I went to Warwick, and that was probably
the most closeted time of my life. I was battling with myself
over my identity and also hiding it from the world. Going back,
I want to give that boy a tight hug. Who knew he would come
this far. Or, maybe, he always did! I then attended King’s
College for my master’s degree. Those were better days – I had
shed a lot of weight and become con dent; however, it is hard to
escape the impact of body-shaming if one is subjected to it for
years.
 Eventually, I went to the School of Oriental and African
Studies (SOAS), London, for my Master of Laws degree. I think
at this point I was also buying time before I returned to India, to
my family. Taking that course turned out to be the best decision
of my life. I felt right at home at SOAS. The experiences there
opened my mind. I was ready to take on the world. What I like
about being queer is that we get to choose our family; as queer
people, we eventually nd our tribe. I met mine at SOAS. For
those who do not have family acceptance, let this be a reminder
that you are not alone. Go seek the queer tribe: We are
everywhere! I lost my father to a heart attack during the same
time – it was a sore that will take me much longer to recover
from. It was also the year I had come out to my family, and the
innate sense of guilt after doing that never left me. To live with
that kind of baggage is tough. With all my heart, I thank my
mother and my sisters for all the support they gave me through
that time.
The rst few years of my work experience were basically to
gain love and acceptance and prove to my team members that I
was not sitting in the position I was due to privilege. Eventually,
an idea took shape to start a nightclub that would provide a safe
haven for people from the LGBTQ community. Thus, ‘Kitty Su’
was established. Over the years, the club has become a hub of
thought-provoking change – the mecca of music and inclusivity.
When I returned to India, I had decided that having a place like
Kitty Su was important and necessary, due to many years of
discrimination and lack of safe spaces for the queer community,
especially in a mainstream venue like a hotel. Just like I found
my tribe at SOAS, I wanted the queer youth in India to nd
theirs, by providing them with a safe space to be themselves.

THE TRIGGER

In 2009, the Delhi High Court decriminalized homosexuality

and gave us our freedom, but in 2014 the Supreme Court
Division Bench reversed that judgement and sent us back into
the closet. The 2014 judgement of the Supreme Court haunted
me. The words of one of the judges resonated with me for a long
time and turned into my worst nightmare. He had asked who
these minorities were, and called the LGBTQ community ‘too
miniscule to matter’.
I considered 2014 my spiritual and political awakening. The
Supreme Court order couldn’t be the norm. It had to be an
aberration. To change the order of things, I had to do something
to show this country that we mattered. I decided to raise
awareness about homosexuality. I wanted people to wake up to
the fact that sexual orientation was a natural state of being and
not a ‘bizarre’ or ‘sick’ choice someone makes.
The rst campaign to hit the ground was ‘No Hate’. We used
different accessories in the hotel to deliver the message. The
walls were painted with slogans; coasters in restaurants were
given a new look. The idea was simple. We wanted to let those
who frequented us to know that hate for a community would
take us nowhere. ‘No Hate’ was followed by the ‘Straight but
Not Narrow’ campaign. This was about acceptance, where we
wanted straight men and women to broaden their minds about
the choices at hand for the LGBTQ community. This campaign
also found a place in our hotels.
An incident that shook me to the core after the regressive
2014 judgement was the 2016 shooting at a gay club in Orlando
in the United States by a homophobic bigot. I didn’t consider
myself an activist, but the killing of 49 people and wounding of
another 50 set off something in me. I was shocked that
something as pure as love could lead to such hatred. I decided it
was time I accepted that unless we took drastic steps, such
blatant hate would take over the world. Even through all the
sadness, I was convinced that this could never transpire in India,
but now I wanted to make sure it didn’t even come close to such
an incident taking place. I wanted to speak my heart out; I
wanted to contribute towards changing perceptions.
 I started with educating my team, as I needed them on board
with my plans. We conducted several sensitization workshops
across the hotels to ensure inclusivity was the norm. I began
with spreading knowledge about sexual orientation and equality.
Once my team was sensitized, we launched campaigns to tell
people about our policies and initiatives. We started PureLove
nights, where everyone was welcome. We dedicated Thursdays
to promoting an inclusive environment at the hotel, where
guests shared the space with members of the LGBTQ
community. Our basic intent was to promote the hotel as a safe
space for people from all walks of life.
We started drag shows, which are now a regular feature at
Kitty Su. Our journey of intersectionality began with Violet
Chachki, when she rst came to perform for the sixth
Kittyversary. More than 2,000 people turned up that evening.
She was courageous to come over when homosexuality was still
a criminal offence. Her act inspired many others, as many Indian
queens who were closeted earlier began to perform regularly.
Several international queens have also frequented the Kitty Su
stage, and we are proud to have mainstreamed the art form in
India. We also worked with other marginalized communities
such as the differently abled and acid-attack survivors. We
hosted powerwalks for acid-attack survivors and offered them
internships and jobs. We also aided their surgeries and helped
fund their dream projects. In May 2017, DJ Aamish, at the time
India’s only wheelchair-bound DJ, became a Resident Kitten.
Kitty Su was thus gradually established as a haven.
I want to take this opportunity to talk about my team
member Maahi. The name she had been given at birth was
Humza. Humza joined our workforce at Kitty Su as an associate
in 2014. Soon after, he con ded in his colleagues that he wanted
to undergo a gender transition. I am proud to say that he found
the environment at The LaLiT safe enough to make one of the
most dif cult decisions of his life. Our endeavour to encourage
The LaLiT staff to accept colleagues and guests without the bias
of sexual orientation seemed to have worked. Humza felt
con dent that he would receive the support of his team.
As Humza’s transition to Maahi began in 2016, he didn’t once
waver in his decision or develop a fear of society. His family was
repulsed when he con ded in them. They beat him up and
things escalated to the point where he began to receive death
threats. Without a support system in his family, The LaLiT took
their place for Humza. During that period, I learnt what it
meant to be treated with hormones, what it took to transition.
Apart from the obvious risks that are associated with any
treatment, hormone therapy induces changes in an individual’s
body. For instance, it aids the growth of breasts in trans women
and prompts facial hair growth in trans men. Further, it is a
mental battle for patients as they try to adjust to these changes.
During this challenging time for Maahi, we supported her
nancially and emotionally. We also learnt a lot through her. Her
struggles prompted us to promote our inclusivity practices on a
bigger scale. Time is the biggest healer, and as it progressed,
Maahi found acceptance with her family. She has since moved
on from The LaLiT, but she taught me an incredibly important
lesson in life. Even in our darkest days, we should not stop
loving ourselves and believing in ourselves. Today, there are
more than 12 trans men and women, and more than 100 queer
team members at The LaLiT, across functions and roles. I am
proud of this army that we have!
One action led to another, and I realized I could contribute to
this awakening among the masses. The truth is that heterosexual
love isn’t the only kind of romantic and sexual love that exists. It
was this thought that gave birth to the PureLove campaign at
The LaLiT in September 2017. All our initiatives to bring the
LGBTQ community into the mainstream were part of this
campaign. ‘PureLove’ meant we offered unconditional love,
without judgement.
We started hiring people extensively from the LGBTQ
community as representation is important. Depression is high
among members of the community and one of the primary
reasons for it is the inability to lead a normal life. Jobs and
nancial security are denied to people on the basis of their
sexual orientation. The right to earn a livelihood is universal,
and one should not be denied the same based on caste, colour,
creed or sexual orientation. Helping marginalized groups nd
jobs was one of the biggest challenges I faced. The LaLiT
welcomed marginalized and oppressed communities with open
arms, and ‘all-inclusive’ became our primary mantra, though
inclusiveness for me was never restricted to the LGBTQ
community. We also built gender-neutral washrooms across our
hotels, for guests as well as the staff. We encouraged our
employees to take the LaLiT Equality Pledge, which states
‘Respect for All’. I was thrilled to nd that my team was proud
of our zero-tolerance policy towards discrimination.
The efforts of The LaLiT were slowly catching on, and many
reputed organizations and individuals oated proposals to join
the ght for equal rights of marginalized communities. It took a
lot of effort and several gender sensitization workshops, but The
LaLiT had the distinction of being the only Indian hotel chain in
an elite list of 32 global companies to endorse the United
Nations’ LGBTQ standards. Today, there are almost 300 such
companies.
Our unrelenting pursuit of equal rights impressed the
Saksham Trust for Pride in Chandigarh. We joined hands with
the Trust for the pride parade in Chandigarh in 2018. This was
the rst instance when a corporate entity came on board as a
partner for a pride parade.
Hope becomes a crucial element when talking about
marginalized communities. In order to raise spirits, we
constantly tried to bring on board successful individuals from
marginalized sections of society to inspire others. Chef Chris
Trapani was one such inspirational gure. The celebrated chef
and champion of LGBTQ rights ew down to India and shared
his experiences with an audience at The LaLiT. As the rst
transgender chef to appear on American television, Chef Tripani
spoke about transitioning from a female to a male, and inspired
all by sharing anecdotes on running a successful food truck
company. We also set up a Mediclaim initiative for the LGBTQ
community. Regular interactions with them had made me
realize the need for a change in insurance policies, and we went
all out to make it happen.
I am particularly proud of The Elphie Books series for
children commissioned by The LaLiT. Through this series, we
targeted the written medium and collaborated with content
creators. The purpose of these books was to help mould the
minds of the younger generation, and make them aware of the
ideas of respect, equality and inclusivity. Elphie is a rainbow-
coloured, gender-agnostic character who faces challenges on the
path of understanding and acceptance. Shaping the thoughts of
the next generation can go a long way in changing perceptions in
society.

INSPIRATION

Having someone to look up to makes one’s journey easier.

Through the course of my life, I have met several people who
have motivated me. Their stories have given me the con dence
to pursue my dreams and accept myself.
Cyril has been a big inspiration for me. In 2014, he and I had
known each other for ve years, and were beginning to
understand each other, but didn’t know where our relationship
was headed. Marriage was clearly not on the cards. As the years
passed, our relationship grew from strength to strength, but we
were still circling around the ‘M’ word. I hadn’t led the Writ
Petition yet. We were happy and ‘gay’, and I was constantly
trying to drill it into Cyril’s head that we didn’t need a
certi cate; our love didn’t need a licence. And, more
importantly, it was not legal in India. Cyril said to me, ‘ It is
illegal in your country, not mine!’
This remark opened up a Pandora’s box. Cyril loves India, but
I couldn’t challenge the fact that our love made us criminals in
my country. It made me think deeply about our relationship and
about the LGBTQ status in India. But Cyril pushed me further.
He wanted me to acknowledge the fact that complaining wasn’t
getting us anywhere. It’s not like I was doing anything to change
our status.
I was defensive. What about all the initiatives I had
undertaken at The LaLiT to spread the message of inclusivity?
What about Kitty Su, where we regularly hosted events to bring
the plight of the LGBTQ community forward? PureLove nights
had been one of the biggest success stories, and I was proud of
the drag nights. But Cyril wanted me to look beyond The LaLiT.
What had I done to change anything at the national level? I was
living in a cocoon happy in the thought that my efforts at The
LaLiT would bring about a change in the mindsets of people
across the country. This hit me really hard. I promised myself
that I would look beyond The LaLiT. So I started attending
conferences and visiting other corporates to steer them towards
inclusivity for the LGBTQ community.
In August and September 2017, Cyril and I met lawyers and
nally decided to le the writ. The other part of the story also
had a happy ending. Cyril gave me an ultimatum that
December: We either got married or broke up. So, of course, we
ew to Paris in June 2018, had the most beautiful ceremony,
and I got myself a husband I will love and cherish for life.
Cyril and I wanted to spend this huge moment in our lives
with our immediate family and close friends. We went to Goa in
November 2018. The timing couldn’t have been better. There
were dual celebrations for our nuptials and the Supreme Court
nally striking down Section 377, recognizing that loving
someone wasn’t a crime, irrespective of sexual orientation. Our
wedding celebrations were an intimate affair with a lot of
meaning, not only for us but also for our loved ones who had
witnessed our journey over 10 years. Our families are very
important to us, and they were all there to share the most
beautiful day of our lives. Our respective sisters walked us down
the aisle, with one of them playing the dhol. The ceremony was
of ciated by our mothers, along with India’s rst ever
transgender high priestess. Cyril and I exchanged vows on the
beach with the sunset in the background, and there were happy
tears all around. The night after the wedding, my family had
organized a drag night, with all of us in our best drag out ts,
reliving the ’80s! I performed a dance with my mother. As she
smiled and danced elegantly with me, I realized how fortunate I
was. To get the kind of love, support and blessings Cyril and I
have received is not something we will ever take for granted.
It may be a cliché, but I wouldn’t be here without my mother
and three sisters. They say that parents love their children
unconditionally but it surely can’t come easy. My mother, Dr
Jyotsna Suri, has always been by my side. In my hour of need, in
my darkest hours, she has stood by me like a rock and helped
me through troubled waters. My work and approach to
conventional living didn’t bother her. She wanted nothing more
than my happiness and accepted me just as I was.
My mother’s acceptance wasn’t just of me, her son, but also of
the cause, the movement. She pushed and supported my every
endeavour and worked towards my inclusive ideology. She is my
icon, and the centre of my calm. And then there is my band of
sisters – Divya, Shradha and Deeksha. They have been a part of
every major decision in my life, and I wouldn’t have had the
strength to embrace and love myself if I didn’t have their
unconditional love. While I couldn’t be happier in my personal
life, it does not escape me that everyone isn’t as lucky. In India,
you cannot be with someone you love even though Section 377
has been struck down recently. Gay marriage is still a far-off
dream as the Indian legal system does not yet recognize same-
sex marriages.
I was supremely impressed by the petitioners in the rst Writ
Petition led in the Supreme Court: Navtej Johar, Sunil Mehra,
Aman Nath, Ritu Dalmia and Ayesha Kapur. They understood
their position as in uencers in society, and had decided to use it
for the larger community. But the rst petitioner against Section
377 was Anjali Gopalan, a human rights and animal rights
activist, and the founder of the Naz Foundation, an NGO
dedicated to ght HIV/AIDS in India. The Naz Foundation led
a writ against Section 377 in 2001. She led the cause when few
thought about it. A powerhouse of energy, she continues to be a
source of inspiration and support to many.
Navtej Singh Johar, a Sangeet Natak Akademi awardee and
Bharatanatyam dancer, was the rst to take the plunge in 2014.
Highly skilled and respected in the LGBTQ community, he
wanted to be the voice of change. Sunil Mehra, a senior
journalist, storyteller and yoga instructor at Studio Abhyas,
joined the ght for basic human liberties with his partner
Navtej. Celebrity chef Ritu Dalmia also decided to become a
voice for change in India. Ayesha Kapur was a successful
businesswoman. The co-founder and co-chairman of the
Neemrana Hotels, Aman Nath, was a mate from the same
industry. It was an added bene t that I had known him for most
of my life. I looked up to him in a lot of ways and drew
inspiration from his choices. Together, we have been comrades-
in-arms in our ght for the cause.

The Impact

I launched the Keshav Suri Foundation with a mission to

empower and bring into the mainstream the LGBTQ
community. For the launch event, ‘Queering the Pitch’, we
collaborated with the Federation of Indian Chambers of
Commerce and Industry (FICCI) to reach out to corporates and
a larger audience. This tie-up would never have been possible
before the judgement, but now a door was open.
Since its inception, the Foundation has been working tirelessly
to raise awareness about the plight of the LGBTQ community.
We also have on board counsellors who help individuals and
families during the tricky phase of their coming out, and any
other psychological support they need as they navigate their
sexuality.
 Raising awareness, though, is only the rst step. The
Foundation also works closely with members of the community
to empower and aid their quest of being incorporated into
mainstream society. Financial independence is the rst step
towards this goal. It may be miniscule, but we are offering
scholarships to transgender students at our hospitality school.
We want people to stand on their feet, and we want to do our
best to help as many people as possible earn a respectful
livelihood. At The LaLiT we have hired, worked with and
skilled more than 100 queer people, and Kitty Su continues to
be the only platform to have mainstreamed drag.

WHAT NEXT?

I have always felt that love is too beautiful to be hidden in a

closet. We have still not destroyed the boundaries but, thanks to
the Supreme Court judgement in 2018, we have surely blurred
them. Each step we take towards an equal society helps blur the
boundaries between ‘us’ and ‘them’. It’s taken time, the blood
and sweat of thousands of people, uncountable hours in
courtrooms, but the verdict made me and countless others free .
I am no longer labelled a criminal for the purest of acts: LOVE.
It is strange that a country that is home to the Kama Sutra took
so long to grant LGBTQ people their basic civil liberties. But
now I no longer have to live under the fear of being falsely
prosecuted by the law. We no longer have to wake up feeling
like criminals. One can’t imagine the toll this law has taken on
the mental health of the LGBTQ community and their families.
The sixth of September 2018 will always be celebrated as a
day of pride in India. Chief Justice Dipak Misra’s iconic words
from his landmark verdict have laid the foundation for an
inclusive society. But we have only just scratched the surface,
and there are miles to go before we sleep. The battle ahead is
more personal and complicated. It is a battle for acceptance, for
equal rights. The challenge now is to change individual
perceptions. A law or government ruling can’t force the society
into acceptance. Women fought a long time for equal rights, and
continue to do so.
One big thing the verdict helped us with, though, was
acceptance within . The story of Dutee Chand is a powerful one.
She is an incredible talent on the Indian athletics circuit and has
already fought a long battle to compete as a woman because of
her androgen levels. The Supreme Court verdict helped her
come out of the closet. She became the rst Indian athlete to
acknowledge being in a same-sex relationship. It requires
immense guts to tell the world the truth, especially for someone
coming from a rural background. Dutee’s status as a role model
will inspire many to do the same. Her rural roots also helped
spread the story beyond the tier I, II and III cities. We hit the
regional masses with her revelation, and that is the next step –
we need to penetrate the masses and not let the narrative be
restricted to the elite and urban communities.
There has been a tremendous amount of support in the last
few years, but it is still too early to gauge the impact of
decriminalizing homosexuality. Further, a lot needs to change
when it comes to marriage, health care, family care, adoption,
inheritance and property rights for LGBTQ people. That is
where change is needed next.
While the courtroom battle was essential and got the ball
rolling, the real one begins now. Our struggle moves from the
bedroom, as it were, to the kitchens and the boardrooms. The
Supreme Court in its verdict asked for respect for the LGBTQ
community, and highlighted the freedom of choice. If basic civil
liberties are granted to the LGBTQ community, then the next
logical step is economic freedom. LGBTQ people need equal
opportunities in jobs, and should not be rejected on the basis of
their sexual orientation.
To ensure inclusion comes to the corporate sector, we have set
up the Diversity and Inclusion (D&I) Task Force in collaboration
with FICCI. For the rst time ever, FICCI has opened its doors
to two openly queer people as chairs for this purpose – Radhika
Piramal and me. With a threefold agenda – gender diversity,
inclusion of people with disabilities, and notable representation
from the LGBTQIA+ community, the D&I Task Force is sure to
bring a positive change into the corporate world.
I strongly feel corporate India needs to step up to empower
the community and bring it into the mainstream. The LaLiT has
been supporting job fairs like RISE and Q-rious to help more
and more LGBTQ youth to get employment. My foundation has
also collaborated with Stonewall UK and Pride Circle to bring
the Workplace Equality Index to India. These are small but
strong steps and I am sure they will go a long way in bringing
about economic equality.
The most important and trickiest of all, though, is the right to
marry the person you love. Marriage equality is critical when
one mentions choice. If you are given the freedom to choose
your partner, then you should have the freedom to share the
most beautiful day of your life with them too. I can personally
vouch for the intimate joy that is experienced when saying ‘I do’
to the person you love. Unfortunately, I couldn’t do it in my
own country. I had the means to get what I wanted, but not
many can do the same. It is going to be a challenge, one that is
perhaps even tougher than the last. But I have hope and faith. I
plan to continue my ght to be regarded as an ordinary citizen
enjoying every fundamental right that the Constitution gives
me.
 I Am a Chef
Who Happens to Be a Lesbian

RITU DALMIA

Perhaps our greatest distinction as a species is our capacity, unique among

animals, to make counter-evolutionary choices.
– Jared Diamond

There are certain scenes from my childhood that stay with me

till today. They are of the time that everyone called me a boy. I
remember how happy it made me feel, although I did not
understand why I felt this way.
I don’t remember ever playing with dolls, although Barbie
dolls were quite the rage then. Wearing skirts and dresses was
always a struggle, and I used to ght with my mother when she
wanted me to wear them. She could not understand why a 10-
year-old was not interested in dolls or pretty frocks. I had short
hair, loved stealing my brother’s clothes, wore at shoes, and my
aunts would say, ‘How unladylike.’
My brother would tease me and laugh when I was with my
girlfriends; he called us ‘lesbians’ and ‘Sita aur Gita’. I would
giggle right back, not understanding what his remarks meant.
Now, when I look back, I guess he had reasons to do so, for I
would wait by the phone for hours for my best friend to call,
and when she was over at our house, I did not want anyone else
around us.
As I grew older, my attachment to women started bothering
me. I started dating men; I would go out with them and sleep
with them. I grew my hair and wore a salwar kameez every day.
I wasn’t quite sure why I was doing all this; all I knew was that I
did not want anyone to call me a ‘dyke’, a word that people
would use quite often to tease me.
Thankfully, this phase did not last long. After about a year of
trying to be something I was not, I decided that I didn’t care
what others thought of me; I would do what felt right to me. I
knew I was very comfortable with my womanhood, and I did
not need to prove myself to anyone or try and t into a
stereotype.
But I regret my behaviour during this phase of my life; in fact,
it has been my biggest regret. For instance, I did things like
sleeping with men not because I was in love with them but
because I was too afraid to see the truth: I was running away
from myself. It took me time to understand why I had done the
things I’d done.

I’ve been asked when I realized I was a lesbian. In a way it is

strange when people ask you that, because it is not like you just
wake up one day and discover your sexuality. When I look back
now, I realize that the clues had been there all along. I’ve already
shared with you some childhood memories. When I was a
teenager, I used to write poems about girls I had crushes on, and
I remember aching over a friend who had stopped talking to me.
I must have been experiencing my rst love, except that I did
not have the vocabulary for my feelings. Growing up in Delhi in
the ’80s, I did not know any gay women, nor were there movies
or books to help me, so I had no reference point or a way to
gure out what I was feeling.
 I was 23 when I met my future partner, a client at my
restaurant. The rst time I met her, my heart raced, I was dizzy
and I knew then that I had met my Waterloo. Soon after, I had
to move to London for my work, while she continued to live in
Delhi. I remember staying up every night aching for her. I did
not know how to de ne what I felt for her; all I knew was that
my phone bills nearly led me to bankruptcy, and whenever I
came back home I would spend every minute with her!
Finally, when we both mustered up enough courage to voice
what we felt, it was like a dam of emotions had just burst open.
I embraced what I felt, and found myself in a same-sex
relationship. I was happy and accepted it. I nally felt good
enough about myself to be my authentic self. I stopped worrying
about what anyone thought about my identity and whom I
loved and had sex with. It was an unfamiliar sense of happiness,
a sense of relief, a sense of freedom.
My close friends knew about my relationship, but it was very
important that my parents knew about it as well. I was
nancially independent and emotionally strong. I was not
looking for their acceptance or approval, but I needed to share
with them that I was happy, that I had found someone whom I
loved and who loved me back. I told my mother about the
woman in my life casually over a meal one day, and did not get
any reaction whatsoever; in fact, she was very quiet. She did not
talk to anyone for two days and then, on the third day, a box of
mangoes was sent to my partner. This was her way of telling us
that she was happy for us.
My father, on the other hand, never talked to me about it
although he knew about my relationship from my mother. He
always made an effort to speak with my partner whenever she
was over. This was the only way he knew how to react. My dad
passed away two years ago, and although he never mustered up
the courage to speak about it, I knew he had accepted my truth.
We continued our long-distance relationship for three years.
Then, I came back to Delhi to be with my beloved in 2000. And
life changed. When I was living alone in London, we had the
freedom to be ourselves with each other. I would not get
awkward when I held her hand in public, for instance. Delhi, on
the other hand, was a completely a different story.
Homosexuality was a criminal offence in India. We were not
free to love each other.
It made me very sad that I had to be careful expressing
affection for my partner in public in ways that I did not have to
worry about when I was with a man. I had never thought twice
about holding hands or being affectionate with a man when I
identi ed as straight. Now when I was out anywhere with my
girl friend, I always had to think if we were in a place safe
enough to even hold hands. Could I call her ‘honey’ when we
were in a store without getting any strange looks? I hoped that
this reality would change in my lifetime, but it seemed
impossible at the time.
A dismal fact of being gay in India is that women are more
closeted then men. I was running a restaurant in Delhi and we
saw many male couples coming in for a meal, but seeing two
women together was a rarity. (Yes, I can spot two women or
men who are ‘together’!)
It is a common belief that it is much easier for two women to
be together than it is for two men. But I believe the reverse is
true. I feel women have more dif culty accepting their sexuality
than men do, and social conditioning makes things tougher for
them. So it’s harder for women to come out. I have met many
men who lead double lives, who married to please their families,
and live secret lives with their male lovers.
Strangely, ‘lesbian’ has always been a dirty word. Our society
is patriarchal and declaring yourself a lesbian is basically saying
that you don’t need a man, and that goes against everything we
have been taught. The protection of a man, starting from fathers
and brothers and moving on to husbands, has been given
paramount importance. So to be a ‘lesbian’ is sacrilege to all that
Indian society stands for.
When my partner and I started living together in Delhi, we
could hear a lot of whispering around us, well, behind our backs.
I trained myself to rise above this. I was not going to let it bother
me. But then came the time to face some practical problems, for
example, when I took on a life insurance cover and wanted to
name my partner as my bene ciary. I was not allowed to do that;
only a spouse or blood relative could be a bene ciary, I was told.
Then, we wanted to open a joint account for running our home
but oops, we couldn’t do that either. Over time, we had many
properties which belonged to us jointly, and our business was
together, yet there were no clear methods to protect each
other’s rights and assets.
These were small issues that bothered me. Still, I was
oblivious to the law and did not care about it; how did it matter
to me? I was safe, living in my own world, where my friends and
family accepted and even celebrated who I was. To them, my
partner was just that – my partner, someone I loved and who
loved me back, and gender didn’t change anything.
In 2008, I was introduced to a group of lesbians by a friend.
These women were involved in the rst pride march in Delhi.
They casually mentioned that it would be nice if I came and
marched with them. A part of me wanted to go so badly but
another part of me was petri ed. I was already a well-known
chef in the country and I did not want to be labelled. My
partner was dead against it, yet something in me just wanted to
be a part of that march.
I nally went with two straight friends, and loved it. It was the
rst time I saw so many people from the LGBTQ community
gathered together. Of course, the next day I was on the rst page
of the newspapers. But maybe the march was also the beginning
of a change within me.
This newspaper article caused a lot of trouble on the home
front. And suddenly, all my colleagues at work looked at me
differently. My partner was still not out, and she was very upset
about her family and friends joining the dots. I had the media
calling me not to ask for my favourite recipe but to ask who I
was sleeping with. I had never been closeted but, at the same
time, I was not going around wearing a T-shirt saying ‘I like
women’. I was a chef who happened to be a lesbian, not a
lesbian who happened to be a chef!
I was stressed and upset, yet at the same time there was
something in me that had woken up. Around this time, I met
two women from Jharkhand who had been beaten black and
blue by their parents for being in love. Another young girl had
been molested by relatives so that she could be ‘cured’ of her
lesbianism. Suddenly, the rules of the society started mattering
to me.
Funnily enough, during this time I saw a movie called If These
Walls Could Talk about two women who have lived their lives
together, and when one of them passes away, the other has no
right on their property; she is not even able to make medical
decisions about her lover. I bawled like a baby that night,
terri ed and wondering if that is where my partner and I were
heading.
I knew I had to do something, however small; I needed to do
my bit. It started with donating money for the case that was
being fought in the Delhi High Court by the Naz Foundation,
and just keeping myself abreast of what was happening around
me, rather than living in my safe and sheltered life, oblivious to
the reality of the LGBTQ community in India.
Today, when I think about it, I was very lucky that I could
accept my sexuality, for my partner had a much harder time
doing so. At that time, I could not understand why she felt
uncomfortable, but I think I am a lot wiser today and believe
each one has their own personal journey in this matter, and
there is no right or wrong. However, when the law is also against
it, it just makes it that much harder.
Our relationship couldn’t take the strain that we had been
experiencing, and my partner and I eventually separated in
2011. Yet, my mother still has her own relationship with her.
She, who never even nished middle school, and came from a
very conservative Marwari background, accepted her daughter’s
choice and was even happy about it. On the other hand, I know
of so many friends whose parents are educated and liberal in
their thinking, and have gay friends, yet struggle to accept their
own child’s sexuality.

In July 2009, the Delhi High Court passed a judgement

decriminalizing homosexuality. Suddenly, my restaurants were
full of same-sex couples, no longer afraid. Between 2009 and
2013, I met more gay people than I had in my whole life, all was
well, and over the next few years I forgot all about Section 377.
I started having more and more people from the LGBTQ
community applying for work at my restaurants; they were no
longer fearful of being persecuted. Soon we had a basketball
team, which later grew into a cricket team, and all was well with
our world.
In December 2013, however, the Supreme Court overruled
the 2009 judgement. We were all criminals once again – the
Court declared that homosexuality was a crime. All the happy
same-sex couples who were out and about went deep into their
closets once again. I was angry, helpless and frustrated. I did not
know what I could do to help the situation.
Around the same time, I was introduced to Menaka
Guruswamy and Arundhati Katju for another legal matter of
mine. Soon they were not just my lawyers but also my friends.
One day in 2015, Menaka and I found ourselves on a ight back
from Goa, and we started talking about Section 377. She
suddenly asked me how I would feel about being a petitioner.
One statement that Justice Singhvi had made, which had
shocked everyone, was that ‘he had never met a gay person in
his life’. So far all the petitioners were NGOs, school teachers
and parents; there was not a single gay or a lesbian who had led
the petition.
I said yes right away, without thinking. I was very angry at that
point in my life. On the one hand, I was being asked by the
Government to come and receive various honours bestowed
upon me for the work I was doing as a chef, and yet at the same
time they were making me a criminal. I felt terrible at this
hypocritical charade. I could be arrested for just being me and
wanting to love a woman. I could no longer sit on the fence – I
really felt that I had to take a stand.
When I spoke about this plan with my family and friends,
everyone begged me not to do it. I was told: ‘Support them
nancially, but don’t put your name to it…do you realize you
are declaring yourself a criminal?’ Someone else said to me: ‘You
are running a business and you are on a board of directors, this
may not go too well for you.’
I turned to Ella, a dear friend – and now my partner – for
advice. Ella had always encouraged me to embrace my sexuality
and be open about it. She was very blunt with me. ‘You have
been moaning and complaining about the law in the country for
years, and now that the time has come, either you do something
about it, or don’t ever complain again.’ My decision was made. I
am many things, but a coward I am not.
There had to be a certain number of petitioners and I started
calling everyone I knew to see if they would le this petition
with us. It was unbelievable to see how much fear people had.
No one was willing to join the petition and it was all due to fear.
Ayesha Kapur, my colleague at work and also a very dear friend,
was a rare woman who agreed to le the petition with me.
Today, if I respect anyone, I respect her: She had not come out
to her father, being an extremely private person, yet she
understood what this meant and took it on without caring about
the consequences. That took a lot of courage and I really admire
her for that as I know how dif cult it was for her.
The next two years were strange for me. I had a constant
barrage of nasty messages being posted on my Twitter account.
Up till now, I was only used to getting fan mail, and to read such
hateful messages really threw me off balance. I had the word
‘lesbian’ sprayed on my car window, a stone was hurled at me, a
man spat at me at the Delhi airport in front of everyone… I was
no longer the darling chef of the country but the dirty lesbian
who had the cheek to le this petition.
Yet, on the other hand, I received so many amazing letters,
notes from boys and girls from all over the country thanking me
and hoping one day they too would be able to come out of the
closet. At one point, all this also became overwhelming. For
instance, I had strangers writing to me telling me that they were
contemplating suicide because they could not live with their
homosexuality, and I was not ready to take on this kind of
responsibility.
Yes, there were times when I regretted my decision, when I
wondered if I had acted foolishly. There was this whole country
full of LGBTQ people: Why did I have to be the one to do this?
I wondered whether I was being foolish like my friends and
family had told me. Perhaps I should have taken an easier route
and supported the movement by giving nancial assistance
without putting myself out there, open to attack and abuse. The
strange part was that after a few agonizing hours of self-doubt, I
always arrived at the same answer: I had done the right thing by
ling the petition, and if I didn’t do anything I had no right to
complain, like Ella had said to me.
Finally, the hearing was scheduled in July 2018. I was in
Mumbai but I was not going to miss this for anything, so I
cancelled all my travel plans and was in Court every morning
sharp at ten.
The next few days were very emotional for me, hearing
Menaka Guruswamy and Saurabh Kirpal present their
arguments. Through each hearing, I sat there laughing and
crying at the same time. It was very moving and extremely
emotional to be there in Court each day. When Menaka gave
her closing statement, I do not think there was a single dry eye
in the entire courtroom. This case was not about an absurd and
irrelevant law; it was about people whose lives were being
affected on a daily basis, and the brilliant team of lawyers
managed to show that to the panel of judges who were
thankfully sensitive and receptive.
 There was hope again, and I dared to have faith in our
judiciary once more. There was the legal aspect to the case but
more than that there was a human aspect, and the legal team
ghting for us were speaking for each and every member of the
LGBTQ community. We were ghting for our right to be
treated like everyone else and not be declared criminals because
of whom we chose to love. The ght felt bigger than me – than
all of us. We weren’t just ghting for ourselves but for thousands
that feared persecution because they dared to love someone of
the same sex.
6 September 2018: It was 6 a.m. in London – where I was on
work – when the judgement was read out in the Supreme Court
of India. I was stunned, shocked and so happy that my jaw
started hurting because I just could not get rid of my smile.
When I had decided to le this petition, I truly did not believe
that I would see a change happening in my lifetime. And on this
day, two years after ling the petition, history was nally being
rewritten. I am not an activist and never wanted to be one; yet
for me this was my life’s biggest accomplishment and nothing
else in my life had ever given me this sense of pride.
In the months after the judgement, I had chefs working with
me who had the courage to come out to me. I would get
stopped by strangers on the road to tell me that they had
embraced their sexuality after the judgement. Parents thanked
me for changing their views and helping them accept their
children’s choices. Chocolates and gifts started pouring in at my
restaurants with thank-you notes… I had done this for myself,
for my pride and for my dignity, without even realizing the
impact it would have on people.
Just the other day, I was reading about Dutee Chand, the
fastest Indian sprinter, who came out of the closet recently and
in one of her interviews said that the judgement of September
2018 helped her overcome her fears and come out gay and
proud. Now something like this is what needs to be marvelled
at: She is a young girl from a small village in Odisha, and a
national star. If someone like her has found the courage to
declare that she is a lesbian, as a result of that incredible day in
the Supreme Court and the striking down of Section 377, I
believe there is a lot of hope for change in the coming years.
We all need to do our bit to help make the inclusion of gay
people into the mainstream easier. We need to feel safe, whether
in our homes, workplaces or society at large. We shouldn’t be
treated as lesser beings because of whom and how we love. I
think what everyone wants is not to be treated differently. The
LGBTQ community needs to just feel like everyone else. They
want to work, pay their taxes and just live normal lives. But for
that to happen the community needs the same opportunities as
everyone else and not be discriminated against because of their
sexual orientation. I have always said that there should not be
any discrimination on the basis of sex, religion and also sexual
orientation. But that also means that there shouldn’t be any
special status either and that everyone should be treated in the
same way.
Today, we have come a long way from the time when we were
treated like criminals for just loving whom we did. But while we
have been successful in getting Section 377 struck down, we still
have a long way to go before everyone from the LGBTQ
community in India feels safe and equal to all.
As I write this, I cannot help but smile to myself, feeling
proud and content knowing I had a tiny role to play in this
change.
 Transgender Rights and Wrongs

JUSTICE M.B. LOKUR

Why did the Beatles sing ‘Sweet Loretta Martin thought she was
a woman, but she was another man’? Did they have a transgender
person in mind or did they feel it had a nice ring to it? No one
knows for sure today, except perhaps Paul and Ringo.
Now, decades later, the rights of transgender people in India
are quite the focus of discussion. A signi cant decision was taken
by the Supreme Court in 2014, 1 and there was expectation and
hope that the judgement would be implemented in letter and
spirit. Unfortunately, it seems that some of that hope has been
dashed by the passage of the Transgender Persons (Protection of
Rights) Act, 2019.
Looking back, how did the issue of the rights of transgender
people even reach the court? And, looking ahead, how has the
Supreme Court’s Transgender Persons Act of 2019 impacted the
previous decision of 2014? Further, what is still needed to bring
the transgender community into the mainstream? We have
answers for a few questions, but there are other questions on this
subject for which there are as yet no meaningful answers. A legal
perspective is certainly necessary, but that is not the only manner
of looking at transgender rights and concerns.
A broad-based social process, including one of integration,
must be set in motion for the desired results. To achieve these
results, society in general and the Government in particular must
take a few forward steps, otherwise transgender people will
regress to where they were in the times of the Ramayana and the
Mahabharata, and ‘get back to where you once belonged’ will
become a cruel reality.

The National Legal Services Authority (NALSA) is undoubtedly

the most important statutory body for providing legal aid and
services to disadvantaged, underprivileged and marginalized
sections of our society. The NALSA Annual Report of 2018
records that a large number of deserving persons have bene ted
through its various schemes. The bene ciaries include persons in
custody, and women in need of legal assistance. There is a
category of ‘others’ (unspeci ed bene ciaries), and during the
year, almost 2,00,000 such persons have bene ted including, I
would imagine, many transgender persons.
Parliament enacted the Legal Services Authorities Act, 1987
and Section 3 thereof constituted the Central Authority, of which
the Chief Justice of India is the Patron-in-Chief and, usually, a
judge of the Supreme Court is the Executive Chairman. Of
course, there are other members too. The Government of India
has constituted the National Legal Services Authority to exercise
the powers and perform the functions conferred on, or assigned
to, the Central Authority under the Act.
One of the more important functions of the Central Authority
is to initiate social justice litigation of special concern to the
weaker sections of society. The rst such litigation initiated by
NALSA related to the protection of the fundamental rights of
abandoned and destitute women/widows in Vrindavan, Uttar
Pradesh, and to prevent abandonment by their children/relatives.
2

Why did NALSA decide to take up the cause of transgender

persons? No record for the decision is available in the public
domain. But an intelligent guess would lead to the conclusion
that NALSA was of opinion that transgender persons constitute
‘weaker sections’ of society in that they too are deprived of their
fundamental rights, which are ordinarily available to males and
females. The more signi cant of these fundamental rights include
equal treatment under the law (Article 14) and the right to a life
of dignity (Article 21).
Because of their circumstances, transgender people are often
shunned or disowned by their family and friends, denied
participation in social and cultural events, and denied access to
education, health services and public spaces. Certain other rights
are also denied or restricted, such as the right to marry, denial of
equal livelihood opportunities such as through employment,
obtaining something as uncomplicated as a driving licence or
possessing an identity card, and so on. The right to vote and
contest elections as a transgender person is legally possible, but
very hard to execute in actual practice.
Therefore, transgendered individuals are faced with not only a
denial of their fundamental rights under Articles 14 and 21 of the
Constitution but also a denial of fundamental rights under
Articles 15 (prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth) and 16 (equality of opportunity
in matters of public employment) of the Constitution.
Effectively, transgendered people are not entitled, as a matter
of right, to equal treatment as men and women only because of
their circumstances. This has resulted in the disempowerment of
the transgender community and led to them being a deprived
section of society. To right this social wrong seems to be the
reason NALSA has addressed the issues confronted by
transgender people in general.
While the concern of NALSA is certainly worthy of emulation,
what was the material before it to come to a prima facie
conclusion that transgender persons needed its umbrella
protection? NALSA had a few historical events to back up its
claims for the intervention by the Supreme Court. It appears that
transgender persons could be registered as voters in the category
of ‘hijras’ by the Election Commission of India; from 1994, they
could vote as males or females but still not as transgendered
people.
For the rst time in 1999, a transgender person named Kamala
Jaan broke the glass ceiling, as it were, and contested an election,
though as a male. She was elected as the mayor of Katni in
Madhya Pradesh. But her election was set aside in 2003 by the
Madhya Pradesh High Court on the grounds that the seat was
reserved for a woman candidate, while Kamala Jaan was
registered as a male, although she referred to herself as a female. 3
Soon after, in 2000, a transgendered person named Shabnam
Mousi contested an election as a female. She was elected to the
State Assembly in a by-election from Suhagpur in Madhya
Pradesh. 4 , 5 However, her entry into and participation in the
State Assembly was anything but comfortable. It is said that one
Radha Krishna Malviya sarcastically asked for her gender, and she
responded by asking him ‘Tu bata, tu Radha haiki Krishan hai?’
(Tell me, are you Radha or Krishna?). A biopic called Shabnam
Mausi was produced on her life in 2007.
A similar ignominy awaited two other transgender individuals –
Asha Devi and Kamala Kinnar. Asha Devi was elected as a mayor
in Gorakhpur, Uttar Pradesh, but was ousted in 2003 as the post
was reserved for a woman. 6 Kamala Kinnar was elected as a
mayor in 2009 in Sagar, Madhya Pradesh, but was unseated in
2011 as the seat was reserved for a woman belonging to the
Scheduled Caste category. 7 When the ‘third gender’ was
eventually recognized as a result of the decision of the Supreme
Court in 2014 on the petition led by NALSA, yet another
transgender, Madhu Kinnar, was elected as the mayor of Raigarh
(Chhattisgarh) in early 2015 8 in the sex category of ‘other’. 9
In addition, NALSA had well-researched documentation for
establishing that transgendered people were discriminated
against, and had occasion to suffer social ignominy. Some of these
articles were personal experiences. Included in the materials
placed before the Court was an Issue Brief of December 2010 by
the United Nations Development Programme (UNDP) titled
‘Hijras/Transgender Women in India: HIV, Human Rights and
Social Exclusion’.
Amid the gloomy scenario facing the transgender community,
NALSA had available with it some positive steps taken by Tamil
Nadu and Karnataka for the bene t of transgendered people. For
example, Tamil Nadu has formulated welfare schemes for them,
including free sex reassignment surgery. A database of
transgendered people was created to assist in the management of
their requirements such as housing, ration cards, voter identity
cards and health facilities.
In fact, a welfare board was constituted for transgendered
people, with of cial and non-of cial members. One of the
functions of the board is to ‘formulate and implement welfare
programme for providing social security and status to the
Transgender in the State of Tamil Nadu’. In Karnataka,
transgender individuals were eligible to avail of reservation in
government and public sector employment and, in fact, insurance
companies provided employment to some as recovery agents.
Even the Karnataka High Court employed a transgender in a
Group D post commensurate with her quali cations.
NALSA also had with it legislation from the United Kingdom,
Australia, the European Union, United States and South Africa.
Case law from the United States and the European Union was
also available. In other words, enough material was ready with
NALSA to approach the Court to grant relief to the transgender
community, equal protection and basic rights as are or have been
made available to male and female citizens of other countries,
and to recognize transgender people as a third category for all
practical purposes, including for education and employment.
Armed with substantial relevant material for making out a case
for relief to the transgender community, NALSA preferred a Writ
Petition in the Supreme Court under Article 32 of the
Constitution. 10 The Writ Petition was admitted for hearing on 1
October 2012.
 Public Interest Litigation (PIL) in India is not treated as
adversarial, primarily since it is entertained in public interest.
This has been the view of the Supreme Court at least since
Bandhua Mukti Morcha v. Union of India 11 wherein it was held in
the context of the prohibition of bonded labour:
There is a considerable body of juristic opinion in our country also which
believes that strict adherence to the adversarial procedure can sometimes lead
to injustice, particularly where the parties are not evenly balanced in social or
economic strength… Therefore, when the poor come before the Court,
particularly for enforcement of their fundamental rights, it is necessary to
depart from the adversarial procedure and to evolve a new procedure [emphasis
mine] which will make it possible for the poor and the weak to bring the
necessary material before the Court for the purpose of securing enforcement
of their fundamental rights.

Proceeding on this basis, the state governments led af davits in

response to NALSA’s Writ Petition. In brief, the views expressed
in the af davits were to the effect that: (i) There is recognition of
the problems faced by transgender people; (ii) The grievances of
and problems faced by transgender people need to be redressed;
and (iii) Remedial steps would be taken (in future) for improving
the living conditions of transgender people.
The views expressed in the various af davits on the record of
the Court, therefore, reveal a rather apathetic attitude of the
state governments. It is important to mention this because a PIL
often does not evoke a positive response from the governments in
terms of actual remedial action – the usual response focuses on
what will be done in future rather than what is being done in the
present.
This was also the general tenor of the response to the Writ
Petition led by NALSA. If there was serious and meaningful
concern for the rights of the transgender community, the state
governments could and should have taken remedial steps even
during the pendency of the proceedings in the Supreme Court
rather than wait for the judgement to be delivered on the subject.
Be that as it may, the PIL resulted in some positive interventions
from a transgender person named Laxmi Narayan Tripathy who,
incidentally, represented the Asia Paci c region in the United
Nations in 2008 where she spoke on the plight of sexual
minorities. Another positive that came out of the litigation was
the submission of the Government of India to the effect that the
Ministry of Social Justice and Empowerment had constituted an
expert committee on issues relating to transgender people. The
judgement in the petition was delivered on 15 April 2014 and
dealt with a variety of issues, including the development of
the law. 12
Historically, the Criminal Tribes Act, 1871 was the rst and
perhaps the only legislation to provide for the registration,
surveillance and control of ‘certain criminal tribes’ and eunuchs.
The statute was divided in two parts, the rst dealing with
‘criminal tribes’ and the second with eunuchs, who were de ned
as ‘all persons of the male sex who admit themselves, or on
medical inspection clearly appear, to be impotent.’ The law
provided for the local government to maintain a register of the
names and residences of all eunuchs ‘who are reasonably
suspected of kidnapping or castrating children, or of committing
offences under section three hundred and seventy-seven of the
Indian Penal Code, or of abetting the commission of any of the
said offences.’ 13
A penalty could also be imposed on a registered eunuch who
appeared ‘dressed or ornamented like a woman, in a public street
or place, or in any other place, with the intention of being seen
from a public street or place…or who dances or plays music, or
takes part in any public exhibition, in a public street or place or
for hire in a private house.’ 14 The signi cance of this statute is
that for the purposes of criminal law, the sex or gender of a
eunuch was irrelevant and there was a pronounced bias in the
assumption of their possible criminality. Fortunately, this law was
repealed in 1949, though the motivating reason appeared to be
for decriminalizing the so-called ‘criminal tribes’ rather than for
bene ting eunuchs.
 As far as the development of the law through court decisions is
concerned, the Supreme Court noted two strands of thought.
The rst strand arises from a decision of a divorce court in
England in Corbett v. Corbett (Otherwise Ashley) . 15 In this case,
Arthur Cameron Corbett sought a declaration that his marriage
with April Ashley, a transwoman, was null and void since she was
a person of the male sex. It had come on record that the
respondent was born a male, but had undergone a sex change
operation. The respondent legally changed her name to April
Ashley and was considered a female for insurance purposes.
However, she was unable to persuade the concerned of cial to
change her birth certi cate. It was held that the biological sexual
constitution of a person is decided and xed at birth. This cannot
be changed through medical or surgical intervention.
Consequently, it was held that the marriage between a man
(Arthur) and a male-to-female transsexual (April) was void ab
initio .
The second strand of thought arises from decisions rendered in
New Zealand in Attorney-General v. Otahuhu Family Court 16 and
in Australia in Attorney General for the Commonwealth v. ‘Kevin
and Jennifer’ & Human Rights and Equal Opportunity
Commission. 17 The decision rendered by the New Zealand Court
did not agree with Corbett and noted that the law in New
Zealand has shifted away from sexual activity to emphasis on the
psychological and social aspects of sex, which are sometimes
referred to as gender issues. It was also observed that ‘There is no
social advantage in the law not recognizing the validity of the
marriage of a transsexual in the sex of reassignment. It would
merely con rm the factual reality.’
It was, therefore, held that there is no legal impediment in a
person marrying as a person of a different sex pursuant to a post-
operative sex reassignment. The Australian case was also one of
post-operative sex reassignment. Kevin (a pseudonym) was born
a female but underwent sex reassignment as a male through
hormonal treatment and irreversible surgery. On the question of
the validity of the marriage between Kevin and Jennifer, the trial
judge took the view that ‘man’ included a post-operative
transsexual (female to male) and the marriage between them was
valid.
In a detailed decision, the view expressed by the trial judge was
upheld on merits, and it was also observed that the nding was
consistent with international law and humanity. A contrary view
would result in injustice to transsexuals and their children, for no
apparent purpose. The issue of a pre-operative transsexual was
not discussed by the Court.
The Indian Supreme Court referred to some decisions from
other jurisdictions, including the European Court of Human
Rights, and concluded that ‘transsexuals, who, whilst belonging
physically to one sex, feel convinced that they belong to the
other, seek to achieve a more integrated unambiguous identity by
undergoing medical and surgical operations to adapt their
physical characteristic to their psychological nature. When we
examine the rights of transsexual persons, who have undergone
SRS [sex reassignment surgery], the test to be applied is not the
“biological test” but the “psychological test”, because
psychological factor and thinking of transsexual has to be given
primacy [rather] than binary notion of gender of that person.’
What is the gender to be assigned to those transgender
individuals who have not undergone surgery or cannot do so due
to some constraint, including nancial constraints and absence of
medical expertise? What about people whose sex cannot be
speci ed at birth? There are persons in India who fall in one or
more of these categories. The Supreme Court considered their
plight from the international law perspective, the fundamental
and human rights perspective and the humanitarian perspective.
Legislations enacted by some countries were discussed by the
Court with a view to appreciate how some jurisdictions have
tackled the legal posers. Provisions of treaties and conventions
such as the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights and the
Yogyakarta Principles were considered by the Court. The Court
took the view, relying on a series of earlier decisions that those
recognized principles not inconsistent but in harmony with the
various fundamental rights must be recognized and followed.
Following up on this, the Court then examined several
fundamental rights including the right to equal treatment under
law (Article 14), prohibition on grounds, inter alia, of sex
(Article 15), equality of opportunity in matters of public
employment (Article 16), freedom of speech and expression
(Article 19 (1)(a)) and the protection of life and personal liberty
(Article 21), which should be interpreted and correctly
appreciated to bene t transgender persons. It was noted that the
law in India only recognizes ‘the paradigm of binary genders of
male and female, based on one’s biological sex.’ 18 But the
Constitution of India does not make any such distinction and
indeed the Fundamental Rights chapter refers to ‘persons’, that
is, human beings, and the term is gender neutral.
On a reading of the Fundamental Rights chapter, the Court
rejected the biological test laid down in Corbett and instead said
that ‘we prefer to follow the psyche of the person in determining
sex and gender and prefer the “psychological test” instead of
“biological test”’. 19 A different view would deprive transgender
individuals of the bene t of welfare schemes and legislations as
well as deny them equal treatment and protection of the law.
On this basis, an insightful conclusion was arrived at, namely
that the constitutional provisions are not limited to the male or
female gender and that ‘gender identity as already indicated
forms the core of one’s personal self, based on self-identi cation,
not on surgical or medical procedure. Gender identity, in our
view, is an integral part of sex and no citizen can be discriminated
on the ground of gender identity, including those who identify as
third gender’. 20
In this manner, the Supreme Court recognized the rights of
transgender persons generally, regardless of whether anyone had
undergone any surgical procedure or not. Quite obviously, the
Court managed to skirt a dif cult ‘moral’ question, and accept a
profound reality.
 In ‘de ning’ a transgender, the Supreme Court unwittingly
accepted the opinion of the Intersex Society of North America,
which takes the view that a transgender person is a female in a
male body or a male in a female body. Transgender people
therefore have a gender identity that does not t the standard
gender binary assigned at birth, where the physiological and
psychological genders correspond. This view is also in line with
the understanding in the Yogyakarta Principles 21 (2006), which
state in the Preamble:
Understanding ‘gender identity’ to refer to each person’s deeply felt internal
and individual experience of gender, which may or may not correspond with
the sex assigned at birth, including the personal sense of the body (which may
involve, if freely chosen, modi cation of bodily appearance or function by
medical, surgical or other means) and other expressions of gender, including
dress, speech and mannerisms…

However, this does not appear to be a universally accepted

view. The European Court of Human Rights is believed to have
noted in 2017 that 22 countries under its jurisdiction required
sterilization as a part of legal gender change. These countries
were ordered to stop that practice. 22 A non-pro t organization,
the World Professional Association for Transgender Health
(WPATH), had written to the Minister for Justice and the
Minister for Health in Japan in 2019 23 to amend the legislation
known as the ‘Act on Special Cases in Handling Gender Status
for Persons with Gender Identity Disorder’. The law provides,
inter alia, for a diagnosis of ‘Gender Identity Disorder’ before a
transgender person can apply for legal recognition of the
appropriate gender.
Some of the objections appear to be that ‘Gender Identity
Disorder’ is considered a mental health issue and a change of
gender must be accompanied by a sterilization requirement. The
Supreme Court of Japan in a decision rendered in January 2019
in the case of Takakito Usui held that the sterilization
requirement is constitutionally valid. 24 WPATH uses ‘the term
“transgender” as an adjective to describe all those who identify as
a gender other than the one that matches the sex they were
assigned at birth.’

What have been the gains from the decision of the Supreme
Court in the NALSA case? As expected, there are some positives,
such as awareness and recognition of transgender rights. It is this
that prompted the state of Kerala to be the rst to frame the
State Policy for Transgenders in Kerala, 2015. The policy employs
the expansive de nition of ‘transgender’ and therefore includes
female to male transgendered individuals, male-to-female
transgendered individuals, and intersex persons.
The policy was framed by the social justice department of the
state of Kerala after understanding the issues faced by transgender
people through a state-wide survey, which covered basic details,
awareness about one’s body, self-esteem, civil rights, access to
health services, and the ability to live with dignity and with
freedom from violence. The survey included a section on
understanding the aspirations, needs and priorities of
transgendered people. The goals and objectives of the policy are
stated to be the attainment of: 25
A just society where men, women, and TGs [transgender people] have equal
rights to access development opportunities, resources and bene ts;
The right to live with dignity and enjoy a life free from all forms of violence;
The right to freedom of expression in all matters that affects them;
Right to equal voice and participation in key development decisions that shape
their lives, communities, and the state.

In keeping with this policy, the Kochi Metro Rail Limited

recruited 23 transgender persons, and gave them the necessary
training and suitable postings. 26 Karnataka framed in 2018 the
State Policy on Transgenders with the objectives of enforcing the
constitutional guarantees of dignity, non-discrimination, equal
access and redress; identifying the responsible state institutions
and departments for implementation; and de ning accountability
measures. The policy document notes that these require
measures (which have been detailed) for empowerment, remedy
and sustainability, and mechanisms for implementation and
accountability.
Sometime in 2008, Tamil Nadu constituted the Tamil Nadu
Transgender Welfare Board for the purpose of formulating and
implementing welfare programmes for providing social security
and status to transgender persons in the state. Subsequent to the
decision of the Supreme Court, Maharashtra followed the lead
taken by Tamil Nadu and constituted the Transgender Welfare
Board in 2019 after a public consultation in 2013 supported by
the UNDP.
The welfare board is tasked with providing formal education
and employment opportunities, conducting health programmes
and providing free legal assistance to transgendered people.
Similarly, the state of Gujarat also constituted a Transgender
Welfare Board in 2019 to increase access to essential services for
transgender people, which included health care, housing,
education and employment.
Institutionally as well, some positive steps have been taken.
Again, by way of example, a Transgender Resource Centre was
established by Delhi University in 2018 to provide educational
counselling for transgendered persons, although the third gender
category was introduced in 2015. Since then, the university has
received about a hundred applications for admission, but it is not
clear how many transgender individuals were actually granted
admission.
In 2018, the Transgender Resource Centre saw between 10 and
15 transgender individuals reaching out for admission-related
information. However, no one enrolled in the regular courses of
the university. The preference is for long-distance education
programmes because, as one transgender person put it, they have
to work for nancial support, and this makes it dif cult to attend
regular classes.
 In 2019, the Centre had plans to introduce an outreach
programme and target a thousand transgender persons. The
Centre proposed introducing an online registration process for
admissions. 27 The 2019 outreach has resulted in one transgender
applying for admission to a regular course in Delhi University. 28
But how these programmes eventually work remains to be seen.
As far as political rights are concerned, in the recent general
elections, thanks to the Election Commission of India, some
transgender persons in Delhi were rather excited about being
able to vote for the rst time as members of a ‘third gender’,
while earlier they were required to cast their vote either as male
or female. 29 According to the Chief Electoral Of cer, a total of
660 transgendered persons were eligible to cast their vote. How
many actually voted is not known.
In Maharashtra, a transgender called ‘Sneha’ Nivrutti Kale
contested the elections as an independent candidate and quite a
few voted in her favour (759). In the entire state of Maharashtra,
1,168 voters were registered as transgender or ‘others’, including
142 rst-time voters in the age group of 18–22 years.
Interestingly, the Election Commission of India noted this
development and appointed Gauri Sawant, a transgender activist,
as its brand ambassador for the state. 30 Apsara (earlier Ajay)
Reddy had completed her higher studies in Australia and
England, and worked as a journalist. She has been associated with
a few political parties and was appointed an of ce bearer of a
national political party in 2018 (perhaps the rst one to be so
appointed). 31
There are several instances of transgender individuals having
succeeded in different elds, but it is not possible to document all
the ‘success stories’. A few of them may be mentioned by way of
examples. Life changed for the better for a transwoman, Gauri
Sawant, after she ‘adopted’ Gayatri, a young girl. Unfortunately,
her efforts to legally adopt Gayatri have not borne fruit despite
the decision of the Supreme Court. 32 She believes that life for
transgender people has not changed for the better even after the
decision of the Court. 33
Ratikanta Pradhan of Kandhamal district joined the Odisha
State Civil Service in 2010 as a male – and was perhaps the rst
transgender person to become a civil servant. The decision of the
Supreme Court enabled her to declare her transgender status
(which was recognized as a special gazette noti cation of the
Odisha government in 2017), and change her name to Aishwarya
Rutuparna Pradhan. 34 In August 2014, a transgender person
called Padmini Prakash, who was disowned by her family when
she was only 13 and had also tried to commit suicide, became the
rst anchor for a daily television news programme. 35
Padmini’s name was suggested for the assignment by another
transgender woman, Rose (earlier Ramesh) Venkatesan, who was
educated in the United States, was a web designer, and had a
master’s in biomedical engineering. Rose was the rst transgender
to host a talk show called Ippadikku Rose (Yours, Rose) in Tamil
Nadu, way back in 2008. 36
Nartaki Nataraj was thrown out of her home when she was
only 11 years old. She became an accomplished Bharatanatyam
dancer and a guru for many others, and was awarded the Padma
Shri in 2019, the third-highest civilian honour in the country. 37

Where do we go from here? There is suf cient work done by the

National AIDS Control Organization (NACO) and UNDP to lay
out a road map for the next steps. ‘Good Practices Post the
Supreme Court Judgement’ is a compendium intended primarily
to provide action points for introducing initiatives similar to
those taken in the states of Chhattisgarh, Kerala, Maharashtra,
Rajasthan and Tamil Nadu, that ‘directly address the
vulnerabilities of Transgender and thus makes them avail social
welfare measures’. The compendium is informative and
exhaustive and provides:

1. An overview of the current activities being taken up by various

state governments to address vulnerabilities;
2. An overview of the process of institutionalizing participation of
transgender people, especially the evolution, functioning of the
transgender welfare boards in states;
3. An overview of the policies framed or in process to mainstream
transgender [people] in the states.

‘Skilling for Livelihood Opportunities for Transgenders in India’

is a publication that makes some very useful and pragmatic
recommendations such as:

1. Effective and functional institutional mechanisms for the welfare

of the transgender community.
2. Transgender community-speci c education and employment
services coordinated through welfare mechanisms (point 1).
3. Policy changes at national and state level to deal with transgender
identity- and address-proof issues.
4. Demand-based modi cations of mainstream education and skill
development schemes for the transgender community.
5. Facilitation of employment for transgender persons.

‘Uptake of Social Protection Schemes by Transgender Population

in India’ is yet another publication that makes worthwhile
recommendations similar to the ones in the publication
mentioned just above.
‘The Report of the Expert Committee on the Issues Relating to
Transgender Persons’ was nalized on 27 January 2014 but for
some reason, it was not made available to the Supreme Court
before the judgement was delivered on 15 April 2014. Be that as
it may, the report is an exhaustive document, and Chapter 13
thereof contains a summary of conclusions and
recommendations. These are placed under the topics relating to
the de nition of transgender people, the issues facing the
community, as well as possible approaches to resolving the issues
relating to employment, health, and so on.
Quite clearly, considerable effort has been put in by NACO
and UNDP in addressing the issues faced by transgender persons,
and nding solutions to those problems. The report of the expert
committee is also an extremely important document and its
recommendations, if implemented, can bring about a huge
societal change in mainstreaming and integrating transgender
persons.
As far as legislative changes are concerned, the betterment of
the transgender community has been pending with Parliament for
quite a few years. Initially, a private member’s bill called The
Rights of Transgender Persons Bill, 2014 was introduced in the
Rajya Sabha on 12 December 2014 and passed on 24 April 2015.
Nothing seems to have come out of this bill.
Instead, the Government of India then introduced The
Transgender Persons (Protection of Rights) Bill, 2016 in the Lok
Sabha on 2 August 2016. The Statement of Objects and Reasons
for the Bill stated:

STATEMENT OF OBJECTS AND REASONS

1. Transgender community is one of the most marginalized communities in

the country because they do not t into the general categories of gender
of ‘male’ or ‘female’. Consequently, they face problems ranging from
social exclusion to discrimination, lack of education facilities,
unemployment, lack of medical facilities, and so on.
2. Though Article 14 of the Constitution of India guarantees to all persons
equality before law, clauses (1) and (2) of Article 15 and clause (2) of
Article 16, inter alia, prohibit in express terms discrimination on the
ground only of sex, and sub-clause (a) of clause (1) of Article 19 ensures
freedom of speech and expression to all citizens, yet the discrimination
and atrocities against transgender persons continue to take place.
3. The Hon’ble Supreme Court, vide its order dated 15 April, 2014,
passed in the case of National Legal Services Authority v. Union of India ,
inter alia, directed the Central Government and State Governments to
take various steps for the welfare of the transgender community and to
treat them as a third gender for the purpose of safeguarding their rights
under Part III of the Constitution and other laws made by the
Parliament and the State Legislature.
4. The Transgender Persons (Protection of Rights) Bill, 2016 seeks [to]:
 a. De ne a transgender person;
b. Prohibit discrimination against a transgender person;
c. Confer the right upon a transgender person to be recognized as
such, and a right to self-perceived gender identity;
d. Issue of certi cate of identity to transgender persons;
e. Provide that no establishment shall discriminate against
transgender persons in matters relating to employment,
recruitment, promotion and other related issues. [There does not
seem to be any clause (e)]
f. Provide for grievance redressal mechanisms in each establishment;
g. Establishment of a National Council for transgender people;
h. Punishment for contraventions of the provisions of the bill.
5. The Bill seeks to achieve the above objects.

The Bill was referred to a select committee, which gave its report
on 19 July 2017. The committee examined several parties
including NGOs, stakeholders and experts. It also examined a
large number of documents, including written submissions made
by individuals, organizations, stakeholders and NGOs, as well as
the decision of the Supreme Court. On an overall consideration
of the issues and material before it, the select committee made
the following recommendations that ‘will have a direct bearing
on the welfare of transgender persons’:

1. In NALSA, the Supreme Court directed the Central

Government and the state Governments to take steps to treat
transgender persons as socially and educationally backward
classes of citizens and extend all kinds of reservation for
admission in educational institutions and for public
appointments. The Bill is silent on granting reservations to
transgender persons under the category of socially and
educationally backward classes of citizens.
2. The Bill does not refer to important civil rights like marriage and
divorce, adoption, etc., which are critical to transgender persons’
lives and realities, wherein many are engaged in marriage-like
relations, without any legal recognition from the State.
3. There should be separate HIV Sero-surveillance centres operated
by the Centre and state governments since hijras/transgenders
face several sexual health issues.
 4. There should be a provision to provide the transgender persons
separate public toilets and other such facilities.
5. There should be counselling services provided to the transgender
persons to cope up with trauma and violence on the model of
Rape and Crisis Intervention Centres.
6. Helping for career guidance and online placement support should
be established.
7. At the end of clause 2(i) in Chapter-I of the Bill, de nition of
‘persons with intersex variations’ should be given as ‘Persons who
at birth show variations in their primary sexual characteristics,
external genitalia, chromosomes, hormones from the normative
standard of female or male body are referred to as persons with
intersex variations’.
8. A provision providing penal action against abortions of intersex
foetuses and forced surgical assignment of sex of intersex infants
should be there in the Bill.
9. A provision for separate frisking zones of transgender persons at
public places such as airport, government and private of ce
complex, etc. should be there. For this purpose, transgender
persons should be appointed.
10. Transgender persons remain at risk of criminalization under
Section 377. The Bill must at the very least recognize the rights
of transgender persons to partnership and marriage.
11. The Bill must recognize transgender persons’ right to marriage,
partnership, divorce and adoption, as governed by their personal
laws or other relevant legislation.
12. A census for transgender persons is a separate exercise from the
drafting of guidelines for self-registration. The Census can be
proceeded with independently. 38

However, with the dissolution of the Lok Sabha, the Bill lapsed.
Now, another act of 2019 has been passed by Parliament and has
been noti ed into law on 5 December 2019. The Act of 2019 has
some improvements over the Bill of 2016, but requires many
more.
 There are at least two serious problems with the Act of 2019.
Firstly, section 4 provides that a transgender person shall have a
right to be recognized as such, and a person recognized as
transgender shall have a right to self-perceived gender identity.
However, section 6 virtually nulli es this by prescribing that
upon receiving an application for a certi cate of identity as a
transgender person, the District Magistrate ‘shall issue… a
certi cate of identity as transgender person after following such
procedure and in such form and manner, within such time, as
may be prescribed indicating the gender of such person as
transgender.’
The form and procedure are still not known and could possibly
be a method of introducing a ‘screening committee’, thereby
violating the principle of self-identi cation recognized in section
4, and also violating the decision of the Supreme Court. In effect,
the determination of one’s gender, something intensely private,
will be outsourced to the bureaucracy.
Secondly, the punishment provided for physical or sexual
abuse against transgender persons is much less than that provided
for comparative offences against women. What is the reason for
this? The constitutionality of the Act has been challenged in the
Supreme Court by India’s rst transgender judge, Swati Bidhan
Baruah. 39 As on the date of writing this essay, the Supreme
Court has issued notice on the petition and will hopefully deliver
a verdict on its constitutionality soon.
While it is not the scope of this essay to critique the bills tabled
in Parliament at different points of time, an organization called
PRS Legislative Research has provided a comparative statement
in the form of a tabulated chart. 40 The exercise carried out is
de nitely a pointer to the need for far greater engagement on the
issues that confront transgender people, and the solutions to the
problems they face. Serious issues have been raised by the expert
committee and the select committee, and they need to be
addressed.
There are some imponderables in a dynamic society that also
need to be visualized, as has recently been evidenced by a
decision of the Madras High Court in Arun Kumar and another v.
The Inspector General of Registration and others . 41 In this
decision, the rst petitioner and the second petitioner (a
transgender) were married according to Hindu rites and customs
and, according to them, it was a valid marriage under the Hindu
Marriage Act, 1955. However, the concerned authority under the
Tamil Nadu Registration of Marriages Rules declined to register
the marriage and an appeal against the decision of that concerned
authority was rejected.
One of the reasons for declining to register the marriage was
that the second petitioner was not a ‘bride’ within the meaning of
section 5 of the Hindu Marriage Act, 1955. The petitioners then
approached the High Court for quashing the orders passed by the
registering authorities and for a direction to them to register their
marriage. While allowing the petition, the High Court noted the
distinction between sex and gender, and relied upon the decision
of the Supreme Court, which took the view that Article 14 of
the Indian Constitution provides that equality shall not be denied
to ‘any person’ and this mandate would therefore apply to
transgender persons too. The High Court held as follows:
Sex and gender are not one and the same. A person’s sex is biologically
determined at the time of birth. Not so in the case of gender. That is why after
making an exhaustive reference to the human rights jurisprudence worldwide
in this regard, the Hon’ble Supreme Court held that Article 14 of the
Constitution of India which af rms that the State shall not deny to ‘any
person’ equality before the law or the equal protection of the laws within the
territory of India would apply to transgenders also. Transgender persons who
are neither male/female fall within the expression ‘person’ and hence entitled
to legal protection of laws in all spheres of State activity as enjoyed by any
other citizen of this country.

Following up on this, the High Court took the view that the
word ‘bride’ in section 5 of the Hindu Marriage Act, 1955 will
have to include within its meaning not only a woman but also a
transwoman as well as an intersex person/transgender who
identi es and perceives herself as a woman.
News has now ltered in of a traditional Bengali wedding
recently performed in Kolkata where both people underwent sex
reassignment. They were surrounded by family and friends. The
times, they are a-changing!

At the end of the day, it can safely be said that the struggle for
recognition of the rights of the transgender community and an
acknowledgement of their gender identity is on the front page.
But awareness alone is not enough. There are recognized
minorities, but the implementation of civil and human rights for
them has made little or no progress.
Women’s rights, child rights and tribal rights are all well
recognized and accepted, but constitutional equality for them is
still a distant dream. The rights of transgender people have, in
comparison, only taken baby steps, and progress is slow but sure.
The optimism of the Beatles who sang ‘The long and winding
road that leads to your door will never disappear’ will remain.
 From the Margins to the
Mainstream

ZAINAB PATEL

He woke this morning

Another night of her dreams

He glanced into the mirror

She’s not real it seems

Society unknowingly accepts

The image presented
Unaware of the damage
Being self-in icted

He hides her for fear of rejection

She battles for her re ection. 1

Transgender people have been present in India for centuries, as

re ected in descriptions in the Kama Sutra, the well-known
ancient Sanskrit text from over 1,500 years ago. A chapter in the
Kama Sutra describes ‘tritiya prakriti’ (third nature), which may
be interpreted to mean any gender outside the binary
male/female gender framework, and includes descriptions of
‘males’ who have long hair and wear dresses, and who provide
sexual services to men. 2
Descriptions of transgender men and women are also found in
the major Sanskrit epics of India, in the oldest surviving epic
poems on earth. Images of transgender people are depicted in
many ancient Indian temple carvings as well. In the 16th and
17th centuries, when the Mughal Empire controlled most of the
Indian subcontinent, transgender people attained special status in
the emperor’s court as political advisors, administrators and
generals, as well as serving as the guardians of women in the
harems. Thus, the concepts of a third gender – that some male-
born and female-born persons desire to identify with a gender
that is different from those assigned at birth, and that
transwomen may engage in sex work – were relatively well
known in India for centuries. From this perspective, transgender
people in India have a longer documented history than most
nations on earth.
Traditionally, hijras have been described as individuals born
with male genitalia, who are ‘neither man nor woman’. 3
However, hijras belong to a complex and heterogeneous group
that includes male-to-female transgender persons who may want
to live sometimes or all the time as women, and both those who
desire a sex change operation and those who don’t want such an
operation.
Recently, the term ‘third gender’ has been used in the
mainstream media to denote transgender people, although some
transgender activists oppose this term for a variety of reasons.
First, not all transgender people wish to be recognized as the
‘third gender’, as some may aspire to be recognized as a man or
woman. Second, some gender-queer-identi ed people feel that
this term merely reinforces the mutually exclusive categories of
gender, going from binary gender to three genders. Third, it is
only assumed that both trans men and women wish to be
combined under the single category of the ‘third gender’. Fourth,
and relatedly, ‘third gender’ is equated with visible
transwomen/hijras, not with transmen. Finally, there is a
hierarchy and devaluation implicit in the term ‘third gender’: rst
gender being man, second being woman, and then, last, ‘third
gender’.
 Although the term ‘hijras’ is known to most transpeople
throughout India, there are several other indigenous terms by
which transpeople, especially transwomen, self-identify. These
terms vary by region in India: Kinnars, Thirunangai (or Aravanis)
in Tamil Nadu, Mangalmuki in Karnataka, Shiv Shakti in Andhra
Pradesh, Jogappa or Jogta in parts of Karnataka and Maharashtra.
4

‘No one would “choose” to be transgender! No one would choose

to have this be the life they live!’ I’ve heard it said over and over
again. To be fair, I’ve probably said it myself. I know the
rhetorical function it serves: It lets the world know that
transgender people face serious and complex discrimination, and
a wide variety of barriers to access of different kinds; it tells
people that being transgender is hard; it says that being
transgender is not a choice.
Society has always been intrigued to know about transgender
people: Who are they? What are their bodies like? Why do they
dress in a particular manner? Why do they have certain
mannerisms? This is apparent in the many news stories and
articles on ‘hijras’, and yet so much is unknown, so much remains
hidden and left to the imagination.
Let me share my own story with you brie y. I was born in
1981 on a cold winter morning in Mumbai, 10 years after my
eldest sister and eight years after my middle sister were born. My
Roman Catholic parents were elated when the doctor announced
the baby born was a male. My mother, a homemaker from
Mangalore, was a devout Catholic. Deeply religious and a doting
parent, she made sure we learnt the important lessons of life and
integrated them into our daily living.
I was a sickly baby, unlike my older sisters. Due to this, I was
perhaps spared the trauma of studying in a boarding school,
while my sisters were not so fortunate and were sent off to a
Christian all-girls boarding school to learn Catholic values and a
disciplined life.
I had a very sheltered life growing up in the by-lanes of Parel, a
lower-middle-class locality in central Mumbai, typically
characterized by its textile mills at that time.
As a young ‘feminized’ male studying in an all-boys school, I
was bullied and harassed all through my school years. I absolutely
dreaded going to school; each day was an absolute torture. I was
verbally, sexually and physically abused for being me, and even
my school teachers and supervisors normalized these events. My
parents then decided that I need to rm up as a person and, more
importantly, as a man. Someone came up with the ingenious
suggestion of sending me to a Catholic seminary school so my
vocation for priesthood could develop. It was all right if I didn’t
marry; I could just be a priest!
And I was packed off to Lonavala to study at a boarding school.
The damp weather and incessant rains made me physically sick
and led to frequent hospitalizations. The daily gym drills,
badminton matches and football training took me to the absolute
edge. Finally, my parents bought me back to Mumbai.
After losing that school year, I attempted suicide about eight
times, and then landed up in the OPD of KEM Hospital,
Mumbai, on Christmas Eve. As a result of my injuries, I lost
control of my peripheral nerves and had to undergo
physiotherapy to recuperate.
I passed school and college, where I began to experiment with
my sexuality. I liked men but as a woman within, not as a man. I
started meeting gay men and transgender people socially, and
realized that there was nothing wrong with me.
Coming from a conservative Catholic family, it was dif cult to
come out to my parents and my siblings. But I mustered up
enough courage and spoke to my mother about it. She just
smiled and said she had always known about me, as well as about
my lovers. We never had a conversation after that; it was a
contract of silence.
 I was a young college student in 2001, and had a wild
rebellious streak in me. I wanted to see meaningful work done for
the LGBTQ community. I joined an LGBT organization in
Mumbai – the Humsafar Trust. This is my alma mater – it
nourished me, strengthened me, made me what I am today.
Ashok Row Kavi and Vivek Anand, the founders of the Trust,
showed immense faith in me, and allowed me to grow both as a
person and as a professional.
It was around this time that we heard in the print and
television news that the police had arrested NGO staff working
on MSM (‘men who have sex with men’) and HIV issues in
Lucknow. The police raided the of ces of the Bharosa Trust and
the Naz Foundation International as they carried out their duties
of educating the community on AIDS awareness and HIV
prevention. Accused of running a ‘gay sex racket’, four staff
members were arrested allegedly for obscenity, conspiracy and for
aiding and abetting an offence under Section 377, IPC. They
were detained for 47 days, sometimes without access to potable
water, clean food and sanitation facilities.
This act of police brutality was in a way India’s Stonewall Riots
moment. The resulting community mobilization and strategic
litigation contributed to what eventually took place in July 2009
– the reading down of Section 377. This 2009 judgement,
however, was overturned in 2013 by the Supreme Court, which
then also dismissed a review plea. It took till 2018 for the
Supreme Court to overturn this judgement and decriminalize
same-sex behaviour.
From the Humsafar Trust, I joined organization ‘A’, a trilateral
aid organization working in Maharashtra on HIV prevention and
care, though we were mandated to work on social issues and
amongst the most vulnerable people – women in sex work,
homosexual men, drug users and migrants.
While working with this institution, which was supposedly
delivering on public health and had a human-rights-based
approach, I’ve personally encountered and witnessed some of the
worst homo- and transphobia. There was an extremely callous
approach towards civil society groups and community leaders
coming from the LGBTQ community; there was insensitivity
around partnerships with these groups; and there was blatant
mockery of people from the LGBTQ community towards other
LGBTQ people (based on real or perceived sexual orientation
and gender identities of persons).
Finally, I got an extremely lucky break to join the United
Nations Development Programme (UNDP India) in August
2009. For a person like me who had never travelled out of
Mumbai, I migrated to the city of djinns – Indraprastha – Delhi in
2009.
To move to a different city and a bureaucratic organization was
a life-changing decision for me. And I met the most amazing
boss, Alka Narang, who helped me grow from a small-time
consultant to the National Programme Of cer. I even got a
chance to serve as the Regional Policy Analyst on Human Rights
at the UNDP, Bangkok. In fact, I am the only out and open
transgender hire in the UN system in India.
In 2012, I realized that it was time to start my transition. I
fought against all odds and started the slow, painful process of
nding the real me. It started with nding a name for myself. I
experimented with ‘Anna’ and ‘Meera’ but then sensed that my
life’s calling, my identity, would also come from a name. I was
also drawn to Shia Islam and came across the name ‘Zainab’ – a
fragrant ower, and the best orator in modern-day Islam. So
Zainab it was.
2019 was the seventh anniversary of my medical and societal
transformation from a body that was born male to the woman,
and related gender markers, that I am legally known as today.
The last 10 years have been a rollercoaster ride for me, from
navigating a known space as an effeminate male to a transgender
woman with her own identity and opinions. Not that I didn’t
encounter resistance or challenges. It was extremely challenging
to transition at the workplace, to nd gender-neutral washrooms,
navigate same-sex partner bene ts, medical insurance, and so on.
 Getting my name and gender right was especially dif cult for
my colleagues, for they had got comfortable with my deadname.
5 Also, I was stereotyped in a different manner – a higher degree

of passing off as a women, being articulate, holding a decent job

and having a social presence made my colleagues, friends and
others start making comparisons between other transgender
persons they met, and me. They used to tell me that if I could be
so successful as a transgender person, so could others.
I had set the bar higher for myself. And the result was that
people around me expected other transgender persons to be like
me . But no one realized that by putting me on a pedestal and
expecting other transgender people to be like me, they had
unknowingly widened the gap in diversity and inclusion. While
this thought may sound good, it is not feasible or even possible.
The kind of life I’ve already led as a transgender person is not
the norm. I’ve been far more fortunate than my less-privileged
transgender brothers and sisters. I have met with ministers,
presidents, bureaucrats, human rights of cials and politicians, and
found it easy to deal with them. I can waltz into meeting rooms
or into public spaces and claim those spaces with con dence. I
can be who I am, but it is not easy, and it is not something every
transgender person can necessarily manage as they come from
varying socio-economic circumstances. And everyone is a unique
and different individual at the end of the day.
I am privileged to be born in India, where the sociocultural
learning system has put special emphasis on the value of gurus in
our lives.
Om agyana timiandhasya gyananjana shalakya
chaksur unmalitam yena tasmay sri guruve namah

(I offer my obeisance to my guru, my master who with the collyrium 6 of

knowledge has opened my eyes blinded by the darkness of ignorance.)

Apart from my biological mother, Montin, two amazing hijras

changed my life. My hijra guru, Laxmi Narayan Tripathi, and my
hijra mother, Gauri Sawant, have had a profound in uence on
my life. These women have ercely protected me, chided me,
egged me on to become who I am today. From Ernest to Zainab,
from a feeble person to a voice, these women were the alchemists
in my life, who turned my base metal into gold, helping me go
through my trials in the furnace of hardships. These three women
have taught me the most profound lessons in life – to follow your
truth, to pursue your happiness, and to have an appreciation for
everyone.
I have been very privileged to transition quickly and safely in
such a supporting community relative to other communities.
Knowing that things could have gone much worse for me, I am
very grateful for the way my life has evolved. And I want to be
able to give back, to become an advocate when necessary. What
can I, what can each of us do to use whatever privileges we may
individually have to stop the violence that is rife in the Indian
LGBTQ community? What can we do about the fact that maybe
daily young transgender persons are kicked out of their home and
have to rely on sex work and begging to stay alive, vulnerable to
being targeted by the police?
A large part of our transgender existence goes into being forced
onto the streets to survive, thanks to society considering us to be
impossible to understand, unemployable, un t for the values of
that society, unhuman. Being constantly harassed and assaulted
on the streets or in jails is traumatic, especially when trans
feminine individuals are thrown into men’s jails. Hospital workers
often refuse to provide any care, much less adequate care, and
the lack of medical care is an issue that especially impacts
transgender persons.
I have met and made many relationships, families of ‘choice’,
brothers and sisters, daughters and ‘chelas’. Our Indian society,
just like others in the world, has coerced many of them into
working in occupations and participating in activities that society
has deemed illegal in order to survive. Only a third of my sisters
are with me today; most have succumbed to AIDS, and some
have died in a way that con rms society’s uncaring attitude: shot
multiple times, stabbed, mutilated, burned, drowned, left to
bleed to death, and ultimately dumped like trash, the ultimate
and unfortunate metaphor of a society that considers transgender
people, especially those on the trans feminine spectrum, to be
nothing but garbage.
These injustices also persist because of the images of
transgender people that pervade the media. Jokes and slurs are
made with trans feminine individuals as the punchline. India,
while celebrating the largest global festival of democracy in the
2019 General Elections, had at least 10 elected representatives
and political persons calling Opposition persons ‘hijras’ and other
such slurs to drive in the point that being a hijra is a sin, an
abomination that continues in life and death. In fact, even
relatives refuse to bury them after their passing as they feel these
individuals bring shame to the family even in death.
All these realities pushed some of us transgender persons to
approach the judicial system to secure our rights. After all, the
right of equality before law and equal protection of the law is
guaranteed under Article 14 of the Indian Constitution to each and
every citizen of the country.
In April 2014, the Supreme Court of India ruled in NALSA v.
Union of India that the rights and freedoms of transgender people
in India were protected under the Constitution. I was one of the
petitioners in this case.
The judgement was immediately considered a landmark, both
in terms of its expansive reading of constitutional rights to
empower transgender individuals, and its wide-ranging directions
that promised to provide equal citizenship to a historically
marginalized group. In its decision, the Court af rmed that the
transgender community was deprived of a range of fundamental
rights. It held that not recognizing gender identity violates the
right to equality (Article 14) and the State has to act to ensure
that the promise of equal protection of the laws applies to
transgender persons as well.
The Court also concluded that discrimination on the grounds
of sex includes ‘gender identity’. It explained that the prohibition
of discrimination on account of ‘sex’ was included in these
articles to prevent the different treatment of people simply
because they do not behave in the way that is expected of their
gender.
The Court went on to say that the right to freedom of speech
and expression (under Article 19 (1)(a)) includes the right to
expression of one’s self-identi ed gender. Since self-identi ed
gender can be expressed through dress, words, action or
behaviour or any other form, a transgender person’s personality
could be expressed by the individual’s behaviour and
presentation. The State thus cannot prohibit, restrict or interfere
with a transgender person’s expression of their personality,
subject of course to the ‘reasonable restrictions’ on the grounds
speci ed in Article 19 (2), i.e. public order, decency and morality.
Furthermore, the Court stated that gender is a very important
part of a person’s identity and that recognition of self-de ned
gender identity is part of the fundamental right to dignity, which
is part of Article 21. The Court had in the past noted that dignity
included the right to express one’s self in different ways. Given
that gender constituted the core of one’s sense of being as well as
an integral part of one’s identity, the recognition of an
individual’s gender identity would lie at the heart of the right of
dignity.
Coming to its order, the Court directed the Centre and the
State Governments to legally recognize gender identity, whether
it is the third gender, or whether it is to do with persons changing
their gender from male to female or from female to male. With
respect to the former, the Court recognized that fundamental
rights are available to the third gender in the same way as they
are available to males and females. For recognizing gender change
from male to female or from female to male, the Court said a
‘psychological test’ should be followed instead of a ‘biological
test’. They also ruled that insisting on ‘Sex Reassignment Surgery
(SRS)’ as a condition for changing one’s gender was illegal.
Finally, with respect to stigma and public awareness, the
Central and State Governments were asked to take steps to
create public awareness so that transgender persons would feel
that they were also part and parcel of the social fabric; they were
also asked to take measures so transgender people could regain
their respect and place in society. Further, they needed to
seriously address problems such as fear, shame, gender dysphoria,
social pressure, depression, suicidal tendencies and social stigma
faced by transgender people.
However, ve years after this historic ruling, I see that various
Indian states are still struggling with how to recognize the self-
identi ed gender of transgender people.
As mentioned earlier, the Court’s declarations are to be read in
conjunction with an Expert Committee Report on Transgender
Persons constituted by the Ministry of Social Justice and
Empowerment. Since the report is quite broad, these already
broad declarations can be seen side by side to push the
Government to do things that are not speci cally mentioned in
the judgement but are mentioned in the report. For example,
recommendations in the report like setting up of crisis centres,
and gender sensitization in institutional settings, can easily be
seen as part of the NALSA judgement’s broad declarations.
In August 2019, the Government of India introduced and
passed the Transgender Rights Bill 2019 in the Lok Sabha. The
Bill was passed by the Rajya Sabha as well, and was enacted into
law by a Presidential noti cation of December 2019. It has now
become an Act. This Act was based on a private member’s bill
that had previously been passed unanimously in the Rajya Sabha.
The Act is supposed to correct in rmities (potential loopholes)
and improve upon the Rajya Sabha Bill.
However, this Act has received widespread criticism from
transgender representatives, activists and legal scholars alike – the
consensus suggesting that it was fully open to the exploitation of
loopholes and misinterpretation, with several activists noting that
the Rajya Sabha Bill passed earlier, though not ideal by itself, was
better and preferable to this one.
Simply put, the Act continues to dwell on unresolved issues:
 1. A person still needs authorization from the State Government to
choose their preferred gender;
2. The Act doesn’t recognize non-biological families – it does not
accept the choices that transgender persons make to form either
guru–chela relationships or other family bonds.
3. The Act reduces the criminal penalties for sexual assault on
transgender persons (6 months to 2 years) compared to cis-
gendered women.
4. The Act remains silent on reservation for transgender persons,
making this Bill purely tokenistic.

To return to a personal note, I want to share that in 2012, I met

my love and life. He swept into my existence, and a fairy-tale
romance started. ‘Prince’, as I fondly call him, proposed one day,
and we got married in South Africa. We are still ghting for the
recognition of our marriage in India and In Sha Allah one day this
will also be a reality. There are many issues that we will continue
to battle in the long ght for the recognition of ourselves, our
civil, political and cultural rights.
Here’s what I have learnt, and what I love about my
transgender life:

1. After so many years of being uneasy in my own skin, I love the

fact that these days I look in the mirror and I recognize myself.
2. I love that I know who my real friends are. The people in my life
love me for ‘me’ and they are committed to my well-being.
3. I treasure the erce hijra community I am a part of.
4. I love the way that being transgender has made me cognizant of
my own privilege in other areas and how to work with that
privilege.
5. I am thankful that my own struggles with nding access to safe
spaces (like bathrooms, dressing rooms, etc.) has made me aware
 of broader issues of accessibility both as a transgender person and
as that of a minority religious group.
6. I am thankful that my experiences with feeling marginalized have
taught me to read various holy books such as the Bible, the
Quran and the Bhagavad Gita, from that perspective which has,
in turn, opened up a world of new interpretation for me.

So, as a transwoman from India who was one of the original

petitioners in the NALSA case, I have seen how far we have
come. I am now working for an international management agency
and am one of the rst transgender directors of human resources
in the Asia Paci c region.
I have been lucky in my journey, but I can also see how much
remains to be done if the civil rights of transgender people in
India are to be protected. We have the absolute and inalienable
right to de ne ourselves, in our own terms and in our own
languages. We have the right to express ourselves and our
identities without fear of violence or retribution. We are human
beings, holders of human rights, and we need to be recognized as
such within the societies we live in. In order to bring a
meaningful change to the lives of this persistently marginalized
population, what I have learnt from my experience in India is
that the Legislature must walk in tandem with the Supreme
Court judgement. As an eminent psychiatrist once said, ‘What is
not brought to consciousness comes to us as fate.’ 7
With all of the struggles I have had nding a place in the world
because of my identity, I don’t think I would trade it for anything
else. This life has taught me so much, introduced me to amazing
people, deepened my faith in ways I couldn’t have imagined, and
helped me to nd peace.
Let me end on a high note; let me end with some Urdu
shayari, which sums up my entire existence:
Manzil toh mil hi jayegi, bhatak kar hi sahi,
Gumraah toh woh hai, joh ghar se nikale hi nahi.
SEX AND THE COMMUNITY
 Love and Marriage

SAURABH KIRPAL

If dignity and autonomy are the pillars of the constitution, there

is no 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. It seems apparent that
both the right to choose a partner and the right to marry are
intensely personal choices over which the State and the
community really ought to have no control.
However, this view ignores the reality that these choices have
rarely been free – both historically and in contemporary times.
The right to choose a partner is often pitted against caste,
community and religious claims. The right to marry is even
more enmeshed in the claims of the community as a state-
sanctioned institution, which gives valuable rights while
according social recognition to a relationship.
There is thus an innate tension between personal autonomy
and dignity, and the rights of the community. In 2019, the
Supreme Court ruled in favour of the individual in two cases.
Both these cases will be examined in this essay to attempt to
understand the nature of the individual choices the Court is
willing to protect. But while the Court may protect the existing
right of an individual to choose and marry a partner, will it also
be as willing to extend that right to persons of alternative
sexuality?

AUTONOMY AND THE RIGHT TO CHOOSE A PARTNER

The Constitution envisages the individual as the primary agent

through which the State engages. The word ‘family’ did not
even appear in the chapter relating to fundamental rights. 1 Of
course, the right to family life has been read into the
Constitution as being part of the right to life. However, it is
important to note that the right to a family life rests in an
individual so as to enable her to live her life with dignity and
autonomy. The collective family does not have any
corresponding rights against the individual. This individualistic
theme in the Constitution has given rise to many cases where
the autonomy and dignity of the individual have clashed with
the demands of the community.
Amongst the rst cases to mention rights to a family and
marriage was the fundamental rights case of H.H. Kesavanada
Bharti v. Union of India. 2 That judgement only had a stray
observation by one judge in a bench of 13 judges that ‘a man
cannot exist, cannot make good his right to marriage or found
his family unless he is entitled to ownership through acquisition
of property’. This early case shows that, initially, family rights
were seen through the lens of property (a fact that does not
seem to have changed all that much over the years).
As society changed and developed, so did the jurisprudence of
the Supreme Court. There were periods when the
Constitution’s focus on the individual gave way to the rights of
the collective. However, there has recently been a strong
resurgence of the individual’s right to dignity and autonomy.
The most famous of these cases is the privacy judgement, 3
which was the precursor to the Aadhaar judgement.
The privacy judgement recognized that an individual does not
lose her identity/character as a separate person merely because
she lives in society. While it is true that to live in society one
must surrender certain freedoms so as to be able to peacefully
co-exist, there remains in an individual a fundamental right to
dignity, liberty and autonomy. The individual was the core of
constitutional focus, and the preambular ideals of justice, liberty,
equality and fraternity were the animators to secure a digni ed
existence to an individual. 4 One fundamental feature of the
right to privacy was the ability to make a choice about one’s life
for oneself. The role of the State was merely that of a facilitator
or enabler, intervening so as to protect the ability of a person to
make choices for herself.
The privacy judgement recognized that life and liberty, being
inalienable rights, were not creations of the Constitution;
instead, these rights were an intrinsic and inherent part of the
human condition. Privacy was a facet of this right – being both a
value in itself as well as a means to achieving other rights
guaranteed by the Constitution. Speci cally, the Court also held
that ‘privacy includes at its core the preservation of personal
intimacies, the sanctity of family life, marriage, procreation, the
home and sexual orientation. Privacy also connotes a right to be
left alone. Privacy safeguards individual autonomy and
recognizes the ability of the individual to control vital aspects of
his or her life.
‘Personal choices governing a way of life are intrinsic to
privacy. Privacy protects heterogeneity and recognizes the
plurality and diversity of our culture. While the legitimate
expectation of privacy may vary from the intimate zone to the
private zone and from the private to the public arenas, it is
important to underscore that privacy is not lost or surrendered
merely because the individual is in a public place. Privacy
attaches to the person since it is an essential facet of the dignity
of the human being.’ (Primary judgement, paragraph 323).
Thus, the Supreme Court has recognized that the right to
choose a partner is fundamental to the human condition. This
freedom should seem obvious, but we know the reality in India
to be different. There are two cases in the recent times where
this choice has been put under severe strain. Both cases re ect
the fault lines along which Indian society is divided.
The rst case is that of Hadiya, a young woman who married
outside her religion, and was loudly proclaimed to be the victim
of ‘love jihad’. The other case is that of khap panchayats, seeking
to regulate marriage between castes and gotras.

Hadiya née Akhila’s case

Hadiya, or Akhila as she was called before she changed her

name, was the only child of Ashokan and Ponamma. She started
a course in homeopathy in Salem, Tamil Nadu, where she
shared a room with two Muslim students, Jaseena and Faseena.
At some point, Ashokan alleged that Jaseena and Faseena, and
their father, Aboobacker, had forcibly converted Akhila to Islam.
This led to Aboobacker being arrested under charges of
promoting enmity between different religious groups.
However, when Ashokan led a case in the Kerala High
Court, Hadiya appeared and said that she had converted to
Islam of her own free will and wished to live away from her
parents. Noting this fact, the High Court allowed her to
continue her studies and live as she wished. 5
This should have been the end of the matter, but was not to
be. Undeterred by the High Court order and his own daughter’s
statement of her wishes, Ashokan moved the Court again,
stating that his daughter was about to be whisked off to Syria.
This time the Court took a different approach. An immediate
interim order was passed restraining Hadiya from travelling
abroad. However, when she appeared before the Court and
reiterated her wish to stay away from her parents, the Court
demurred and allowed her to do so. This reprieve was short-
lived.
When she appeared before the Court later in the proceedings,
the Court directed that she move to the college hostel to
complete her studies. This order was ostensibly passed to ensure
that Hadiya got her professional degree. 6 Her agency, however,
was not fully denied at this stage – she was not compelled to act
as per the dictates of her parents or forced to live with them.
That stripping away of Hadiya’s choice happened next. When
she appeared in Court after being admitted to the college hostel,
she came with a man who she claimed was her legally wedded
husband. She produced a marriage certi cate, which also
recorded that she had changed her name to Hadiya. This
enraged the High Court. Even though Hadiya was present in
Court, the Division Bench refused to interact with her to
ascertain her wishes or enquire about the authenticity of her
marriage. An order was passed directing that she be held almost
incognito 7 in a shelter home while her husband was to be
thoroughly investigated.
The fact of the marriage seemed to have irked the Court. The
Court recorded the reason for its order thus:
It is necessary to bear in mind the fact that the detenue who is a female in
her twenties is at a vulnerable age. As per Indian tradition, the custody of an
unmarried daughter is with the parents, until she is properly married. We
consider it the duty of this Court to ensure that a person under such a
vulnerable state is not exposed to further danger, especially in the
circumstances noticed above where even her marriage is stated to have been
performed with another person, in accordance with Islamic religious rites.

The Kerala High Court ultimately ruled against Hadiya and her
husband, and their marriage was deemed to be a nullity. Even
though she was ‘an ordinary girl with moderate intellectual
capacity’, she was deemed to be gullible to have rst converted
to Islam, and then to have ostensibly married a Muslim man.
The custody of the unmarried daughter belonged to the parents
– in other words, her body and mind were virtually owned by
her parents.
Hadiya’s situation raises a crucial issue in Indian society. Does
an adult woman not have agency over herself and her life? The
Court noted that there were other cases pending before it where
women had been ‘forcibly’ converted to Islam, allegedly through
the fear of going to hell in case she did not convert. The Court
held that Hadiya’s was not a normal case of a man and a woman
belonging to different religions falling in love and marrying,
which it was ‘familiar’ with; this was a case of an arranged
marriage. After her conversion to Islam, Hadiya’s name had
been put on a website 8 and her husband had come forward with
a proposal. The High Court ruled that it was this that set the
case apart from a normal case of inter-religious marriage.
Oddly enough, the Court seemed to be saying that if a
marriage was arranged by a girl’s parents, it was perfectly
acceptable, but a marriage arranged by anyone else was not. As a
parting shot the Court held that ‘Ms. Akhila is the only child of
her parents. There are no other persons in this world, who
would consider the welfare and wellbeing of their daughter to
be of paramount importance than her parents. The nature
provides numerous examples of even animals taking care of and
protecting their progeny sacri cing their very lives for the
purpose. The Homo sapien is no exception… A girl aged 24
years is weak and vulnerable, capable of being exploited in many
ways… A Single Bench of this Court has…taken note of the
functioning of radical organizations pursuing activities of
converting young girls of Hindu religion to Islam on the pretext
of love. The fact remains that such activities are going on around
us in our society. Therefore, it is only appropriate that the
petitioner and his wife, who are the parents, are given custody of
Ms. Akhila.’
The upshot of the above ruling is that the issue was not
merely one of religious conversion; nor was it about the right to
get married outside one’s religion. The Court seemed to worry
that the right of the parents to choose a husband for their
daughter had been usurped by persons of a different religion.
The strands of patriarchy, religious difference and paternalism
(both of the parents and the Court) had created the perfect
storm.
 The matter was carried to the Supreme Court, which set aside
the judgement of the High Court annulling the marriage and
directing Hadiya to remain in the custody of her parents. Two
separate judgements were delivered in the case. A majority
judgement was delivered on behalf of Chief Justice Dipak Misra
and Justice Ajay Manikrao Khanwilkar. There was a separate
concurring judgement by Justice Dhanjay Yashwantrao
Chandrachud. The majority judgement is an impressive analysis
of the writ of habeas corpus – literally a writ to ‘produce the
body’ in court.
The Supreme Court held that the duty of any court was to
ensure that no person was kept in wrongful con nement, that is,
without the authority of law. If a person freely made a choice to
live with someone else, there was no illegal detention and the
enquiry of the Court would end. The judgement of the High
Court was roundly criticized as being based upon some ‘social
phenomena that was frescoed around it’.
The Supreme Court held that the right to choose one’s faith
was central to the idea of individual autonomy. Equally, the right
to choose a partner was also a freedom vested in every adult
with mental capacity. The judgement seemed to consider the
right to choose a partner almost axiomatic. No precedent was
quoted to specify that choice.
Justice Chandrachud held that the choice of a partner
‘whether within or outside marriage’ lay within the exclusive
domain of the individual. This choice of words set up a future
right to choose a partner regardless of marriage as an aspect of
autonomy and dignity. 9 Most importantly, the judgement
admonished the Kerala High Court by stating that it
demonstrated paternalism by straying into a private space
reserved for men and women in which neither the law nor the
judges have the right to intrude.
Hadiya’s case is a rather sordid saga of the abuse of the legal
process. While the Supreme Court ultimately ruled in her
favour, it cannot be forgotten that the Kerala High Court had
ruled that she was incapable of taking decisions on her own,
denying her the capacity to lead a life due to every adult citizen
of the country.
Most young and vulnerable women in our country can barely
afford to go to the police, much less the High Court or the
Supreme Court. In such a social setting, judgements such as the
Supreme Court’s verdict in Hadiya’s case often remain pious
promises on paper.
If religion is a great divider in our country, arguably caste is an
even greater cause of divisions in society. While inter-religious
marriages do encounter social opprobrium, historically, inter-
caste marriages are met with great violence. This is not to say
that inter-religious marriages are easier or are not met with
violence. It is just that inter-caste marriages are potentially more
common since Hindus are the majority religion in India.
In spite of this, the data is extraordinary. As per a study
conducted by the National Council for Applied Economic
Research in 2012, 10 only 5 per cent of marriages were inter-
caste. In states like Madhya Pradesh, Himachal Pradesh and
Chhattisgarh, 98 per cent of the people married within their
caste. Shockingly, only a quarter of the people even knew
someone who had married outside their caste. This last statistic
shows that even if an inter-caste marriage happens, it quickly
goes underground, out of the public glare. This may be through
social ostracization. Often, unfortunately, this happens through
honour killings.
In this context, the issue of khap panchayats is rather telling.
The fragmentation of Hindu society in India is not merely on
the basis of caste but also, in the case of khap panchayats, the
gotra.

GOTRA, HONOUR AND THE KHAP PANCHAYAT

Inter-caste marriages were generally frowned upon in Hindu

texts. Curiously, one aspect of same caste marriage – intra-gotra
marriage – was allegedly equally sinful.
The ‘gotra’ is a slippery concept. In his History of
Dharmasastra , Pandurang Kane states that the general
conception about gotra is that it denotes all persons who trace
an unbroken male line from a common ancestor. The same text,
however, while discussing Medhatithi’s commentary on Manu,
says that the gotra is ‘anadi’ – not derived from a common
ancestor but from time immemorial. 11 However, there is no
de nitive conception of what a gotra means, leading the learned
author to exclaim in despair that ‘the mass of material on gotra
and pravara in the sutras, the puranas and digests is so vast and
so full of contradictions that it is almost an impossible task to
reduce it to order and coherence’. 12
Even though there is no certainty as to the exact meaning and
origin of the gotra, it did not stop people from sowing divisions
in its name. There was claimed to be a rule that people from the
same gotra had common ancestry and, accordingly, marrying
someone from the same gotra was like marrying someone within
the family. This was seen as a form of incest and was hence
taboo.
While the rule against intra-gotra marriage (sagotra) marriage
claimed to have ancient vintage, disputes relating to its
correctness also have respectable legal antecedents. As far back
as 1945, a case came before the Bombay High Court about the
validity of sagotra marriages. Two sons sued their father,
claiming that the father’s second marriage to a woman of the
same gotra was invalid. They wanted the exclusion of their
father and the step-mother from their thread ceremony.
A strong bench of the High Court comprising of Justices Sir
Harilal Jekisundas Kania and Pralhad Balacharya Gajendragadkar
(both of whom went on to become Chief Justices of India) held
that there was no injunction against sagotra marriages in the
scriptures. To the extent there were some verses or
commentators that had held to the contrary, the same were
discounted. In a remarkably modern passage, the court held
 Since the said commentaries were written, several centuries have passed by
and during this long period the Hindu mode of life has not remained still or
static. Notions of good social behaviour and the general ideology of the
Hindu society have been changing; with the growth of modern sciences and
as a result of the impact of new ideas based on a strictly rational outlook of
life, Hindu customs and usages have changed. The custom as to marriages
between persons of the same gotra which I have held proved in this case is an
eloquent instance in point… In such a case it is obviously the duty of the
legislature to intervene and to amend the material provisions of Hindu law so
as to make them consistent with the custom and usage prevailing in society
and thus help to place the Hindu law of marriage on a more rational basis. 13

The Legislature did in fact step in, and enacted the Hindu
Marriage Removal of Dif culties Act, 1946. 14 This was
followed by the Hindu Marriage Act, 1955, which prohibited
only sapinda marriages 15 and did not prohibit sagotra marriages.
But it seems that the news of the change in the law did not
reach the north. Caste or khap panchayats still sought to
rigorously enforce prohibitions against sagotra marriages.
Khap panchayats are informal groups (not necessarily
recognized as panchayats under the 73rd Constitutional
Amendment) of elders (almost always men) of the same gotra.
In areas where access to formalized justice is dif cult, the writ of
the khap panchayats runs free. While the khaps may not be able
to enforce their orders by the coercive use of their law, they can
impose social and economic boycotts which are strictly
enforced.
There have been several instances of khap panchayats issuing
rulings against women. However, it was the rulings against
marriages of young men and women from the same gotra which
caught the public imagination. 16 A particularly horri c case was
that of Ved Pal and Sonia.
Ved Pal was a resident of Mator village in the Jind district of
Haryana. He worked as a medical practitioner running a clinic in
Singhwal village, also Haryana. He fell in love with a girl called
Sonia, who used to live near the clinic. They both belonged to
the same caste but, unfortunately for them, also the same gotra.
They wished to get married, but this was opposed by Sonia’s
family.
Valuing love over tradition, they eloped and got married in a
temple. The khap panchayat in Sonia’s village declared this to be
a capital offence. A decree was passed directing that the couple
be found and killed. For reasons that are not fully clear, the
couple were soon forcibly separated. 17 Ved Pal approached the
Punjab and Haryana High Court seeking police protection to
enable him to go to his wife’s house to bring her back. The
Court duly ordered police protection.
In the evening of 23 July 2009, Balwant Singh, the SHO of
Narwana Sadar, and Suraj Bhan, a warrant of cer of the High
Court, arrived along with a police party at Ved Pal’s residence in
Mator village. They promised to escort Ved Pal to Singhwala,
where his wife Sonia was forcibly con ned in her parents’ house,
in order to get her back. As soon as he reached Singhwala, Ved
Pal was attacked. He was dragged to the terrace in Sonia’s house
and stripped. His face and torso were beaten with sticks and his
neck and shoulders were cut open with sickles and scythes. As
Suraj Bhan was pushed from the terrace, the 15 policemen ed.
18 The perpetrators were ultimately convicted and awarded a life

sentence.
These instances led to an NGO, Shakti Vahini, to le a Writ
Petition before the Supreme Court in 2010. A lengthy and
erudite judgement followed in 2018. The judgement made a
reference to the report of the Law Commission, which had
recommended the framing of a law to ban khap panchayats from
passing orders interfering with the free will of any man and
woman wishing to get married. The Law Commission had
proposed the enactment of a Prohibition of Unlawful Assembly
(Interference with Freedom of Matrimonial Alliances) Act. 19 As
per the Act, the very holding of a khap panchayat with the
intent of deliberating upon a marriage on the ground of honour
was to be illegal. Any intimidation, creation of an environment
of hostility was also be deemed to be a crime.
 However, after noting that the Law Commission had
produced such a report, the Union of India gave a rather
specious argument as to why it had not accepted the report and
enacted a law. The Union said that since the subject matter
related to the concurrent list of the Constitution (i.e. where the
state and the Centre have concurrent or co-existent jurisdiction
over a subject), it was not possible to legislate without
consultation with the states. Why the consultation was not
complete even ve years later was completely glossed over.
The Court did not merely rely on the report of the Law
Commission. It ruled that the choice of a partner was a
fundamental aspect of dignity and liberty and was
constitutionally protected by Articles 19 and 21 of the
Constitution. Further, once a right was recognized, it was the
duty of the State as well as the Courts to enforce and protect
that right.
In his inimitable style, Chief Justice Dipak Misra ruled that
‘The concept of liberty has to be weighed and tested on the
touchstone of constitutional sensitivity, protection and the
values it stands for. It is the obligation of the constitutional
courts as the sentinel on qui vive to zealously guard the right to
liberty of an individual as the digni ed existence of an individual
has an inseparable association with liberty… The choice of an
individual is an inextricable part of dignity, for dignity cannot be
thought of where there is erosion of choice… When two adults
marry out of their volition, they choose their path; they
consummate their relationship; they feel that it is their goal and
they have the right to do so.
‘And it can unequivocally be stated that they have the right
and any infringement of the said right is a constitutional
violation. The majority in the name of class or elevated honour
of clan cannot call for their presence or force their appearance as
if they are the monarchs of some indescribable era…’ 20
Recognizing the need to protect the freedom of choice, the
Court laid down a series of guidelines. They were preventive,
remedial and punitive in nature. A duty was cast on the police
to attempt to stop the holding of a khap panchayat in the case
of an inter-caste or sagotra marriage. In case such prevention was
not possible, the police and state authorities were required to
both provide security to the married couple as well as le FIRs
against the persons who held the khap panchayat and
intimidated the couple. Finally, failure to prevent the panchayats
would also result in punitive action against the erring police and
state of cials.
The judgement thus upheld the right of an individual to
choose a partner. It was one more in a long series of cases to do
so. The novel feature of the judgement was that it went on to
hold that khap panchayats, as extra-judicial coercive
machineries, were invalid. The Court held that ‘the consent of
the family or the community or the clan is not necessary once
the two adult individuals agree to enter into a wedlock. Their
consent has to be piously given primacy…[the law] does not
recognize any space for informal institutions for delivery of
justice. It is so since a polity governed by “Rule of Law” only
accepts determination of rights and violation thereof by the
formal institutions set up for dealing with such situations.’ 21
This judgement rightly implies that if power is vested in non-
state actors, the same is likely to be misused. 22 The very
concept of the Rule of Law necessitates concentration of
coercive power in institutions operated by and under the control
of the State. 23 In a democracy, such institutions are answerable
to the people as well as to a constitution.
Khap panchayats are extra-constitutional and feel little need
to respect the values espoused in the Constitution. Individuals
who are at the receiving end of adverse rulings thus have limited
scope to rely on the fundamental rights guaranteed under the
Constitution. This is because the vast majority of the rights are
guarantees against state excesses, not private abuses of power.
This ruling thus brings into sharp focus another deeply
troublesome feature in the subjugation of women, that is, the
public–private divide. Typically, a woman is likely to be
subjected to oppression from within the family. Manu, in the
Manusmriti , states that a young girl must be under the control
of her father during childhood, her husband during her marriage
and her sons after her husband’s death. 24
More tellingly, he goes on to declare that a husband must be
constantly worshipped as a god by a faithful wife even though
he may be ‘destitute of virtue, or seeking pleasure (elsewhere),
or devoid of good qualities’. 25 This diktat is still taken rather
seriously and literally across vast swathes of the country. Men
have economic, social and physical power over women and don’t
hesitate to use it. Most of this repression happens within the
family home.
Thus, the Law Commission’s report on khap panchayats has
been criticized for ignoring the fact that the violence against
women is largely in icted upon them by members of their own
family. 26 By restricting the sanctions of the law to khap
panchayats, the patriarchal assumptions of the Commission (and
presumably by extension the Court) have been allegedly
demonstrated.
However, this criticism does seem a bit excessive. The public–
private divide does exist with different problems and issues;
consequently, it demands different and more nuanced solutions.
It seems dif cult to imagine what equivalent law the critics of
the Law Commission report would suggest in case of familial
resistance to inter-caste or inter-religious matters. Any broad-
based legislation might be held to be unconstitutional as it will
impinge upon the privacy rights of individuals. The better
course in cases of private abuse is probably through the use of
the agency of the Courts to enforce the regular criminal law.
The cases of Hadiya and the khap panchayat tell an interesting
tale of difference and commonality. While it is true that religion
and caste are both dividing features of society, the reason to
oppose unions between religions and castes are slightly different.
Opposition to inter-religious marriage may stem from simple
prejudice and is of a more recent vintage. Injunctions against
inter-caste marriage have an ancient lineage stemming from
diktats of the Hindu religious texts. 27
These differences nevertheless cannot hide the commonality
between the two cases. The ability of a person to choose her
partner has been negated and hence their autonomy is
diminished. But what is it about marriage that needs this
complete societal domination and control, and why has it not
changed yet?

MARRIAGE AND THE LAW

Marriage is an ancient institution that has existed in virtually

every society. Therefore, it seems almost an innate feature of the
social structure, an aspect of the human condition. But this
statement hides the wide variations in the concept of marriage,
both in its form and in its content as well as in its rationale. The
song made famous in Frank Sinatra’s words would have us
believe that love and marriage are two sides of the same coin –
like a horse and carriage. Apparently, you cannot have one
without the other!
Charming as this picture is, it is hardly true. Historically,
marriage has been more about property rights and getting the
right in-laws. 28 Love was neither a necessary nor a suf cient
reason to get married. Alliances were xed between families
without any intervention on the part of the couple. In India, in
the context of the arranged marriage, this still holds true.
Prakasa 29 states that arranged marriages serve six functions in
the Indian community: ‘(1) It helps to maintain the social
strati cation system in the society; (2) gives parents control over
family members; (3) enhances the chances to preserve and to
continue with the ancestral lineage; (4) provides an opportunity
to strengthen the kinship group; (5) allows the consolidation
and extension of family property; (6) enables the elders to
preserve the principle of endogamy.’
 Nevertheless, the institution of marriage has changed
undeniably. Once women became freer and more able to assert
themselves, they also ventured out to choose their own partner.
Particularly, there has been a weakening in many of the six
functions of the arranged marriage noted by Prakasa. Greater
inter-caste marriage weakens reasons (1), (3) and (6); focus on
economic well-being over religious and other considerations
weakens (2) and (4); and increase in the number of nuclear
families and greater migration and urbanization affects (5). 30
Marriage lies at the intersection of society and the law.
Societal traditions are crystallized into the rules relating to
marriage by law. The law is however a dynamic concept.
Inevitably the nature of marriage would change if there is a
change in society. Consequently, the law would have to be
amended to keep pace with this societal change. This is exactly
what has happened in the case of laws relating to separation and
divorce. 31
However, one cannot ignore that the supreme source of the
law is the Constitution, and hence the egalitarian and liberating
spirit of the Constitution must necessarily interact with social
rules. Even if society does not change, the principles of the
Constitution must nevertheless apply. The principles of dignity
and autonomy underlying the cases of inter-caste and inter-
religion marriages actually are foundational principles and ought
to apply in all cases. These values have been applied in just such
cases, although indirectly.
The recent judgement decriminalizing unnatural sex was
based to a large extent on the autonomous right of an individual
to choose her own partner, regardless of sex. 32 In an interesting
passage, Chief Justice Dipak Misra speaking for himself and
Justice Khanwilkar said that ‘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. As a concept, union also
means companionship in every sense of the word, be it physical,
mental, sexual or emotional. 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.’ 33
The line ‘When we say union, we do not mean the union of
marriage, though marriage is a union’ is particularly interesting.
At rst blush, the Chief Justice seems to suggest that Article 21
does not confer a right to gay marriage, just a union. But if union
includes marriage, how can the right to marriage possibly be
excluded from the fundamental right to life? The Chief Justice
noted that ‘even marriage was not equated to procreation’ and
hence, non-procreative sex could not be against the order of
nature. That, of course, begs the question, if procreation is not
the purpose of marriage, why deny that right that extends to
heterosexual couples to gay couples?
Justice Chandrachud, who was party to the Navtej Johar
judgement, had also authored a judgement in the privacy case.
The privacy case in fact could reasonably be said to be the
foundation of the Navtej Johar judgement. In several passages,
he laid the groundwork not merely for the eventual overruling
of the Suresh Kumar Koushal judgement 34 but also for the
recognition of gay marriage. Justice Chandrachud held that
‘family, marriage, procreation and sexual orientation are all
integral to the dignity of the individual. Above all, the privacy of
the individual recognizes an inviolable right to determine how
freedom shall be exercised’. 35
Justice Sanjay Kishen Kaul held that ‘It is an individual’s
choice as to who enters his house, how he lives and in what
relationship. The privacy of the home must protect the family,
marriage, procreation and sexual orientation which are all
important aspects of dignity.’ 36 Thus a majority of at least ve
of the nine judges who were party to the judgement held that
people of alternate sexuality had a right to family life, which
included marriage.
 Since the issue did not directly arise in that case, the Court
probably held back in ruling nally on the issue. Of course, how
the courts rule once the matter comes before them is uncertain.
Even the Union of India, though it did not oppose the petition
in the Navtej Johar case, led an af davit stating that in case the
Court was going to address the issue of gay marriage, it would
have taken a different stand.
The cases of young couples seeking the protection of the
Court when they get married contrary to the wishes of the
community show that the institution of marriage is strong. Even
if individual marriages are easier to break up through liberalizing
divorce laws, more people, at least in India, seem to be looking
to get married. But why is love not enough? Why do people
seek to get married?
The answer is not far to look. Marriage has real social and
economic consequences. When two individuals get married,
there is a state and a social sanction to the relationship. There
are also mutual rights that the parties to the marriage have. For
instance, one partner cannot simply walk away and marry
someone else. There are clear pecuniary effects too. The laws of
inheritance recognize a married spouse and give him or her a
right in the property of the other spouse. There are insurance
and tax bene ts, which unmarried couples do not have.
Marriage is thus both an instrumental as well as an intrinsic
good. As an instrumental good, it enables couples to accomplish
social and economic goals. As an intrinsic good, it enables
persons to declare their love to one another and hence enhance
and preserve their dignity.
These bene ts, both instrumental and intrinsic, which extend
to all married couples do not currently extend to same-sex
partners.
Therefore, there has to be marriage equality to ful l the
Constitution makers’ promise to all Indians. Not only because all
individuals are deserving of a right to choose their partner, but
also because all women (and men) are equal.
 The Constitution demands liberty, justice and fraternity for an
individual. It also promises equality. As seen above, the love
jihad and the khap panchayat cases re ect the constitutional
values of autonomy and dignity. But same-sex marriage shows
another facet of the Constitution – that of equality. It would
appear that autonomy and equality, while they are different
concepts, have a lot in common. Rather like love and marriage,
in the case of equality and dignity too, you cannot have one
without the other. It is tough to imagine leading a digni ed life
with any sense of self-worth if you are treated as a second-class
citizen.
That is precisely the point in the case of gay marriages. The
inability to get married to your same-sex partner is an effective
undermining of your right to choose your partner. It is also a
violation of your right to equality when you see your
heterosexual friend get married.
The Court has intervened in the case of inter-caste and inter-
religious marriages to protect the choices of those who wish to
get married so as to protect their right to dignity. The Courts
have generally upheld their role as the sentinel on the qui vive –
jealous and zealous guardians of constitutional liberties. But in
the case of the latest battleground of marriage – same-sex
marriages – the issue is open. The Constitution is ready for gay
marriage. The question is whether the society and the courts are
ready.
 From Adultery to
Sexual Autonomy
The Constitutional Potential of
Joseph Shine

MENAKA GURUSWAMY and ARUNDHATI KATJU

2018 was a dramatic year for Indian constitutionalism. This was

the year the Indian Supreme Court embraced sexuality as an
integral part of citizenship. In Navtej Singh Johar v. Union of
India, 1 the Court nally recognized the constitutional rights of
equality, dignity, expression, life and liberty of LGBTQ Indians.
In Indian Young Lawyers Association v. State of Kerala, 2 better
known as the Sabarimala decision, the Supreme Court found that
it was constitutionally obligated to allow Hindu women of faith
of a menstruating age to access the Sabarimala temple in Kerala,
from which they had hitherto been excluded. Finally, in Joseph
Shine v. Union of India, 3 the Court struck down Section 497 of
the Indian Penal Code, 1860, which enabled a husband to le a
criminal complaint of adultery against his wife’s male lover,
because it was unconstitutional.
This was also the year that the Supreme Court celebrated
constitutional morality. The underlying logic of each of these
decisions was that constitutional morality leads the Court to
strike down laws that may be justi ed in the name of social
convention, but social morality must bend before constitutional
values of equality and dignity. In Johar , constitutional morality
led the Court to strike down the sodomy law; in Sabarimala , it
held that religious sentiment could not trump women’s right to
equality; in Shine , the Court held that constitutional morality
would also govern marriage.
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. Any entry that
the law may make into the matrimonial bond has been heavily
contested. Recall B.R. Ambedkar’s resignation over opposition to
the Hindu Code Bill, the continuing debate over the validity of
the cruelty provisions under Section 498A of the Indian Penal
Code, 1860 4 and what might be thought of as the failure of the
dowry prohibition law.
Marital rape is an area of both matrimonial and criminal law
that has remained stubbornly resistant to reform. Exception 1 to
Section 376 of the Indian Penal Code, 1860 (‘the marital rape
exception’) provides that non-consensual sexual intercourse by a
man upon his wife, when she is above the age of 15, is not a
criminal offence. In this paper, we argue that by extending the
doctrine of constitutional morality to the marital relationship,
Joseph Shine is a crucial stepping stone to striking down the
marital rape exception.

THE CRIMINAL OFFENCE OF ADULTERY IN INDIA

The Joseph Shine petition challenged the constitutionality of the

criminalization of adultery. The ve-judge panel that heard this
case comprised the then Chief Justice Dipak Misra, along with
Justices Khanwilkar, Rohinton Nariman, D.Y. Chandrachud and
Indu Malhotra. The Chief Justice and Justice Khanwilkar wrote
the majority decision, with the other three judges writing
separate concurring judgements.
 The Indian Penal Code, 1860 criminalized adultery under
Section 497. More speci cally, the offence fell within Chapter
XX of the Penal Code, which pertains to ‘Offences Relating to
Marriage’. Therefore, the Penal Code conceived of this offence as
one of many relating to the institution of marriage – having
sexual intercourse with a woman by deceitfully inducing a belief
of lawful marriage (Section 493), bigamy (Section 494), and
enticing or taking away or detaining with criminal intent a
married woman (Section 498), amongst others.
Section 497 IPC did not criminalize adultery because it
damaged the marriage of two persons, for if this were the law’s
intention, then extramarital sexual relations by either spouse
should have been penalized. Not that we agree with the
criminalization of extramarital sex, but let us assume that this
was the apparent aim of the law, and that this aim had merit. But
a reading of Section 497 makes it clear that this was not the law’s
intention:
Adultery – Whoever has sexual intercourse with a person who is and whom
he knows or has reason to believe to be the wife of another man , without the
consent or connivance of that man [emphasis supplied], such sexual intercourse
not amounting to the offence of rape, is guilty of the offence of adultery, and
shall be punished with imprisonment of either description for a term which
may extend to ve years or with ne, or with both. In such case the wife shall
not be punishable as an abettor.

Section 497 had four facets: rst, a man had sexual intercourse
with a woman whom he knew or had reason to believe was
married to another man; second, such sexual intercourse was
without the consent of the woman’s husband; third, the sexual
activity was consensual; fourth, only the man could be punished,
not the woman.
Section 497 has colonial origins, with roots in the Victorian
morality of 1850s’ and 1860s’ England – but that is true for
almost the entire Indian Penal Code. Section 497 had been
challenged at regular intervals, for it most obviously distinguished
between adulterous husbands and adulterous wives while
providing a criminal remedy only to the hurt husband and not
the hurt wife. (By ‘hurt’ we mean the party to the marriage who
was cheated on.) A hurt husband could le a criminal complaint
against the man who had sexual intercourse with his wife, but a
hurt wife had no criminal recourse against a woman who had
sexual intercourse with her husband.
Clearly the penal provision envisioned a husband’s sexuality
and autonomy differently from that of a wife. This in itself is
unremarkable: Section 497, like the sodomy law under Section
377, made assumptions about consent, sexuality and the role of
the State based on the morality of 19th-century England. What is
remarkable, however, is that despite the fact that the adultery
offence was challenged at regular intervals, it was upheld by the
Supreme Court on multiple occasions.
The Penal Code did not stop at punishing a man who had
sexual relations with the wife of another. It went a step further,
criminalizing anyone who might enable a married woman to have
sexual relations outside of her marriage. Section 498 of the
Indian Penal Code, 1860 provides that:
Enticing or taking away or detaining with criminal intent a married woman –
Whoever takes or entices away any woman who is and whom he knows or has
reason to believe to be the wife of any other man, with intent that she may
have illicit intercourse with any person, or conceals or detains with that intent
any such woman, shall be punished with imprisonment of either description
for a term that may extend to two years, or with ne, or with both.

Section 498 has three facets: First; that a third party (not the
two involved in the sexual relationship) takes or entices a married
woman; second, he or she knows that the woman is married to
someone else; and nally, such ‘enticing or taking’ is done to
enable her to have sexual relations outside of marriage with
another person. For lack of better language, such an ‘enabler’ may
be punished with a prison term that may extend to two years.
Such a provision would likely penalize ‘enticement’ or enabling
by a friend or family member or anyone who may even socialize
with such a couple, or even a friend who goes along with a
married woman to meet her lover. It was clearly intended not
only to punish the male lover of the married woman, but even
any friend of either party involved with this extramarital sexual
encounter. Therefore, this law took very seriously the rights of
the husband to control the sexuality of his wife, to the extent of
punishing any other party or anyone who may be seen to entice
this wife to seek sexual relations outside of marriage.
The question remains as to how someone can actually entice a
woman, married or otherwise, to have sex with anyone. But,
apart from the ridiculous nature of the offence, there also
remains the question of how to demonstrate this in a court of law
– is a third person who accompanies his/her friend to the lover’s
home an accused? Or a person who goes to a movie with the two
lovers, who then head to a hotel room to have sex?
Outside of speculating how one would demonstrate the
criminality of ‘enticement’, what the provision does demonstrate
is the lack of any understanding of the law of a woman’s
sexuality: A woman does not need to be enticed or cannot be
enticed to have sexual relations with another person. She would
only do so on her own volition, and her autonomy includes
independent desire.
Be that as it may, it took Indian courts a long time to
appreciate all the glaring aws in the adultery provisions; the
inability to appreciate a woman’s independent sexual autonomy;
the lack of a constitutional awareness of the demands of equality
between spouses; and a continued misunderstanding of the
nature of marriage.
How did Indian courts treat the criminalization of adultery
through the decades after the adoption of the Constitution?
Colonial-era courts could justify the adultery provision as being
in tune with the moral code of the day, applying the Victorian
moral standards that led to the formulation and then application
of such laws.
But, after 1950, Indian constitutional courts had the bene t of
the Constitution and its values of equality between genders as
well as prohibition of discrimination on grounds of sex.
Constitutional courts were required to judge all laws against the
benchmark of the Constitution; pre-constitutional laws carried
no presumption of constitutionality. So, how did the courts of
independent India interpret this obviously discriminatory
provision in the face of constitutional values?

THE HISTORY OF THE ADULTERY CHALLENGES

There were three signi cant challenges to the adultery law,

spread over the decades, after the Constitution was adopted.
These three unsuccessful challenges formed the backdrop to the
necessity of a ve-judge panel to examine the constitutionality of
the prosecution by the husband of the male paramour who has
an adulterous relationship with his wife.
Preceding the challenge in Shine were cases like Yusuf Abdul
Aziz v. State of Bombay. 5 Aziz was being prosecuted for adultery,
but we know little about the details of his case. The legendary
Justice Vivian Bose, after hearing arguments by the then
Attorney General M.C. Setalwad, decided that Section 497 did
not violate the equality guarantee under Article 14, since Article
15 (3) of the Constitution allowed the state to make special
provisions for women. Presumably Justice Bose thought that the
penal provision that allowed for the prosecution of a man for
adultery and not the woman was a special provision in favour of
women. Decades later, this assessment was set aside by the Chief
Justice Misra and Justice Khanwilkar in Shine .
This is the appropriate time to brie y examine Articles 14 and
15 of the Constitution to make the discussion of the past and
present equality challenges against the adultery law easier to
follow. India’s equality doctrine has its foundations in Articles 14
and 15 of the Constitution. For the purposes of our conversation,
the most critical tenets of India’s equality doctrine are captured
in these three textual provisions:

1. Article 14 states that ‘the State shall not deny to any person
equality before the law or equal protection of the laws within the
territory of India.’
 2. Article 15 (1) prohibits the State from discriminating against ‘any
citizen on grounds only of religion, race, caste, sex, place of birth
or any of them.’
3. Article 15 (3) states that ‘nothing in this article shall prevent the
State from making any special provision for women and
children.’

Between these three textual provisions of the Constitution, it’s

made clear that equality before the law between men and women
is mandated, and that the State is prohibited from discriminating
against any citizen on grounds of sex.
The State may also make ‘special provisions’ for women in the
form of af rmative action or remedial measures to help mitigate
or address historical disadvantages suffered by this group. Such
special measures could take the shape of different criteria for the
length of service in rural areas with regard to male and female
doctors, 6 or in allowing employers to consider sex in making
employment decisions when it is done in a properly or legally
chartered af rmative action plan. 7 This is how Justice Vivian
Bose in Yusuf Abdul Aziz justi es the exclusion of the female
erring spouse or female lover of the husband from any
prosecution under the adultery law. Such exclusion was
protective legislation in favour of women.
In 1985, the Court would have the opportunity to re-examine
the assumptions it made about the adultery law. And yet again, it
would fail to look to constitutional values. In Sowmithri Vishnu v.
Union of India, 8 the Supreme Court, through a three-judge
bench comprising Chief Justice Y.V. Chandrachud and Justices
R.S. Pathak and Amarendra Nath Sen, was confronted with an
acrimonious divorce that included the husband ling a complaint
under Section 497 IPC against his about-to-be-divorced wife’s
lover, who went by the name of Dharma Ebenezer.
Chief Justice Chandrachud, who wrote the judgement, found
that Section 497 did not violate Articles 14, 15 and 21 (the
constitutional guarantees of equality, non-discrimination, and life
and liberty). In a twist, he opined that the argument that the
section discriminates since it only enables a husband to prosecute
the ‘adulterer’, and does not confer any similar right on a wife
whose husband indulges in such actions, spoke ‘to the policy of
the law and not to its constitutionality unless while implementing
the policy any provision of the Constitution is infringed.’ 9
Such reasoning is rather surprising. Any law that patently treats
men and women differently, or a situation where the ‘equality’
and ‘non-discrimination’ tenets of the Constitution are violated,
forces the tests of constitutionality to be applied. If anything, the
adultery provision is a simple exposition of how such
constitutional demands of equality are violated. The judicial
review of statutes against the fundamental rights guaranteed by
the Constitution is a fundamental role and duty of any
constitutional court. Such adjudicatory obligations and
expectations cannot be passed on to the legislature, which applies
the standard of social acceptability and social morality – which
may be at odds with the Constitution.
Such a bypassing of the obligations of a constitutional court to
applying the Constitution to a penal provision that discriminates,
reminds us of the nal few lines from the infamous Suresh Kumar
Koushal v. Naz Foundation , 10 where Justice Singhvi concludes
his judgement upholding the constitutionality of Section 377
IPC, which criminalized LGBTQ Indians by failing to strike
down the section and leaving it to Parliament to decide to
withdraw or reform Section 377.
Chief Justice Chandrachud further termed the argument
advanced on behalf of the petitioner that the section is under-
inclusive as being ‘a crusade by a woman against a woman’. 11
Eventually, he rejects all lines of challenges and holds that the
section is constitutional since it enables at least ‘a limited class of
adulterous relationships as being punishable by law. Stability of
marriage is not an ideal to be scorned.’ 12
The third time the Supreme Court rejected a challenge to
Section 497 was a few years later in its 1988 decision in V.
Revathi v. Union of India . 13 In this case as well, the petitioners
grounded their challenge in the legal disability of the hurt wife,
barring her from prosecuting the adulterous husband. The legal
challenge was similar to Sowmithri Vishnu ; in a bid to distinguish
their case from Vishnu , the petitioning wife, Revathi, and her
two lawyers Geeta Ramaseshan and Seita Vaidialingam, chose to
focus their efforts on contesting Section 198 of the Code of
Criminal Procedure, 1972 (henceforth Section 198 CrPC). This
section goes hand in hand with Section 497 IPC and actively
enables prosecution of the penal law.
Section 198 (2) CrPC provides for:
Prosecution of offences against marriages – (1) No Court shall take any
cognisance of an offence punishable under Chapter XX of the Indian Penal
Code (45 of 1860) except upon a complaint made by some person aggrieved
by the offence;
(2) For the purposes of sub-section (1) no person other than the husband of
the woman shall be deemed to be aggrieved by any offence punishable under
section 497 or section 498 of the said Code.
Provided that in the absence of the husband, some person who had care of the
woman on his behalf at the time when such offence was committed may, with
the leave of the Court, make a complaint on his behalf.

Two features immediately stand out and make clear the

assumption of the criminal process: First, that only a husband is
aggrieved by the offence of adultery under Sections 497 and 498.
By implication, a hurt wife who has an adulterous husband
cannot be a person aggrieved.
Second, if there is no husband, then a guardian or any person
who ‘had care of” the adulterous wife, could make a complaint
on behalf of the ‘absent’ husband. It is unclear who such persons
could be – a guardian, a father-in-law, a mother-in-law, a brother-
in-law?
What is clear is that a wife in an adulterous marriage is not
recognized as being aggrieved, and has no recourse in criminal
law to act against the husband, unlike her spouse, who may do so.
Essentially criminal law via both penal and procedural law is
clear: A wife in a marriage cannot be aggrieved if her husband
cheats. This follows Victorian legal assumptions that a wife was
the property of her husband, and property cannot be aggrieved.
Coming back to Revathi’s case, the Supreme Court, through
Justice Thakkar, stayed loyal to the logic of Sowmithri Vishnu .
Justice Thakkar was clear that Sections 497 IPC and 198 (2)
CrPC ‘go hand in hand’ and constitute ‘a legislative package’ to
deal with ‘an outsider to a relationship…who poisons the
relationship between the two partners constituting the
matrimonial unit’. 14 He further held that there is no
discrimination against women since neither spouse can prosecute
the other. If anything, there is ‘reverse discrimination’ in favour
of women, since a woman who has sexual relations with a
married man can also not be prosecuted. 15
Justice Thakkar did not explain why a wife cannot prosecute
her husband’s lover. In any case, the wilful disregard of the
discrimination evident from the text of the law, in its treatment
of a husband and a wife, makes it clear the law clearly reinforces
a lesser citizenship of Indian wives. After all, the ‘hurt’ husband
can initiate criminal action against his spouse’s lover but not the
hurt wife when faced with exactly the same in delity.
This will be discussed in more detail later in this essay. The
intention here is not to argue that Section 497 would have been
constitutional had it incorporated parallel sanctions against
adulterous husbands and wives; but rather, to demonstrate that
the law as it stood maintained deeply regressive assumptions
about a woman’s sexuality and autonomy, and her connection to
the institution of marriage. These are the many assumptions that
Joseph Shine unpacks and discards.

JOSEPH SHINE : THE JUDGEMENTS OF THE UNANIMOUS

BENCH IN 2018

Almost 30 years would pass between V. Revathi and Joseph Shine

. The panel of judges in Joseph Shine , as if nally looking to the
Constitution, arrived at four unanimous judgements. All four
judgements make a simple but powerful point in different ways,
which is that even in marriage there must be a respect for the
cardinal constitutional value of equality. To arrive at this, the
judges approach this goal using three different prongs of
reasoning.
The Shine judges categorically reject the argument that the
exclusion of the wife from being criminally responsible under
Section 497 is af rmative action or bene cial per the terms of
Article 15 (3). Instead, the judges nd that since only the male
lover could be prosecuted, the provision was unconstitutional as
violating the equality clause and being discriminatory on grounds
of sex. Second, the Court nds that Section 497 violates equality
and non-discrimination on grounds of sex by envisaging the
husband as being the owner of the wife’s sexual agency. Finally,
the Court shows that its own appreciation of the institution of
marriage has evolved. The bases of the Court’s judgement were
as follows:

(i) The adultery law does not make special provision for
women as mandated by Article 15 (3).
In all three cases that upheld the constitutional validity of Section
497 and 498, Yusuf Abdul Aziz , Sowmithri Vishnu and V. Revathi,
the Court found that the provision that exempted the women
lovers from prosecution was about being protective, or specially
providing for women as given in Article 15 (3) of the
Constitution. This line of reasoning is important to appreciate
since it is this paternalistic protectiveness that invariably
disempowers and debilitates women. Such reasoning was also
recognized in cases like the Bombay Bar girls. 16
In Shine , Chief Justice Misra, Justice Chandrachud and Justice
Malhotra discuss Article 15 (3) elaborately in their individual
opinions. The Chief Justice and Justice Khanwilkar make it clear
that af rmative action cannot discriminate against women.
Justice Nariman also disagreed with the interpretation of Article
15 (3) that the Court adopted in Yusuf Abdul Aziz . He writes
that in ‘treating women as chattel’, Section 497 discriminates
against women on grounds of sex only and is in violation of
Article 15 (1) and not protected by Article 15 (3). 17
Justice Chandrachud held that ‘Articles 14 to 18 are
constituents of a single code of equality’ and that ‘discrimination
which is grounded in paternalistic and patriarchal notions cannot
claim the protection of Article 15 (3)’. 18 He explains further
that the ‘protection afforded to women under Section 497
highlights the lack of sexual agency that the section imputes to a
woman.’ 19 Further, women are saved from penalty under Section
497, not to protect them but because the law presumes they are
chattel. The Court clari es that ‘the constitutional guarantee in
Article 15 (3) cannot be employed in a manner that entrenches
paternalistic notions of protection.’ 20
In her opinion, Justice Malhotra found that Section 497 IPC
could not be a legislation bene cial for women because of the
inequality between men’s and women’s abilities to prosecute
adultery. She also reasoned that, under Article 15 (3), the ‘true
purpose of af rmative action is to uplift women and empower
them in socio-economic spheres. A legislation which takes away
the rights of women to prosecute cannot be termed as bene cial
legislation.’ 21

(ii) A husband cannot own his wife’s sexuality: The

foundation for marital rape
All four judgements spoke rmly in favour of recognizing the
integrity and autonomy of female sexuality. The Chief Justice
along with Justice Khanwilkar held that the ‘section treats
women as chattel and the property of the man’. 22 Justice
Nariman also supported this interpretation of the section
assuming that women are ‘chattel’. 23 Justice Chandrachud
argued that Section 497 treats a married woman as her husband’s
property: ‘women occupy a liminal space in the law; they cannot
be prosecuted for committing adultery, nor can they be aggrieved
by it, by virtue of their status as their husband’s property.’
Justice Chandrachud explains further that ‘Section 497 is
premised upon sexual stereotypes that view women as being
passive and devoid of sexual agency. The notion that women are
victims of adultery and therefore require the bene cial
exemption under the section.’ 24
Amongst the most important observations by the Court are
those pertaining to women being considered the property of
men. This is signi cant not only from the perspective of the
constitutionality of adultery, but also going forward from the
perspective of the recognition of women’s sexuality in general.

(iii) Recognition of Women’s Sexuality

There are two threads within the judgement that we would like
to explore further, for the foundational role they will play in
future litigation with regards to women’s sexuality, and also the
conception of marriage itself. First, the foundational premise of
Section 497 is that women were the property or chattel of men.
Therefore, in the words of Justice Chandrachud, ‘when there was
connivance or consent of the man, there is no offence.’ 25 Hence,
it is not the sanctity of marriage that is being protected by the
penal provision. For if sanctity of the institution as a general value
that warranted criminalization of adultery, then extramarital sex
on the part of either the husband or the wife would be penalized
uniformly.
However, per Section 497, a wife cannot initiate a criminal
complaint, and nor can a woman who has sexual relations with a
married man be prosecuted under it. What the section does is
that it only enables the husband to initiate the criminal process
against his wife’s male lover. Such assumptions of subordination
of women immediately place the penal provision in the zone of
unconstitutionality. As the Court recognizes, a ‘woman has the
right to love according to her choice and also an absolute right to
reject.’ 26
Second, as Justice Chandrachud says, there is the explicit
recognition that ‘marriage is a constitutional regime founded on
the equality of and between spouses. Each of them is entitled to
the same liberty which Part III guarantees.’ He goes on to say that
‘Section 497 is inconsistent with the Constitution, since it treats
a woman as but a possession of her spouse… The essential values
on which the Constitution is founded – liberty, dignity and
equality – cannot allow such a view of marriage.’ 27

JOSEPH SHINE : CONSEQUENCES FOR MARITAL RAPE IN

INDIA

In Joseph Shine , the Court sought to ensure that marriage enters

the domain of the application of constitutional dignity of each
citizen, including those of wives. Many years ago, Menaka
Guruswamy argued elsewhere that men and women alike possess
equal citizenship rights under the Indian Constitution, and that
‘the ability to withhold consent in the context of sex is a crucial
ingredient of the constitutional self.’ 28 The article details how
India was an outlier when it came to the recognition of marital
rape as a crime, and that countries as close as Nepal and Bhutan,
along with 102 other countries from the global South and the
global North, had criminalized marital rape.
The Penal Code regulates marriage through a number of
provisions, including the marital rape exception. Section 376, the
rape law provision, excludes marital rape. It says ‘sexual
intercourse by a man with his own wife, the wife not being under
15 years of age, is not rape.’ Amendments to the Penal Code in
2013 made it an offence for a man to have non-consensual
intercourse with his wife if they were legally separated (Section
376A IPC), but the marital rape exception under Section 375
IPC was left untouched.
 In Joseph Shine , the Supreme Court makes a preliminary case
for the recognition of marital rape, ‘implicit in the seeking to
privilege the delity of women in a marriage, is the assumption
that a woman contracts away her sexual agency when entering a
marriage… Curtailing the sexual autonomy of a woman or
presuming lack of consent once she enters marriage is antithetical
to constitutional values.’ 29 Since the Court had decided Navtej
Singh Johar before Shine , it could look at its own jurisprudence
on sexual autonomy and consent from Johar, and rely on it.
Deleting the marital rape exception outright has found few
takers. The Law Commission of India dealt with the marital rape
exception its 84th and 172nd Reports, issued 20 years apart in
1980 and 2000, respectively. In the 84th Report, the Law
Commission recommended raising the age of the wife to 18 years
rather than abolishing the exception outright. 30 Since the Child
Marriage Restraint Act, 1929 prohibited girls younger than 18
years old from marrying, the Law Commission recommended
that the minimum age of consent should be a uniform 18 years
across the board, whether for statutory rape or for the marital
rape exception.
The Law Commission took up the issue again in 2000, in its
172nd Report. It argued again in favour of retaining the marital
rape exception, this time recommending that the age of the wife
be placed at 16 rather than 18 years. Deleting the exception for
women above 16 would amount to ‘excessive interference with
the marital relationship.’ 31
The sexual assault law under the Indian Penal Code, 1860 was
amended extensively in 2013 following the 16 December 2012
gang rape of a young woman in the nation’s capital. However, the
Criminal Law (Amendment) Act, 2013 left the marital rape
exception untouched. The J.S. Verma Committee, tasked with
making recommendations for the overhaul of the sexual assault
law after the 16 December rape case, had recommended
withdrawing the exception. 32 Many of its recommendations
were incorporated into the Criminal Law (Amendment) Act,
2013, but not this one about marital rape.
The J.S. Verma Committee reasoned that the marital rape
exception was based on an outdated notion of marriage. Women
were no longer regarded as the property of their husbands, and
the exception had been withdrawn in many jurisdictions such as
England and Wales, Canada, South Africa and Australia. The
European Commission of Human Rights had endorsed a
conviction for marital rape in CR v. United Kingdom , leading to
amendments being passed in the Criminal Justice and Public
Order Act, 1994. 33
When the issue arose in the Indian Parliament, the
department-related Standing Committee on Home Affairs
rejected the Verma Committee’s recommendations regarding
marital rape in its 167th Report on the Criminal Law
(Amendment) Bill, 2012. The Standing Committee had called
for suggestions from the public and from State and Union
Territory governments. With respect to marital rape, the
Committee received the suggestion that marital rape could be
included in the proposed Section 376A of the Indian Penal Code
(which penalized non-consensual sexual intercourse by a man
with his wife during a legal separation), making rape by a
husband during the subsistence of the marriage punishable at par
with the general rape law. 34 This suggestion was also rejected.
Instead, during the Committee’s nal deliberations it was
noted that
several Members felt that the marital rape has the potential of destroying the
institution of marriage. The Committee felt that if a woman is aggrieved by
the acts of her husband, there are other means of approaching the court. In
India, for ages, the family system has evolved and it is moving forward. Family
is able to resolve the problems and there is also a provision under the law for
cruelty against women. It was, therefore, felt that if the marital rape is brought
under the law, the entire family system will be under great stress and the
Committee may perhaps be doing more injustice. Some Members also
suggested that the age mentioned in the exception to the Section may be
raised to 18 years from 16 years. The exception provides that sexual
intercourse or sexual acts by a man with his own wife, the wife not being
under 16 years of age, is not sexual assault. The Home Secretary, responding
 to this suggestion, stated that by doing so by one stroke, the marriages in
thousands in different States would be outlawed. One Member again
suggested that for the words ‘with or without the other person’s consent, the
words ‘with or without the complainant’s consent’ may be used. The
Committee, however, felt that by using complainant, a proper message will
not go and existing formulation may continue. 35

D. Raja and Prasanta Chatterjee, members, Rajya Sabha (both

from the Communist Party of India) had submitted a note of
dissent objecting to the retention of the marital rape exception.
They argued that the marital rape exception ‘is contrary to the
provisions of the Indian Constitution which considers all women
as equal human beings who have a right to live with dignity and
free from violence within and outside marriage.’
In Independent Thought v . Union of India, 36 a Division Bench
of the Supreme Court consisting of Justices Madan Lokur and
Deepak Gupta examined whether the marital rape exception
would hold where the wife was between 15 and 18 years old.
Even though the petition before it had challenged the marital
rape exception itself, 37 the larger question was not pressed, and
the Court limited the issues before it to cases of marital rape
where the wife was aged between 15 and 18 years. This allowed
the Court to frame the issue in terms of child sexual abuse and
child marriage rather than as one involving the sexuality of adult
women within the institution of marriage.
The principal opinion, authored by Justice Madan Lokur, relied
on the National Family Health Survey-3, which found that 46
per cent of Indian women between the ages 18 and 29 years were
married before they turned 18; the NFHS also estimated that
there were 23 million child brides in the country. It turned to
reports by the UN on violence against women, and by the
Government of India on child sexual abuse, and also considered
the Government of India’s National Charter for Children, 2003,
and the National Plan of Action for Children, 2016.
The Court noted that the Prohibition of Child Marriage Act,
2006 criminalized child marriage but no corresponding changes
were made to the rape law, and also looked into the
criminalization of child sexual abuse under the Protection of
Children from Sexual Offences Act, 2012, as per which the
offence of penetrative assault was enhanced to aggravated
penetrative assault if the perpetrator was related to the survivor;
this relationship could also be through marriage.
The Court noted the anomalies between the statutory rape
provision, which criminalizes sexual intercourse with a girl below
18 years, irrespective of consent; it also noted that husbands
could be convicted of the sodomy offence (Section 377, which
was still on the books) and for outraging the modesty of their
wives (under Section 354 IPC). The Protection of Women from
Domestic Violence Act, 2005 allowed a wife to get a protection
order from a court if her husband had committed acts of sexual
abuse against her; the Prohibition of Child Marriage Act, 2006
makes a child marriage voidable but punished people who
performed or permitted a child marriage.
In striking down the marital rape exception as it applied to girls
aged between 15 and 18, the Court invoked Article 15 (3) of the
Constitution, and also the right to bodily integrity and
reproductive choice. It found a con ict between the IPC and the
Protection of Children from Sexual Offences Act, 2012
(POCSO), and relied on the doctrine that the special law
overrides the general law. It also held that there was no rationale
to distinguish between the age of consent in cases of statutory
rape and marital rape. The age of consent was 18 years across the
board, and a woman younger than 18 was a child under all
provisions of law.
During arguments, the Government opposed raising the age
limit in the exception from 15 to 18 years, reasoning that sexual
activity between a husband and wife should not be criminalized
looking at the ‘social realities of the nation’:
Economic and education development in the country is still uneven and child
marriages are still taking place… As per National Family Health Survey-III,
46% women between the ages 18–29 years in India were married before the
age of 18. It is also estimated that there are 23 million child brides in the
country. Hence, criminalizing the consummation of a marriage union with a
serious offence such as rape would not be appropriate and practical…
 Providing punishment for child marriage with consent does not appear to be
appropriate in view of the socio-economic conditions of the country…
Exception 2 of Section 375 IPC envisages that if the marriage is solemnized at
the age of 15 due to traditions, it should not be a reason to book the husband
in case of offence of rape under IPC… It is also necessary that the provisions
of law should be in such a manner that it cannot affect a particular class of
society. Retaining the age of 15 years in Exception 2 of Section 375 IPC has
been provided considering the social realities of the nation. 38

During oral submissions, the Government argued that the law

was justi ed as (1) by getting married, the girl consented to
sexual intercourse with her husband, (2) child marriage is a
tradition in different parts of the country, and (3) the 167th
Report of the Parliamentary Standing Committee, noted above,
opined that criminalizing marital rape had the potential of
destroying the institution of marriage. 39
In short, the Government’s response was located in social
morality: the practice of child marriage is socially acceptable, and
so it ought not to be criminalized. And some of these arguments
could well be made for marital rape per se (that marriage
amounts to blanket consent to sex, that criminalizing marital rape
would destroy the institution). While the Court rejected these
justi cations in Independent Thought , it did so on the ground that
the law did not penalize a form of child rape merely because the
child was married. In his concurring opinion, Justice Deepak
Gupta observed that ‘merely because something is going on for a
long time is no ground to legitimize and legalize an activity
which is per se illegal and a criminal offence.’ 40
This is not to dispute that Independent Thought makes a
signi cant advance in enhancing the age of consent for married
women. The judgement protects girls married underage, who can
now – at least in law – refuse to consent to sexual intercourse
with their husbands. Legal change can provide the impetus for
social change; and these legal protections do result in changes on
the ground.
Yet Independent Thought will have limited application to
challenge the marital rape exception per se. And indeed, the
Court concluded by reiterating that it was not ‘deal[ing] with the
larger issue of marital rape of adult women since that issue was
not raised before us by the petitioner or the intervenor.’ 41
The question of the marital rape exception also arose before a
single judge of the Gujarat High Court, in Nimeshbhai
Bharatbhai Desai v . State of Gujarat 42 (2018). The single judge,
after noting the judgements in Suresh Kumar Koushal v . Naz
Foundation & Ors., 43 (which was good law at the time) and
Independent Thought, found that Sections 354 and 377 were both
available in cases of non-consensual sexual intercourse by a
husband against a wife. Those offences would apply, the Court
reasoned, to acts done in public and in private, and regardless of
the wife’s age.
The Court observed that retaining the marital rape exception
has also led to the curious position where remedies are available
against domestic violence, but not for rape. Non-consensual
sexual intercourse between spouses can be punished under
Section 354 as ‘outraging the modesty of a woman’ or even as
sodomy under Section 377 IPC (since Johar only decriminalized
consensual relations) but not as rape.
The Court also gave short shrift to the argument that
penalizing marital rape would ‘become a potent tool or weapon
in the hands of an unscrupulous wife to harass her husband and
become a phenomenon which may destabilize the institution of
marriage.’ 44 To the contrary, marital rape was, in the Court’s
opinion, ‘a disgraceful offence that has scarred the trust and
con dence in the institution of marriage.’ 45 Contrary to the stand
adopted by the Government, marriage does not ‘give all time
consent forever to [have] sex with your spouse.’ 46 The argument
that a wife ling a complaint of marital rape would effectively
end the marriage could be made equally of domestic violence
complaints: ‘even if the wife initiates proceedings under the
provision of the Domestic Violence Act, the marriage could be
said to be irrevocably over. Therefore, this logic or analogy, which
is sought to be applied by the Government, does not appeal to
me in any manner.’ 47
 The Court spoke eloquently of the role of the sexual bond in
marriage:
Sexual intimacy brings spouses wholeness and oneness. It is a gift and a
participation in the mystery of creation. It is a deep sense of spiritual
communion…a husband who feels aggrieved by his indifferent or uninterested
wife’s absolute refusal to engage in sexual intimacy may legally seek the
court’s intervention to declare her psychologically incapacitated to ful l an
essential marital obligation. But he cannot and should not demand sexual
intimacy from her coercively or violently. 48

The Nimeshbhai Bharatbhai Desai judgement is remarkable for

its pointed rejection of the argument that social values require
the retention of the marital rape exception. But having been
passed before Joseph Shine, the High Court did not have the
bene t of the doctrine of constitutional morality to strike the
exception down outright.

CONCLUSION: THE CONSTITUTIONAL POTENTIAL OF JOSEPH

SHINE

Shine establishes a rm foundation to recognize marital rape. No

doubt the lack thus far of such recognition is a constitutional
embarrassment. That a ve-judge Bench grounds their reasoning
along lines of female sexual autonomy is one of the most
dramatic long-term jurisprudential implications of Joseph Shine.
The Misra bench that decided Johar and Shine invoked another
common theme, of the role of a constitutional court in unpacking
colonial-era laws and the colonial morality that de nes them. The
Shine Bench, like the Bench did in Johar, responds to the call of
precedent that binds us to colonial morality, with a stern call to
look to transformative constitutionalism. It argues that the
Victorian morality that inspired this penal provision is
antithetical to constitutional guarantees of liberty, dignity and
equality. And the Court emphasizes that the criminal law must
be in consonance with constitutional morality. 49
 It is constitutional morality that leads to the constitutional
court ruling against a 160-year-old sodomy law, or the similarly
archaic adultery law or a temple entry ban on women. The
rejection of constitutional morality would render the loss of a
valuable instrument against social or popular morality or even
legislative inaction to reform laws that are constitutionally
untenable.
Social morality may call for retention of the marital rape
exception. Proponents of social morality seem to argue that
allowing rape to happen in marriage preserves an aspect of the
marital bond that is essential for our society and culture. They
may point to a society that is feudal, poor and backward, where
women have a subordinate position within the marital
relationship; and argue that changing this dynamic will cause
social upheaval and chaos.
The doctrine of constitutional morality challenges this status
quo. Constitutional morality requires that, when the law governs
intimate relationships, it holds them to the standard of the
Constitution – ensuring equality and dignity. The doctrine enjoins
the Court to play a counter-majoritarian role, protecting
individuals and minorities against majoritarianism. Joseph Shine
brings the doctrine of constitutional morality to bear in intimate
relationships. Shine is a crucial step forward in that it holds that
intimate relationships, even within the institution of marriage,
must be tested against the standard of constitutional and not
social morality.
What is the future of marriage in India? Unlike Western
Europe, where marriage rates are on the decline, Indian society is
a rm believer in marriage. Divorce may be on the rise, but
marriage is rmly embedded in the social psyche. As the
Supreme Court noted in Independent Thought, in several parts of
the country women get married well below the legal age, leading
to an increase in population growth. Marriage is not going
anywhere.
Law reform has brought forth a number of protective measures
for wives, recognizing the imbalance of power in this relationship.
Legislation has changed the legal contours of the relationship:
Section 498A IPC, the Dowry Prohibition Act, the Prevention of
Child Marriage Act, the Protection of Women from Domestic
Violence Act, and so on. It’s a long list. But the marital rape
exception is stubbornly impervious to change.
What is it about sexual intimacy within marriage that makes it
an exception? Can we dream of a future where marital intimacy
is also thought of within a framework of equality and dignity?
The institution of marriage is changing – same-sex couples wish
to be embraced in its fold – and Joseph Shine ’s insistence that
intimacies in marriage are governed by constitutional morality,
and that women and men have sexual autonomy within marriage,
takes us towards that future.
SEX AND THE WORKPLACE
 The Beast in Our Midst
How India’s MeToo Movement Broke the
Silence on Workplace Sexual Harassment

NAMITA BHANDARE

Nobody saw it coming and nobody could have predicted its

impact. The complaint itself went back all the way to 2008
when Tanushree Dutta, a former Miss India, complained that
the actor Nana Patekar had groped her on the sets of a lm Horn
Ok Pleassss, 1 while she was lming a song.
Patekar, she said, had managed to bully his way into the song
and insert an ‘intimate’ step that wasn’t there in the original
script. When she protested and tried to leave the sets to go
home, her car was stopped by workers from the Maharashtra
Navnirman Sena, a parochial party.
There’s a video of dozens of screaming, angry men beating
down on her car, de ating the tyres and smashing its windshield.
You can see Dutta in the back seat, her mobile phone in one
hand, the other on her driver’s shoulder as if to reassure him –
or perhaps herself. Police in uniform stand impassively as one
man jumps on the roof of her car. It is terrifying to watch. 2
Dutta complained to the Cine and Television Artistes’
Association (CINTAA). There was no response. The story made
no headlines. She eventually got married, moved to America and
the story was forgotten.
In September 2018, the Brett Kavanaugh con rmation
hearings for the US Supreme Court were broadcast live from
Washington. The hearings did not reach a wide television
audience in India. Yet, in a global, instantly interconnected
world, the accusation by Professor Christine Blasey Ford that
Kavanaugh had sexually assaulted her brought forward
memories of America’s MeToo movement of a year ago, and
seemed to have acted as a trigger for some women in India.
It was in the middle of these hearings that the Tanushree
Dutta incident resurfaced when she gave an interview to an
entertainment channel revisiting the old incident with Patekar.
Just how much had changed in a decade is evident by how
quickly Dutta’s interview was picked up and how fast it went
viral.
CINTAA scrambled to issue a belated apology, saying that its
earlier decision was ‘not appropriate, as the chief grievance of
sexual harassment wasn’t even addressed.’
But the real turmoil was taking place on social media.
‘Some incidents that take place even a decade ago remain
fresh in your memory. What happened with Tanushree Dutta on
the sets of ‘Horn OK Please’ is one such incident – I was there,’
began a 13-tweet thread on 26 September by the journalist
Janice Sequeira.
Sequeira was bearing witness to what Dutta had been saying
all along, hinting at the Indian lm industry’s dark underbelly –
its infamous ‘casting couch’. She lamented: ‘It could have
possibly been the rst instance of a Bollywood actress calling out
sexual predators, and her voice was silenced by more powerful
men who continued to have ourishing careers. Now she’s
found her voice again. Should we listen?’
It was a rhetorical question because regardless of whether
anyone was listening, an unprecedented number of women
began speaking up. Silence, for them, was no longer an option.
How far back do you rewind events to understand India’s
October 2018 outing – its own MeToo movement?
Those looking for a spark might be tempted to go back no
further than a year to the global impact made by The New York
Times and New Yorker investigations into Hollywood lm
producer Harvey Weinstein, which exposed decades of
predatory behaviour and brought his career to an effective end.
Or they might want to look at the publication on social media
of ‘The List’, or to use its acronym LoSHA (List of Sexual
Harassers in Academia), by a 24-year-old law student at the
University of California, Davis. In October 2017, Raya Sarkar
had launched an online campaign to name and shame teachers
at Indian universities who were alleged to have sexually harassed
or assaulted students.
In a Google document that included 35 names and a Facebook
list that had 60, the list named the professors, with locations
and, in some cases, details of the assault. In an interview to the
news website, Buzzfeed , Sarkar said compiling the list was an
opportunity to warn students ‘to be wary of their professors,
because in my opinion, knowing how college administrations
function, harassers will continue to hold their positions of
power.’ 3
Queer and Dalit, Sarkar was an early disrupter – for her list
caused (and still does) outrage amongst some older feminists,
including political science professor Nivedita Menon, who wrote
an open letter saying that LoSHA ignored due process. ‘This
manner of naming can delegitimize the long struggle against
sexual harassment, and make our task as feminists more
dif cult,’ stated the letter, co-signed by 12 feminists. 4
A younger generation of feminists disagreed. Due process had
failed far too many women in the past and the very long arm of
the law was seen as simply too exhausting and too uncertain in
its ability to deliver justice. A list, they said, was the only way to
out serial predators and warn other women. ‘The idea was so
basic, and yet so radical,’ says journalist Anoo Bhuyan. 5 ‘Raya
had developed a process that had a method, but not everybody
understood it.’
The law asks for us to believe in due process but there are no
xes available, says Bhuyan. ‘Due process can be xed only by
people in power – and those people are upper caste men who
have no interest in creating a more just society for women.’ 6
Bhuyan remarks that the movement has always existed. ‘The
spectre of sexual harassment and the resistance to it is not
anything new.’
Mumbai-based writer and lmmaker Paromita Vohra who
runs the excellent website ‘Agents of Ishq’ agrees: ‘People would
love to see MeToo as a discrete event. But really what it was,
was decades of feminist activism and change.’ 7
And women simply would not be bullied into silence. In July
1988, Rupan Deol Bajaj, an IAS of cer, took umbrage when
K.P.S. Gill, then the Director General of Police in Punjab
confronted her at a dinner party and slapped her posterior in
view of the other dinner guests. After getting no satisfactory
response to her complaint to the Inspector General of Police,
Chandigarh, Bajaj led a criminal complaint and then, along
with her lawyer, Indira Jaising, followed through all the way to
the Supreme Court, where she was nally vindicated 17 and a
half years later.
With every generation, life is different, Vohra continues. ‘I
remember hearing one of the rst women in the army speaking
about how there were no toilets back when she joined but you
really didn’t complain because you didn’t want to admit that
you couldn’t hack it. Today, we would critique that position.
But I get where she’s coming from. You’re the person who
pushed the door open for so many others even though you
might have had to use some of the same tools of the structure
that you went into.’
 Undeniably, one of the milestones on this long journey was
when, in 1992, the government of Rajasthan launched a
campaign against child marriage, and a 25-year-old woman
signed up for it. Bhanwari Devi, from the kumhar , potter
community in the village of Bhateri, 56 kilometres from Jaipur,
had been married off when she had been just a baby. She
remains, in her words, an angootha chaap, illiterate. 8 As a
volunteer, or saathin , she received Rs 200 a month for expenses.
Her job was to convince parents to postpone the marriages of
their minor daughters.
When Bhanwari found out that two children, one just a baby
at nine months, were to be married off in her village, she tried to
talk the families out of it. The marriages took place anyway. But
as revenge for trying to prevent them, the village council
announced a social and economic boycott of Bhanwari and her
husband, Mohan Lal. Nobody could engage their services or buy
the pots they made. The vegetables the couple had grown on a
small plot of land for their own consumption were destroyed.
It was an awful price to pay, but not the only one.
On 22 September 1992, ve upper caste men caught hold of
Bhanwari and Mohan Lal while they were out in the elds. They
beat up the husband, and while three of them held her down,
two raped her in his presence, she says.
Bhanwari remembers what happened next. When she and her
husband went to the Bassi police station to le a complaint, they
were told that a medical examination was required as proof of
rape. So they went to the local health centre, where the woman
doctor was not on duty. Then they took a bus to Jaipur but by
the time they reached, the magistrate who was to sign the order
clearing the medical exam said it was past his working hours.
She would have to wait until the next morning.
Fifty-two hours had passed by the time Bhanwari Devi was
medically examined for evidence of rape. When she returned to
the Bassi police station to nally le her complaint, the police
said she would have to deposit her skirt as evidence. Mohan Lal
then removed his turban, unfurled it and gave it to Bhanwari to
wrap around herself, she says.
But when judgement was pronounced three years later, in
November 1995, by a judge of the District and Sessions Court,
he ruled: ‘Since the offenders were upper-caste men and
included a Brahmin, the rape could not have taken place.’ 9 For
the judge, it was unthinkable that upper caste men could have
touched a lower caste woman.
In the history of the women’s movement, Bhanwari Devi
occupies a special place. Women’s groups erupted in protest and
several non-government organizations working for women’s
rights came together under the name of Vishaka to le a petition
in the Supreme Court asking for a legal framework for women
who had been sexually assaulted in the course of their work.
There was, until then, no precedent, law or guideline relating
to sexual harassment at the workplace. A three-judge bench
headed by the then Chief Justice of India J.S. Verma, 10 Sujata
Manohar and B.N. Kirpal had to rely on international treaties
such as the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW) to issue a series of
‘guidelines’ that were to be ‘strictly observed in all workplaces’.
11

The Vishaka Directives served as guidelines for the prevention

of the sexual harassment of women at the workplace. These
guidelines remained the law until 2013, when the Sexual
Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Act was enacted.
The Vishaka judgement remains path-breaking for several
reasons. For the rst time, India’s highest court was de ning
sexual harassment to include not just physical contact and
demands for sexual favours but any unwelcome physical, verbal
or non-verbal conduct that was sexual in nature. Moreover, it
placed responsibility on employers to prevent or deter sexual
harassment and set up processes to resolve, settle or prosecute
such cases. It asked employers to create appropriate mechanisms
so that complaints could be addressed in a time-bound manner.
12 And it urged Parliament to enact an appropriate law.

‘For the rst time in our history, sexual harassment was

viewed not just in terms of safety but in terms of a violation of
women’s Constitutional rights to equality,’ says Naina Kapur, the
lead instructing counsel for the case. ‘Going beyond safety, the
court was talking about provisions that would enable women to
go out to work and make a living.’ 13
The National Commission for Women prepared ve draft
bills. The 2010 draft was even tabled in Parliament and included
additional features to the court guidelines: Monetary penalty for
employers and interim relief for complainants. 14 Yet, it took the
December 2012 protests against the gang rape and murder of a
young medical student for Parliament to nally pass the Sexual
Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Act in April 2013.
Twenty-seven years later, Bhanwari Devi says she is thrilled
with the Vishaka judgement and the subsequent changes in the
law even though she never got justice for her own case where
four of the ve accused men have died of natural causes. 15
‘I only tried to stop little girls from being married off,’ says
Bhanwari, who continues to work as a saathin . ‘I did nothing
wrong.’
Bhanwari says she has no regrets and is proud of her role in
getting women to speak up. ‘MeToo is happening because I
broke the silence. Today, women are speaking up because I
spoke up nearly 30 years ago. I will get justice some day. And if I
don’t, then my daughters will get justice. And if they don’t, then
their daughters will. They will get it because women are no
longer prepared to remain silent.’
If Bhanwari Devi sparked a movement, then Tanushree Dutta
certainly lit the October revolution, or what we now in
hindsight call India’s MeToo movement. It was only the
beginning.
Early in October 2018, a Kanpur-based pan masala company
sent 1,200 employees, all men, on a cruise to Australia. When
Voyager of the Seas , a ship operated by Royal Caribbean
International, left Sydney harbour, the men took over the pool
deck, bars and buffets, bringing on board burlesque dancers
dressed as Playboy bunnies.
‘A dream cruise for dozens of Australian families hijacked by
more than 1,000 men from an Indian tobacco company on a
wild work bender has forced Royal Caribbean International to
apologize to distraught passengers and issue mass refunds,’
reported 9News, an Australian news outlet. 16
Many Indians took to social media to express their outrage.
Amongst them was a stand-up comedian called Utsav
Chakraborty, a part of the now disbanded comedy collective, All
India Bakchod (AIB). Founded in 2013, AIB had become one of
India’s most-viewed comedy channels on YouTube. By October
2018, the group had over 3.4 million subscribers and over 379
million views for its videos.
‘Utsav was using his feminist woke cred, when actually he was
no better,’ Mahima Kukreja, a 28-year-old writer, poet and
stand-up comedian, told me. ‘The moment I read his tweet, I
said, “This is it.”’ 17
Kukreja took to Twitter: ‘I want everyone to know @Wootsaw
[the twitter handle for Utsav Chakraborty] is a piece of shit. He
sent me a dick pic, was creepy, then cried saying I’ll ruin his
career if I tell others. I told two of the most in uential men in
comedy in India. Nothing happened. Let me tell you what else
he has done with others.’
In a series of tweets, Kukreja accused Chakraborty of sexually
harassing her and propositioning other women, one of whom
was underage at the time. To some women he had sent pictures
of his penis. He asked others to send him their nude pictures on
Snapchat. ‘I have received an avalanche of messages. He has
abused and harassed so many. Will only post the ones I’m given
permission to post,’ tweeted Kukreja as she shared screenshots
and messages.
‘The rst couple of days were insane. It was overwhelming
just how many stories were coming up,’ says Kukreja. It was, for
her, also incredibly traumatic. ‘I had three panic attacks on the
rst day. I was just a complete mess.’ 18
Chakraborty’s rst reaction on social media was to declare:
‘The whole thing is far more complicated than it appears.’ It
needed, he added, ‘an incredible amount of context’.
But at 4.14 p.m. that same afternoon AIB also issued a
statement: ‘We have been following the allegations made on
social media this afternoon by women against Utsav
Chakraborty, who has featured in some of our videos. The
accusations describe a pattern of behavior that is unacceptable,
and we at AIB condemn Utsav’s alleged behavior.’
The statement acknowledged that by ‘extending safe working
spaces and a collaborative environment to people like Utsav, we
have contributed towards a toxic environment that can be scary
and unsafe for women.’ AIB would be ‘delisting every single
video on our channels that features Utsav.’
Later that same day at 8.24 p.m., Chakraborty conceded: ‘To
be honest, from all accounts, I’ve been a piece of shit. And I will
try to do everything I can to work past that. There was no
excuse.’
That was not the end of it.
Less than 24 hours later, AIB issued a second statement
offering clarity on whether members of the collective had
known about the accusations against Chakraborty and failed to
act on them.
‘We messed up,’ admitted AIB. It turned out that AIB co-
founder Tanmay Bhat – one of the ‘two of the most in uential
men in comedy in India’ Kukreja had referred to in her rst
tweet – had actually received detailed allegations against
Chakraborty and had confronted him ‘in a personal capacity’, he
said. This had led to Chakraborty calling up the victim, leading
to her further harassment. Yet, the company had continued
assigning work to Chakraborty. ‘We failed to listen when we
should have and for that we are sorry,’ the company admitted.
Three days later, AIB’s head of human resources con rmed
that Tanmay Bhat was ‘stepping away from his association with
AIB until further notice’. The second of the ‘two of the most
in uential men in comedy in India’ in Kukreja’s tweet,
Gursimran Khamba, was sent on a temporary leave of absence.
It was unprecedented to see big companies owning
responsibility and taking action. In the past, the imbalance of
power – big-shot male boss, subordinate female employee –
meant that complaints of sexual misbehaviour had petered out
into inaction and red tape with companies openly siding with
the more powerful predatory bosses, and complainants often
being forced to leave the organization. The more prudent course
for many was just to stay quiet.
A January 2017 survey by the Indian National Bar Association
of over 6,000 employees across various sectors found that 70 per
cent of women who had experienced sexual harassment at work
did not report it. 19 Women said that very often, more than the
incident of sexual harassment, dealing with the complaints
mechanism was isolating and nerve-wracking. Many were simply
unaware of their rights in law. Others just quit and moved on.
Women had been ‘waiting for a time and a moment to tell
their story’, says Kukreja. Now, they were breaking that
unspoken rulebook and questioning the silence imposed on
them. 20
On 6 October 2018, while Mahima Kukreja’s tweet storm was
still swirling, journalist Ghazala Wahab tweeted: ‘I wonder
when the oodgates will open about @mjakbar.’
Mobashar Jawed Akbar was the rst editor of Sunday , a
magazine which began as the weekly supplement of the
Hindustan Standard newspaper published by the Ananda Bazar
Patrika group. In 1976, it was launched as a stand-alone
magazine. Indira Gandhi’s Emergency with its suspension of
civil liberties was ongoing but the magazine captured the
zeitgeist of the ’70s, remaining relevant well into the ’90s and
well after Akbar had left. 21
In 1989, Akbar stood for elections on a Congress ticket from
Kishanganj in Bihar. He won and was appointed party
spokesman by Rajiv Gandhi. In 1991, elections were held again,
and it was during this campaign that Rajiv Gandhi was
assassinated. The Congress came back to power but with the
help of coalition partners. Akbar lost but was, nevertheless,
appointed an advisor to the Ministry of Human Resources.
Towards the end of 1992, Akbar announced his return to
journalism with the launch of The Asian Age , India’s rst daily
newspaper with an international edition. But, by the late ’90s,
he had diluted his stake in the newspaper and eventually sold off
most of it. Between 2000 and 2012, he was an editorial director
with the India Today group.
In March 2014, just two months before the general elections,
Akbar made the switch back to politics yet again, but this time
with the right-wing BJP party because, he said, ‘Narendra
Modi’s leadership is essential for the country.’
The BJP and its allies swept to power with 282 seats.
Although he had not contested the elections, Akbar was
appointed Junior Minister for External Affairs and brought into
Parliament via the Rajya Sabha through a 2015 by-election in
Jharkhand.
The complaints of sexual harassment against Akbar go back to
the time when he was an editor.
 In an article published on 12 October in the news website,
The Wir e, Ghazala Wahab writes about her rst introduction to
M.J. Akbar, the writer, while she was still a schoolgirl. Reading
his books turned a ‘desire’ to become a journalist into a
‘passion’. But joining The Asian Age as an intern in 1994 for this
small-town girl from Agra soon put all illusions to rest, for ‘he
screamed, he swore and he drank in the of ce,’ she writes. 22
‘I also frequently heard of ce gossip about his affairs with sub-
editors/reporters or that in every regional of ce of The Asian Age
he had a girlfriend. I shrugged all of it off as of ce culture. I was
in the periphery of his attention and remained unaffected.’
But in her third year at the newspaper, she writes, Akbar’s
eyes fell on her. Her desk was moved to outside his of ce where,
if the door was left ajar, he could watch her. He would send her
‘lewd’ messages. He would call her in for conversations and shut
the door. ‘I was the rst person in my family to come out of my
hometown Agra to study in Delhi and, thereafter, work. In the
past three years, I had fought several battles at home to be able
to live and work in Delhi. Women in my family only studied but
never worked. In small town business families, girls always
settled for arranged marriages. I had fought against this
patriarchy. I had refused to accept money from my father
because I wanted to make it on my own. I wanted to be a
successful, respected journalist. I just couldn’t quit and go back
home as a loser.’
The stories we hear of workplace sexual harassment don’t tell
us about aspiration, ambition and the million tiny rebellions that
women like Ghazala Wahab need to launch just for the right to
work.
I could relate to Ghazala’s story. When I applied for a master’s
degree in journalism to the United States in the mid-80s, I did
so in the knowledge that what I was escaping was an inevitable
arranged marriage to a suitable boy of my mother’s choosing. I
had other plans.
 Back then there was no Internet. I trudged to the US
Education Foundation of ce at Hailey Road in New Delhi,
picked up a few brochures, sat down with a bored typist at
Shankar Market, wrote out my essays, trekked to the post of ce
to personally mail the packet (to ensure the postage stamps
weren’t stolen) and then waited 10–15 days or more for a reply.
When I returned from America two years later, I was a
different person, having won the right to study and work on my
own terms.
For me to ever complain to my parents about workplace
sexual harassment was simply out of the question. Women like
me knew the inevitable response: We told you not to work. Now
stop this nonsense, come home and get married.
And so, I never told my parents about my creepy boss. In any
event, it was a one-off incident that happened mercifully early
at the beginning of my job. I served out my three-month notice
at the now defunct The Independent , launched by the Times of
India group, after working for just a month. The notice period
was both a requirement of my employment contract and the
needed breathing space for me to nd another job, since, as a
woman living on my own in Mumbai, I could not afford to be
without work for any length of time.
At the height of the MeToo movement I did write an article 23
about the incident, not just the actual sexual assault but the
abuse of power when my then editor summoned me to his of ce
and berated me for telling a few people about the episode. It
was a humiliating dressing down and I responded by resigning.
When the MeToo movement happened in India, my former
editor was heading a prestigious literature festival. I wrote to
him, received a weak denial, wrote back and never heard from
him again.
Akbar’s response to the avalanche of accusations against him –
including one alleging rape – was to le a criminal defamation
case against one of the early tweeters, journalist Priya Ramani.
Two days after Ghazala Wahab’s tweet, Ramani tweeted: ‘I
began this piece with my M.J. Akbar story. Never named him
because he didn’t “do” anything. Lots of women have worse
stories about this predator – maybe they’ll share.’
The ‘piece’ was an article Ramani had written in the form of
an open letter a year earlier in 2017 for Vogue soon after the
Harvey Weinstein story had broken in American media. 24
Ramani’s article begins with a description of her job interview
with an unnamed editor in his hotel room, where the bed was
turned down for the night. The editor offered her a drink, which
she declined, and then asked her about her marriage plans and
taste in music – even singing old Hindi lm songs for her. The
rest of the article, addressed to the ‘Harvey Weinsteins of the
world’, talks of how entitled, predatory behaviour by such
bosses was now on notice.
Within days of Ramani’s tweet, as many as 20 women came
forward with detailed accounts of being sexually harassed by
Akbar. A former intern, the daughter of Akbar’s friend, wrote
about how he had kissed her on her mouth when she was 18.
She says her father confronted him by email. Another woman, a
journalist now with National Public Radio in the US, said he had
raped her.
Akbar was out of the country when the story broke.
Unsurprisingly, it made huge headlines in Indian and foreign
media. There were demands for a thorough investigation and for
his resignation, made by organizations such as the Indian
Women’s Press Corps, Press Club of India and South Asian
Women in Media. When neither the tweets nor the media
coverage showed signs of slowing down, Akbar put in his papers,
claiming that he was doing so in order to ‘seek justice in a court
of law in my personal capacity…and challenge false allegations
levied against me.’
 To the questions put to him in court by Ramani’s lawyer,
Rebecca John, Akbar rst claimed that he could not remember
the interview, then at out denied that such a meeting had taken
place in his hotel room. He also told John that there had been a
‘misunderstanding’ with the intern but that it had been sorted
out. And he con rmed in Court what he had earlier said in a
statement to a news agency that he had had a ‘consensual’
relationship with the journalist who said he had raped her. But
he also acknowledged that she was his subordinate.
The heat of the courtroom drama hid the chilling effect of
Akbar’s defamation suit. He added, in Court, that he reserved
the right to issue criminal defamation notices to his other
accusers and news outlets that had published their accounts.
At the time of writing this essay, both teams of lawyers have
concluded their examination and questioning of witnesses.
Akbar’s lawyers are to conclude their nal arguments and this
will be followed by the nal arguments put by Ramani’s lawyer.

To understand due process, and the frustration of many women,

particularly younger women, with the legal route, you have only
to look at two early cases led under two new laws: the rst on
rape and the second on workplace sexual harassment.
Tarun Tejpal’s Tehelka pitched itself as a ‘free, fair, fearless’
weekly in the pursuit of truth. Politically, it was determinedly
left-of-centre – a sting operation exposing corruption in defence
deals under the then Atal Behari Vajpayee-led NDA government
had nearly cost it its nancial survival.
Within the of ce there seems to have been a general
atmosphere of laissez-faire, particularly with regard to
relationships between staff. Not all were consensual, and there
were complaints by women about a photographer here or a
senior editor there. They were often told to not be ‘prudish’ or
even asked, ‘Are you getting enough sex?’ says a woman
journalist who worked there at the time. When a woman
reporter complained about her supervisor, she was asked to start
reporting to a female boss; no action was taking against the
supervisor, she says.
Another woman reporter about to interview a notoriously
lecherous lawyer remembers being told that it was OK if the
lawyer wanted to stroke her thighs – as long as she got the story.
And Tejpal himself had once famously made what seems to have
been an off-the-cuff ‘joke’: ‘Now you are in Goa. Drink as much
as you want, eat…sleep with whoever you think of, but arrive
early at the event.’
That remark was reportedly made at Tehelka’ s Think festival
in 2011 held in Goa. Like many other publications – India
Today, The Economic Times and the Hindustan Times that host
leadership conferences – Tehelka had branched out into the
lucrative, sponsor-rich events space. In 2013, its Think festival,
described as ‘India’s most democratic, most inclusive’, was held
at Goa’s Grand Hyatt hotel with a line-up of 70 speakers
including Robert de Niro and Amitabh Bachchan. Of the 32
panels and conversations, not including performances and
presentations, held over two days on 8 and 9 November, 20
were moderated by Tejpal’s managing editor, Shoma Chaudhury.
The complainant in what came to be known as the Tehelka
case had joined the publication in 2009 as a 22-year-old, fresh
out of college. ‘I believed there was no better place to do
journalism,’ she says. 25 At the 2013 Think festival, she was
detailed to chaperone De Niro and his daughter.
It was at this festival that, according to a written complaint by
the journalist to Chaudhury, Tejpal assaulted her twice in the
elevator on the nights of 7 and 8 November.
The rst assault occurred in the elevator on the night of 7
November when the journalist and Tejpal were returning after
escorting De Niro and his daughter to their suite. In her
complaint, the journalist says, as soon as Tejpal touched her, she
asked him to stop but it was ‘like talking to a deaf person’. Until
the elevator nally stopped, he continued. ‘At that point I did
not want to lose my job. And so the next morning, I went about
my work determined not to give Mr Tejpal or Tehelka a reason
to re me, as I was sure they would do once this story got out,’
she says in her complaint. 26 That same night, however, she did
tell a few friends at Tehelka about what had happened, she says.
The second assault took place the following night, on 8
November, when Tejpal asked the woman journalist to
accompany him to ‘Bob’s [Robert de Niro’s] room’. In her
complaint, she writes: ‘I was scared of getting into the lift with
him again, and more terri ed that he was going to try and take
me into a room this time. By this time he was holding me by the
wrist and had taken me into the lift.’ 27 Again he sexually
molested her; again she said no.
Later that night, she says, she told Tarun’s daughter, at the
time a friend, what had happened. When Tejpal found out, he
was furious. After lashing out at the journalist in person, he
texted her later in the night: ‘I can’t believe u went and
mentioned even the smallest thing to her. What an absence of
any understanding of a parent–child relationship.’
For the rst few days after the festival, the journalist says she
did nothing except think, and talk to those she trusted about her
next steps. She was getting con icting advice.
Remain silent.
Speak up.
He’s too powerful, he’ll nish you.
If you don’t speak up, you’ll never be able to live with yourself.
If you speak up, your whole life will come under scrutiny. Your
career will be nished.
She decided silence was not an option. Tejpal was her boss
and she knew she faced the risk of being assaulted again. ‘I
wanted my job but I knew that he had the power to summon
me anywhere at anytime,’ she says. ‘This made me feel
extremely vulnerable.’ 28
 At the back of her mind also was the growing indignation of
realizing that her boss had believed that it was all right to assault
her and that her consent was not required. ‘It was the erasure of
my agency, my right to existence. The belief that my consent
didn’t matter even though I very clearly said no that was just
galling,’ she says.
Back in Delhi, she emailed Chaudhury on 18 November with
details of the two assaults. She wanted a written apology.
Confronted with these details put to him by Chaudhury, Tejpal
apologized ‘unconditionally’ for a ‘shameful lapse of judgement
that led me to attempt a sexual liaison with you on two
occasions on 7 November and 8 November 2013, despite your
clear reluctance that you did not want such attention from me.’
29

In a separate email to Chaudhury, Tejpal wrote, ‘I must do the

penance that lacerates me. I am therefore offering to recuse
myself from Tehelka, and from the Tehelka of ce, for the next
six months.’ 30
But the journalist wanted this apology to be acknowledged
publicly to Tehelka staff. She wanted the term ‘sexual
misconduct’ to be included. Chaudhury, she says, told her that
she had to ‘protect the institution’ and in the public
acknowledgment, the term is watered down to an ‘untoward
incident’.
Incredibly, Tehelka did not even have an Internal Complaints
Committee (ICC) as mandated by the law. Nor was the
journalist advised by the management, or anyone else in the
organization, of her rights and options under the law, she says.
‘Deeply traumatized by the lack of support offered by the
organisation’, the journalist resigned on 25 November.
Under the new, expanded legal de nition of rape by the law
passed in the aftermath of the brutal gang rape of a young
physiotherapy student in New Delhi on the night of 16
December 2012, rape was now de ned to include acts other
than forced penile-vaginal penetration. The Tehelka journalist’s
accusation was not an ‘untoward incident’ or even ‘sexual
misconduct’ but rape – a crime that now carried a minimum of
seven years’ jail time.
When the story broke, along with leaked emails, the news
made instant headlines. Tejpal was among the rst high-pro le
men to be accused under the new rape law. Ironically, he and
Tehelka had pitched themselves as crusaders ghting for the
rights of the oppressed, and pushing for Indian society to break
its traditional silence and attitude to sexual violence. One of the
sessions that Chaudhury had moderated at the Think festival
was with rape survivors called, in ironic hindsight, ‘The Beast in
Our Midst: Rape Survivors Speak Their Story’.
As it turns out, Manohar Parrikar of the BJP, the Chief
Minister of Goa at the time (now deceased) decided to get
involved: ‘I’m not saying someone is guilty,’ he told The Times of
India. 31 ‘But the girl’s [sic] email is explicit.’
Two days after the Tehelka communication went public, Goa
police led a First Information Report (FIR) on charges of rape
and the quaintly named it ‘outraging the modesty’ of a woman.
Tejpal responded by saying he had apologized at the insistence
of Chaudhury ‘as desired by the journalist’ but that his apology
did not re ect the ‘complete truth’. That, he said, would emerge
after police examined security camera footage.
Less than a week later, on 30 November, a Goa Sessions Court
rejected Tejpal’s anticipatory bail and, that evening, he was
arrested and sent to Sada sub-jail in Vasco, Goa.
The charge sheet – the legal document led by the Goa crime
branch that lists the crimes Tejpal was accused of – was led in
February 2014. But it was only on 1 July that the Supreme
Court granted him bail, observing that he had already spent six
months in jail and did not need to be incarcerated now that the
charge sheet had been led.
In the years since then, the case has moved at glacial pace. In
December 2017, the Supreme Court asked the Goa court to
begin trial. But even as Tejpal moved the Bombay High Court to
quash rape charges and security camera footage of his elevator
encounter was illegally leaked to many senior journalists, Tejpal
remained a member of the prestigious Editor’s Guild – a fact
that came to light only when the M.J. Akbar scandal broke in
October 2018 and it transpired that as late as December 2018,
both editors had managed to remain members.
In August 2019, the Supreme Court directed the Goa trial
court to complete its proceedings against Tejpal in six months.
The journalist ew to Goa for her cross-examination but the
questions put to her by Tejpal’s lawyers were so incendiary that
she led a petition in the Goa bench of the Mumbai High Court
to ask that no ‘irrelevant’ questions were put to her. At the time
of writing this essay, the case continues to be heard.
Media’s entitled and predatory bosses were legendary, an open
secret in a trade where not much was secret. When I started out
as a reporter in the late ’80s, there was no law against workplace
sexual harassment. There was, in fact, no term like ‘sexual
harassment’. What we had was a whisper network of women
journalists warning each other to watch out for ‘creepy’ bosses.
It was not an exact or even always effective method. But we had
to make do with it.
Now, a new generation of women journalists no longer had to
ght for the right to work, no longer had to prove that they
belonged in the newsroom and, moreover, had a law that was
supposed to protect them. This was not a generation of women
that had been brought up to make compromises or, to use that
favourite term of many Indian parents, to ‘adjust’. They were
outspoken, aware of their rights and not about to suffer an
injustice in silence. The bosses unfortunately, at least some of
them, hadn’t changed and remained as blind, as entitled and as
‘creepy’ as ever.
The Rajendra Kumar Pachauri case, like the Tejpal case, played
out in full public glare and, alarmingly, like the Tejpal case
seems to have got lost in a legal maze – until his death on 12
February 2020. The case was signi cant not because of his status
– as Chair of the Inter-Parliamentary Panel on Climate Change,
he received a Nobel Peace Prize along with Al Gore in 2007 –
but because it was amongst the rst to be led under the Sexual
Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Law of 2013.
What should have been a litmus test for the recently enacted
workplace sexual harassment law dwindled into a protracted
legal battle and, six years after ling her complaint, after being
the rst to speak up against Pachauri, after waiting for her trial
to begin, the researcher will now never receive a verdict.
The woman had joined the research institute in September
2013 when she was 29 and Pachauri 73. In her police complaint,
she says, she suffered sustained harassment by Pachauri, which
included unwelcome physical contact and a barrage of
inappropriate communication. Along with her FIR, she
submitted 6,000 SMS, emails and WhatsApp messages from
Pachauri.
In February 2015, the researcher approached the head of
TERI’s ICC with a written complaint. Five days later, she lodged
a police complaint.
When the story broke in The Economic Times , the impact was
immediate. The student-run India Conference at Harvard
University said it was ‘politely withdrawing’ its invitation to
Pachauri to attend as a speaker. And in Delhi, lawyers Indira
Jaising and Vrinda Grover held a press conference saying that a
man charged with such a serious offence should not be allowed
to attend the IPCC plenary session, due to begin in a few weeks
on 24 February in Nairobi.
Pachauri put in his papers and quit as IPCC chair. In a
separate email to TERI staff, he said he was proceeding on leave
to remove ‘any fears of my in uencing the due processes being
followed’. He then appointed his own interim successor at
TERI. A few days later, on 27 February, he opted out of the
PM’s Council on Climate Change.
When a trial court agreed to grant him anticipatory bail, it was
on condition that Pachauri would not enter TERI’s of ces or
travel abroad without the court’s permission.
On 19 May, the ICC submitted its 33-page report, which
according to The Economic Times , 32 vindicated the researcher
and found that Pachauri’s conduct amounted to misuse of his
position and a violation of TERI’s policies against workplace
sexual harassment.
For the next 10 days, TERI took no action against Pachauri, as
recommended by its own ICC. This gave him the time to
approach and obtain a stay from an industrial tribunal on the
grounds that the principles of natural justice had not been
followed. The stay remains and, over six years later, the ICC
report ndings have not been made public.
The allegations against Pachauri were drawing considerable
outrage in India. Questions were being raised by lawyers and
activists about why Pachauri was being allowed the
extraordinary bene t of going on leave instead of being sacked.
Letters were written to TERI’s 10-member Governing Council,
which included Naina Lal Kidwai, then the country head of
HSBC Holdings and a woman often held up as a leadership role
model, reminding it of its responsibility to steer the organization
in a ‘value-based’ direction.
Despite the public hullabaloo, Pachauri got an order from a
Delhi court lifting its earlier restrictions on his entry into TERI’s
of ce premises – barring the head of ce and the Gurgaon
branch. On 17 July, he strode into TERI’s Defence Colony of ce
in New Delhi, where he was greeted like a conquering hero with
garlands and owers.
For some people it was just too much. A dozen TERI
employees wrote to the Governing Council asking for Pachauri’s
removal. In a strongly worded column 33 in The Times of India
on 22 July, columnist Swaminathan S. Anklesaria Aiyar asked
why a man supposedly on leave needed to visit his of ces at all.
‘Pending his trial, why has he not been suspended by TERI?’ he
wrote.
The announcement of Pachauri’s ouster as Director General
came a day later at the Governing Council meeting held in
Bangalore, where Pachauri was also present. It was issued by
Lexicon, the same PR rm that Pachauri also used, and was as
respectfully worded as it could be: His exit was a part of a
‘leadership succession process’…the Governing Council was
very grateful to the man who had put TERI on the global
stage… everyone hoped for a smooth transition and so on.
Only towards the end of the press release is there a eeting
reference to the serious criminal charges against him. But, since
the ICC’s ndings had been stayed by the industrial tribunal, the
council had to respect the proceedings and abide by its
directions, noted the press release.
It was a pyrrhic victory for the researcher, who told reporters
that she welcomed the development but did not know the real
reason for it. ‘Action should have been taken on the basis of my
complaint,’ she said. 34
Pachauri’s replacement, Ajay Mathur, was serving out his
notice at his current assignment as Director General of the
Bureau of Energy Ef ciency. Until he joined, Pachauri would
continue. A week later, a court permitted him to attend
conferences in China and Japan.
The researcher had asked for permission to work from home
during the ICC enquiry – a provision allowed to her under the
law. In April, she was transferred to another branch and
complained that she was being ‘shunted out’ for speaking up.
She went on leave.
By June, she had used up her leave and was told that any
additional leave would be without pay. In September, as
Pachauri prepared to y out to attend another conference, this
time in Kazakhstan, the head of TERI’s ICC probe against him
put in her papers and left. No reasons were given and she has,
since, maintained a steadfast silence.
It was becoming clear to the researcher that her time at TERI
was at an end. Not one person from the organization’s senior
management had ever reached out to her. She had written to the
Governing Council members individually. Not one had bothered
with the courtesy of a reply. 35
Saying that she had been ‘treated in the worst possible
manner’, she nally put in her papers on 2 November. ‘TERI
failed to uphold my interests as an employee, let alone
protecting them,’ she wrote in her resignation letter.
Pachauri certainly seemed untouchable. In less than a month,
a court noted that since the researcher herself had quit, there
was no need to restrict his entry into any of the of ces.
By February in the new year, Ajay Mathur was ready to take
up his new assignment. Not prepared to let Pachauri go, the
Governing Council now created a new post speci cally for him
– that of Executive Vice Chairman. Pachauri was to continue
working out of his imposing fth- oor of ces while Mathur was
allocated a room on the second oor. The symbolism was clear.
Then, in February 2016 a second woman spoke up and said
she too had been sexually harassed by Pachauri. In a ve-page
written statement, the former TERI employee said that she
would not be ling a police complaint since she had seen what
had happened to the rst one. However, she was willing to come
forward as a ‘credible witness’.
The second woman’s description of sexual harassment by
Pachauri had uncanny parallels with the researcher’s complaint.
She spoke of how he would call her to the of ce early in the
morning when nobody else was around, of conversations loaded
with sexual innuendo, of his use of a sexually suggestive
nickname for her, of calls on her mobile to ask personal
questions about where her husband was and what she was
doing. She spoke about Pachauri’s insistence on her presence at
conferences where she wasn’t required. And of meetings in his
of ce where he would sometimes stand close to her and try and
hold her hand.
Once again, Pachauri proceeded on leave.
On 1 March 2016, over a year after the researcher had led
her complaint, Delhi police led its charge sheet against
Pachauri. Running into 1,400 pages and including the testimony
of 23 witnesses, many of them TERI employees, the charge
sheet accused Pachauri of several transgressions, including
assault or criminal force on a woman with intent to ‘outrage her
modesty’, criminal intimidation, sexual harassment and stalking.
Judge Shivani Chauhan said there was enough evidence to
proceed with the trial.
All this while, Pachauri had insisted that his phone and
computer had been hacked. Now, in an article published on 26
March 2016 in the UK-based newspaper The Guardian , he
added a new claim: The researcher was acting for money and he
had been the victim of a sophisticated sting. 36
‘She actively irted with me and aggressively encouraged a
deeper relationship between us,’ Pachauri told the newspaper.
He said he strongly suspected, but could not prove, a
coordinated attempt to destroy him professionally and
personally.
A few days after the publication of the Guardian article, a
third woman spoke up to say that she too had been sexually
harassed by Pachauri. She said Pachauri’s counter-allegations
were ‘right in line with his character’.
The woman, a foreign national, said she had been hired by
TERI for a year in 2008 when she was just 19. In the rst few
months, she said, she was subject to relentless sexual harassment
that included text messages and emails from Pachauri. In his
of ce, he would put his hands on her waist, hug her for longer
than felt comfortable, kiss her on her cheek and question her
about her private life. He would call her during non-working
hours and on holidays. Once, when she was sick and could not
attend of ce, he landed up at her house with a bouquet of roses.
‘This might sound sweet, but at that time I just felt
uncomfortable and scared,’ she said in her public statement.
The woman asked to be transferred to another division, but
Pachauri continued calling her to his of ce on one pretext or
another. When she persisted in making it clear that she did not
want to be around him, her year-long contract was terminated
after just four months. She was, she said, ‘Very relieved that I
would not have to face Pachauri’s sexual harassment any longer.’
The Governing Council’s refusal to act against Pachauri was
now turning into a PR nightmare.
Pachauri’s term at the Governing Council had ended on 31
March, and in a meeting, the rest of the council decided not to
renew it. That effectively brought to an end his role as
Executive Vice Chairman. But he also had an employment
contract with TERI that was due to expire only in 2017. The
Governing Council nally decided to sever its association with
him, agreeing to pay his salary and dues for the rest of his
tenure.
To check the veracity of Pachauri’s claim of being hacked, the
Delhi police had sent his phone and computer to a forensic lab
to be tested. Early in November 2016, the Forensic Science
Laboratory in Gandhinagar submitted its report: They had not
been hacked.
Still, the legal cases plodded along. In September 2018, ve
years after the researcher had joined Pachauri’s of ce in
September 2013, a Delhi court nally ordered the framing of
charges against Pachauri. Speaking to reporters outside the
court, the researcher said it had not been an easy battle for her.
The new development was a ‘big leap towards the truth’. But
she said she was left feeling utterly exhausted.

The torrent of India’s MeToo stories continued through October

2018 and well into November.
 As the days wore on, it became clear that India’s MeToo was
organic, spontaneous, led by the women themselves and, very
often, backed by evidence in the form of screenshots of text
messages with lewd propositions.
Women were coming forward to document, to share, to
shame, to seek or to hope for justice for what had been done to
them. Not every charge had the same stamp of gravity: Some
spoke of incidents that t into the legal de nition of rape; others
spoke of years of targeted harassment by callous bosses who
thought sex with the intern was a perk of the job. Still others
spoke about a date gone wrong or just to say that a colleague
gave off a ‘creepy vibe’.
Not every woman was seeking to make a formal complaint –
either the years had passed and they lacked evidence or the legal
process seemed far too daunting. Some shared to warn others.
Others shared because they were seeking closure. But regardless
of the degree of harassment or the expected outcome, women
were talking and sharing. It was unstoppable.
‘MeToo was such a simple idea,’ says Anoo Bhuyan. ‘For years
women had sat around the table talking about what had been
done to them. Now they were telling their stories in public on
social media.’
And, for the rst time, the media was listening and picking up
those stories. Many of the stories cut close to the bone as
accusations against editors and star male reporters came
tumbling out.
In the entertainment business, lmmaker Vinta Nanda had
made a name for herself during satellite television’s golden years
in the early ’90s with Tara , the longest-running show on Zee
TV that ran from 1992 to 1997. Its star, Alok Nath, was already
a well-known actor known for his ‘sanskaari ’ , cultured, roles in
serials like Buniyaad on Doordarshan and lms like Hum Aapke
Hain Kaun . In 1987 he had married Nanda’s college friend,
Ashu. ‘We were all close friends,’ says Nanda.
The problem began, when Nath started ‘misbehaving’ with
the actress Navneet Nishan, who played the role of Tara in the
serial. ‘He would get drunk and become a different person. He
started turning up at Navneet’s house in the middle of the night,
shouting abuses. He would even misbehave on the sets,’ Nanda
told me when I met her in Mumbai in November 2018. Things
came to a head, she explained, when Alok Nath tried to grope
Navneet on the sets and she slapped him. ‘I decided then to let
him go professionally,’ she said. Socially, they remained friends,
but professionally it was no longer possible for her to work with
him.
In 1997, there was a management change at Zee and Nanda
was ordered to bring Alok Nath back into the show and drop
Navneet Nishan. This made her position untenable and,
although she continued as a producer, she stopped writing the
episodes and ‘washed her hands off the show’. A week later she
was called to the Zee of ce and told that four of her other
shows that were running concurrently on the channel were
being dropped. 37
Nanda by then had a full- edged production house that
employed 250 people. Surely, this couldn’t be true, she
protested. But Zee was not prepared to budge. One of the
bosses told her, ‘Women like you are not welcome in this
country.’
The next few years were a ‘nightmare’, according to Nanda.
Still, she did get a few writing gigs and managed to make a
living. Although she had cut ties with him professionally,
socially, she continued meeting Alok Nath and his wife. When
Nath invited her home for a party while his wife was out of
town, she didn’t hesitate before accepting. They were friends,
after all; moreover, other friends were going to be there. But,
recalls Nanda: ‘At one point in the night I knew this was not
where I wanted to be. I was feeling very funny in my head, so I
decided to leave. It was very late and I began walking home
when a car pulled up and he [Alok Nath] was driving himself.
He said, ‘Get in, I’ll drop you home.’
 She has no recollection of what happened next. She
remembers more liquor being poured down her throat. When
she woke up next morning, she could not walk. She could not
get out of bed. ‘He hadn’t just raped me. He had brutalized me,’
she said. ‘It took me days to just get over the violence. It was a
shock. I didn’t know to what extent I was to blame: I kept
asking myself why I drank. Why did I go to that party?’
Her friends told her to keep quiet. She was just about getting
back to work. But a week or 10 days later, Alok Nath barged
into her house late at night, drunk, and tried to drag her into her
bedroom. Fortunately, two girlfriends were present, and
intervened.
The next day, Nanda remembers, she and her friends went to
his house and told his wife that her husband had raped her.
In those days, there was no law and no ICC. ‘Who would I
have complained to? Going to the cops back then was not an
option,’ she said. So she buried it for 19 years, dealing with the
post-traumatic stress as best as she could, struggling to nd
work, to nd closure, often nding neither.
Then, Tanushree Dutta’s interview in October 2018 went
viral and within hours, social media was buzzing with MeToo
stories. Nanda remembers her reaction: ‘I went “wow”. I was
really thrilled with the way the media had picked it up, the way
it was going viral.’
Nanda spoke to her mother. ‘It wasn’t planned. I don’t know
what gripped me. Something in my blood was telling me that
this was the right time to speak up. I sat down and wrote about
what had happened all those years ago. It took me ve minutes
to write what he had done to me.’
‘I have waited for this moment to come for 19 years. I shout
out to each of you who have suffered at the hands of predators
to come out and say it aloud. Don’t hold yourselves back,’ she
wrote. ‘Speak out. Shout out from the top of the roof.’
Then she went into her mother’s room, got into bed with her
and went off to sleep.
 When she woke up the next morning, the post had gone viral.
An unnamed ‘sanskaari’ actor had been accused of rape.

As the October outing gathered steam – and this essay by no

means includes a complete list – editors, actors, stand-up comics
and image consultants were named. The immediate effect was a
urry of mea culpas.
Editor Gautam Adhikari, rst accused of molestation by
journalist Sandhya Menon and subsequently by a second
journalist, Sonora Jha, had retired and was living in Washington
DC where he was working for an American think tank, Centre
for American Progress. In an email, Adhikari said he did not
recall the incidents described but ‘would sincerely apologize if I
made anyone uncomfortable in my presence’. He then quit his
job and announced that he was discontinuing his column for The
Times of India .
Seven women wrote to The Times of India accusing its resident
editor, K.R. Sreenivas, of years of unwanted touching and sexual
propositions. He was packed off on leave, pending an inquiry.
He subsequently quit.
What was unprecedented was not just the breaking of a
traditional silence by women but the willingness by companies
to acknowledge that they had failed their women employees;
that in 2018, workplace sexual harassment could no longer
remain an open, unspoken secret; and that they needed to x
the workplace.
Some newspaper managements scrambled to set things right –
beyond just the inquiry against accused staff. One newspaper
organized a series of sensitization trainings dealing not just with
what constituted a legal offence but other sticky areas: What
about consensual relationships at work? What if a boss fell in
love with his subordinate? Was it OK for colleagues to go on
dates? Beyond the legal route, what were other protective
measures and options available to women? Could workplaces do
more, not just in terms of legal compliance but in terms of
making of ces less toxic and more accommodating of women
and others on the margins – the LGBTQ community, for
instance?
‘Some of the men really had no clue,’ says Paromita Vohra,
who conducted these trainings at the newspaper of ce. 38 At one
session, for instance, a woman said that her male supervisor
stood too close to her when they were making pages. So, as an
exercise, the woman and a male participant stood together to
understand what was an acceptable, comfortable physical
distance.
Yet, even at its peak, there was a realization that MeToo was
leaving out the vast majority of India’s working women – some
95 per cent of whom work in the informal sector where
protections under law remain on paper. Dalit voices, trans
voices, voices from small towns were conspicuous by their
absence, and the October outing was entirely seen through the
prism of urban, heterosexual, male–female binaries.
Amongst women in the formal sector, there continues to be
near-complete silence from doctors, chefs, scientists, bureaucrats,
pilots and other professions. The women who were speaking up
were upper caste, women of privilege. They had undeniably
been abused and had undeniably faced trauma. But they are not
the only ones who are subjected to sexual harassment. The
stories that received coverage and outrage in the MeToo wave
were often those involving high-pro le men. One woman who
complained against her boss in a small publishing house told me,
‘Not one newspaper was prepared to carry my story.’
A year after an anonymous Instagram handle accused artist
Subodh Gupta of sexual harassment by unnamed women,
Gupta led a defamation case, seeking damages of Rs 5 crore. In
2019, the Delhi High Court ordered search engine Google to
take down 18 news articles on the subject. Google tried to resist
the order by saying it would have a ‘chilling effect on free
speech’ but did take down a few. In February 2020, the media
reported that Gupta and the handle, whose identity had been
revealed only to the court in a sealed cover, had reached a
settlement.

On 19 April 2019, a junior court assistant sent a sworn, signed

af davit to the residences of 22 Supreme Court judges. In it she
accused Ranjan Gogoi, the 46th Chief Justice of India, of
molesting her and, after she rebuffed him, of persecuting her
and her family. The two instances of molestation, she said, dated
back to October 2018, just as the October outing was underway
and days after Gogoi was sworn in as Chief Justice – the rst
amongst equals sworn to uphold the law of the land.
‘I have been victimized for resisting and refusing the
unwanted sexual advances of the CJI [Chief Justice of India]
and my entire family has also been victimized and harassed due
to that,’ stated the woman in a letter accompanying the 28-page,
12,300-word af davit. She was writing because, she said, the
‘victimisation has reached unbearable proportions.’ She feared,
‘There is imminent danger to my life that I am compelled to
speak the whole truth.’
The 35-year-old woman had been working in the Supreme
Court since 2014 where she had been posted in the library. In
October 2016, one of Gogoi’s junior court assistants took leave
to get married and she was sent to work in the judge’s court.
Her annual con dential report for the two years prior to this,
she mentioned, were ‘good’ and ‘very good’.
In early August 2018, she says, Gogoi told her that he was
going to become the CJI and wanted her to be transferred to his
residence of ce where she was required to come to work at 8
a.m., before any of the other staff.
In earlier interactions, Gogoi had taken a personal interest in
her, she says, asking her about her family life and her career
plans. She had mentioned to him that her disabled brother-in-
law had been unable to nd a job.
On 10 October she says, the Chief Justice called her into his
of ce and informed her that her brother-in-law had been
appointed a court attendant. It was the rst day of Navratri, she
writes, so she had worn an orange kurta instead of her usual
black-and-white. He told her, ‘You are looking pretty good
today.’ Then, she says in her af davit, he asked her to come and
stand next to him, got up from his chair and asked: ‘What can
you do for me?’ She repeated that she was very grateful, but he
‘slid his hand from the back of my head, along my back to my
hipline, till my lower back’. When she froze, he pulled her
cheeks and said he was like this with his daughter. He asked her
to write down what she could do for him.
The next day, she states in her af davit, the Chief Justice
called her again and asked her to show him what she had
written. He read her note, in which she had written about how
grateful she was to his Lordship, what a blessing he was, how
thankful she was and so on. He read the note, got up from his
chair and came and stood to her left. She stood up too.
‘He then took my hands into his and told me that my hands
smell nice, he then pinched my cheeks, he then put his arms
around my waist from the front, and said, ‘I want this from you.’
He was pressing his body against hers, she writes, and when he
did not stop ‘forcibly hugging me’, she pushed him away and he
hit his head against a bookshelf.
She left his of ce in a state of shock. But he called her back
into his room in 10–15 minutes and told her she was not to tell
anybody about what had happened. That night, back home, a
little less dizzy from the day’s events, she tried to call him, she
told me. But his personal secretary took the call and asked her
not to disturb the Chief Justice at night.
From 12 October onwards, she says, the CJI’s behaviour
towards her changed. When she entered his of ce, he made sure
a peon was present or the door was left ajar. Ten days later, on
22 October, she was transferred out of the residence of ce and
posted to the Centre for Research and Planning (CRP) in the
Supreme Court. On 26 October, she says, the Chief Justice
called her to his chambers and asked if she wanted to rejoin
work in his court. She told him she would continue at CRP.
On 16 November, she was transferred again. The next day, a
Saturday, was her daughter’s school function and since it got
over late, she could not report to work at all that day. She
informed her supervisor about the delay.
Two days later she received a memo informing her that she
was liable for action under the Court’s conduct rules. She
replied, explaining the circumstances. On 22 November, she was
transferred again – her third transfer in the span of a month.
Within a few days she was told that her explanation was not
satisfactory and she was suspended pending an inquiry against
her. On 17 December, as she was waiting outside the room of
the inquiry of ce, she had a panic attack, she says, and was
rushed unconscious to Ram Manohar Lohia Hospital. The next
day she was told that the inquiry had found her guilty and the
order noted that the ‘delinquent of cial neither appeared before
the Inquiry Of cer on 17-12-2018 [nor] she moved any request
for adjournment. Therefore, the Inquiry Of cer decided to
proceed with the inquiry ex parte against her [sic]’. On 21
December she was dismissed from service.
According to her af davit, the victimization continued. On 27
December, her husband was transferred from the Crime Branch
division where he had been working since 2013. The next day,
he and his brother were suspended from service. The husband
called Gogoi’s personal secretary ‘as we had by then realized
why all these things were being done to us, and why suddenly
every member of my family was under attack,’ the woman states
in her af davit.
The secretary denied any knowledge of their situation but on
2 January, the husband learnt that a departmental inquiry had
been ordered against him for making unsolicited calls to the
of ce of the chief justice. On 10 January, claims the woman, the
husband was called to the Tilak Nagar police station and told
that if the woman apologized to the Chief Justice, no further
action would be taken.
The next day in the presence of the court registrar and a
plain-clothes police of cial, she alleges, she was taken to the
Chief Justice’s residence where, on the insistence of his wife, she
prostrated herself at her feet, rubbed her nose on the ground
and said sorry.
For the next two months, the woman says she fell into
‘complete depression and would suffer panic attacks’. In March
she was in Jhunjhunu, Rajasthan, with her husband at his
ancestral home, when the police informed her that someone had
lodged a criminal complaint case against her and she would have
to report to the Tilak Nagar police station in Delhi.
The complaint had been made by a resident of Haryana who
claimed that the woman employee had taken a bribe of Rs
50,000 from him in exchange for a promised job at the Supreme
Court. On the night of 10 March, she was arrested and taken to
the Tilak Marg police station, where her feet were shackled to a
bench and she was subject to verbal and physical abuse, she
writes in her af davit. She was able to eventually get bail after
one day in police custody and one day in judicial custody.
What she wanted now was a special enquiry committee of
retired Supreme Court judges to investigate her accusations.
The story, not surprisingly, made the front page of every major
newspaper in India as well as international papers like The New
York Times . A statement given by the court said the allegations
were ‘completely and absolutely false and scurrilous and are
totally denied’. Signed by the Supreme Court Secretary General,
the statement also mentioned ‘Its is [sic] also very possible that
there are mischievous [sic] behind all this, with an intention to
malign the institution.’
If the complaint of sexual harassment against a sitting Chief
Justice was unprecedented, so was the response.
20 April, the day the story broke, was a Saturday, when the
Supreme Court does not work except to hear the most urgent
matters. Chief Justice Gogoi called for an emergency hearing
along with Justices Arun Mishra and Sanjiv Khanna ‘to deal with
a matter of great public importance touching upon the
independence of judiciary’. 39 Even though he did not think he
should ‘stoop so low even to deny the allegation’, he said, the
charges were part of a ‘larger conspiracy to destablise the
judiciary’. His accuser and her family had criminal antecedents,
he said in Court, and he wanted to know how she could have
even got a job in the Supreme Court. Moreover, if these were
the circumstances in which judges were expected to work then,
‘Good people are not going to become judges,’ he said. Finally,
he mentioned that after 20 years of service, he had a bank
balance of Rs 6.8 lakh and this is what he had received for his
‘sel ess service’.
Never has the imbalance of power appeared to be wider.
Here was the senior-most judge in the highest court of the
country calling for an extraordinary hearing at which the
attorney general, solicitor general and senior of cials of the
Central Government were present to hear the accused denounce
his accuser in open court and in public. It went against the grain
of the most basic legal concept – no person shall be the judge of
his or her own case. 40
The Supreme Court, wrote senior advocate and former
Supreme Court Bar Association President Dushyant Dave in The
Indian Express , is ‘a temple of justice, not an instrument to cater
injustice’. Please remember, he continued, ‘the law so declared
binds your Lordships too’.
Within the Supreme Court, there are committees to deal with
complaints of sexual harassment by lawyers and court staff. But
there is no institutional framework to deal with complaints
against judges. Accusations against Justices A.K. Ganguly and
Swatanter Kumar had raised this question, but no alternative
was ever presented as there were fears that such a mechanism
could impact judicial independence and would require a
constitutional amendment.
 In 2014, a woman judge in the District and Sessions Court of
Madhya Pradesh made charges of sexual harassment against
High Court judge S.K. Gangele. As many as 58 Rajya Sabha
MPs signed a motion seeking Gangele’s impeachment but a
team of jurists appointed by the then Vice President and Rajya
Sabha chairperson, Hamid Ansari, cleared him of charges. The
woman judge, meanwhile, quit her job after she was transferred
to a remote area.
Now a committee of the Chief Justice’s peers, three sitting
Supreme Court judges, S.A. Bobde, N.V. Ramana and Indira
Banerjee, was about to begin its inquiry into the allegations of
sexual harassment made by the junior court assistant. When the
woman complainant pointed out that Ramana and Gogoi were
close friends, Ramana recused himself and was replaced by
Justice Indu Malhotra.
The woman had asked for a special inquiry by retired judges
because ‘a special inquiry committee would provide a forum for
a fair and impartial enquiry and would also protect the
independence of the judiciary,’ the woman’s lawyer, Vrinda
Grover, explained.
She had also requested the committee to inform her about the
procedure to be followed; she needed the assistance of a lawyer
or a support person as she had lost her hearing in one ear and
was nding it dif cult to follow the proceedings, she said, and
she wanted the proceedings to be videotaped.
In the rst hearing on April 26, she was told that the
proceedings were ‘informal’. She was nervous, she said, to
appear before three Supreme Court judges, and could not hear
what was being recorded of her testimony. On the second
hearing on 29 April, she repeated her request to have her lawyer
present. Denied. Again.
On the third hearing, 30 April, the woman issued a statement:
‘I have not been given a copy of my statement recorded on the
earlier two dates of hearing,’ she said in a press statement made
on that day. ‘I told the committee that it would not be possible
for me to participate any further if I was not allowed the
presence of my lawyer/support person,’ she said. She would, as a
consequence, no longer participate in the inquiry.
Nonetheless, the ‘informal proceedings’ continued without
the main complainant. On Monday, 6 May, the inquiry panel
ruled that there was no substance to the accusations against the
Chief Justice of India. The report would not be made public –
not even to the woman who had made the complaint.
In January 2020, following Gogoi’s retirement a few months
earlier in November 2019, the woman staffer was quietly
reinstated in the same position and with back pay. With no
charges pending against her, she proceeded on maternity leave.

Classics professor Mary Beard tells the story of Philomena, the

teenage girl in Ovid’s Metamorphoses who is kidnapped by her
sister’s husband, Tereus, and raped repeatedly by him.
Afterwards, Tereus cuts off her tongue so that she is unable to
denounce him. When Beard tells the story, it is to illustrate how
the culture of silencing women is not new. 41
‘Strong women are always put down,’ says Vinta Nanda. ‘That
is our culture of misogyny. The minute you are bold, refuse to
follow the dictates of what women are supposed to be like, you
go against the mould, you will face the backlash.’
After Nanda accused Alok Nath of raping her, two other
actresses, Himani Shivpuri and Sandhya Mridul, said they too
had been molested by Nath. But while hearing Nath’s
application for anticipatory bail, a Mumbai Sessions Court
observed that since Nanda ‘did not lodge the report immediately
after the alleged incident for her own bene t’, the ‘possibility
cannot be ruled out that the applicant [Alok Nath] has been
falsely accused in the crime’.
Nath, it was reported in media, had roles in two upcoming
lms. The rst is De De Pyaar D e with Ajay Devgn. In response
to criticism for continuing to work with Nath, Devgn issued a
long statement explaining that shooting the lm had been
completed before October’s MeToo movement and that an
attempt to reshoot would entail ‘a huge monetary loss for the
producers’. Of course, he added, he remained committed to the
MeToo movement.
The second lm, Main Bhi , is based on India’s MeToo
movement, where Alok Nath, in what can only be ironic
oversight, plays the role of a judge who condemns sexual assault.
On 13 June 2019, Mumbai police declared there was no
prima facie evidence against Nana Patekar and shut the sexual
harassment case led against him by Tanushree Dutta. She has
challenged the Mumbai police’s conclusion in a magistrate’s
court.
‘Not every accusation has led to justice or even closure,’ says
Justice Sujata Manohar, one of the three judges in the Vishaka
judgement. 42 But the movement ‘shows that now it is at least
possible for women to complain of what they could not in the
past because of social pressure and stigma. To that extent it is a
sign of empowerment.’ 43
Even as the movement was unfolding, questions were being
raised. What about false accusations? What if some women were
just trying to settle scores? It was clear from some of the
anecdotes that some transgressions were not so much workplace
sexual harassment, which is an abuse of power and authority
over a subordinate, but something else. One woman told
Paromita Vohra about the time she had consensual sex with a
male boss. Afterwards, he began ignoring her, not taking her
calls. ‘She felt bad, humiliated,’ says Vohra.
Some questions still went unanswered, for example, the
situation of a male boss and his female subordinate falling in
love or two people at work deciding to have a sexual encounter.
Would these instances be against the law? Vohra’s own advice:
‘If you open yourself to an amorous encounter as a woman in
the workplace, you are potentially disempowering yourself, the
way that the current gender dynamic plays out in the workplace.
Even if you are the boss, you will get undermined. Keeping the
professional and the personal separated is not a bad idea, unless
one does otherwise with some care.’
All the women I have ever spoken to about workplace sexual
harassment have one thing in common: They do not want to
lose their jobs or mess up their careers. In some cases, they’d
rather quit and look for another job instead of running the risk
of being labelled as ‘troublemakers’. When they do speak up or
complain, it is usually the last step, one that is taken simply
because they want the harassment to stop.
When a woman speaks up, particularly to complain about any
form of sexual violence, she is placed squarely under the
spotlight of public scrutiny. Everything is up for discussion, from
her style of dressing to the state of her marriage, from her sex
life to her hairstyle. Why did she speak up? Why after so many
years? What is her ulterior motive? Has she been bought over by
a corporate enemy? Was she, perhaps, passed up for a
promotion?
What is clear is that workplace sexual harassment is not new.
Shielded by such euphemisms as the ‘casting couch’, demands
for sexual favours in exchange for career advancement – a role, a
plum assignment, foreign travel and sometimes just retaining the
job – are old hat.
But India’s MeToo movement also made it clear that most
men are oblivious to the everyday realities of women. The
pervasiveness of sexual harassment, not just at work but on the
bus, in the metro and on the street as they commute to work, is
a daily reality for countless women.
Most men often have no idea about the struggles of women –
even women of privilege. The Constitution grants to women the
right to work and the right to privacy and autonomy as a citizen.
But on the ground, there is a struggle just for a seat at the table.
The resistance to claustrophobic arranged marriages as they
escape small towns in search of careers and freedom in the big
city. The audacity of their ambition, of their dreams.
 And the tiny, in nitesimal ways in which women are
constantly belittled by male bosses and male colleagues. Forced
to smile patiently when a male colleague comments on what
she’s wearing or the way she looks – because she doesn’t want to
‘make a scene’. Or learns to grit her teeth as a male boss steals
her ideas without so much as a thank you. Underpaid,
overlooked for promotions, talked down to – sometimes it’s just
asking her to order the coffee or take notes in a meeting as if
that is a job she is naturally groomed for.
Workplaces are designed by men. More than sexual desire,
workplace sexual harassment is an abuse of power by men in
positions of authority over subordinate females. In most cases,
there is a pattern of behaviour that emerges and abusers are
usually guilty of not just one isolated transgression but repeated
offences.
Many subsequent ‘modern’ add-ons in 21st century
workplaces – off-sites and ‘bonding exercises’ over alcohol-
fuelled weekend retreats – are also designed by men who often
have only to worry about getting to the of ce on time and not
about who’s going to put the kids to bed or get dinner on the
table. It’s a workplace that rarely recognizes a separation
between home and the of ce; a workplace where such role
models as Facebook COO Sheryl Sandberg exhort women to
‘lean in’ – as if workplaces don’t need to bend to become more
exible, inclusive and enabling for all employees, including those
men who might believe in a life outside the of ce.
Historically, these male-designed organizations have failed
women. TERI is just one instance. It’s as if the ecosystem is built
by men and designed by them to protect their own.
Paromita Vohra talks about the structure of patriarchal
success. ‘We say there are these incredibly brilliant men – and
somehow they are always men – and put them up on a pedestal,
these eccentric geniuses who are mavericks and so counter-
cultural and virile. We create this erotic buzz around them. This
culture allows these men to behave how they do.’
 MeToo sought a course correction by exposing some of these
men. In the early days, some were sent packing, but others have
fought back through the ling of criminal defamation cases or
just simply brazening it out.
‘If you don’t change the shape of power then different people
will come and inhabit that shape,’ says Vohra. ‘You need to
dissociate yourself from the structure of power and change the
way things are, and change the qualities we value. You are taking
the easy way out by saying, “This man is horrible. Chuck him
out”.’
Workplace hierarchies have often meant that when it comes
to adjudicating between two employees – a powerful boss
(usually male) and his subordinate junior (female) – there’s an
instinctive need to protect the less dispensable employee, the
boss. But more worrying is the apparent lack of concern by
corporates and organizations to follow the spirit of the law.
To pursue a legal course of action, it’s the individual woman
who must consider the cost and time of retaining a lawyer.
There must be substantial proof of the harassment – something
that often takes place behind closed doors. And she must have
immense powers of patience and perseverance to navigate
India’s notoriously tardy legal system.
In a country where the legal process is often a punishment in
itself, what does justice look like?
There is no one-size- ts-all. Some, like the TERI complainant,
have sought, and will now never receive, a legal pronouncement,
and are in a state of legal limbo as they try and get on with their
lives.
‘My life cannot be what happens between court dates,’ says
the journalist who complained about Tarun Tejpal. ‘I have to
pick up the pieces and carry on.’ And, yet, what was so radical
about what she did? In her words, she simply said no to her boss,
and then followed it up with an email to his second-in-
command.
Not everyone took the legal route. Others just wanted to state
their truth and share with the world what was done to them.
Still others could no longer bear the burden of silence and felt
compelled and encouraged to speak up at a time when so many
others were. And still others just wanted a simple
acknowledgement from their harassers admitting that they had
been wrong.
But after speaking up, what next?
‘You have to gure out a way to give justice where there is
real change,’ says Mahima Kukreja. ‘We need to look at
reformative justice and how we can change these men – change
the way laws and policy work. Right now the foundation is
wrong.’
We need a new design, an improved template. Sexual
harassment is against the law and is wrong. There can be no
disagreement on that. But more than stamping out sexual
harassment, we need an af rmative environment where women
can step out and work, contribute ideas, express themselves.
Where they can ful l the promises and guarantees made to them
by the Constitution. Where workplaces understand that there
can be no right to work, if there is no right to autonomy rst.
The 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. It’s
a New Deal where silence no longer has any space.
SEX AND RELIGION
 Triple Talaq

MADHAVI DIVAN

Minutes short of 10.30 a.m. on 22 August 2017, lawyers in

black robes jostled for space in Courtroom No. 1 of the
Supreme Court of India. A bench of ve judges of the court,
presided over by Chief Justice J.S. Khehar, was about to
assemble to deliver its verdict on a bunch of Writ Petitions, led
by a case titled Shayara Bano v. Union of India. 1
Hanging in the balance was the fate of the age-old practice of
talaq-e-biddat , commonly called ‘triple talaq ’ , by which a
Muslim man could divorce his wife in a ash of a few seconds,
by uttering ‘talaq ’ or ‘divorce’ three times. It was a historic
opportunity for the highest court in a country, which is home to
more than a tenth of the world’s Muslim population, to stamp
out a practice that played havoc with the lives of Muslim
women.
To strike out triple talaq as incompatible with the
Constitution of India needed an enormous leap of faith. Triple
talaq was universally acknowledged as deeply egregious, even
sinful by the religious orthodoxy. It had long been abolished in
most Muslim countries.
Yet, in matters concerning a religious minority, the courts
must tread softly. India’s relationship with her Muslim minority
was stained by the blood and bitterness of Partition. A
community abandoned by its privileged elite and unsure of how
its future would unfold in partitioned India, found comfort in its
religious identity. That identity found security in Shariah-based
personal laws, many of which were incompatible with
fundamental rights under the Indian Constitution. Those laws
underwent reform in Pakistan and Bangladesh, but the slightest
attempt in India erupted in angry protestations from the clergy.
2

Those long years ago, when a newly independent India made a

tryst with her own identity, she guaranteed to all her citizens the
freedom of religion. But could that guarantee be stretched to an
intransigence that drowned out gender freedoms guaranteed by
a modern Constitution? The triple talaq case was brought to the
Supreme Court by a few courageous Muslim women,
determined to be liberated from practices that had been the
bane of their lives. Their case was a strong one. But that morning
in the Supreme Court, it was hard to tell what the court would
do.
The hearing of the case lasted all of seven days in May 2017.
That was, relatively speaking, quite a brief hearing for a matter
of such importance. Chief Justice Khehar constituted a ve-
judge bench to hear the case a couple of months before the
hearing commenced. To the consternation of many lawyers, the
hearing was scheduled in the Court’s summer vacation. That
was an unusual move in a constitutional case. But the Chief
Justice declared that the court vacation, when judges and
lawyers are not burdened with routine cases, would afford more
time for this sensitive case.
He was publicly criticized for what was perceived as his
overenthusiasm. Constitutional lawyer Dr Rajeev Dhavan
bitterly criticized the Chief Justice for hearing the case in the
summer vacation and attributed motives to his decision, asking
whether this was the Chief Justice’s ‘agenda’ or that of the
Government. 3
 As the ‘master of the roster’ (an expression which acquired
controversial dimensions during the subsequent chief justiceship
of Justice Dipak Misra), the Chief Justice exercises the
prerogative of making the choice of judges who comprise a
bench. 4 This Bench was a truly motley assortment. The
religious diversity of the Supreme Court and, indeed, of
multicultural India could not have been on ner display. It was
headed by a Sikh Chief Justice. His colleagues on the Bench
were Justice Kurian Joseph, a Syrian Christian; Justice Rohinton
Fali Nariman, a Parsi Zoroastrian; Justice S. Abdul Nazeer, a
Muslim; and Justice U.U. Lalit, a Hindu. The plurality of the
composition evoked a great deal of public interest and
comment. 5
But conspicuous by her absence was the most vital
representation in a case of the kind – a woman! That made it,
what a young colleague of mine described as a ‘ men ch’, rather
than a bench! At the time, in 2017, the Supreme Court of India,
which enjoys a sanctioned strength of 31 judges, had only one
woman judge, Justice R. Banumathi. She was not on this bench.
That might explain why a judgement on a case about gender
justice says almost nothing about gender rights. One cannot help
wonder whether the composition of the Bench had anything to
do with the fact that the issue of triple talaq was examined
almost entirely through the prism of personal law rather than
from the standpoint of gender justice.
When the Bench assembled that morning of 22 August 2017,
there was no advance indication that the Court would speak in
more than one voice. When individual judges on a Bench deliver
separate opinions (concurring or dissenting), the past practice
was to make an advance indication to that effect on the daily
cause list of the Supreme Court. But there was no inkling of it
this time. So, when Chief Justice Khehar began reading out his
judgement at half past ten that morning, one assumed that he
was speaking for the Bench. As he read on copiously from a
laboriously written judgement, analysing Islamic scriptures, it
seemed increasingly clear that he was not inclined to hold in
favour of the victims of triple talaq.
In his 272-page judgement, Chief Justice Khehar declared
that the practice of talaq-e-biddat , or instantaneous triple talaq,
had stood the test of 1,400 years and constituted an essential
practice of Islam. 6 That was a stunning pronouncement, for not
even the most radical and doctrinaire of Muslim groups before
the Court had seriously argued this. Many hearts sank, mine
own included. Disbelief and dismay rent the courtroom. It was
the kind of feeling experienced a few years before, in December
2013, when a two-judge bench of the same court had
overturned the Delhi High Court’s judgement in the Naz
Foundation case, making homosexuals criminals once more, on
the ground that the law could not be tweaked for the sake of a
‘miniscule minority’. 7
As the gist of the Chief Justice’s ruling became clear, a few
lawyers rushed out of the courtroom to address the media.
Hordes of TV cameras were assembled outside, anxiously
waiting for a news byte. The rst ashes on television reported
that the Supreme Court had upheld the practice of triple talaq
and that the petitions had failed. 8
As Chief Justice Khehar nished reading his judgement and
put his signature on it, he announced that Justice Nazeer
concurred with him. That was the rst inkling that there was at
least one more judgement to follow. A glimmer of hope
ickered. Justice Kurian Joseph then proceeded to read an
extract from his judgement where he declared that the practice
of talaq-e-biddat was considered ‘sinful’, and therefore, what is
bad in theology must be bad in law.
Justice Nariman followed, declaring talaq-e-biddat
unconstitutional, but following a very different legal route to get
to that conclusion. He held that triple talaq, which was codi ed
into law by virtue of Section 2 of the Muslim Personal Law
(Shariat) Application Act, 1937, was ‘manifestly arbitrary’ and
fell foul of the right to equality guaranteed by Article 14 of the
Constitution. It was only when Justice Nariman nally declared
that the fth judge on the bench, Justice Lalit, concurred with
him, that one could be certain that the practice of talaq-e-biddat
had been consigned, at least in law, to history. It was a narrow
win by 3:2, but nonetheless a win for women, and an epoch-
making one.
Having said that, so different were the three opinions of the
Court that to decipher the ratio was a challenge. So much so
that the All India Muslim Personal Law Board that had
strenuously defended triple talaq decided to take its chances, the
very next morning after the verdict, mentioning the case before
the Chief Justice, and asking rather audaciously, that the Court
declare that the majority verdict was actually in its favour! 9
Two days after the verdict, I received birthday greetings from
Farzana, my of ce secretary of 20 years. With her usual
greetings was an unusual message. She said: ‘Many many happy
returns of the day. And congratulations for working hard and
struggling for triple talaq case. We all Muslim women have got
big relief with the judgement. Thank you for all your efforts.’
I was surprised, only because I knew Farzana to be a woman
of few words. Some months before, she had meticulously typed
out the written submissions for the case as I dictated them to
her. She offered no comment at the time. But the WhatsApp
message she sent me that day was the most effusive I had
received from her in the two decades of our association. It was
also markedly different from the many guarded and quali ed,
even deeply critical responses of some secular women activists at
the time. 10

THE GOVERNMENT OF INDIA’S STAND ON TRIPLE TALAQ

On a Wednesday evening in September 2016, a little less than a

year before the judgement was delivered by the Supreme Court,
I received a phone call from the then Attorney General of India,
Mukul Rohatgi. He called to ask me to prepare, on behalf of the
Government of India, the response to the Writ Petitions
challenging the practices of triple talaq, nikah halala and
polygamy. It was to be turned out on an urgent basis, he said.
I put aside all other work for the next three days to stitch
together the response with the help of my young colleague,
Nidhi Khanna. At the time, I was a counsel on the panel of the
Union of India, marked briefs now and then, in cases sometimes
very interesting and sometimes mundane. My own take on this
case was that the Government of India should stay clear of being
dragged into an interpretation of religious texts on the matter
because it is not the business of a secular State to be involved in
the nitty-gritty of religion. However, the State is concerned with
gender justice and the right of women to a life of dignity, and
those rights guaranteed by a modern constitution, must trump
religious practices as interpreted by some self-serving men
seeking to reinforce their patriarchal views through the means of
religious orthodoxy.
Women constitute half the population of every community,
transcending the barriers of caste and religion. The right to
profess, practise and propagate religion under Article 25 of Part
III of the Constitution is ‘subject to the provisions of this Part’.
This is an indication that the freedom of religion must surrender,
where necessary, to other fundamental rights under Part III of
the Constitution, which include the right to equality, the right
against discrimination and the right to life.
‘Secular’ activities, such as marriage, divorce, adoption and
inheritance, associated with particular religious communities,
fall outside the protection of Article 25, which is the right to
freedom of religion. 11 There was enough indication from the
abrogation of triple talaq in an overwhelming majority of
Muslim countries that it did not have any legitimate sanction of
religion. This was the thrust of my draft on behalf of the
government, in effect, supporting the challenge to triple talaq.
Given the importance and sensitivity of the matter, I expected
that the draft response would go through many levels of scrutiny
in government, and it did. But I was pleasantly surprised to nd
that not only had it survived mutilation, it had remained intact.
I had been a private lawyer for the most part of my career, and it
was a given to me that the lawyer must have the nal word on
both matters of strategy and drafting of pleadings. This time, my
client was the Government of India. In a matter of this kind, I
had not expected so free a hand.
There should have been nothing unusual about the stand on
behalf of the Government. It was a stand that any government
ought to have taken. But the chequered history of Muslim
Personal Law in India made it very unusual. This was indeed the
very rst time, in the history of independent India, in a matter
relating to Muslim women, that the Government of India had
taken a stand in support of women. Indeed, the journey from
Shah Bano to Shayara Bano had been a long and dif cult one.
In Mohd. Ahmed Khan v. Shah Bano Begum , 12 a case which
came up before the Supreme Court in 1985, a divorced Muslim
woman from Madhya Pradesh sought maintenance from her
husband of 14 years. The Supreme Court granted her
maintenance by applying Section 125 of the Code of Criminal
Procedure, which makes provision for maintenance of
dependants, including a destitute or divorced wife. The question
was whether a divorced Muslim woman, who had received her
mahr or dower was entitled to further maintenance under a
secular law. 13 The Muslim clergy erupted with angry indignance
at the Court’s application of a secular law to Muslims, and its
foray into the ‘no entry zone’ of personal law. It did not matter
than the Court had granted her a paltry Rs 179.20 per month as
maintenance.
In order to placate the Muslim clergy that held sway over the
community vote bank, the Rajiv Gandhi Government enacted
the Muslim Women (Protection of Rights on Divorce) Act,
1986 to undo the effect of the judgement in Shah Bano. This
law had the effect of depriving a divorced Muslim woman the
right to maintenance from her former husband beyond the
period of iddat. 14 The constitutional validity of the new law was
challenged by Danial Lati , the lawyer who had argued for Shah
Bano in the Supreme Court. The Court upheld the law but only
after tweaking it to ensure that a divorced Muslim woman was
entitled to maintenance even after the iddat period, so long as
she was not able to sustain herself. 15
With that history, the judgement in Shayara Bano was path-
breaking. Yet, it was no cause for euphoria. The 3:2 verdict
meant that the women succeeded by only a hair’s whisker. It
was deeply disappointing that the Chief Justice of India, along
with the sole Muslim judge on the bench, elevated the practice
of triple talaq to an ‘essential practice’ of Islam. Even the most
orthodox among the clerics con rmed that triple talaq was ‘bad
in theology’ and ‘undesirable’, but nonetheless ‘good in law’.
The struggle for Muslim women’s rights in India has had a
long and chequered history. There was a time when Shariat law,
which became anachronistic with women’s rights under a
modern constitution, came to the rescue of Muslim women,
liberating them from the constraints of a deeply patriarchal
customary law. In the rst half of the 19th century, Muslim
women in India began to use the Shariat to canvas their claim to
property, denied to them under customary law. At the time,
Islamic patriarchy was the preferred choice over customary
patriarchy. 16
While in the 1920s, the women’s groups, comprising both
Hindu and Muslim women, worked unitedly on issues which
concerned them for the bene t of all Indian women, later,
nding themselves confronted with the orthodox religious
clergy, Muslim women began to use the Shariat to reclaim their
rights. In matters of inheritance, for example, the Shariat offered
better rights than under the prevailing customary law. In Punjab,
Muslim women were denied their share in agricultural lands
because many Indian Muslims were converts to Islam from
Hinduism and continued to cling to customary laws that applied
to them pre-conversion.
 The Muslim Personal Law (Shariat) Application Act, 1937
that was enacted to ensure the application of Shariat law to all
Muslims, in matters of marriage, divorce, inheritance and the
like, was opposed by vast sections of Punjabi Muslims who
believed that granting women a share in inheritance under
Shariat would disrupt the socio-economic structure of rural
tribal societies. There was strong criticism against the perceived
double standards of Muslim organizations that used the Shariat
in matters of marriage and divorce but not in distribution of
inheritance and family property. The Begum of Bhopal and
other Muslim women reformers of the time campaigned against
tribal patriarchy and the Shariat, at the time, actually offered
relief from the prevailing state of affairs. The Act was passed in
November 1937 and was considered one of the most important
strides in the interest of Muslim women. 17
Even more interesting was a legislative reform that came in
1939 – the Dissolution of Muslim Marriages Act, 1939.
Following close on the heels of the Muslim Personal Law
(Shariat) Application Act, 1937, the new law was introduced to
make it easier for a Muslim woman to obtain divorce. There was
no provision in the Hana code of Muslim Law enabling a
Muslim woman to obtain a divorce from a court if the husband
failed to maintain her, mistreated her or deserted her. The
Statement of Objects and Reasons for the introduction of this
law was that the existing laws had caused ‘unspeakable misery to
enumerable Muslims women in British India’.
The Act listed the grounds under which a Muslim woman
could seek divorce from a court of law for cruelty, desertion,
failure to maintain and the like. The grounds enlisted in the Act,
which could justify a divorce on the plea of a Muslim woman,
are very similar to what later became available as grounds of
divorce to Hindus under the Hindu Marriage Act, 1955. Until
the Hindu Marriage Act, 1955 was brought into force, there was
no concept of divorce under Hindu law, for marriage was
regarded as an indissoluble sacred union of husband and wife.
The Dissolution of Muslim Marriages Act, 1939 was
groundbreaking because a Muslim woman’s right to judicial
divorce before a secular court on speci ed grounds preceded
that granted to Hindu men and women.
But the real reason behind the introduction of the 1939 Act
was to arrest conversion of Muslim women to other faiths. Till
that time, a Muslim woman who wanted to opt out of an
unworkable marriage had no way out but to convert to another
religion to free herself from the marital bond. An irate Ulema
issued fatwas against the practice whereby marriages could be
dissolved by reason of the wife’s conversion and declared that
she should be jailed till she returned to Islam. 18 Muslim groups
were concerned about the tendency of women trapped in
abusive marriages to renounce Islam. Renowned poet and
Islamic philosopher Allama Iqbal, who later came to be known
as the spiritual father of Pakistan, appealed to Muslim scholars
to reform Hana law so that the community could be saved
from conversions to other faiths. 19
The supporters of the Bill that preceded the 1939 Act,
including religious groups, were propelled not by any desire to
improve the status of the Muslim women but rather to put a
stop to Muslim women abandoning their faith and hurriedly
marrying someone from a different faith so that they could be
locked into a new community to prevent return to Islam.
Scholar Sabiha Hussain states that conversion was looked upon
also from the perspective of the long-term consequences on the
numerical strength of the communities which could bring about
a demographic disturbance. The change in law, she concludes,
was the desire to retain the numerical balance, and not social
reform. Thus, preoccupations with community and religious
identity overrode issues relating to gender identity and gender
rights.
Examining the 1939 Act from a different perspective, it is
worth noting that while Muslim women were given a statutory
right to approach a court of law for divorce on speci ed grounds
well before Independence, even 80 years later, Muslim men in
India continue to enjoy a unilateral right to divorce with no
reference to a court of law. Instantaneous triple talaq, or talaq-e-
biddat , is undoubtedly the most egregious of the different
methods of divorce recognized. But even the other two
methods, namely talaq-e-hasan and talaq-e-ahsan , of divorce are
desperately one-sided.
Talaq-e-hasan entails three pronouncements of talaq during
three successive tuhrs , or menstruations, while talaq-e-ahsan
consists of a single pronouncement of divorce during the period
between tuhrs. 20 While these two methods of divorce, hasan
and ahsan , allow the man more time for re ection before he
takes a nal call on the divorce, it is his call at the end of the
day. That he must wait three months to take that nal call might
only be a matter of detail. It is he who calls the shots, and while
a woman whose husband resists divorce must approach a court
of law, he remains his own master when it comes to liberating
himself from the bonds of matrimony.
This state of affairs only tells us that while we may celebrate
the abrogation of instantaneous triple talaq, it is only the tip of
iceberg when it comes to legal reform in the Muslim
community. Seventy years after Independence and working a
modern constitution, we have achieved the striking down of
only one grossly unfair medieval practice among many.
The Shayara Bano judgement, 395 pages long, is surprisingly
silent on gender jurisprudence. One probable reason why a
judgement on a case about gender justice said very little on the
subject appears to be a conscious realization by the court that
upholding the equality of status for Muslim women would open
up the oodgates of challenge on a range of other aspects of
Muslim Personal Law. An unreserved declaration of the equality
of status of Muslim women with their male counterparts would
mean that the courts would also have to scratch out practices
like polygamy and other methods of unilateral divorce. This they
were not prepared to do, at least not yet. The judicial reluctance
to take the bull by the horns is also apparent from the Bench
singling out talaq-e-biddat for adjudication even though there
were three practices under challenge before it – talaq-e-biddat,
nikah halala (the practice requiring a divorced woman to marry
another man, have sexual intercourse with him and divorce him,
before being allowed to remarry her former husband), and
polygamy .
In Shayara Bano , when the Bench rst assembled to hear the
case, it took everyone by surprise when it announced that it
would limit the hearing to the issue of talaq-e-biddat , and the
challenges to polygamy and nikah halala would be postponed to
another time. Talaq-e-biddat was the lowest-hanging fruit, and so
the court adopted the lowest threshold to strike it down. Justice
Nariman speaking for himself and Justice Lalit described the
practice as ‘whimsical’ and ‘manifestly arbitrary’ because not
only was it unilateral but had the effect of snapping the marital
cord without any scope for reconciliation. Justice Kurian Joseph,
on the other hand, held that among Muslims the practice was
regarded as ‘sinful’ and therefore could not be recognized as
valid. It was as if talaq-e-biddat was in a class of its own and
needed to be dealt with differently. It was clear that the Court
did not want to slam the door shut for debate on the other
practices.
It is necessary to understand how the hearing came about in
the rst place. There were two sets of cases being heard before
the Supreme Court. One was the suo moto petition by this
Hon’ble Court in Prakash v. Phulawati , 21 listed as in Re Muslim
Women’s Quest for Equality , Suo Moto Writ Petition (Civil) No.
2 of 2015. The second set of petitions were led by Shayara Bano
v. Union of India , Writ Petition (Civil) No. 118 of 2016.
Prakash v. Phulawati was a case concerning an interpretation
of the Hindu Succession Act, 1956. 22 In Part II of the
judgement, issues were raised on gender discrimination against
Muslim women. Issues of ‘arbitrary divorce and second marriage
in currency of the rst marriage’ resulting in denial of dignity
and security of Muslim women were raised in the course of the
matter.
Shayara Bano and some other women who approached the
Supreme Court seeking to have the practice of talaq-e-biddat
struck down as unconstitutional were themselves victims of
triple talaq. But some of these women including Shayara Bano
challenged the legality and constitutionality of other practices as
well. There were three different practices which were under
challenge in these petitions: instantaneous triple talaq ( talaq-e-
biddat) , nikah halala and polygamy.
The Constitution Bench was constituted in the summer
vacation so that there could be a full- edged hearing on all of
these issues which remained unresolved for several decades. So,
there was no warrant for con ning the hearing to one issue only.
This meant a piecemeal adjudication, which was not the object
of the suo moto reference in Prakash v. Phulawati . 23 Merely
singling out triple talaq, or talaq-e-biddat , could not take the
matter very far because all the three practices under challenge
are together entangled with the social status of Muslim women
in India. Polygamy and nikah halala still remain legitimate, as do
the other unilateral methods of divorce. But religious
sensitivities acquire such enormous proportions when it comes
to personal law, that the courts tend to tread very cautiously and
conservatively; some would argue, much too cautiously and
conservatively. 24
Triple talaq is linked with nikah halala as most instances of
halala take place because the husband, having issued talaq in an
impulse, regrets his decision but cannot have his wife back till
she undergoes halala . It is not uncommon for halala to be
accomplished by engaging the services of a maulvi for a fee. 25
The original intent behind halala might have been to deter a
husband from recklessly divorcing his wife (he would have to
suffer seeing her married to another before she could be
returned to him). But it is horrendously blind to the woman’s
wishes and treats her as a sexual object that may be passed from
one to the other at whim.
All of these practices – triple talaq, polygamy and nikah halala
– are not isolated, for together, they have a direct bearing on a
Muslim woman’s social and economic status. They limit her
bargaining power in the home and, more generally, her
prospects in life. The dread of a husband pronouncing talaq or
bringing home another wife hangs like a sword over her,
determining her choices through life, both inside and outside the
home.
There was little justi cation for the Bench to have, on the
designated date of hearing, singled out only one of the practices
in question for determination. In any case, it is not as if this
Court had not dealt with triple talaq before. In Shamim Ara v.
State of U.P ., 26 the court made observations on the arbitrariness
of all forms of talaq. Likewise, in Javed v. State of Haryana , 27
the Court was critical of the continuance of polygamy. So also in
Sarla Mudgal v. Union of India . 28 Individual cases had come up
over the years. But the purpose of the constitution of a ve-
judge bench was a once-and-for-all determination of all these
issues. Ultimately, however, the Court did not decide all the
issues, and limited itself to determining the constitutionality of
the instant triple talaq.
It has often been the defence of both Muslim organizations
resisting reform and also a number of ‘liberal’ commentators
opposing interference in matters of personal law concerning
Muslims, that practices such as triple talaq, polygamy and nikah
halala have been blown out of proportion and used to
‘demonize’ Muslim men. Two points need to be made here.
That these practices are indeed prevalent and, in fact, fairly
rampant is clear from the report of the National Commission for
Women by Syeda Saiyidain Hameed, social reformer and former
Planning Commission member. 29 The report states that
interviews were conducted with Muslim women through public
hearings across the length and breadth of the country and these
show stories of great suffering by victims of these practices.
The report also shows that income levels are lower in Muslim
families than other communities, that Muslim women are
educationally backward and participate the least in the work
force. 30 There is an obvious nexus between the intra-
community social status of Muslim women and the socio-
economic status of the community, generally. 31 The irony is that
in the early 20th century, relatively speaking, Muslim girls were
highly educated and surpassed the national average. 32 But later,
perhaps as a fallout of Partition, the exodus of the Muslim elite,
the insecurity of those left behind, and the resultant grip of the
clergy, the situation declined rapidly. Muslim women were kept
back from enjoying what the Constitution offers and the end
result is socio-economic disempowerment for the community.

STAND OF THE ALL INDIA MUSLIM PERSONAL LAW BOARD

The main opposition to the slew of petitions by Muslim women

came from the All India Muslim Personal Law Board (AIMPLB).
The AIMPLB was not a party to the petitions to start with but
was joined after it made an intervention claiming to be a
necessary party, representing the interests of Muslims in India.
The Board enjoys no statutory status and there is no data to
indicate how representative it is of the interests of the Muslims
in India, much less Muslim women. Yet, for decades it has
received disproportionate prominence in matters relating to the
Muslim community in India. In recent years, much to the
chagrin of the AIMPLB, Muslim women have formed parallel
organizations such as All India Muslim Women Personal Law
Board (AIMWPLB), Muslim Women Rights Network and the
Bharatiya Muslim Mahila Andolan to have their own voices
heard. 33
 It might be worthwhile describing in some detail the stand
that the AIMPLB took on the petitions led by Shayara Bano
and other women in similar predicaments. In parts, the stand on
af davit is nothing short of shocking. It was somewhat diluted
during the very able arguments of senior counsel Kapil Sibal,
representing the AIMPLB, but perhaps it was too late in the day.
The stand of the AIMPLB helps to explain why practices as
horrendous as triple talaq and nikah halala must be
criminalized. When religious bodies that have dominated the
discourse for so long come out to defend medieval practices
such as these with such indignation and threatening vehemence,
perhaps the only way out is to stamp them out and criminalize
them. 34
To start with, the AIMPLB staunchly resisted any judicial
intervention in matters of personal law. It contended, relying
upon an old judgement of the Bombay High Court in State of
Bombay v. Narasu Appa Mali , 35 that ‘personal law’ does not
fall within the expression ‘law’ in Article 13 of the Constitution
and that the framers of the Constitution wanted to leave
personal laws outside the ambit of challenge based on any
perceived violation of fundamental rights. In other words, any
matter of personal law, unlike any other law, could not be tested
on the touchstone of fundamental rights. This judgement and its
implications are discussed later in this essay.
The AIMPLB claimed that while triple talaq was considered a
sin, it was still nonetheless a valid and effective form of divorce.
It justi ed triple talaq on the ground that securing divorce
through the court process takes much too long and the delay
deters the remarriage prospects of a party. It contended that in
cases where serious discord develops between the parties and
the husband wants to get rid of the wife, legal compulsions of
time-consuming separation proceedings and the high expenses
of such a procedure may deter him from adopting such a course,
and, in extreme cases, he may resort to illegal criminal ways of
getting rid of her by murdering her. Triple talaq is then a better
recourse in comparison to these illegal ventures.
The af davit goes on to say that 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.
Needless to add, a husband who does not fear God may do anything against
his wife whom he hates. For only he is with her in the darkness of night. He
has more chances of covering up his crime. Often do culprits get the bene t
of doubt. This accounts for the rise in the cases of women being murdered
and burnt alive.

There were many such astounding arguments justifying the

continuance of triple talaq. In all seriousness, the af davit of the
AIMPLB suggested that triple talaq is a convenience for the
wife:
There are innumerable instances where a Muslim wife seeks dissolution of
marriage and approaches her husband seeking immediate dissolution by
resorting to triple talaq. In fact, many times the Muslim man pronounces
triple talaq at the instance of his wife as she does not want to be pressurised
by her family members to reconcile with her husband during iddat period
and therefore wants instantaneous divorce.

It is not explained, of course, why if it is so often that it is the

woman who wants the divorce, she should not be able to declare
talaq herself rather than be at the mercy of her husband to say
the magic words. The AIMPLB af davit attempts to explain
why the right to grant divorce is given to the man and not the
woman:
Shariah grants the right to divorce husband because men have greater power
of decision making. They are more likely to control emotions and not to take
a hasty decision.

The AIMPLB justi ed polygamy as a ‘social need’ on the

grounds that, according to it, the death rate for men is higher
because it is ‘mostly men who die in accidents’. It also canvassed
the ‘moral aspect’ of polygamy which ‘ensures sexual purity and
chastity’. It claimed that ‘whenever polygamy has been banned,
it emerges from history that illicit sex has raised its head.’
Polygamy was described, in all seriousness, as ‘a blessing not a
curse’. It also declared:
Concern and sympathy for women lie at the core of the provision for
polygamy. If a woman is chronically ill or if her husband is [bent] upon
taking a second wife because of her barrenness, or any valid or imsy ground,
and if the option of polygamy is not available to him, he will either divorce
her which is something reprehensible, or he may indulge in illicit polygamy.
An unlawful mistress is more harmful for social fabric than a lawful second
wife. For the former, blackmails him [sic]. In all the above instances,
polygamy is a blessing, not a curse for women. Polygamy is the solution to
the problem of divorced women and widows. It is possible only with the
second wife’s consent. For one cannot take a woman forcibly as his second
wife. Women should appreciate this point that if the ratio of women is
higher, would they prefer wedlock for fellow women, or let them be illicit
mistresses of men, without any of the rights which a wife gets.

PERSONAL LAW AS A NO-ENTRY ZONE: THE GHOST OF

NARASU APPA MALI

A reference was made earlier in this paper to the judgement of

the Bombay High Court in State of Bombay v. Narasu Appa Mali
, 36 where a Division Bench of the Bombay High Court
expressed the view that personal law was beyond the scope of
challenge on the test of fundamental rights. Narasu Appa Mali
was a judgement by a formidable combination of Chief Justice
M.C. Chagla and Justice Gajendragadkar, and even a passing
observation in the judgement, not germane to the case, ended
up having a lasting impact, even on the Supreme Court. That
made it deeply problematic.
The case arose out of a Hindu man’s challenge to the Bombay
Prevention of Hindu Bigamous Marriages Act, 1946. The
petitioner, a Hindu man, protested that the law was
discriminatory against Hindus as Muslims could continue to
have multiple wives. The High Court repelled his challenge,
declaring that reform could come to different communities at
different points in time and that merely because reform was
brought about in the Hindu community beforehand did not
make the law discriminatory to Hindus. In a passing and rather
unsolicited observation, the Court declared that ‘personal laws’
were intended by the makers of the Constitution to be left out
of challenge before the courts on the ground that they violated
fundamental rights:
[…] Thus it is competent either to the State or the Union Legislature to
legislate on topics falling within the purview of the personal law and yet the
expression ‘personal law’ is not used in Art. 13, because, in my opinion, the
framers of the Constitution wanted to leave the personal laws outside the
ambit of Part III of the Constitution. They must have been aware that these
personal laws needed to be reformed in many material particulars and in fact
they wanted to abolish these different personal laws and to evolve one
common code. Yet they did not wish that the provisions of the personal laws
should be challenged by reason of the fundamental rights guaranteed in Part
III of the Constitution and so they did not intend to include these personal
laws within the de nition of the expression ‘laws in force’. 37

This observation, wholly unnecessary in determining the

challenge before the Court, became a stumbling block for
judicial intervention in matters of personal law. Given the
enormous religious sensitivities that surround legal intervention
in matters of personal law, particularly those relating to a
minority community, there has been legislative reluctance. (That
explains why Parliament had to await a judgement on triple
talaq to enact a law on the subject.) Narasu Appa Mali only
made matters worse by immunizing such laws from judicial
review, no matter how absurd and out of sync with the times.
The result was that personal law was put on a pedestal and
became an impregnable fortress where neither the legislature
acted nor the judiciary.
The underlying idea behind the preservation of personal laws
was the preservation of plurality and diversity among the people
of India. However, the preservation of such diverse identities
cannot be a pretext for denying to women equal status
guaranteed to them under the Constitution as citizens of India.
Personal law is necessarily ‘law’ within the meaning of Article 13
and any such law which is inconsistent with fundamental rights
is void. The obiter observation in Narasu Appa Mali to the effect
that Article 13 of the Constitution does not cover personal law
is wrong because the plain language of Article 13 clearly posits
that personal law as well as customs and usage are covered
within the scope of ‘law’. Article 13 reads:
13. Laws inconsistent with or in derogation of the fundamental rights

1. All laws in force in the territory of India immediately before the

commencement of this Constitution, in so far as they are inconsistent with the
provisions of this Part, shall, to the extent of such inconsistency, be void;
2. The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall, to
the extent of the contravention, be void;
3. In this article, unless the context otherwise requires law includes any
Ordinance, order, bye law, rule, regulation, noti cation, custom or usages having
in the territory of India the force of law; laws in force include laws passed or
made by Legislature or other competent authority in the territory of India
before the commencement of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be then in
operation either at all or in particular areas;
4. Nothing in this article shall apply to any amendment of this Constitution made
under Article 368.

The meaning of ‘law’ as de ned in sub-articles (2) and (3) of

Article 13 is not exhaustive but is an inclusive de nition. 38 The
Article would therefore include personal law since that also has
the force of law and is applicable to the concerned community.
Further, under clause (2) of Article 246 of the Constitution,
Parliament and State Legislatures have power to make laws also
on subject matters enumerated in Entry 5 of Concurrent List of
the Seventh Schedule to the Constitution pertaining to
‘marriage and divorce; infants and minors; adoption; wills;
intestacy and succession; joint family and partition; all matters in
respect of which parties in judicial proceedings were,
immediately before the commencement of this Constitution,
subject to their personal law’. Since the subject matters of Entry
5 are relatable to personal laws, therefore, ‘personal law’ is law
within the meaning of sub-clause (a) of clause (3) of Article 13
of the Constitution.
 The observation in Narasu Appa Mali ended up carrying far
more weight than it deserved. That might have had to do with
the stature of the two judges who authored the judgement. That
apart, it lent an easy pretext for the courts to steer clear of
wading into the muddy waters of religion. In a string of cases,
including Krishna Singh v. Mathura Ahir , 39 and Maharshi
Avdhesh v. Union of India , the Supreme Court took the ostrich-
like approach sanctioned by Narasu and declined intervention.
40 Yet in other cases, such as Danial Lati v. Union of India , 41

Mohd. Ahmed Khan v. Shah Bano Begum, 42 John Vallamattom v.

Union of India, 43 the Supreme Court actively tested personal
laws on the touchstone of fundamental rights. Further, in
Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil ,
44 which concerned the inheritance rights of Hindu women, a

three-judge bench adopted a position contrary to Narasu Appa

Mali :
[…] But the right to equality, removing handicaps and discrimination against
a Hindu female by reason of operation of existing law should be in
conformity with the right to equality enshrined in the Constitution and the
personal law also needs to be in conformity with the constitutional goal.
Harmonious interpretation, therefore, is required to be adopted in giving
effect to the relevant provisions consistent with the constitutional animation
to remove gender-based discrimination in matters of marriage, succession etc.
[…]
[..] Personal laws are derived not from the Constitution but from the
religious scriptures. The laws thus derived must be consistent with the
Constitution lest they become void under Article 13 if they violate
fundamental rights. Right to equality is a fundamental right. Parliament,
therefore, has enacted Section 14 to remove pre-existing disabilities fastened
on the Hindu female limiting her right to property without full ownership
thereof […] 45

The judgement clearly seems to suggest that personal laws

must meet the test of constitutionality. Even so, the position was
not quite clear whether in the absence of a codi ed law
recognized under statute, the courts could intervene and
examine whether uncodi ed law (for instance, the Shariah)
passed the muster of fundamental rights.
 In Shayara Bano , the Court was presented with the ideal
opportunity to exorcise the ghost of Narasu Appa Mali once and
for all. Yet, it refrained from doing so. It was obvious that the
Court did not want to bell the cat in the triple talaq case. Justice
Kurian Joseph and Justice R.F. Nariman found different but
interesting ways around Narasu Appa Mali . While Justice
Kurian Joseph held that since talaq-e-biddat was acknowledged
as ‘sinful’, it was not a valid form of divorce at all. On the other
hand, Justice Nariman, with whom Justice Lalit concurred, held
that this method of divorce, along with other methods of
divorce, was codi ed into statute by virtue of Section 2 of the
Muslim Personal Law (Shariat) Application Act, 1937.
Therefore, since it had been recognized and integrated into
statute, there was no bar against testing it on the touchstone of
fundamental rights. He then proceeded to hold that talaq-e-
biddat was ‘manifestly arbitrary’ and ‘whimsical’ because it
offered no opportunity for reconciliation and therefore failed the
test of reasonableness under Article 14 of the Constitution.
Finally, about a year later in the Sabarimala case , 46 Justice
D.Y. Chandrachud acknowledged that it was time to do away
with Narasu Appa Mali . He said:
Custom, usages and personal law have a signi cant impact on the civil status
of individuals. Those activities that are inherently connected with the civil
status of individuals cannot be granted constitutional immunity merely
because they may have some associational features which have a religious
nature. To immunize them from constitutional scrutiny, is to deny the
primacy of the Constitution. Our Constitution marks a vision of social
transformation. It marks a break from the past – one characterized by a
deeply divided society resting on social prejudices, stereotypes, subordination
and discrimination destructive of the dignity of the individual. It speaks to
the future of a vision which is truly emancipatory in nature…
The decision in Narasu, in restricting the de nition of the term ‘laws in
force’ detracts from the transformative vision of the Constitution. Carving
out ‘custom or usage’ from constitutional scrutiny, denies the constitutional
vision of ensuring the primacy of individual dignity. The decision in Narasu,
is based on awed premises. Custom or usage cannot be excluded from ‘laws
in force’. The decision in Narasu also opined that personal law is immune
from constitutional scrutiny. This detracts from the notion that no body of
practices can claim supremacy over the Constitution and its vision of
 ensuring the sanctity of dignity, liberty and equality. This also overlooks the
wide ambit that was to be attributed to the term ‘laws in force’ having regard
to its inclusive de nition and constitutional history.

DISTINCTION BETWEEN RELIGION AND RELIGIOUS

PRACTICES

Over the years, the courts have tried to set the threshold for
judicial intervention by attempting to draw a line between
religion per se, and religious practices. While ‘religion’ itself is
protected under Article 25 of the Constitution, religious
practices that do not constitute the ‘core’ or the ‘essential
practice’ of the religion are not. What constitutes ‘religion’ has
been explained in a series of judgements. In A.S. Narayana
Deekshitulu v. State of A.P ., 47 for example, the Court held:
Though religious practices and performances of acts in pursuance of religious
belief are as much a part of religion as faith or belief in a particular doctrine,
that by itself is not conclusive or decisive. What are essential parts of religion
or religious belief or matters of religion and religious practice is essentially a
question of fact to be considered in the context in which the question has
arisen and the evidence – factual or legislative or historic – presented in that
context is required to be considered and a decision reached.

In Javed v. State of Haryana , 48 drawing from the Bombay

High Court judgement in State of Bombay v. Narasu Appa Mali ,
49 the Supreme Court held:

In State of Bombay v. Narasu Appa Mali [AIR 1952 Bom 84: 53 Cri LJ 354]
the constitutional validity of the Bombay Prevention of Hindu Bigamous
Marriages Act (25 of 1946) was challenged on the ground of violation of
Articles 14, 15 and 25 of the Constitution. A Division Bench, consisting of
Chief Justice Chagla and Justice Gajendragadkar (as His Lordship then was),
held (AIR p. 86, para 5):
A sharp distinction must be drawn between religious faith and belief
and religious practices. What the State protects is religious faith and
belief. If religious practices run counter to public order, morality or
health or a policy of social welfare upon which the State has embarked,
then the religious practices must give way before the good of the people
of the State as a whole.
 Their Lordships quoted from American decisions that the
laws are made for the governance of actions, and while they
cannot interfere with mere religious beliefs and opinions, they
may with practices. Their Lordships found it dif cult to accept
the proposition that polygamy is an integral part of Hindu
religion though Hindu religion recognizes the necessity of a son
for religious ef cacy and spiritual salvation. However,
proceeding on an assumption that polygamy is a recognized
institution according to Hindu religious practice, their Lordships
stated in no uncertain terms:
The right of the State to legislate on questions relating to marriage cannot be
disputed. Marriage is undoubtedly a social institution an institution in which
the State is vitally interested. Although there may not be universal
recognition of the fact, still a very large volume of opinion in the world today
admits that monogamy is a very desirable and praiseworthy institution. If,
therefore, the State of Bombay compels Hindus to become monogamists, it is
a measure of social reform, and if it is a measure of social reform then the
State is empowered to legislate with regard to social reform under Article
25(2)(b) notwithstanding the fact that it may interfere with the right of a
citizen freely to profess, practise and propagate religion.

ESSENTIAL PRACTICE TEST

Taking forward the distinction between religion and religious

practices, the Supreme Court evolved the essential practice test.
The Constitution accords guarantee of faith and belief to every
citizen, but every practice cannot be held to be an integral part
of such faith and belief.
In Commissioner of Police v. Acharya Jagdishwarnanda
Avadhuta , 50 the test was summed up in these words:
[…] Essential part of a religion means the core beliefs upon which a religion
is founded. Essential practice means those practices that are fundamental to
follow a religious belief. It is upon the cornerstone of essential parts or
practices that the superstructure of a religion is built, without which a
religion will be no religion. Test to determine whether a part or practice is
essential to a religion is to nd out whether the nature of the religion will be
changed without that part or practice. If the taking away of that part or
 practice could result in a fundamental change in the character of that religion
or in its belief, then such part could be treated as an essential or integral part.

The essential practices test is a problematic one. Our courts

are secular courts, not ecclesiastical. Our judges have secular
training. They are wading into choppy waters when they
attempt to interpret religious texts on which they have little or
no expertise. To be able to sift out the ‘essential’ from the
‘inessential’ and declare what the ‘core’ of the religious faith is,
is treading on sensitive terrain. The courts must avoid that
exercise to the extent possible. They must also steer clear of
applying tests of rationality and reason when it comes to places
of worship and rituals that accompany religion because faith by
its very de nition may not be compatible with reason. 51
At the same time, when laws sanctioned by religion
egregiously impact fundamental rights guaranteed by a modern
constitution – for instance, practices as horrendous as human
sacri ces or sati or those relating to devadasis, religious practices
must give way to fundamental rights. That is precisely why the
freedom of religion under Article 25 is ‘subject to’ the other
provisions of Part III of the Constitution.
Having said that, the essential practice test is still treated as
good law and continues to be applied by the courts. It is
interesting in the triple talaq case that the AIMPLB
acknowledged on af davit that the practices of triple talaq and
polygamy were ‘undesirable’ and by no means mandated by
religion. This was a clear indication that the practices could
never be elevated to the status of an ‘essential practice’, much
less one that forms the substratum or core of the faith. Yet, the
minority judgement authored by Chief Justice Khehar held that
triple talaq had been in vogue for 1,400 years and enjoyed the
status of an essential practice. 52

INTERNATIONAL PRACTICES AND THE ‘IMMUTABILITY’ OF

SHARIAT
A large number of Muslim countries or countries with an
overwhelmingly large Muslim population such as Pakistan,
Bangladesh, Afghanistan, Morocco, Tunisia, Turkey, Indonesia,
Egypt, Iran and Sri Lanka have undertaken signi cant reforms in
matters of divorce law and polygamy.
Pakistan requires a man to obtain the permission of an
Arbitration Council as also of his rst wife before contracting a
second marriage. A divorcing husband is required to send notice
to the Council, and a copy of the said notice to his wife, after
which the Council will attempt to broker reconciliation. While
practices in Bangladesh are similar to those in Pakistan, in
Tunisia and Turkey, polygamy has been criminalized.
Tunisia and Turkey also do not recognize extra-judicial divorce
such as the practice of talaq-e-biddat . In Afghanistan, while
nikah halala is an acceptable practice, divorce where three
pronouncements are made in one sitting is invalid. In Morocco
and Indonesia, polygamy is permitted with the permission of the
court and the consent of the rst wife. Morocco permits women
to include a clause in their marriage contract prohibiting a
second marriage. Divorce proceedings take place in a secular
court, procedures of mediation and reconciliation are
encouraged, and men and women are considered equal in
matters of family and divorce.
In Indonesia, divorce is a judicial process, where those
marrying under Islamic Law can approach the religious court for
a divorce, while the others can approach the District Courts for
the same. In Iran and Sri Lanka, divorce can be granted by a
Qazi and court respectively, only after reconciliation efforts have
failed. 53 Even theocratic states have undergone reform in this
area of the law and the irony is that in the secular republic of
India, there remains such enormous resistance to reform.
An argument is often made that the Shariah is God-given and
there cannot not be any earthly interference with it. But the fact
that Muslim countries have undergone extensive reform belies
the case that practices such as triple talaq are part of an
immutable religious law. There are many Shariah-based laws
which no longer apply. Criminal punishments under Shariah do
not apply to Muslims in India. The Indian Penal Code, 1960
applies to all Indians, Muslims included. Secondly, the
Dissolution of Muslim Marriages Act, 1939 itself is a signi cant
departure from the Shariah because it recognizes a Muslim
woman’s right to approach a secular court for a divorce if her
husband is unwilling to give it to her.
Interestingly, in the 1950s in Pakistan, there developed a
schism between the modernists and the traditionalists over the
‘immutability’ of the Shariah. While the traditionalists argued
that Shariah is God-ordained and immutable, the modernists
mooted ijtihad, which is the doctrine of interpretative
intelligence, to interpret the law according to what social justice
demands at a given time. What social justice may have required
in the 7th century may not be relevant in the 21st century. For
instance, polygamy was encouraged in the 7th century in a war-
torn region where there were countless widows and orphans in
need of shelter. 54 However, times and social needs have
changed, and social justice now demands that polygamy not be
practised. The Law Commission of Pakistan adopted ijtihad and
reforms were incorporated in Family Law Ordinance, 1961. 55

CRIMINALIZATION OF TRIPLE TALAQ

After the Supreme Court struck down triple talaq in Shayara

Bano , the Government of India mooted a law, criminalizing the
practice. The Muslim Women (Protection of Rights on
Marriage) Bill, 2018 was passed by the Lok Sabha but suffered
some jolts in Rajya Sabha. 56 Eventually, on 30 July 2019, it
made it through Rajya Sabha on a third attempt, 57 and nally
came into force on 19 September 2019. 58 The law makes the
declaration of talaq-e-biddat a cognizable offence attracting
imprisonment of up to three years. 59 Opponents of the law
argue that since divorce by triple talaq is no longer effective, and
the marriage continues to subsist, there is no justi cation for
making a criminal of the husband. So, should triple talaq be
criminalized?
What constitutes a criminal offence? There is often an overlap
between civil and criminal offences. An act may constitute an
actionable civil wrong but may be serious enough to invite
punishment as a criminal offence too. The celebrated British
jurist Blackstone identi ed crimes as public wrongs, and torts
against the individual as private wrongs. While civil wrongs
affect the individual alone, public wrongs impact the
community. 60 A private wrong has a civil remedy, usually in the
form of compensation, while a public wrong or crime invites
punishment because even though the act is, ostensibly, directed
at an individual, it is perceived as violating the shared values
that de ne a society.
An example of a criminal offence that concerns marriage is
bigamy. In law, the second marriage has no effect. Yet, Section
494 of the Penal Code punishes a spouse who marries again
while being married to another with imprisonment of up to
seven years. If he conceals from the second spouse that he is
already married, he can be punished for up to 10 years. 61
It may be argued that as in the case of triple talaq, bigamous
‘marriage’ is no marriage at all so why punish a person for it?
There too, a man guilty of bigamy is under an obligation to
continue to provide for his rst wife and their children and,
therefore, a jail sentence may prevent him from doing so. Does
punishing a person for bigamy serve no purpose?
Bigamy can afford a good ground for the civil remedy of
divorce to a spouse. But the law nonetheless treats bigamy as a
criminal offence because it is a social and moral wrong. The
object of the law is not so much to imprison a husband for
taking another wife as it is to ensure that people know the
consequences of such an act and refrain from doing so.
 In the challenge to triple talaq in the Supreme Court, the
AIMPLB acknowledged that it was a ‘sinful’ practice, 62 but
argued nonetheless that having withstood the test of 1,400
years, such talaq remained ‘good in law’ and could not be
touched by the courts. The vehemence of such an assertion by
powerful bodies, defending a practice as abhorrent as triple talaq
as part of an immutable personal law, is indicative that merely
‘nullifying’ such a divorce is not enough. It needs social
obliteration, if not through punishment, then at least the
prospect of punishment.
It is not only divorced wives who face the brunt of triple
talaq, or for that matter any form of talaq, where the man calls
the shots and is not answerable to a court of law. All women to
whom such laws apply are vulnerable because that spectre
haunts them, restricting their choices both within the marriage
and outside of it. The very prospect of unilateral divorce where
the woman will have no legal recourse draws the lakshman rekha
for a woman in her home and shackles her choices not only in
her marriage but other opportunities for ful lment.
We have fallen far behind Pakistan and Bangladesh, which
comprehensively codi ed the law on divorce many decades ago
and punished even relatively petty omissions on the part of the
husband, for example, for failing to give notice to the
Arbitration Council prior to divorce. Eventually, more
comprehensive reform in Muslim Personal Law is needed. But
that debate can resume once the Supreme Court rules on
polygamy and nikah halala .
Secular India stands at a crossroads today. India has a Muslim
population of more than 14 per cent according to the 2011
Census. 63 In actual numbers that means over 172 million
people. 64 This number is likely to have swelled since 2011. The
Sachar Committee Report, 2006 concluded that Muslims are
poorly employed, socio-economically backward and do not have
adequate representation in government services. 65 It may not be
a mere coincidence that the position of Muslim women has been
particularly dismal. It is a truth universally acknowledged that
when a woman is empowered, her family reaps the dividends. 66
Perhaps there is no better example of this than in Bangladesh
where the micro nancing of women’s projects by Grameen
Bank translated into socio-prosperity for their families. 67 Triple
talaq is not so much about divorce as it is about the social status
of Muslim women. Given the chance, these women may hold
the key to transforming the lot of their community. In
multicultural India, every citizen must be able to enjoy what a
modern, transformative constitution offers. No community
ought to be left behind, least of all, women.
 Understanding Muslim Law in
the Modern Context

JUSTICE B.D. AHMED

We are living in a world ooded with information as well as

disinformation. Minds are being altered and mindsets are being
manufactured by the media. Because of this, and since people
believe what they want to believe, there are a lot of palpably false
ideas and concepts that are being embraced by large numbers of
people. One such notion, albeit false, is that the Shariah is an
arbitrary, rigid and fearful system followed by the Muslims. It is
this notion that needs to be examined objectively and speci cally
in the Indian context. This essay attempts to do that.
Attempts are sometimes made to create a perception that
women have been, and are, treated unfairly under Islam. Many
have fallen prey to this idea and many people, including Muslims,
have aided in furthering this incorrect perception of the Shariah.
The whole triple talaq controversy is a case in point.
First of all, triple talaq had already been declared by the Delhi
High Court to amount to a single revocable talaq and thus the
sting of instantaneous irreversibility of the break in marital ties
had been taken out. 1 Secondly, the Supreme Court had,
thereafter, held triple talaq to be invalid. 2 Since this was the case,
what was the need to legislate and criminalize triple talaq?
 Again, the argument for a Uniform Civil Code is couched in
terms of gender justice and equal treatment of women across
systems of personal laws prevalent in India. The argument is that
Islam is ‘unfair’ to women and hence reform is possible only by
abolishing the applicability of the Shariah to Muslims and instead
applying a secular version of the personal law – the Uniform Civil
Code. Two questions arise here: One, are Muslim women treated
unfairly under Muslim law? And two, is the argument for a
Uniform Civil Code really based on a concern for Muslims and
Muslim women in particular, or is it fuelled by the idea of
obliteration of Muslim law in India?
Muslim law is not inherently skewed against women. The
perception of Muslim law as being harsh to women has been
created due to a lack of understanding, and certain actions, for
instance, the instantaneous triple talaq, are perceived as being
sanctioned by Islam when such actions are, in fact, in derogation
of the spirit of Islam. These perceptions need to change. There
are mechanisms within the fold of Islamic jurisprudence such as
takhayyur – which I shall deal with later in this piece – that can
enable a restatement of Muslim law in the modern context while
not departing from the basic tenets of Islam.

WHAT IS THE SHARIAH?

The ‘Shariah’ literally means the path. It is a code of conduct –

religious, moral, ethical and legal – for Muslims in particular and
the whole of mankind in general. 3
Fiqh , Islamic jurisprudence, is a part of the Shariah, and has
been derived from four roots or sources known as the usul-al- qh
, roots of jurisprudence. These four roots, in order of precedence,
are (i) the Quran (ii) the Hadis (iii) Ijma and (iv) Qiyas
(analogy), or Aql (systematic reasoning). If something stated in
the Quran needs clarity and speci cs, then the hadis , ijma and
qiyas/aql may be seen.
 The Quran is the primary source for the derivation of any
principle or proposition of law. Muslims believe the Quran to be
the word of Allah or God, revealed to mankind through Prophet
Muhammad, peace be upon him (pbuh). The Quran is
immutable and is for all times to come. It contains various verses
on subjects which are, in modern times, considered to be part of
law. For example, verse 35 of chapter 4, relating to discord
between a husband and wife in their marital relationship,
prescribes mediation and conciliation as a possible avenue of
resolution, which is also the preferred method of resolving such
disputes under modern statutes. An English translation of the
verse is as follows: 4
And if you fear a breach between the two, then appoint an arbiter from his
people and an arbiter from her people. If they desire reconciliation, God will
bring about agreement between them. Truly God is Knowing, Aware.

Verse 282 of chapter 2 of the Quran is another such example

in the eld of the modern law of contract. It prescribes that inter-
temporal agreements/transactions (agreements and transactions
that require actions separated in time; for example, an agreement
to buy a house at a future date) are required to be reduced to
writing. It is signi cant that in loan contracts, it is the debtor (and
not the creditor, who is almost always in a nancially dominant
position) who has been ascribed the role of dictating the terms,
but he too is commanded to reverence God 5 and ‘diminish
nothing from it’. This negates the unequal bargaining power of
the parties (as is evident in modern-day bank-loan transactions
that are heavily loaded in favour of the banks) and ensures that
the contract is entered upon with free consent and is a just and
lawful contract. A translation 6 of the said verse is shared below:
O you who believe! When you contract a debt with one another for a term
appointed, write it down. And let a scribe write between you justly, and let
not any scribe refuse to write as God taught him. So let him write, and let the
debtor dictate, and let him reverence God his Lord, and diminish nothing
from it. And if the debtor is feeble-minded or is weak, or is unable to dictate
himself, then let his guardian dictate justly… Unless it is trade of present
goods that you transact between yourselves: then there is no blame upon you
 not to write it. And take witnesses when you buy and sell between yourselves.
And let neither scribe nor witness be harmed. Were you to do that, it would
be iniquitous of you. And reverence God. God teaches you, and God is
Knower of all things.

The second source relied upon, after the Quran, is the hadis 7
(the sayings and acts of the Prophet Muhammad, pbuh). With
regard to the authority of the hadis, it is revealed in the Quran in
verse 113 of chapter 4 that ‘God has sent down unto thee the
Book and Wisdom, and he has taught thee what thou knewest
not…’ 8
Sha ‘i 9 in his book Al-Risala usul al- qh 10 explains what is
meant by the words ‘the Book’ and ‘Wisdom’ as follows:
So God mentioned His Book – which is the Qur’an – and Wisdom, and I have
heard that those who are learned in the Qur’an – whom I approve – hold that
Wisdom is the sunna of the Apostle of God. This is like what [God Himself]
said; but God knows best! For the Qur’an is mentioned [ rst], followed by
Wisdom; [then] God mentioned His ‘favor to mankind by teaching them the
Qur’an and Wisdom. So it is not permissible for Wisdom to be called here
[anything] save the sunna of the Apostle 11 of God.
The sunna of the Apostle makes evident what God meant [in the text of
His Book], indicating His general and particular [commands]. He associated
the Wisdom [embodied] in the sunna with his Book, but made it subordinate
[to the Book]. Never has God done this for any of His creatures save His
Apostle.

The explanation makes it clear that the expression ‘the Book

and Wisdom’ appearing in the said verse 113 of chapter 4 refers
to the Quran and the precedents ( Sunna ) of the Prophet
(pbuh).
Another commandment of God – and there are others of like
nature – contained in the Quran in verse 49, chapter 4, makes it
clear that Muslims have to obey God and the Messenger. This
clearly underlines the importance of hadis . Here is the verse:
O you who believe! Obey God and obey the Messenger and those in authority
among you. And if you differ among yourselves concerning any matter, refer it
to God and the Messenger, if you believe in God and the Last Day. That is
better and fairer in outcome. 12
 The third source is Ijma or the consensus of the community
(though some sects construe Ijma as the consensus of the
Imams). The fourth source is qiyas or deduction of a principle by
analogous reasoning. Some sects substitute qiyas with aql , which
is the same thing as systematic reasoning. At this point, it is
pertinent to note that there is some similarity between the third
and fourth sources on the one hand and the doctrine of ‘justice,
equity and good conscience’ 13 which is embedded in the law as
administered in India since the time of British rule.
Where the legislations do not cover the entire eld (similar to
where the Quran and the hadis are silent on a particular aspect),
particularly in the application of personal laws of Hindus and
Muslims, the courts are required to decide cases according to
‘justice, equity and good conscience’. 14
Islamic jurisprudence was developed through the process of ‘
ijtihad ’ 15 (intellectual exertion or effort). It is generally agreed
by scholars that the authority for conducting ijtihad is based on
the following hadis :
When Muadh Ibn Jabal was being sent to Yemen, the Prophet (pbuh) asked
him as to how he would judge when the occasion of deciding a case arises. He
replied: ‘I shall judge in accordance with Allah’s Book’. The Prophet (pbuh)
then asked him what he would do if he did not nd any guidance in Allah’s
Book. He replied: ‘I will act in accordance with the precedents of the Apostle
of Allah’. The Prophet (pbuh) then asked him what he would do if he did not
nd any guidance in the precedents either. He replied: ‘I shall do my best to
form an opinion and spare no pains’ [i.e., ijtihad ]. The Prophet was very
pleased with the reply. 16

Thus, through ijtihad , jurisprudence or qh was derived and

developed, meticulously and painstakingly, from the ‘ Usul-Al-
Fiqh ’. 17 And this ‘ ijtihad ’ was done by persons known as ‘
mujtahids ’. They were persons who had a complete knowledge
of Arabic, the Quran, the hadis , and the rules or legal maxims
which were also developing alongside. It is obvious that as there
were several mujtahids (not necessarily during the same period of
time) who, by employing independent reasoning and logic in
interpreting the relevant verses of the Quran and as elaborated in
the hadis, developed principles of law and jurisprudence. This
they did by analogical ( qiyas ) or systematic reasoning ( aql )
after recognizing the consensus ( ijma ) on those juristic
propositions or principles.
It is but natural that, through this process, different sets of
conclusions arose. Each mujtahid had his own set of students and
disciples, through whom different schools of law developed. For
example, the jurisprudence developed by Abu Hanifah and
continued by his disciples came to be known as the Hana
school. The Maliki school owed its origin to Malik b. Anas, the
Sha e school to al-Sha ’i, the Hanbali school to Ibn-Hanbal and
so on. These are the Sunni schools. Similarly, there are Shia
schools such as the Ithna Ashari, Jaffariya and Ismaili schools.
As mentioned above, in the course of the development of
Islamic jurisprudence, certain legal maxims or rules emerged such
as: 18

1. Al tamssuk bil asl : This rule provides that originally and

essentially all bene cial actions are legitimate, and all harmful
ones are illegitimate.
2. Istishaab al haal : This rule provides that the laws are
permanently valid unless there is evidence challenging their
bene cial nature.
3. Al masaalih al mursalah : Under this rule, the prescription is that
a bene t is deemed legitimate if the Shariah is not known to have
established or denied it.
4. Al dharaai : This rule provides that the legitimacy of that, which
is instrumental, is directly affected by the bene t or harm
implicit in the nal end to which it leads.
5. Al istiqraa al naaqis : Under this rule, a universal law may be
derived from a particular law through ascending generalization, if
no exception is known to challenge the generalization.
6. Al istihsaan : This is the rule that a weaker qiyas may be
preferred to a stronger one if it ful ls the general purposes of the
Shariah better.
 7. Al urf wal aadah : The rule that custom and established practice
may be legitimate sources of law (provided they do not
contradict the Quran and the hadis ).

The jurisprudence developed by the above methodology of

ijtihad and legal principles is not just for academic satisfaction
but is a body of law (Muslim law) to be applied to factual
situations that arise on a day-to-day basis. Disputes can be settled
either privately or through the court system. In matters which
can be settled privately, a person need only consult a mufti
(jurisconsult) of his or her school. 19 The mufti gives his fatwa or
advisory decision based on the law of his school. 20 However, if a
matter is carried to the point of litigation and cannot be settled
privately then the qazi (judge) is required to deliver a qaza
(judgement) based upon the Shariah. 21
The difference between a fatwa and a qaza must be kept in the
forefront. A fatwa is merely advisory whereas a qaza is binding. 22
Both, of course, have to be based on the Shariah and not on
private interpretation de hors the Shariah. 23 It is necessary to
point out that the Supreme Court of India 24 also held that ‘[a]
fatwa is an opinion only an expert is expected to give. It is not a
decree, nor binding on the court or the State or the individual.’
This is in consonance with the concept of fatwa as understood
under Islamic jurisprudence. However, it is respectfully
submitted, the Supreme Court did not appreciate the clear
distinction between a qazi , which is the Arabic word for a judge
of a court established under the authority of law, and a mufti,
who is merely an expert on Islamic law, when it observed:
A Qazi or Mufti [emphasis supplied] has no authority or powers to impose his
opinion and enforce his fatwa on anyone by any coercive method. In fact,
whatever may be the status of fatwa during Mogul or British Rule, it has no
place in independent India under our constitutional scheme.

The Qazi does not deliver a fatwa ; he gives a decision or a

judgement in a particular case before him. A fatwa is merely an
opinion of a mufti and is not binding. This has been the clear
position under Muslim law, whether under the Mughal period or
under British rule. The opinion of an advocate on a point of law
is akin to a fatwa by a mufti on a point concerning the Shariah .
On the other hand, the decision of a Qazi under Muslim law is
similar to a decision by a court of law .
The Qazi under Islamic jurisprudence is different from the qazi
under British Rule in India and the qazi in the present-day India.
In fact, the judicial functions of the qazi as understood in the
traditional sense are now being performed, wherever and
whenever Muslim law is to be applied, by the judges of courts
established under the Indian legal system. 25 Though the Kazis
Act, 1880 is still extant, the role of such qazis (or kazis ) is
limited to some religious and ceremonial functions only. 26
The Qazi , as traditionally understood, while exercising his
judicial functions under the Shariah, was to be guided by the
following rules or principles: 27
1. Rendering justice to those who seek it is both an (Islamic) duty
and inevitable.
2. In the court of law all men are equal.
3. The burden of proof falls on the complainant.
4. Any party’s request for time to produce the relevant evidence
must be granted, within reason. Failure to produce evidence is
evidence to the contrary.
5. A judgement proven to be false by evidence ought to be revoked
6. All adult (Muslims) are legal persons – except those convicted of
perjury or of a crime.
7. No human may be charged of his intentions. Only his actions
may be so charged and under legal evidence.
8. Where the Quran and Sunnah are silent on any matter, the law
may be deduced or extrapolated from a comparable case or
principle.
9. That which the Muslims collectively have found good and
desirable is so from the standpoint of God.
 In modern times, there is a growing feeling amongst the
Muslim community and to a greater extent amongst non-
Muslims that there is a need for reform within the Shariah. This
would be possible using the process of ijtihad to bring in, within
the fold of the Shariah, the various developments that have
occurred in the life of human beings since the so-called ‘closure
of the gate of the ijtihad ’ around the 10th-century AD . 28 Of
course, there is controversy as to whether the gate of ijtihad was
at all closed and, if so, what were the reasons for it.
The history of Islamic jurisprudence and, indeed, Islamic
scholarship over the past millennium has shown a sharp decline
in independent reasoning to derive, adapt and adopt principles of
law in tune with societal developments. In fact, the doctrine of
taqlid 29 alone has, by and large, been adopted. Taqlid is akin to
simply following the conclusion on a point of law as a dogma,
without any awareness or knowledge of the reasoning and factual
backdrop of such a conclusion. This becomes problematic when
there is enhancement of knowledge and changes in
circumstances. The original opinion loses its foundation and,
therefore, its continued application as a dogma creates
complications and altered perceptions about the law.
As such, Islam itself, albeit under misconception, has fallen
under severe criticism on account of the perception that its basic
principles and rules are out of date. The Quran, as a revealed text
and the word of God, cannot be construed as a static document
for one time period alone. It is a divine message to mankind for
eternity. The hadis , as pointed out above, are acts or sayings of
Prophet Muhammad (pbuh), pertaining to instances which
happened during his lifetime, but they retain their value as
precedents to be adopted in similar situations and adapted in
newer circumstances. Shariah principles, as I have shared earlier,
were derived from the Quran and the hadis , through ijma
(consensus) and ultimately qiyas, both of which cannot be frozen
in time.
There is a lot of talk that a ‘reform’ in Islamic law and Islamic
thinking is required. At the same time, insofar as Muslims are
concerned, there cannot be any change in what is stated in the
Quran and, therefore, the word ‘reform’ cannot at all be used in
the context of the Quran. How can a believer even think of
changing the word of God? However, this does not mean that
there cannot be a restatement of the law, in the context of the
modern world, though still derived from the Quran and the hadis
, by ijma of the Muslim community and by employing qiyas . In
effect, this would amount to opening of the ‘gate of ijtihad ’ for a
fresh look at Islamic jurisprudence.
The question then would be, who would do this exertion, this
ijtihad ? It is obvious that a thorough understanding of Arabic 30
with all its nuances would be necessary so as to enable the person
or persons undertaking the task to fully understand the Quran,
the hadis and the various commentaries on ijma , qiyas and
Islamic jurisprudence in general. Apart from that, the person or
persons undertaking such a task would have to be knowledgeable
in jurisprudential principles and would have to be of high
intellect, reasoning and integrity. It is clear that ijtihad is not for a
lay person who merely has access to a translation of the Quran or
translations of a selection of hadis .
As is evident from the discussion above, Islamic law has been
developed through the interpretation of the Quran in the context
of the sayings and acts of Prophet Muhammad (pbuh), the ijma
of the community and logical reasoning through application of
analogy ( qiyas ) by people of great learning ( mujtahids ). To say
that there aren’t any people of such learning today would be
rendering a disservice to mankind. Of course, great effort would
be required particularly in arriving at a consensus. But it is not an
impossible task. For a start, the principle of takhayyur can be
adopted, whereby aspects of a school of law, Sunni or Shia,
which is bene cial and most closely in sync with modern thinking
can be adopted by the other schools of law. This, again, is not an
impossibility and, as will be seen later in this article, has even
been employed in India.
 HOW AND TO WHAT EXTENT IS MUSLIM LAW APPLICABLE
IN INDIA?

Muslim law, as a part of the Shariah, covers various elds of law

such as the law relating to (1) personal status, (2) contracts, (3)
torts, (4) criminal law, (5) constitutional law, (6) administrative
law, (7) land law, (8) law of trade and commerce, (9)
international law, (10) law of war, (11) taxation, (12) public
nance, etc. Apart from the arena of law and jurisprudence, the
Shariah also covers a much wider eld of rituals, forms of
worship, as well as ethics and personal conduct.
In India, Muslim law has a very limited application, and that
too to Muslims alone. For example, the secular law of crimes in
the shape of the Indian Penal Code and the Criminal Procedure
Code, etc., govern the law of crimes in India. Similarly, the law of
contracts is as per the Indian Contract Act, 1872, though there
are many similarities with the Islamic law of contracts. Muslim
law in India operates, essentially (apart from the law relating to
waqfs), in respect of personal law or family law where the parties
are Muslims. 31
Under British rule in India, several enactments were passed
declaring the various laws to be administered in different
provinces. For example, for Oudh, 32 the Oudh Laws Act, 1876
provided 33 that in questions regarding succession, special
property of females, betrothal, marriage, divorce, dower,
adoption, guardianship, minority, bastardy, family relations, wills,
legacies, gifts, partitions or any religious usage or institution, the
rule of decision was to be (1) any custom applicable to the
parties concerned which is not contrary to justice, equity or good
conscience, and which had not been, altered or abolished by any
enactment and had not been declared void by any competent
authority; (2) the ‘Muhammadan law’ in cases where the parties
are Muhammadans, and Hindu law in cases where the parties are
Hindus except insofar as such law has been altered or abolished
by any enactment 34 or had been modi ed by any such custom as
referred to in (1) above.
 It can be immediately noticed that in the eld of personal laws,
Muslim law was to be applied where the parties were Muslims
and Hindu law where the parties were Hindus. But this was
subject to any enactment or custom.
Similar provisions declaring the laws to be administered were
contained in the Bombay Regulation IV of 1827, the Madras
Civil Courts Act, 1873, the Punjab Laws Act, 1875 and the
Ajmer Laws Regulation, 1877. In all these enactments, custom
was accorded primacy over Muslim law and Hindu law, as the
case may be.
The Bengal, Agra and Assam Civil Courts Act, 1887 also
applied the Muslim law to Muslims and Hindu law to Hindus, in
respect of the speci ed areas of law, but it did not grant primacy
to custom. All these enactments are extant today and they
continue to de ne the laws to be administered by civil courts in
various parts of India.
The Muslim Personal Law (Shariat) Application Act, 1937
(‘the 1937 Act’) was enacted so as to cut out customs and usages
which were in derogation to Muslim Personal Law in the elds of
intestate succession, special property of females including
personal property inherited from parents under contract or gift or
any other provision of personal law, marriage, dissolution of
marriage including talaq , ila , zihar , lian , khula and mubaraat ,
maintenance, dower, guardianship, gifts, trusts and trust
properties and waqfs. 35
It is interesting to note that while Muslim law is being
mistakenly perceived to be adverse to women, the 1937 Act was
enacted to enable Muslim women to enjoy the rights available to
them under the Shariah. The ‘Statement of Object and Reasons’
of the 1937 Act makes it clear that the major objective of
introducing the said enactment was to extricate Muslim women
from the clutches of certain customs and usages by which they
were denied their rights available to them under the Shariah. For
example, it had become customary for women to be denied their
right of inheritance in the properties left by their parents. This
custom, which was prevalent in many parts of India, was contrary
to Muslim law and, particularly, to the Quran, where it is
explicitly stated [in verse 7 of chapter 4] as under:
Unto the men a share of what parents and kinsfolk leave, and unto the women
a share of what parents and kinsfolk leave, be it little or much – a share
ordained. 36

‘In pre-Islamic Arabia only adult men were entitled to inherit.

This verse was revealed with regard to the situation of a widow
with three daughters left destitute by her husband’s male heirs.
The verse establishes that both men and women are legally
entitled to a xed and mandatory share of the wealth of their
deceased relatives.’ 37
Since Muslim women in India were, by application of
customary law, 38 being denied their right to inheritance and
were thereby being relegated to the situation which prevailed
prior to the revelation of the Quran, the 1937 Act was enacted to
do away with such contrary customs and usages and to grant
them the rights to which they were entitled under Muslim law.
And the provisions in the Bombay Regulation IV of 1827, the
Madras Civil Courts Act, 1873, the Oudh Laws Act, 1876, the
Punjab Laws Act, 1875 and the Ajmer Laws Regulation, 1877,
which gave primacy to customs over Muslim law, were repealed
to the extent of the inconsistency with the 1937 Act.
Another interesting legislation that was brought about in pre-
Independence India was the Dissolution of the Muslim Marriage
Act, 1939 (‘the 1939 Act’). There were various grounds under
the Maliki school of law, which enabled a Muslim woman to
obtain a decree, qaza, or judgement, for dissolution of her
marriage. Many of those grounds were not available under the
laws of other sects, such as Hana Law, which is followed by
most of the Muslims in India. By virtue of the 1939 Act, the
bene cial provisions of Maliki law were adopted for all Muslims
in India although they were, by and large, followers of Hana law.
This is an example of the principle of takhayyur. As such, a
Muslim woman, Sunni or Shia, not necessarily being an adherent
of Maliki school, could, by virtue of the said enactment,
approach a court of law for a decree of dissolution of marriage on
the grounds speci ed therein. 39
The Statement of Objects and Reasons of the 1939 Act
explicitly states that certain grounds for divorce are not available
to Muslim women who follow the Hana school of law, but those
grounds are available under Maliki law. It was also stated that
Hana jurists have laid down that in cases where the application
of Hana law causes hardship, it is permissible to apply the
provisions of Maliki, Sha ’i or Hanbali law, if they alleviate the
hardship. This, in effect, is an application of the principle of
takhayyur . The 1939 Act is a unique example of legislation in
India employing takhayyur . Its Statement of Objects and
Reasons is reproduced below:
There is no proviso in the Hana Code of Muslim Law enabling a married
Muslim woman to obtain a decree from the court dissolving her marriage in
case the husband neglects to maintain her, makes her life miserable by
deserting or persistently maltreating her or absconds leaving her unprovided
for and under certain other circumstances. The absence of such a provision has
entailed unspeakable misery to innumerable Muslim women in British India.
The Hana Jurists, however, have clearly laid down that in cases in which the
application of Hana Law causes hardship, it is permissible to apply the
provisions of the – Maliki, Sha ’i or Hambali Law. Acting on this principle the
Ulemas have issued fatwas to the effect that in cases enumerated in clause 3,
Part A of this Bill (now see Section 2 of the Act ), a married Muslim woman may
obtain a decree dissolving her marriage… As the courts are sure to hesitate to
apply the Maliki Law to the case of a Muslim woman, legislation recognizing
and enforcing the above-mentioned principle is called for in order to relieve
the sufferings of countless Muslim women.

Takhayyur could have been employed in solving the problem

of triple talaq ( talaq-e-biddat ). Under the ithna ashari school (a
Shia school) of law such a talaq is void. 40 The Supreme Court
also held 41 talaq-e-biddat to be void in respect of all Muslims, but
through a different reasoning. What is decried in Muslim law, as
also under present-day thinking, is the instant irrevocable nature
of talaq-e-biddat . This ‘sting’, as it were, had already been taken
out by the decision in Masroor Ahmed’s case, 42 where such a
talaq was held to be a single revocable talaq.
 Now, through legislation, although the Supreme Court had
already nulli ed the effect of a talaq-e-biddat by holding it to be
invalid, Parliament has criminalized it. The whole issue which
could, in the rst place, be solved by employing the principle of
takhayyur 43 has got unnecessarily complicated by Parliament by
enacting a law 44 which converts an invalid civil action into a
criminal offence!

CONCLUSION

It is evident from the brief discussion above that Islamic

jurisprudence is derived from the two primary sources – the
Quran and hadis, in that order. It is through independent
reasoning and upon recognition of the consensus (be it of the
community or the Imams) that jurisprudential principles have
been developed.
However, the process of ijtihad has remained dormant for close
to a thousand years. 45 In this intervening period, civilizations
have evolved (though some have also regressed), great scienti c
achievements have been witnessed and the spread of information
has seen a complete revolution. These developments and many
more need to be incorporated into Islamic jurisprudence.
Of course, the Quran, being the word of God is immutable and
eternal. The hadis too serve as guiding stars and invaluable
precedents and need to be applied to modern-day situations by
analogy. There is a need to have a relook at Islamic jurisprudence
through modern eyes but through the traditional method of
ijtihad and after garnering a consensus. But that may take time
and, to plug this gap in time, it would do a world of good if
takhayyur is applied more freely so that the more bene cial
provisions of one school of law are adopted by the others
particularly where it concerns the rights of women and children.
 An Axis Shift
A Critique of the Sabarimala Case

MUKUL ROHATGI

India is at a crossroads, and we are not mere bystanders.

The Constitution is not a text imposed by colonial powers
upon a subjugated race. It was a social contract made between
the people of the country who gave unto themselves the
Constitution. The phrase ‘We the people’ does not re ect the
democratic voice of only the vocal grouping but also of the silent
minorities as well as the silent majority.
Our founding fathers toiled day and night to draft a
Constitution that was to accommodate and protect all; that
would make this nation great in spite of the myriad and
con icting interests it represents. It was a document for the
future envisaged but also for the past that formed our
foundation. It was a document so organic that it would mould to
and anticipate the needs of an evolving society. It was, however,
rm enough as to not lose touch with the original fabric of
society.
In this Constitution, there was place for all – the old and the
new, the rationalist and the believer, the majority and the
minority, the individual and the group. The key to maintain the
balance between the rights for all was entrusted to the Supreme
Court, as the guardian and the sentinel of these rights.
The case of the Sabarimala temple re ects one such con ict.
Prohibiting women between the ages of 10 and 50 entry into the
Sabarimala temple pits the rights of women against that of its
devotees. The Sabarimala dispute shows that it is one that is
likely to be discussed for many years to come. Even after the
judgement was pronounced in 2019, the Supreme Court referred
the matter to a larger bench to reconsider the position in law.
The Court observed that various practices followed by
different religions also get affected by the judgement and as such,
the case was required to be sent to a larger bench for
reconsideration as the scope of the present judgement has also
been widened.
The matter at the time of this essay going to the press is being
heard by a larger bench, and the judgement that will be delivered
will settle the questions, until they are inevitably raised in
another case again.

SABARIMALA AND LORD AYYAPPA

The ancient temple of Sabarimala is dedicated to Lord Ayyappa

in his ‘naishtik brahmachari’ or eternally celibate form. As the
lore goes, after Goddess Durga killed the demon king Mahishasur,
his sister, Mahishi, set out to avenge him. She carried Lord
Brahma’s boon that only a child born out of Lord Vishnu and
Lord Shiva could slay her. To save the world from annihilation,
Lord Ayyappa was born out of the union between Lord Vishnu in
his female form (Mohini), and Lord Shiva. It is said that the ery
Parshuram had consecrated the deity in the temple.
Justice Chandrachud speci cally explains the historical context
of the case. He writes in his judgement that although there are
numerous Ayyappa temples in India, the Sabarimala Temple
depicts Lord Ayyappa as a ‘naishtika brahmacharya’, and his
powers derive speci cally from abstention from sexual activities.
1

When Lord Ayyappa was born, the divine beings left the boy in
a forest near River Pampa. The Pandalam King, Rajasekara, while
on a hunting trip in the forest along the banks of the River
Pampa, heard the cries of a child. The king reached the banks of
the river and found Ayyappa. He took the child to the palace
with him, and briefed the queen about the incident. The couple
as well as the local people were happy at the arrival of the child.
Lord Ayyappa, also known as ‘Manikanta’, grew up in the
palace and was trained in the martial arts and the Vedas. The
guru responsible for Manikanta’s education concluded that
Manikanta was not an ordinary child but a divine power.
In due course, the queen gave birth to a child they called Raja
Rajan. Meanwhile, impressed with Manikanta’s talents, King
Rajasekara decided to crown him, treating him as the elder child.
He ordered his minister to make arrangements for the
coronation. However, the minister, desiring the throne for
himself, attempted to execute plans to prevent the coronation, all
of which failed.
He then approached the queen to persuade her to ensure that
her own biological child was crowned king. The minister
suggested that the queen pretend that she was suffering from a
severe headache, whereupon he told the physician to prescribe
the milk of a tigress to cure her. To achieve this, he suggested that
Manikanta be sent to the forest.
Manikanta left for the forest, refusing the escort his father
wanted him to take along, given the danger of the mission. But
the king sent with Manikanta food, and coconuts with three eyes,
in the remembrance of Lord Shiva. In the forest, Lord Shiva
appeared before Manikanta and told him that though he had
done his duty towards the devas, he was left with the task of
ensuring the king’s comfort. Lord Shiva told Manikanta that he
could go back to the palace with Lord Indra in the form of a tiger.
When Manikanta was seated on the tiger, and all the female
devatas in the form of tigresses arrived at the palace, the
schemers were frightened into confessing their plot. They were
convinced of his divine origins and prayed for their own salvation
and for the safety of the kingdom. Manikanta disappeared.
The king refused to eat anything till his return. Manikanta
nally appeared in the form of a vision before the king. Filled
with a mix of emotions – happiness, grief, fear, wonder and
devotion – the king stood praying for mercy and the blessings of
Manikanta. He repented for not having realized Manikanta’s
divine power and for treating him merely as his child.
The Lord lovingly embraced the king and granted him moksha.
He told the king that he was destined to return to earth. The
ruler implored Manikanta to allow him to build a temple and
dedicate it to him. The Lord assented. He shot an arrow that fell
at the pinnacle of Sabarimala, and told the king that he could
construct a temple at Sabarimala, north of the holy River Pampa,
and install his deity there. Lord Ayyappa also explained how the
Sabarimala pilgrimage should be undertaken, emphasizing the
importance of the penance, or ‘vratham’, and what the devotees
can attain by his ‘darshan’. However, before the departure of the
Lord, the king secured a promise that on Pongal each year, his
personal jewellery would adorn the deity at Sabarimala. 2
The judgement of the Kerala High Court had given the reason
for the barring of young women from the temple. 3 The High
Court has observed that since the deity is in the form of a
naisthik brahmachari, it is believed that young women should not
worship at the temple so that their presence does not cause even
the slightest deviation from celibacy and austerity observed by
the deity.
‘Brahmachari’ means a student who has to live in the house of
his preceptor and study the Vedas, living the life of utmost
austerity and discipline. A student who accompanied his guru
wherever he goes and learns the Vedas from him is a ‘naisthikan’.
Four ashrams were prescribed for all persons belonging to the
twice-born castes: the student; the married householder; the one
who goes to the forest as a recluse; and the ascetic. B.K.
Mukherjee, the fourth Chief Justice of India, in his Lordship’s
Tagore Law Lectures on the Hindu Law of Religious and
Charitable Trust, says on page 16 of the second edition thus:
Ordinarily therefore a man after nishing his period of studentship would
marry and become a householder, and compulsory celibacy was never
encouraged or sanctioned by the Vedas. A man however who was not inclined
to marry might remain what is called a Naisthik Brahmchari or perpetual
student and might pursue his studies living the life of a bachelor all his days.

A brahmachari should control his senses. He has to observe

certain rules of conduct, which include refraining from indulging
in gambling, idle gossip, scandal, falsehood, embracing and
casting lustful eyes on females, and causing injury to others. This
is given in the Manusmriti , Chapter II, shloka 179. 4
Like many Hindu temples and pilgrimage sites, the journey to
the Sabarimala temple is not an easy one and is in many ways
symbolic of the path to reach the Almighty. It is said that Lord
Ayyappa had set an extensive code for his followers, inclusive of a
41-day ‘vratham’, which includes a satvik lifestyle and
brahmacharya. The terms of the vrath, or fast, include penance in
various forms:
1. Abstaining from physical relations with a spouse;
2. Abstention from intoxicating drinks, smoking and tamasic food;
3. Living in isolation from the rest of the family;
4. Refraining from interacting with women in daily life, including
those in the family;
5. Cooking one’s own food;
6. Maintaining hygiene, including bathing twice a day before
prayers;
7. Wearing a black mundu and upper garments;
8. Partaking of one meal a day; and
9. Walking barefoot. 5

The case of the Sabarimala Temple arose out of a petition led

in public interest by a registered association of young lawyers,
challenging the constitutional validity of Rule 3(b) of the Kerala
Hindu Places of Public Worship (Authorisation of Entry) Rules,
1965, which restricts the entry of women into the Sabarimala
Temple. These Rules were framed under the Kerala Hindu Places
of Public Worship (Authorisation of Entry) Act, 1965 and, in
effect, codi ed the pre-existing custom excluding women from
the temple.
By the majority judgement 4:1, the Supreme Court held that
the temple’s practice of excluding women from public places of
worship based on a custom was unconstitutional and struck down
the rule as being ultra vires the 1965 Act and in violation of the
fundamental rights to equality, liberty and freedom of religion.
There are various facets of the judgement which, I believe,
though called ‘reformative’, have disturbed the balance so
carefully maintained by our founding fathers. The uproar faced
by the Government in the implementation of the judgement is
but a re ection of the problem this shift in the axis of balance has
caused in the existing con icts of the various interests of the
society.

MAINTAINABILITY AND SCOPE OF THE PUBLIC INTEREST

LITIGATION REITERATED

In my view, a preliminary and very relevant issue that has not

been suf ciently appreciated and only treated as a technicality is
that of maintainability. A question arose whether the petitioners
who had led the petition had the locus standi to le it.
The rule of locus standi requires any person who approaches
the Court to have some personal interest in the litigation. The
courts do not encourage busybodies. In the case of Public Interest
Litigation (PIL), the strictness of this rule has been reduced. The
Court has acknowledged that in the case of PILs there may be
disadvantaged groups who cannot afford to ght their own
battles. Hence, even strangers may le cases on their behalf.
The Supreme Court in the case of S.P. Gupta v. Union of India
6 held that ‘where a legal wrong or a legal injury is caused to a

person or to a determinate class of persons by reason of violation

of any constitutional or legal right, or any burden is imposed in
contravention of any constitutional or legal provision or without
authority of law, or any such legal wrong or legal injury or illegal
burden is threatened and such person or determinate class of
persons is by reason of poverty, helplessness or disability or
socially or economically disadvantaged position, unable to
approach the Court for relief, any member of the public can
maintain an application for an appropriate direction, order or
writ in the High Court under Article 226 and in case of breach of
any fundamental right of such person or determinate class of
persons, in this Court under Article 32 seeking judicial redress for
the legal wrong or injury caused to such person or determinate
class of persons.’
The fundamental reason in entertaining such petitions would
necessarily be that the class of persons is by reason of poverty,
helplessness or disability, or due to a socially or economically
disadvantaged position, unable to approach the Court. This could
hardly be true in the present case of the Sabarimala Temple issue.
Yet, this exercise has been brushed aside by the constitutional
court as a mere technicality.
Amongst the majority and concurring judgements, this issue
was only dealt with by Justice Rohinton Fali Nariman and Justice
Chandrachud. Relying on an earlier judgement of the Supreme
Court, 7 Justice Nariman held that the Sabarimala case raised
issues relating to women, who happen to be between the ages of
10 to 50 generally. Women of those ages were allegedly not
allowed entry into the temple at Sabarimala on the ground of a
physiological or biological function.
This was thus a feature common to all women between those
ages and hence women constituted a group. Also, as the matter
raised far-reaching consequences relating to Articles 25 and 26 of
the Constitution (the right to freedom of religion and the right to
maintain religious institutions), it was found necessary to decide
this matter on merits. Consequently, Justice Nariman as well as
Justice Chandrachud found that the technical plea cannot stand
in the way of a constitutional court applying constitutional
principles to the case at hand.
It is only in the dissenting judgement of Justice Indu Malhotra
that the issue has been extensively and rightly dealt with. Justice
Malhotra speci cally records in her judgement that ‘the
Petitioners do not claim to be devotees of the Sabarimala Temple
where Lord Ayyappa is believed to have manifested himself as a
Naishtik Brahmachari’. The judgement of Justice Malhotra
observed that to determine the validity of long-standing religious
customs and usages of a sect, at the instance of an
association/interveners who are ‘involved in social developmental
activities, especially activities related to upliftment of women and
helping them become aware of their rights’, would require the
Supreme Court to decide religious questions at the behest of
persons who do not subscribe to this faith. Justice Malhotra
further holds that the right to worship, claimed by the
petitioners, has to be predicated on the basis of an af rmation of
a belief in the particular manifestation of the deity in this temple.
8

PILs, particularly those pertaining to religious practices and

customs, stand on a different footing as has been noted in the
dissenting judgement by Justice Malhotra. I believe that her
decision also re ects the consistent philosophy that has been
re ected in the various judgements of the Supreme Court itself,
which particularly holds that even the test of ‘essential practice’
is to be determined from the perspective of its adherents. 9
Justice Malhotra has rightly also held that ‘the absence of this
bare minimum requirement must not be viewed as a mere
technicality, but an essential requirement to maintain a challenge
for impugning practices of any religious sect, or denomination.
Permitting PILs in religious matters would open the oodgates to
interlopers to question religious beliefs and practices, even if the
petitioner is not a believer of a particular religion, or a
worshipper of a particular shrine. The perils are even graver for
religious minorities if such petitions are entertained.’ 10
 It is speci cally noted by Justice Malhotra that in the present
case, the worshippers of this temple believe in the manifestation
of the deity as a naishtik brahmachari. The devotees of this
temple have not challenged the practices followed by the temple
based on the essential characteristics of the deity. The right to
practise one’s religion is a fundamental right guaranteed by Part
III of the Constitution, without reference to whether religion or
the religious practices are rational or not. Religious practices are
constitutionally protected under Articles 25 and 26 (b). Courts
normally do not delve into issues of religious practices, especially
in the absence of an aggrieved person from that particular
religious faith or sect.
In a pluralistic society comprising of people with diverse faiths,
beliefs and traditions, to entertain PILs challenging religious
practices followed by any group, sect or denomination could
cause serious damage to the constitutional and secular fabric of
this country.
This tilt at the instance of an association/interveners who are
‘involved in social developmental activities, especially activities
related to upliftment of women and helping them become aware
of their rights’ against the believers who at no stage have come
before the Supreme Court, can open the oodgates particularly
with respect to the precious rights of both minorities as well as
the majority of faiths.
This will also lead to a peculiar situation, where anyone not
having a stake or a say in any religion can challenge the norms
without having met the basic need of locus. The Court may take
up the exercise without having suf cient assistance in a matter
which itself is wrought in a religious thicket. The said position
will also substantially dilute the rights of the devotees so
preciously protected and guarded by the Constitution.

THE ISSUE OF CONSTITUTIONAL MORALITY AND BALANCING

INTERESTS
Article 25 of the Constitution gives to every person right to
freedom of religion subject to restraints of public morality.
Similarly, Article 26 of the Constitution gives every religious
denomination the right to establish and maintain as well as
manage the affairs of its religious institutions subject to public
morality. Thus, the clearly determining factor in the case is that
of public morality. Although the question of constitutional
morality was relevant for the scope and magnitude of the rights
enjoyed under Articles 25 and 26, this judgement does much
more for ‘constitutional morality’.
Public morality is a concept which is used to permit
restrictions of fundamental rights. Hence, rather than being a
concept in furtherance of a speci ed fundamental right, it is a
permissible restriction on the right. Constitutional morality, on
the other hand, refers to the underlying ethos of the
Constitution, and has been used to expand the content of
fundamental rights.
The two concepts – public and constitutional morality – are
fundamentally distinct. However, Chief Justice Dipak Misra
speaking for himself and Justice Ajay Manikrao Khanwilkar held
that the term ‘constitutional morality’ implies more than public
morality and held that a fairly wide amplitude should be given to
the de nition of morality referred to in Articles 25 and 26. The
judges have held that whenever there is a violation of the
fundamental rights, the term ‘morality’ naturally implies
constitutional morality, and any view that is ultimately taken by
the constitutional courts must be in conformity with the
principles and basic tenets of the concept of this constitutional
morality that gets support from the Constitution. 11
As regards public morality, Chief Justice Misra holds that ‘the
Constitution was not shoved, by any external force, upon the
people of this country but was adopted and given by the people
of this country to themselves, the term public morality has to be
appositely understood as being synonymous with constitutional
morality.’ 12
 This completely places the concept of constitutional morality
on its head. If constitutional morality is to be given an expansive
meaning, and is synonymous with public morality, public
morality must also be given an expansive meaning. Thus, rather
than expanding the scope of the right, the scope of the exception
is expanded.
Chief Justice Misra holds that the notions of public order,
morality and health cannot be used to restrict the freedom to
freely practise religion and discriminate against women of the age
group of 10 to 50 years by denying them their legal right to enter
and offer their prayers at the Sabarimala Temple for the simple
reason that public morality must yield to constitutional morality.
Chief Justice Misra, therefore, holds that in case of a con ict
between the moralities being public and constitutional, it is the
constitutional morality that will prevail.
In my view, this position itself contradicts the stand that public
morality is equivalent to constitutional morality. With great
respect to Chief Justice Misra, I do not subscribe to the view that
‘public morality must yield to Constitutional Morality’
(paragraph 111 of the Sabarimala judgement).
Justice Chandrachud also laid great emphasis on constitutional
morality for the purpose of deciding the vexed issue. The
Learned Judge dwelled on the issue of whether the draftspersons
of the Constitution, while de ning the content of morality, only
engaged with prevailing morality in society or referred to
something more fundamental. The Learned Judge then went on
to hold that morality for the purposes of Articles 25 and 26
cannot have an ephemeral existence. Popular notions about what
is moral and what is not are transient and eeting. Popular
notions about what is or is not moral may in fact be deeply
offensive to individual dignity and human rights.
Justice Chandrachud holds that the content of morality is
founded on the four precepts that emerge from the Preamble.
The rst among them is the need to ensure justice in its social,
economic and political dimensions. The second is the postulate of
individual liberty in matters of thought, expression, belief, faith
and worship. The third is equality of status and opportunity
amongst all citizens. The fourth is the sense of fraternity amongst
all citizens, which assures the dignity of human life.
Added to these four precepts is the fundamental postulate of
secularism, which treats all religions on an even platform and
allows to each individual the fullest liberty to believe or not to
believe. The Learned Judge holds that the founding faith upon
which the Constitution is based is the belief that it is in the
dignity of each individual that the pursuit of happiness is
founded. Individual dignity can be achieved only in a regime that
recognizes liberty as inhering in each individual as a natural right.
As per Justice Chandrachud, in public law conversations
between religion and morality, it is the overarching sense of
constitutional morality that has to prevail. While the
Constitution recognizes religious beliefs and faiths, its purpose is
to ensure a wider acceptance of human dignity and liberty as the
ultimate founding faith of the fundamental text of our
governance. Where a con ict arises, the quest for human dignity,
liberty and equality must prevail. These, above everything else,
are matters on which the Constitution has willed that its values
must reign supreme.
It is my belief that laudatory as it sounds, Justice
Chandrachud’s judgement does the most to tilt the constitutional
balance that has so carefully been preserved in favour of
individual rights against rights of the group. In my opinion, the
reason that revolutionary steps have not been taken in the
direction of social reforms in the matter of faith and religion is
because a certain sanctity has to be maintained with respect to
the faith of the people, and the change has to emanate from
within.
I frankly am unable to fully appreciate the new-fangled
concept of ‘constitutional morality’ as referred to in recent
judgements by the Supreme Court of India in Manoj Narula v.
Union of India 13 and Navtej Singh Johar v. Union of India. 14 For
the rst time, the term ‘constitutional morality’ was used by the
Supreme Court in Kesavananda Bharati Sripadagalvaru v. State of
Kerala 15 by Justice A.N. Ray.
In the said judgement, he has observed that ‘Democracy
proceeds on the faith and capacity of the people to elect their
representatives and faith in the representatives to represent the
people. Throughout the history of mankind if any motive power
has been more potent than another it is that of faith in
themselves. The ideal of faith in ourselves is of the greatest help
to us. Grote, the historian of Greece, said that the diffusion of
constitutional morality, not merely among the majority of any
community but throughout the whole, is the indispensable
condition of a government at once free and peaceful. By
constitutional morality Grote meant a paramount reverence for
the forms of the Constitution, with a perfect con dence in the
bosom of every citizen amidst the bitterness of party contest that
the forms of the Constitution will not be less sacred in the eyes
of opponents than in his own.’
Dr Ambedkar used the phrase ‘Constitutional Morality’
sparsely in the debates held by the Constituent Assembly during
the drafting of the Constitution, and made it to be the alter ego
of the ‘spirit’ and not the ‘pillar’ of the Constitution. The same
was also brie y discussed by this Court in the aforementioned
Keshvananda case. The concept ‘constitutional morality’, if at all,
should be equated with the ‘underlying spirit of the Constitution’
or principles enshrined therein.
For example, power under Article 356 of the Constitution of
India 16 can be exercised, but keeping in mind that democracy is
a fundamental feature of our Constitution, this power should be
used sparingly. Such an interpretation would be in sync with, one
may say, the constitutional ethos or, for that matter, the
underlying spirit of the Constitution.
That further in my opinion, the concept of constitutional
morality has evolved in various recent judgements of the
Supreme Court. In Manoj Narula, 17 the Supreme Court de ned
constitutional morality as the requirement to adhere to the norms
of the Constitution coupled with an obligation not to act in a
manner that would become violative of the rule of law or
re ectible of action in an arbitrary manner.
In Navtej Singh Johar , 18 the Supreme Court went even further
and said that the concept of constitutional morality is said to be
not limited to the mere observance of the core principles of
constitutionalism. Constitutional morality embraces within itself
virtues of a wide magnitude such as that of ushering a pluralistic
and inclusive society, while at the same time adhering to the
other principles of constitutionalism, and is not con ned to a
mere reading of the literal text of the Constitution.
All the above de nitions of constitutional morality refer to a
concept of morality that is closer to being the conscience or the
spirit of the Constitution, and is necessary where the text is not
speci cally provided.
However, as against that, the concept of morality as has been
laid down under Articles 25 and 26, debated by the Constituent
Assembly and tested by the Supreme Court in various
judgements, has stood the test of time. To introduce and replace
the concept of ‘morality’ by that of ‘constitutional morality’
would be to undo the same.
The progressive tilt in favour of constitutional morality may in
fact lead to watering down the protection provided to various
rights under the Constitution. The Constitution in its original
form is a pluralist document very carefully balancing the various
rights and interests of the various sections of the new and the old
world. The present exercise of testing a coded law on the anvil of
constitutional morality will necessarily reverse the process of the
challenge and will meet a predetermined fate. With such a wide
ambit given to constitutional morality, the scope and width of the
fundamental rights has reduced drastically.
In the context of constitutional morality, it is relevant to read
the judgement of Justice Nariman with respect to public morality
being treated as constitutional morality. He points to the
distinction between Articles 25 and 26 of the Constitution.
Article 25 makes that right subject to both public morality and
all other fundamental rights. Article 26, on the other hand, is not
speci cally subject to the other fundamental rights. If
fundamental rights, which inform the concept of constitutional
morality, are to be read as part of ‘public morality’, that would
amount to a back-door addition of restrictions to fundamental
rights. 19
I believe this view of Justice Nariman correctly demonstrates
the aws of imposing the burden of constitutional morality on
public morality as far as the interpretation of the Constitution is
concerned.
At this juncture it may be apt to refer to Justice Malhotra’s
view on constitutional morality, which could very well form the
gist of this essay. Justice Malhotra ruled that constitutional
morality in a pluralistic society with a secular polity would
require that the followers of various sects have the freedom to
practise their faith in accordance with the tenets of their religion.
It is irrelevant whether the practice is rational or logical. Notions
of rationality cannot be invoked in matters of religion by the
courts.
Justice Malhotra further held that the followers of this
denomination, or sect, as the case may be, submit that the
worshippers of this deity in the Sabarimala Temple, even
individually, have the right to practise and profess their religion
under Article 25 (1) in accordance with the tenets of their faith,
which is protected as a fundamental right.
Justice Malhotra holds that equality and non-discrimination are
certainly facets of constitutional morality. However, the concept
of equality and non-discrimination in matters of religion cannot
be viewed in isolation. Under our constitutional scheme, a
balance is required to be struck between the principles of
equality and non-discrimination on the one hand, and the
protection of the cherished liberties of faith, belief and worship
guaranteed by Articles 25 and 26 to persons belonging to all
religions in a secular polity, on the other hand. Constitutional
morality requires the harmonization or balancing of all such
rights, to ensure that the religious beliefs of none are obliterated
or undermined.
 THE ESSENTIAL PRACTICES AND THE RELIGIOUS
DENOMINATION TEST

Part III of the Constitution of India deals with the Fundamental

Rights. The chapter on rights, while protecting the basic human
rights, also makes special provisions for protecting the right to
freedom of religion. 20 The right to freedom of religion entails
within its ambit several provisions, but for our purpose we are
particularly concerned with Articles 25 and 26. As I have shared
earlier in this essay, Article 25 deals with the freedom of
conscience, free profession, practice and propagation of religion
to all persons. Article 26 ensures freedom to manage religious
affairs to every religious denomination and section thereof for the
following: to establish and maintain institutions for religious and
charitable purposes; to manage its own affairs in matters of
religion; to own and acquire movable and immovable property;
and to administer such property in accordance with law.

Religious Denomination

Like most provisions of the Constitution, both Articles 25 and 26

are not absolute. The rights are certainly subject to public order,
morality and health. Speci cally, Article 25 is also subject to
other fundamental rights. However, as shared earlier, Article 26 is
not by itself subject to the other fundamental rights. This would
mean that the rights conferred under Article 26 to manage the
affairs of a religious denomination is wider than the right
conferred under Article 25.
Speci cally, while the rights under Articles 14 and 15 (i.e. the
right to equality) would clearly trump the rights under Article
25, in the case of Article 26, the Court would have to indulge in
a balancing exercise. The right to equality and the right to
manage and administer the religious affairs of a denomination
would have to be harmonized rather than one simply yielding to
the other. Therefore, an argument was made in the case that the
followers of Ayyappa were a separate religious denomination and
hence had rights under Article 26. This argument was rejected by
the majority judgement, and I believe wrongly so.
One of the earliest judgements on Articles 25 and 26 of the
Constitution of India was the case of Commissioner, Hindu
Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt. 21 This case concerned itself with the settlement of a
scheme (i.e. an effective takeover) in connection with a ‘mutt’
known as the Shirur Mutt. In history, the Shirur Mutt is stated to
be one of the eight mutts situated at Udupi in the district of
South Kanara, and reputed to have been founded by Shri
Madhwacharya, the well-known exponent of dualistic theism in
Hinduism. The judgement went on to decide many important
issues of the day, but we are presently concerned with its
exposition of the term ‘religious denomination’. The Supreme
Court held as follows:
The word ‘denomination’ has been de ned in the Oxford Dictionary to mean
‘a collection of individuals classed together under the same name: a religious
sect or body having a common faith and organization and designated by a
distinctive name.

The Supreme Court observed that ‘Each one of such sects or

sub-sects can certainly be called a religious denomination, as it is
designated by a distinctive name – in many cases it is the name of
the founder – and has a common faith and common spiritual
organization.’ The judgement, a landmark judgement of that era,
indicates a drift towards enhanced protection of the religious
rights as contemplated under the Constitution. The term
‘religious denomination’ was read in a fairly liberal manner and
could extend to not only a religious denomination but also any
section thereof.
In another case pertaining to Auroville, a township of followers
of Shri Aurobindo, the Supreme Court 22 retraced and reaf rmed
the law as laid down in Sri Shirur Mutt (supra), and held as
follows: ‘The words ‘religious denomination’ in Article 26 of the
Constitution must take their colour from the word ‘religion’ and
if this be so, the expression ‘religious denomination’ must also
satisfy three conditions. It must be a collection of individuals who
have:

1. a system of beliefs or doctrines which they regard as conducive to

their spiritual well-being, that is, a common faith;
2. a common organization; and
3. a designation by a distinctive name.

By application of these tests in the case of Sabarimala, Chief

Justice Misra, Justice Chandrachud and Justice Nariman have all
held that the group fails the religious denomination test.
Chief Justice Misra, speaking for Justice Khanwilkar and
himself, held that the devotees of Lord Ayyappa do not
constitute a separate religious denomination as they do not have
common religious tenets peculiar to themselves, which they
regard as conducive to their spiritual well-being, other than those
which are common to the Hindu religion. The Chief Justice,
therefore, held that the devotees of Lord Ayyappa are exclusively
Hindus who do not constitute a separate religious denomination.
23 Justices Nariman and Chandrachud also held that the

Ayyappans were not a religious denomination.

On the other hand, Justice Malhotra held that the meaning
ascribed to ‘religious denomination’ by this Court in the Shirur
Mutt (supra) case and subsequent cases is not a straightjacket
formula, but a working formula. It provides guidance to ascertain
whether a group will fall within a religious denomination or not.
Justice Malhotra held that if there are clear attributes that there
exists a sect, which is identi able as being distinct by its beliefs
and practices, and having a collection of followers who follow the
same faith, it would be identi ed as a ‘religious denomination’. In
this view of the matter, she ruled that the worshippers of Lord
Ayyappa at the Sabarimala Temple constitute a religious
denomination, or sect thereof, as the case maybe, following the
‘Ayyappan Dharma’.
At this stage, we may brie y discuss the scope of the religion of
which the Ayyappans are to be a denomination. This is also
relevant to understand why I agree with Justice Malhotra’s view.
The Hindu religion in its broadest form is incapable of a
de nition. In a celebrated Supreme Court judgement, 24 the
Court considered the questions as to who Hindus are and what
are the broad features of Hindu religion, and held thus:
When we think of the Hindu religion, we nd it dif cult, if not impossible, to
de ne Hindu religion or even adequately describe it. Unlike other religions in
the world, the Hindu religion does not claim any one prophet; it does not
worship any one God; it does not subscribe to any one dogma; it does not
believe in any one philosophic concept; it does not follow any one set of
religious rites or performances; in fact, it does not appear to satisfy the narrow
traditional features of any religion or creed. It may broadly be described as a
way of life and nothing more… Monier Williams has observed that ‘it must be
borne in mind that Hinduism is far more than a mere form of theism resting
on Brahmanism. It presents for our investigation a complex congeries of creeds
and doctrines which in its gradual accumulation may be compared to the
gathering together of the mighty volume of the Ganges, swollen by a continual
in ux of tributary rivers and rivulets, spreading itself over an ever-increasing
area of country, and nally resolving itself into an intricate Delta of tortuous
streams and jungly marshes’… The Hindu religion is a re ection of the
composite character of the Hindus, who are not one people but many. It is
based on the idea of universal receptivity. It has ever aimed at accommodating
itself to circumstances and has carried on the process of adaptation through
more than three thousand years. It has rst borne with and then, so to speak,
swallowed, digested, and assimilated something from all creeds.

The above judgement shows that unlike, say, the Abrahamic

religions, Hinduism is far more malleable and unstructured.
There can be no hard and fast rules about determining what is or
what is not a denomination. Ultimately, what must prevail is the
Constitution’s guarantee of religious freedom. There are few
de ned constituents of the Hindu religion. Denominations and
sects in Hinduism are mostly found in post reformist and other
movements. These denominations and sects recognized by the
Supreme Court as a religious denomination in the Shri Shirur
Mutt case (supra) and Ramakrishna Mission 25 are classic
examples of the same.
However, can something more basic and rudimentary be
brushed away without acknowledgement? The manifestation of
Lord Ayyappa in the naishtik brahmachari form, for which an
entire temple and practice was dedicated, must get its due. It is
true that there are many temples devoted to Lord Ayyappa, but
this particular manifestation – following the practice of refusing
entry to women of age group 10–50 – is unique, and ought to be
treated as a subsect for the purpose of religious denomination,
and believers and worshippers must get the protection secured
for them. Also, the travesty of denying to them the relevant
protection will also lead to an attempt at only recognizing the
reformist structures of the religion and protecting them while
riding roughshod over the tenets of the religion themselves.
Parity may therefore be drawn with respect to the cases like
the Shirur Mutt and Ramakrishna Mission with that of individual
temples. Worshippers of Lord Ayyappa at Sabarimala Temple
constitute a religious denomination, or sect thereof, as the case
maybe, following the ‘Ayyappan Dharma’. They are designated
by a distinctive name wherein all male devotees are called
‘Ayyappans’; all female devotees below the age of 10 and above
the age of 50 are called ‘Malikapurnams’. A pilgrim on his
maiden trip to Sabarimala Temple is called a ‘Kanni Ayyappan’.
The devotees are referred to as ‘Ayyappaswamis’. A devotee has
to observe the ‘vratham’, and follow the code of conduct, before
embarking upon the ‘pathinettu padikal’ to enter the temple at
Sabarimala.
It may be apt to mention here that this is not a unique position
in law. There have been many cases where the practices of
individual temples were recognized and protected. Sri
Venkataramana Temple at Mulki, Karnataka, was considered to
be a denominational temple, and the Gowda Saraswath Brahmins
were held to constitute a religious denomination. Similarly, in Dr
Subramaniam Swamy v. State of Tamil Nadu , 26 the Podhu
Dikshitars were held to constitute a religious denomination in the
context of the Sri Sabanayagar Temple at Chidambaram.
Once the Ayyappans are a distinct denomination, they must
get the full force of the Constitutional guarantee of freedom of
religion. It is no part of the Court’s, or society’s, function to
impose an allegedly reformist ideology on matters of faith.
Rationality has no place in matters of belief.

Essential Practices Test

As per the judgement, the rights which are constitutionally

protected only include the essential religious practices. Hence a
question arose: Is the exclusion of women aged 10 to 50 an
essential religious practice? If it was not an essential practice,
there was no constitutional protection that the exclusion enjoyed.
The majority held that the practice was in fact not an essential
component of the Hindu religion and, as such, enjoyed no
immunity.
The Supreme Court has held that the ‘essential practices test’
primarily means those practices that are fundamental to follow a
religious belief. The test to determine whether a part or practice
is essential to a religion is to nd out whether the nature of the
religion will be changed without that part or practice. If the
taking away of that part or practice could result in a fundamental
change in the character of that religion or in its belief, then such a
part could be treated as an essential or integral part. There cannot
be additions or subtractions to such a part because it is the very
essence of that religion, and alterations will change its
fundamental character.
It is such permanent essential parts, which are protected by the
Constitution. 27 One more factor that is crucial for the
determination of ‘essential practice’ is that it is to be determined
from the perspective of its adherents. This principle was rst laid
down in the case of Shirur Mutt (supra). In that case, the
Supreme Court held that ‘ What constitutes the essential part of
a religion is primarily to be ascertained with reference to the
doctrine of that religion itself.’
In the case of Sabarimala, Justice Nariman held that even
assuming that there is a custom or usage for keeping out women
of the ages of 10 to 50 from entering the Sabarimala Temple, and
that the said practice is an essential part of the ‘Thanthris’ as well
as the worshippers’ faith, the said practice or usage would be
clearly hit by Section 3 of the Kerala Hindu Places of Public
Worship (Authorisation of Entry) Act, 1965. He ruled that the
fundamental right claimed by the Thanthris and worshippers of
the institution, based on custom and usage under Article 25 (1 ),
must necessarily yield to the rights of women. Women between
the ages of 10 to 50 also had a fundamental right to practise
religion, which would be meaningless unless they were allowed
to enter the temple at Sabarimala to worship the idol of Lord
Ayyappa.
Chief Justice Misra held that that exclusion of women of any
age group could never be regarded as an essential practice of
Hindu religion and, on the contrary, it is an essential part of the
Hindu religion to allow Hindu women to enter a temple as
devotees and followers of the Hindu religion, and offer their
prayers to the deity. Chief Justice Misra held so particularly in
the absence of any scriptural or textual evidence to accord the
exclusionary practice followed at the Sabarimala temple the
status of an essential practice of Hindu religion.
Justice Chandrachud, also in the same manner, held that the
exclusion of women was not an essential doctrine of the Hindu
religion. 28
In view of the above discussion on the scope and ambit of
Hindu religion, I nd it dif cult 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 speci c temples with
variant practice. Each temple may have its own followers and
come to have a custom that has been crystallized over centuries
to become a practice for that holy site. To refuse it special status
because there are temples in a country as vast as India, with a
religion as malleable as Hinduism, would be to reduce the
constitutional promise of Article 25 to a nought.
In regard to the preceding criticism, it would be relevant herein
to refer to another issue raised by Chief Justice Gogoi in the
review petition of this case: ‘Whether the “essential religious
practices” of a religious denomination, or even a section thereof
are afforded constitutional protection under Article 26.’
It is pertinent at this stage to refer to an extract from the
concurring judgement of Justice Chinnappa Reddy in S.P. Mittal
v. Union of India & Ors . (supra) with respect to the approach to
be adopted by courts whilst dealing with matters concerning
religion:
What is religion to some is pure dogma to others and what is religion to others
is pure superstition to some others… But my views about religion, my
prejudices and my predilections, if they be such, are entirely irrelevant. So are
the views of the credulous, the fanatic, the bigot and the zealot. So also, the
views of the faithful, the devout, the acharya, the moulvi, the padre and the
bhikhshu, each of whom may claim his as the only true or revealed religion.
For our purpose, we are concerned with what the people of the Socialist,
Secular, Democratic Republic of India, who have given each of its citizens
freedom of conscience and the right to freely profess, practise and propagate
religion and who have given every religious denomination the right to freely
manage its religious affairs, mean by the expressions ‘religion’ and ‘religious
denomination’. We are concerned with what these expressions are designed to
mean in Articles 25 and 26 of the Constitution.
Any freedom or right involving the conscience must naturally receive a wide
interpretation and the expression religion and religious denomination must,
therefore, be interpreted in no narrow, sti ing sense but in a liberal, expansive
way.

Justice Malhotra’s dissenting view has correctly considered this

question in an expansive way to uphold and secure the
protections granted to the believers to uphold their faith. She has
held that the only way to determine the essential practices test
would be with reference to the practices followed since time
immemorial, which may have been scripted in the religious texts
of the temple. If any practice in a particular temple can be traced
to antiquity, and is integral to the temple, it must be taken to be
an essential religious practice of that temple.
The temple Thanthri, the Travancore Devaswom Board and
believers of Lord Ayyappa have submitted that the limited
restriction on access of women during the noti ed age of 10 to 50
years is a religious practice that is central and integral to the
tenets of this shrine, since the deity has manifested himself in the
form of a ‘naishtik brahmachari’. 29
 CONCLUSION

In light of the above discussion I sum up my view as follows:

1. The Sabarimala Temple is a one-of-its-kind temple dedicated to
Lord Ayyappa in his naishtik brahmachari form, and follows the
practice of refusing entry to women of between the ages of 10
and 50. There are other temples of Lord Ayyappa where all
Hindus go to worship; this one, however, is signi cant for its
peculiar practices.
2. The ‘Ayyappans’ ought to necessarily qualify the test of the
‘religious denomination test’ as they are worshippers of Lord
Ayyappa at Sabarimala Temple and constitute a religious
denomination, or a sect as the case may be, following the
‘Ayyappan Dharma’. They have distinct practices and ought to be
recognized as a separate religious denomination.
3. The Hindu religion is vast and cannot be de ned and con ned
with only a certain school of thought.
4. The peculiar practices of Hindus cannot be coloured with the
same brush as the common practices of Hindus.
5. The essential practices of the religious denomination, or a set or
even a subset of the Hindu religion must be protected.
6. The balance maintained by the Constitution between the various
rights of the people must be maintained.
7. Holding otherwise, even if the outcome is meant to be
reformative, will disturb the pluralist balance so maintained by
the Constitution.
8. The question of constitutional morality ought to be preserved as
the guiding principle, and not to be read into Articles 25 and 26.
9. The question of maintainability ought not to be treated as a mere
technicality particularly when on the same hinges the sensitive
balance maintained by the Constitution.
10. The nature of this dispute, which means giving in to the question
of religion, religious practices, essential practices and religious
denominations alike, is akin to a mine eld. The courts should be
wary of wading into such controversies. By the very nature of the
dispute, it is not easy to marshal the facts and apply the law. The
 Supreme Court in the case of Krishna Singh v. Mathura Ahir 30
had denied interfering in the religious custom that prohibited
lower caste Hindus to take sanyas. The Court had held that the
profession of religion should be a very personal choice. Just as the
courts do not enter the ‘political thicket’, it would be wise not to
enter the ‘religious thicket’ unless it is imperative.
11. I further reiterate that the need of the reference of the said
judgement to a larger bench is an instance depicting that this
Court was also of the opinion that that some facets of the said
judgement need to be revisited.

As a general conclusion, I think it is time that we realize that

short and pithy judgements go a long way in settling the law
rather than long and winding judgements. One can take
inspiration from the judgements of the Privy Council (dealing
with Indian cases) in the 1930s and the 1940s. 31 Till date, there
is no unanimity in the nal conclusions rendered by the Bench in
Kesavananda Bharati v. State of Kerala , 32 (the fundamental
rights case) as separate opinions were delivered.
The Sabarimala judgement is an example of how lengthy
judgements, rather than clarifying issues, can make them even
more obscure. Judgements of the Supreme Court are not meant
only for lawyers, but also for the lay public, and should be
written in a simple and precise manner so as to be accessible to
all.
 The Growing Signi cance of
Dignity Jurisprudence in the
Field of Human Rights

JUSTICE A.K. SIKRI

Written constitutions in most democratic countries are of a

recent origin which may, at the most, go back to a few hundred
years. Most of these constitutions recognize and lay down speci c
provisions concerning human rights. Even those liberal
democracies that do not have written constitutions, cherish and
enforce human rights. 1 The main thesis of this essay is to
demonstrate that the basis of human rights is dignity . The
concept of dignity has not only added to known human rights,
but has also led to the creation of a new genre of such rights.
Let it be clari ed at the outset that there is no speci c
fundamental right in the Indian Constitution that expressly talks
of human dignity. The word ‘dignity’ occurs only once in our
Constitution, and that too in its Preamble. The Preamble
proclaims that India is constituted into a ‘SOVEREIGN
SOCIALIST SECULAR DEMOCRATIC REPUBLIC’, and it is
aimed at securing to all its citizens ‘JUSTICE, LIBERTY,
EQUALITY and FRATERNITY’. While talking of fraternity, the
Preamble states: ‘FRATERNITY, assuring the dignity of the
individual and the unity and integrity of the Nation…’
Notwithstanding the absence of this expression in the
fundamental rights chapter, certain rights like the right to
equality (Article 14), certain freedoms (Article 19) and the right
to life and personal liberty (Article 21), have been interpreted by
the Supreme Court over the last four decades keeping in view
the individual as the focal point of the Constitution. The concept
of human dignity, in the process, has been recognized on the
premise that it is the realization of individual rights that will lead
to the collective well-being of the community. Thus, human
dignity, as a value, has been the basis for giving various kinds of
rights.

THREE MODELS OF HUMAN DIGNITY

Before chartering a discourse on such rights, let me rst discuss

three models of the human dignity doctrine, and their
interconnection.
Insofar as the concept of human dignity is concerned, it dates
back thousands of years. Historically, human dignity, as a
concept, found its origin in different religions. Later, it was also
in uenced by the views of philosophers who developed human
dignity in their contemplations. 2
After the Second World War, constitutional and international
legal texts began to adopt the concept of dignity, and in this
manner, human dignity has come to be recognized as a
constitutional value and as a constitutional right. 3 Thus,
historically, three types of models for determining the content of
the constitutional value of human dignity are recognized: The
theological model; the philosophical model; and the
constitutional model.
Legal scholars were called upon to determine the theological
basis of human dignity as a constitutional value and as a
constitutional right. Philosophers also came out with their views
justifying human dignity as a core human value. Legal
understanding is in uenced by theological and philosophical
views, though these two are not identical. Legal scholars have
discussed the jurisprudential aspects of human dignity based on
the aforesaid philosophies. Over a period of time, human dignity
has found its way through constitutionalism, whether written or
unwritten.
The manner in which historical progression has taken place,
from a theological to a philosophical recognition of ‘dignity’ as a
concept, and attained the coveted position as a constitutional
right, makes for an interesting study. Before we talk of dignity in
the present-day context, in order to understand its true
complexion and contours, it would be worthwhile to trace this
evolution.

Theological Model
Amritasya Putrah Vayam
(We are all begotten of the immortal.)

Every individual soul is potentially divine.

– Swami Vivekananda

Hinduism does not recognize human beings as mere material

beings. Its understanding of human identity is more ethical–
spiritual than material. That is why a sense of immortality and
divinity is attributed to all human beings in Hindu classical
literature. It is on the principle that the soul makes the body of
all living organisms its abode and is, in fact, an integral part of the
Paramatman, Divine Whole, that the Vedas declare
unequivocally:
Ajyesthaaso Akanisthaasa Yete
Sam Bhraataro Vaavrudhuh Soubhagaya

(No one is superior or inferior; all are brothers;

All should strive for the
interest of all and progress collectively.)
– Rig Veda, Mandala 5, Sukta 60, Mantra 5
Even in Islam, the tradition of human rights became evident in
the medieval ages. As per the tenets of the Quran, Islam preaches
universal brotherhood, equality, justice and compassion. Islam
believes that man has a special status before God. Because man is
a creation of God, he should not be harmed. Harm to a human
being is harm to God. God, as an act of love, created man, and
He wishes to grant him recognition, dignity and authority. Thus,
in Islam, human dignity stems from the belief that man is a
creation of God – the creation that God loves more than any
other.
In the Bible’s Book of Genesis, Adam and Eve exist in a state of
innocence until the serpent tempts Eve with a fruit from the Tree
of the Knowledge of Good and Evil. After eating the fruit, both
see their nakedness and, feeling ashamed, they try to cover up.
God banishes them from the Garden of Eden for violating his
commandment. The Christian concept of dignity has revolved
around this capacity for ‘moral choice’. It recognizes that human
beings are able to distinguish between good and evil; they can
choose to be good, even if they often do not do so. In this sense,
in the Christian tradition, all human beings are fundamentally
equal as they are endowed with an equal capacity for choice.
Christianity believes that the image of God is revealed in Jesus,
and through Him to humankind. God is rational and determines
His goals for Himself. Man was created in the image of God, and
he too is rational and determines his own goals, subject to God as
a rational creation. Man has freedom of will. This is his dignitas .
He is free to choose his goals, and he himself is a goal. His
supreme goal is to know God. Thus he is set apart from a slave
and from all the creations under him. When a man sins, he loses
his human dignity. He becomes an object. 4

PHILOSOPHICAL MODEL

The modern conception of human dignity was affected by the

philosophy of Kant. 5 Immanuel Kant, in fact, presented a secular
version of the Christian understanding of dignity. 6 Kant’s moral
theory is divided into two parts: ethics and rights (jurisprudence).
The discussion of human dignity took place within his doctrine of
ethics, and does not appear in his jurisprudence. 7
According to Kant, a person acts ethically when he acts by
force of a duty that a rational agent self-legislates onto his own
will. This self-legislated duty is not accompanied by any right or
coercion, and is not correlative to the rights of others. For Kant,
ethics includes duties to oneself (e.g. to develop one’s talents)
and to others (e.g. to contribute to their happiness). This ability
is the human dignity of man. This is what makes a person
different from an object. This ability makes a person an end unto
himself, and prevents him from being a mere means in the hands
of another.
Kant asserts that we can point to nothing as unconditionally
good other than a good will – that is, the capacity for proper
moral choice. But Kant did not see this in religious terms; moral
choice for him consists of the ability to follow abstract rules of
reason for their own sake, and not for instrumental reasons
having to do with the outcomes such choices imply for human
well-being or happiness. The human capacity for moral choice
means that human beings are not machines subject to the laws of
physics, as Hobbes suggested; they are agents and, for that
reason, need to be treated not as ends to other means, but as ends
in themselves. Morality is not a utilitarian calculus of outcomes
that maximize human happiness, but about the act of choice
itself. For Kant, human dignity revolves around human will, that
human beings are genuine agents or uncaused causes.
Professor Upendra Baxi in his First Justice H.R. Khanna
Memorial Lecture, 8 on the topic ‘Protection of Dignity of
Individual under the Constitution of India’ has very aptly
remarked that dignity notions, like the idea of human rights, are
supposed to be the gifts of the West to the Rest, though this view
is based on the prescribed ignorance of the rich traditions of non-
European countries. He then explains the Eurocentric view of
human dignity by pointing out that it views dignity in terms of
personhood (moral agency) and autonomy (freedom of choice).
Dignity here is to be treated as ‘empowerment’, which makes a
triple demand in the name of respect for human dignity, namely:

1. Respect for one’s capacity as an agent to make one’s own free

choices;
2. Respect for the choices so made;
3. Respect for one’s need to have a context and conditions in which
one can operate as a source of free and informed choice. 9

Jeremy Waldron 10 opines that dignity is a sort of status-

concept: It has to do with the standing (perhaps the formal legal
standing or perhaps, more informally, the moral presence) that a
person has in a society and in her dealings with others. He has
ventured even to de ne this term ‘dignity’ in the following
manner:
Dignity is the status of a person predicated on the fact that she is recognized
as having the ability to control and regulate her actions in accordance with her
own apprehension of norms and reasons that apply to her; it assumes she is
capable of giving and entitled to give an account of herself (and of the way in
which she is regulating her actions and organizing her life), an account that
others are to pay attention to; and it means nally that she has the
wherewithal to demand that her agency and her presence among us as human
being be taken seriously and accommodated in the lives of others, in others’
attitudes and actions towards her, and in social life generally.

Constitutional Value

It is already discussed above that religions recognize all human

beings as equal; they are God’s creation, and God loves them
equally. The entire world is one ‘kutumb’, family, where
everyone has the right to grow and be meaningful to the society.
That is where right of choice comes in. In Plato’s Republic , one
of the messages, and a central one, is that Socrates understood
that ‘desire’ and ‘reason’ are component parts of the human
psyche (soul), but a third part viz. thymus acts completely
independent of the two.
 Thymus is the seat of judgement of an individual’s self-worth.
This part prompts human beings to crave positive judgements
about their worth or dignity. Although these judgements can
come from within, human beings want other people in the
society to ‘recognize’ their worth and to treat them with dignity.
In that sense, they want that society recognizes their ‘identity’.
Francis Fukuyama has used the term ‘identity’ in a speci c
sense in his book, 11 which is a discourse on contemporary
identity politics and the struggle for recognition. He remarks:
Identity grows, in the rst place, out of a distinction between one’s true inner
self and an outer world of social rules and norms that does not adequately
recognise that inner self’s worth or dignity. Individuals throughout human
history have found themselves at odds with their societies. But only in modern
times has the view taken hold that the authentic inner self is intrinsically
valuable, and the outer society systematically wrong and unfair in its valuation
of the former. It is not the inner self that has to be made to conform to
society’s rules, but society itself that needs to change. The inner self is the
basis of human dignity, but the nature of that dignity is variable and has
changed over time.

By the early 19th century, most of the elements of the modern

concept of identity showed their presence: The distinction
between the inner and the outer selves; the valuation of the inner
being above existing social arrangements; the understanding that
the dignity of the inner self rests on its moral freedom; the view
that all human beings share this moral freedom; and the demand
that the free inner self be recognized.
Hegel pointed to a fundamental truth about modern politics –
that the great passions unleashed by events such as the French
Revolution were at the root struggles over dignity. The inner self
was not just a matter of personal re ection; its freedom was to be
embodied in rights and law. The democratic upsurge that would
unfold in the two centuries after the French Revolution was
driven by people demanding recognition of their political
personhood, that they were moral agents capable of sharing in
political power.
It is the aforesaid philosophical journey which has paved way
for the constitutional recognition of the right to dignity. A liberal
democratic regime, governed by rule of law and based on
individual rights, enshrines the notion of equal dignity in law by
recognizing citizens as moral agents capable of sharing in their
own self-government.
The French Revolution led to the creation of two different
versions of dignity: dignity of individuals; and dignity of
collectivities. Dignity was a right recognized thereafter, and got
constitutional recognition after the Second World War.
One of the most important lessons learnt as a result of the
Second World War was the realization by the governments that
human dignity needed to be cherished and protected. It is for this
reason that in the UN Charter, 1945, adopted immediately after
the Second World War, the dignity of the individual was
mentioned as a core value. The almost contemporaneous
Universal Declaration of Human Rights (1948) echoed the same
sentiments.
Article 3 of the Geneva Conventions explicitly prohibits
‘outrages upon personal dignity’. There are provisions to this
effect in the International Covenant on Civil and Political Rights
(ICCPR), (Article 7), and the European Convention of Human
Rights (Article 3), though implicit. However, one can easily infer
the implicit message in these documents about human dignity.
The ICCPR begins its preamble with the acknowledgment that
the rights contained in the covenant ‘derive from the inherent
dignity of the human person’. Even if this is not a connection
between dignity and law as such, it certainly purports to identify
a wholesale connection between dignity and the branch of law
devoted to human rights.
One of the key facets of 21st century democracies is the
primary importance they give to the protection of human rights.
From this perspective, dignity is the expression of a basic value
accepted in a broad sense by all people, and thus constitutes the
rst cornerstone in the edi ce of human rights. Therefore, there
is a certain fundamental value to the notion of human dignity,
which some would consider a pivotal right deeply rooted in any
notion of justice, fairness, and a society based on basic rights.
 The idea that dignity is rooted in human moral choice has
received political recognition by becoming embedded in a
signi cant number of modern democratic constitutions, including
those of Germany, Italy, Ireland, Japan, Israel and South Africa.
For example, Article I, Section 1, of the German Basic Law of
1949 states, ‘The dignity of man is inviolable. To respect and
protect it shall be the duty of all public authority.’ Similarly,
Section 10 of the South African Constitution states, ‘Everyone
has inherent dignity and the right to have their dignity respected
and protected.’ The South African Constitutional Court notes, ‘A
right to dignity is an acknowledgement of the intrinsic worth of
human beings.’
Within two years of the adoption of the aforesaid Universal
Declaration of Human Rights that all human beings are born free
and equal in dignity and rights, India attained independence and,
immediately thereafter, members of the Constituent Assembly
took up the task of framing the Constitution of this country. It
was but natural to include a Bill of Rights in the Indian
Constitution and the constitution makers did so by incorporating
a chapter on Fundamental Rights in Part III of the Constitution.
However, it would be signi cant to point out that there is no
mention of ‘dignity’ speci cally in this chapter on Fundamental
Rights. It was the same in the American Constitution as well. In
America, human dignity as a part of human rights was brought in
as a judge-made doctrine. In India, the same course of action
followed as the Indian Supreme Court read human dignity into
Articles 14 and 21 of the Constitution.

RECOGNITION OF HUMAN DIGNITY AS AN ATTRIBUTE OF

FUNDAMENTAL RIGHTS

Let me illustrate this by showing as how certain fundamental

rights are expanded by translating human dignity.
1. The Supreme Court has given certain rights to prisoners with
the assertion that they are to be treated with human dignity, and
not be deprived of their rights merely because they are in prisons
as undertrials or even as convicts. The judgements in D.K. Basu v.
State of West Bengal 12 and Sunil Batra v. Delhi Administration are
two examples that re ect this, though there is no speci c
mention of human dignity.
In D.K. Basu , the Court laid down the procedure that is to be
followed even at the time of the arrest of a person to ensure that
due dignity of the person arrested is maintained. Most notably
among others, the Court directed that such a person shall not be
handcuffed unless he is hardened criminal and, in that case also,
the previous permission of the concerned Judicial Magistrate shall
have to be taken.
In Prem Shankar Shukla v. Delhi Admn. 13 , however, which
arose from the handcuf ng of the prisoners, Justice Krishna Iyer,
speaking for a three-judge bench, speci cally invoked the dignity
aspect, and held:
‘…the guarantee of human dignity [emphasis supplied], which forms part of
our constitutional culture, and the positive provisions of Articles 14, 19 and
21 spring into action when we realise that to manacle man is more than to
mortify him; it is to dehumanise him and, therefore, to violate his very
personhood, too often using the mask of ‘dangerousness’ and security… The
Preamble sets the humane tone and temper of the Founding Document and
highlights justice, equality and the dignity of the individual.

The aforesaid case law would amply demonstrate that the Court
‘recognizes’ that even prisoners are human beings and they have
to be accorded the dignity they deserve.
In recent years, society, the Legislature, Executive and Judiciary
have recognized the rights of those who are the victims of crime,
in order to bring proper and just equilibrium between the rights
of the accused/convicts and the rights of the victims. This
approach, again, is in tune with the dignity of the victims,
particularly those who are the victims of sexual offences.
2. Likewise, bonded labour is treated as that class of persons who
also have the right to live with dignity. In Bandhua Mukti Morcha
v. Union of India , 14 while dealing with individuals who were
living in bondage, the Supreme Court again emphasized their
right to live with human dignity and observed that:
This right to live with human dignity enshrined in Article 21 derives its life
breath from the directive principles of State policy and particularly clauses (e)
and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must
include protection of the health and strength of the workers, men and women,
and of the tender age of children against abuse, opportunities and facilities for
children to develop in a healthy manner and in conditions of freedom and
dignity, educational facilities, just and humane conditions of work and
maternity relief. These are the minimum requirements which must exist in
order to enable a person to live with human dignity, and no State – neither the
Central Government nor any State Government – has the right to take any
action which will deprive a person of the enjoyment of these basic essentials.

3. Rights given to the Scheduled Caste and Scheduled Tribe

communities by Articles 15 and 16 are taken to a higher level by
invoking the principle of human dignity.
Human dignity was construed in M. Nagaraj v. Union of India
15 by a Constitution Bench to be intrinsic too and inseparable

from human existence. That was a case where reservation in

promotions in cases of government employment was recognized
on this principle upholding the Constitution (Seventy-Seventh
Amendment) Act, 1995; Constitution (Eighty-First Amendment)
Act, 2000; Constitution (Eighty-Second Amendment) Act, 2000;
and Constitution (Eighty-Fifth Amendment) Act, 2001, in this
behalf.
Constitutional dignity, the Court held, is not something that is
conferred and that can be taken away, because it is inalienable.
The Supreme Court asserted human dignity in the following
manner:
The rights, liberties and freedoms of the individual are not only to be
protected against the State, they should be facilitated by it… It is the duty of
the State not only to protect the human dignity but to facilitate it by taking
positive steps in that direction [emphasis supplied]. No exact de nition of
human dignity exists. It refers to the intrinsic value of every human being,
which is to be respected. It cannot be taken away. It cannot give (sic be given).
It simply is. Every human being has dignity by virtue of his existence…

Interestingly, here the Court did not choose to deprive human

dignity, and rested its approach by connecting it with the intrinsic
value of every human being.
4. A person’s autonomy is respected on the touchstone of human
dignity. In Smt. Selvi & Ors. v. State of Karnataka , while dealing
with the involuntary administration of certain scienti c
techniques, namely, narcoanalysis, polygraph examination and the
Brain Electrical Activation Pro le test for the purpose of
improving investigation efforts in criminal cases, a three-judge
bench opined that the compulsory administration of the
impugned techniques constitute ‘cruel, inhuman or degrading
treatment’ in the context of Article 21.
5. Similarly, custodial torture or custodial deaths and fake
encounters are deprecated by the courts as violating human
dignity. Thus, even those who are accused of any offences and are
subjected to investigation cannot be maltreated. The Supreme
Court noted that inhuman treatment has many a facet. It
fundamentally can cover such acts that have been in icted with
an intention to cause physical suffering or severe mental pain. It
would also include a treatment that is in icted that causes
humiliation and compels a person to act against his will or
conscience.
In Arvinder Singh Bagga v. State of U.P. & Ors., it has been
opined that torture is not merely physical but may even consist
of mental and psychological torture calculated to create fright to
submit to the demands of the police. It has even led to creating
compensatory jurisprudence whereby exercising the powers in a
writ jurisdiction, compensation is granted to those who suffered
custodial torture or to the kith and kin of those who died in
police custody or in fake encounters. (See Dr Mehmood Nayyar
Azam v. State of Chhattisgarh & Ors. )

CONSTITUTIONAL EXPANSION OF DIGNITY JURISPRUDENCE:

SEX AND THE SUPREME COURT
In the cases mentioned above, we nd that human dignity as a
constitutional value is recognized on the basis of which the
contours of life and personal liberty in particular have been
expanded vastly. In none of these cases had the Court de ned the
meaning and scope of ‘human dignity’ and what it would contain.
The Supreme Court felt contented by describing human dignity
to be the intrinsic value of every human being and acknowledging
a person’s autonomy as an attribute of dignity. At the same time,
the jurisprudential basis of human dignity was not developed.
However, in recent years, this task is being accomplished by
various judgements.
If one looks at these recent judgements pronounced by the
Supreme Court that touch upon ‘dignity’, it will not be an
exaggeration to comment that the Supreme Court got these
opportunities because of the fact that many important and
fundamental issues touching upon the aspects of sex and gender
were raised before it. 16
In Plato’s Republic , Socrates touched upon the third part of
soul, that is, the thymos, which impels human beings to not only
seek recognition, but also want other people to recognize their
worth, for whatever they are. This attribute, coupled with the
right of choice as a core concept of dignity, led various categories
of human beings to project their dignity on the constitutional
basis in the form of equality, non-discrimination and right to
freedom. In the process, we have witnessed marginalized groups
like the LGBTQ community, persons who are differently abled,
and women who are denied their right of equality, coming
forward to claim their rights, invoking ‘human dignity’.
We can start by referring to the judgement in National Legal
Services Authority v. Union of India & Ors. 17 where the Court
embarked upon developing the concept of human dignity on a
jurisprudential basis, as a constitutional value. In that case, while
recognizing the right of transgender persons of self-determination
of their sex, the Court explained the contours of human dignity
in the following words:
 The basic principle of the dignity and freedom of the individual is common to
all nations, particularly those having democratic set up. Democracy requires us
to respect and develop the free spirit of human being which is responsible for
all progress in human history. Democracy is also a method by which we
attempt to raise the living standard of the people and to give opportunities to
every person to develop his/her personality. It is founded on peaceful co-
existence and cooperative living. If democracy is based on the recognition of
the individuality and dignity of man, as a fortiori we have to recognize the
right of a human being to choose his sex/gender identity which is integral to
his/her personality and is one of the most basic aspect of self-determination,
dignity and freedom. In fact, there is a growing recognition that the true
measure of development of a nation is not economic growth; it is human
dignity.

Thus, the right of choice and the right of self-determination

were accepted as facets of human dignity. It was also emphasized
that in certain cases like the case at hand (that of transgender
persons), recognition of this aspect of human dignity would yield
happiness to the individuals and, at the same time, also be in the
public good.
The concept of dignity was developed and expanded further in
K.S. Puttaswamy & Anr. v. Union of India & Ors. 18 , which is a
recent path-breaking judgement recognizing right to dignity as a
facet of Article 21 of the Constitution. The Court held that
privacy postulates the reservation of a private space for an
individual described as the right to be left alone as a concept
founded on autonomy of the individual. In this way, the right to
privacy has been treated as a postulate of human dignity itself.
While de ning so, the Court also remarked as under:
Privacy of the individual is an essential aspect of dignity… The ability of the
individual to protect a zone of privacy enables the realization of the full value
of life and liberty. Liberty has a broader meaning of which privacy is a subset.
All liberties may not be exercised in privacy. Yet others can be ful lled only
within a private space. Privacy enables the individual to retain the autonomy
of the body and mind. The autonomy of the individual is the ability to make
decisions on vital matters of concern to life. Privacy has not been couched as
an independent fundamental right.

In Navtej Singh Johar & Others v. Union of India , 19 the

Constitution Bench of the Supreme Court struck down a part of
Section 377 of the Indian Penal Code as unconstitutional as it
offended right to privacy. As noted in K.S. Puttaswamy , privacy
has been treated as a fundamental right and a premise for this
upliftment was that the privacy of the individual is an essential
aspect of dignity. The Court held that Section 377 of the IPC
insofar as it criminalizes consensual sexual acts between adults of
whatever sexual orientation is an anathema to a constitutional
order in which liberty must trump over stereotypes and prevail
over the mainstreaming of culture. The following passage from
the said judgement brings home the notion of dignity. 20
155. From the aforesaid, it has to be appreciated that homosexuality is
something that is based on sense of identity. It is the re ection of a sense of
emotion and expression of eagerness to establish intimacy. It is just as much
ingrained, inherent and innate as heterosexuality. Sexual orientation, as a
concept, fundamentally implies a pattern of sexual attraction. It is as natural a
phenomenon as other natural biological phenomena. What the science of
sexuality has led to is that an individual has the tendency to feel sexually
attracted towards the same-sex, for the decision is one that is controlled by
neurological and biological factors. That is why it is his/her natural orientation
which is innate and constitutes the core of his/her being and identity. That
apart, on occasions, due to a sense of mutuality of release of passion, two
adults may agree to express themselves in a different sexual behaviour which
may include both the genders. To this, one can attribute a bisexual orientation
which does not follow the rigidity but allows room for exibility.

Below are other passages from the said judgement that bring
dignity into sharp focus:
561.1. Sexual orientation is an intrinsic element of liberty, dignity, privacy,
individual autonomy and equality;
561.2. Intimacy between consenting adults of the same-sex is beyond the
legitimate interests of the State;
561.3. Sodomy laws violate equality by targeting a segment of the population
for their sexual orientation;
561.4. Such a law perpetrates stereotypes, lends authority of the State to
societal stereotypes and has a chilling effect on the exercise of freedom;
561.5. The right to love and to a partner, to nd ful lment in a same-sex
relationship is essential to a society which believes in freedom under a
constitutional order based on rights…
610. Sexual orientation is integral to the identity of the members of the LGBT
communities. It is intrinsic to their dignity, inseparable from their autonomy
and at the heart of their privacy. Section 377 is founded on moral notions
 which are an anathema to a constitutional order in which liberty must trump
over stereotypes and prevail over the mainstreaming of culture. Our
Constitution, above all, is an essay in the acceptance of diversity. It is founded
on a vision of an inclusive society which accommodates plural ways of life.

Another path-breaking judgement that decriminalized adultery

is Joseph Shine v. Union of India , 21 where the Court touched
upon the aspect of dignity in the following manner:
The hypothesis which forms the basis of the law on adultery is the subsistence
of a patriarchal order. Section 497 is based on a notion of morality which fails
to accord with the values on which the Constitution is founded… Section 497
is based on the understanding that marriage submerges the identity of the
woman. It is based on a notion of marital subordination. In recognizing,
accepting and enforcing these notions, Section 497 is inconsistent with the
ethos of the Constitution. Section 497 treats a woman as but a possession of
her spouse. The essential values on which the Constitution is founded –
liberty, dignity and equality – cannot allow such a view of marriage. Section
497 suffers from manifest arbitrariness.

In Shayara Bano v. Union of India and Others , 22 the

Constitution Bench of the Supreme Court, by majority, struck
down the practice of triple talaq – a Muslim husband’s right to
give divorce to his wife by pronouncing the word ‘talaq’ thrice
was deemed unconstitutional. Though the concept of dignity has
not been discussed speci cally, I am of the view that this case,
which is decided on the touchstone of Article 14 of the
Constitution that ensures fairness and equality of treatment,
recognizes the dignity of women, who have equal rights.
We may also refer to another recent judgement of the Supreme
Court in Indian Young Lawyers Association and Others v. State of
Kerala and Others, 23 popularly known as the Sabarimala case, 24
where the practice of not allowing menstruating women to enter
the temple was held to be unconstitutional, by a majority of 4:1.
The aspects of dignity are discussed by the Court in the said
judgement as under:
201. The Preamble to the Constitution portrays the foundational principles:
justice, liberty, equality and fraternity… While recognizing and protecting
individual liberty , the Preamble underscores the importance of equality , both
 in terms of status and opportunity. Above all, it seeks to promote among all
citizens fraternity which would assure the dignity of the individual.
202. The signi cance of the Preamble lies both in its setting forth the
founding principles of the Constitution as well as in the broad sweep of their
content. The Constitution was brought into existence to oversee a radical
transformation… But the task which the Framers assumed was in nitely more
sensitive. They took upon themselves above all, the task to transform Indian
society by remedying centuries of discrimination against Dalits, women and
the marginalised. They sought to provide them a voice by creating a culture of
rights and a political environment to assert freedom. Above all, placing those
who were denuded of their human rights before the advent of the
Constitution – whether in the veneer of caste, patriarchy or otherwise – were
to be placed in control of their own destinies by the assurance of the equal
protection of law. Fundamental to their vision was the ability of the
Constitution to pursue a social transformation. Intrinsic to the social
transformation is the role of each individual citizen in securing justice, liberty,
equality and fraternity in all its dimensions.

This evolving concept of dignity has encompassed liberal

individualism as well as collective identities into ‘we the people’,
thereby bringing the aspects of inclusiveness into our
Constitution. Many other facets of dignity jurisprudence, pending
before the courts in different forms, are going to enrich the
concept of Dignity in times to come.

SUMMING UP DIGNITY JURISPRUDENCE

From the aforesaid discussion, it follows that dignity as a

jurisprudential concept has now been well de ned by the
Supreme Court. Its essential ingredients can be summarized as
follows:

1. The basic principle of the dignity and freedom of the individual i

an attribute of natural law, which is manifested as basic or
fundamental rights of all individuals in a constitutional
democracy.
2. Dignity has a central normative role as well as constitutional
value. This normative role is performed in three ways: rst, it
becomes basis for constitutional rights; second, it serves as an
interpretative principle for determining the scope of
 constitutional rights; and, third, it determines the proportionality
of a statute limiting a constitutional right. Thus, if an enactment
puts a limitation on a constitutional right and such a limitation is
disproportionate, such a statute can be held to be
unconstitutional by applying the doctrine of proportionality.

Professor Upendra Baxi explains that dignity is to be treated as

‘empowerment’, which makes a triple demand in the name of
respect for human dignity, namely:

1. respect for one’s capacity as an agent to make one’s own free

choices;
2. respect for the choices so made; and
3. respect for one’s need to have a context and conditions in which
one can operate as a source of free and informed choice.

His addition to the aforesaid theory commands acceptance

when he says that idea of dignity is a metaethical one, that is, it
marks and maps a dif cult terrain of what it may mean to say
being ‘human’ and remaining ‘human’, or put another way, the
relationship between ‘self’, ‘others’ and ‘society’. In this entire
formulation, ‘respect’ for an individual is the fulcrum, which is
based on the principle of freedom and the capacity to make
choices. And a good or just social order is one which respects
dignity via assuring ‘contexts’ and ‘conditions’ as the ‘source of
free and informed choice’.
Based on the above conceptualization, the Supreme Court held
that though the chapter relating to Fundamental Rights in the
Indian Constitution does not speci cally mention human dignity,
it is the essential attribute of Articles 14, 19 and, more
particularly, Article 21. Article 21, which guarantees right to life
and liberty, means the right to live life in a decent and digni ed
manner. The right of choice and the right of self-determination
are the facets of human dignity.
We have come a long way insofar as the jurisprudence relating
to the concept of dignity is concerned, and are now witnessing a
democratization of dignity. The modern concept of technology
uni es three different phenomena: thymos – a universal aspect of
human personality that craves for recognition; the distinction
between the inner and outer self and the raising of the moral
valuation of the inner self over outer society; and the recognition
that the concept of dignity is due not just to a narrow class of
people but to everyone .
Along with the doctrine of constitutional morality, the concept
of human dignity has been used by the Supreme Court in a series
of progressive judgements. This jurisprudence of dignity has been
one of the most useful tools used by the Supreme Court in
ensuring justice and equality to women and sexual minorities. To
hone the tool even more, the concept of dignity needs further
elaboration and examination. This essay has hopefully set us on
that path.
 NOTES AND REFERENCES

INTRODUCTION

1 . Several enactments apply in the simple act of purchasing

groceries. The Sale of Goods Act, 1930; the Contract Act, 1872;
the Consumer Protection Act, 2019; the acts, rules and regulations
relating to weights and measures, packaging, etc.
2 . Vishaka v. State of Rajasthan (1997) 6 SCC 241.
3 . Navtej Singh Johar v. Union of India (2018) 10 SCC 1.
4 . National Legal Services Authority v. Union of India (2014) 5
SCC 438.
5 . Sha n Jahan v. Asokan KM (2018) 16 SCC 368.
6 . Indian Young Lawyers Association v. State of Kerala WP (Civil)
373 of 2006. It is important to note that the decision in this case
came 12 years after the petition was filed in the Court. This also
highlights the problems of judicial delays. No one suffers more
from delays than a disempowered individual seeking recourse to
justice.
7 . The law before the enactment of the Hindu Marriage Act, 1955,
permitted Hindu men to marry multiple women. The Hindu
Marriage Act changed this, and prohibited polygamy among
Hindus. This Act was part of a concerted effort to reform Hindu
society through a series of legislations called the Hindu Code Bills.
These were the Hindu Marriage Act, 1955, The Hindu Succession
 Act, 1956, the Hindu Minority and Guardianship Act, 1956, and
The Hindu Adoption and Maintenance Act, 1956. At the time of
their enactment, they were met with vociferous opposition from
conservative elements in Hindu society. In fact, the President at
that time, Dr Rajendra Prasad, went to the extent of suggesting that
he, as President, was not obliged to sign the bills into law. For more
details, see Granville Austin’s The Indian Constitution:
Cornerstone of a Nation , pp. 176–178.
8 . The provisions of the Indian Penal Code relating to adultery
effectively deemed women to be the property of their husbands.
9 . This refrain finds an echo in the judgement of Misra C.J. in the
Sabarimala case where the opening words of his judgement are:
‘The irony that is nurtured by the society is to impose a rule,
however unjustified, and proffer explanation or justification to
substantiate the substratum of the said rule. Mankind, since time
immemorial, has been searching for explanation or justification to
substantiate a point of view that hurts humanity.’ Laws which give
women limited inheritance rights are often invoked to show that a
woman is not really a part of her father’s family. The converse of
this is that when special rights are given to women, they are often
illusory. For instance, women may be given additional maternity
leave. However, that is shown to be a disincentive to hiring women
in the belief that they would not be available for the job as
required.
10 . The British were actually against enumerating rights in a written
text other than being part of the judge-administered common law.
For this reason, no rights were mentioned in the Government of
India Act, 1935, which was the precursor to the Constitution. See
Reports of the Joint Parliamentary Committee 1934, H.C.5 (1 Part
I), pp. 215–216 and the commentary thereon in the Indian
Constitution by Granville Austin, pp. 73–75.
11 . For instance, various interventions by the Court to protect the
forest cover in India are an instance of the enforcement of a
positive right. The right to life has been interpreted to include the
right to a clean environment. See various orders passed TN
 Godavarman Thirumulpad v. Union of India WP (Civil) 202 of
1995.
12 . The Directive Principles of State Policy have been derived from
the Irish Constitution. Even though they are not enforceable in the
Court, they are deemed to be fundamental in the governance of the
country as well as a guide to the Legislature while enacting laws
(Article 37). In fact, Article 31(c) of the Constitution even
attempts to immunize certain laws that give effect to certain
directive principles from constitutional scrutiny.
13 . These three rights have been called the golden triangle of rights.
See Minerva Mills v. Union of India (1980) 3 SCC 625. These
rights have now been interpreted to be part of the basic structure of
the Constitution. See IR Coelho v. State of Tamil Nadu (2007) 2
SCC 1.
14 . Article 15 has also been interpreted to include sexuality as a facet
of sex. Hence, any action that discriminates on the ground of
sexuality will now be hit by Article 15 as well. See the NALSA
and the Navtej Johar cases.
15 . These same rights also have clauses that permit special rights and
reservations to be made in favour of women, Scheduled Castes and
Tribes and Other Backward Classes. While these special
provisions were initially seen as exceptions to the general right to
equality, later case law has interpreted these to be manifestations
of a positive right to equality rather than as exception to the
general right to equality. See Indira Sawhney v. Union of India
(1992) Supp (3) SCC 217.
16 . This was a particularly pernicious form of divorce where a
husband could simply utter the words ‘talaq, talaq, talaq’ (‘I
divorce you, I divorce you, I divorce you’) thrice for an
irrevocable divorce to happen. There were many stories about its
misuse (as noted in the chapter by Madhavi Divan in her essay in
this anthology) and the practice was ultimately struck down as
void by the Supreme Court in 2018.
17 . Shayara Bano v. Union of India (2017) 9 SCC 1.
18 . See Navtej Singh Johar v. Union of India (2018) 10 SCC 1.
Sodomy is also possible between a straight couple, of course.
Further, since the section was thought to prohibit oral sex as well,
its application was for heterosexual as well as homosexual
couples.
19 . Article 19 (1)(a).
20 . Article 19 (1)(c).
21 . Articles 19 (1)(d) and (e).
22 . Article 19 (1)(g).
23 . The right to freedom under Article 19 is different from the rights
under Articles 14 and 21 inasmuch as these rights inhere only in
citizens. Hence, a foreign national cannot claim the right to
freedom. Equally, this right is restricted to humans and does not
extend to juristic entities like companies. See Barium Chemicals
Ltd. v. Company Law Board 1966 Supp SCR 311.
24 . These restrictions are ‘the sovereignty and integrity of India, the
security of the State, friendly relations with foreign States, public
order, decency or morality or in relation to contempt of court or
incitement to an offence’.
25 . In the case of Article 21, when the Constitution permits
curtailment of liberty by ‘procedure established by law’, the Court
has held that the procedure cannot be arbitrary or whimsical. In
fact, since Article 14 mandates that all government action must be
reasonable and rational, the procedure prescribed for curtailment
of liberty must also be rational. This is called substantive due
process. In fact, the Constituent Assembly debates reveal that
these words were carefully chosen so that the power of the Court
was restricted to examining whether it was a valid law that
provided for any curtailment. This was also the original view taken
by the Supreme Court in A.K. Gopalan v. State of Madras 1950
SCR 88 before this view was whittled down in a series of cases
culminating in Maneka Gandhi v. Union of India (1978) 2 SCR
621. For an interesting exposition of the debates and the
development of the law on this subject, see the judgement of
 Justice Nariman in Mohd. Arif v. Registrar, Supreme Court
(2014) 9 SCC 737.
26 . See Palko v. Connecticut 302 US 319 (1937) for a formulation of
this principle, even though the Court did not find any such right in
that case.
27 . Bolling v. Sharpe 347 US 497 (1954). This was the companion
case of the more famous Brown v. Board of Education 347 US
483 (1954).
28 . State of West Bengal v. Committee for the Protection of
Democratic Rights (2010) 3 SCC 571.
29 . See for instance Bandhua Mukti Morcha v. Union of India
(1984) 3 SCC 161.
30 . See Virender Gaur v. State of Haryana (1995) 2 SCC 577.
31 . Gobind v. State of Madhya Pradesh (1975) 2 SCC 148, affirmed
by the nine-judge bench in the case of K.S. Puttaswamy v. Union
of India (2019) 1 SCC 1.
32 . Article 32 of the Constitution gives each person a right to directly
approach the Supreme Court to enforce and protect their
fundamental rights. This right to approach the Court is itself a
fundamental right that cannot be taken away even by amending the
Constitution. This is because the Supreme Court has held that
judicial review is part of the unamendable basic structure of the
Constitution. See Kesavananda Bharti v. State of Kerala (1973) 4
SCC 225 followed in L. Chandra Kumar v. Union of India
(1997) 3 SCC 261.
33 . Each right in Article 19 has a set of conditions specific to it,
which must be complied with by the restriction. These are
enumerated in clauses (2) to (6) of Article 19. Interestingly, when
the Constitution was first promulgated, the right to free speech did
not require that any restriction to it be reasonable or otherwise.
The reasonableness requirement was added by the First
Amendment to the Constitution in 1951.
34 . It is interesting to note that the former aspect was used most often
by the Court in its early years when the right to property and the
right to freedom of business were used to examine various aspects
 of agrarian reform and zamindari reform. It was only after the
system of Public Interest Litigations was firmly entrenched that
we see the use of the latter aspect, i.e., the assertion of a personal
right to question a social practice. This could be due to the
evolution of the Court’s jurisprudence and also the changing
nature and needs of society. Fundamentally, it reflects the Court’s
view on its own function. Almost all the topics in the present book
relate to the latter conception of the judicial function.
35 . Article 13 of the Constitution.
36 . Articles 32 and 226. Also, the power of the Supreme Court and
the High Courts to hear matters and appeals under other provisions
of the Constitution also vests them with substantial powers.
37 . De, Rohit, A People’s Constitution : The Everyday Life of Law in
the Indian Republic , Princeton: Princeton University Press, 2018,
p. 17.
38 . Gandhi submitted two plans, one in January 1946 and the other in
January 1948. See N.V. Rajkumar, Development of the Congress
Constitution .
39 . Joseph Shine v. Union of India (2019) 2 SCC (Cri) 84.
40 . Tribe, Lawrence, and Michael Dorf, On Reading the
Constitution , Cambridge: Harvard University Press, 1993.

PRIDE VERSUS PREJUDICE: THE STRUGGLE AGAINST

SECTION 377

1 . Section 377 of the Indian Penal Code states that ‘Whoever

voluntarily has carnal intercourse against the order of nature with
any man, woman or animal shall be punished with imprisonment
for life, or with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine.’
2 . (2018) 10 SCC 1.
3 . Puri, J., ‘Concerning Kamasutra: Challenging Narratives of
History and Sexuality’, Signs , 27(3), 2002, p. 619.
4 . The Asiatic Journal and Monthly Register for British and Foreign
India, China and Australasia , 1838, p. 77.
 5 . The extract of this is given in: Gupta, A., ‘Section 377 and the
Dignity of Indian Homosexuals’, Economic and Political Weekly
41(46), 2011, p. 4815.
6 . Noshirwan v. Emperor AIR 1934 Sind 206 (a case relating to a
neighbour intruding on the privacy of two men by peeping into the
house and reporting them for attempting to commit sodomy) , D.P.
Minwalla v. Emperor AIR 1935 Sind 78 (a case relating to two
men who were caught in oral activity at the back of a truck in a
semi-public space).
7 . Government v. Bhapoji Bhatt (1884) 7 Mysore LR. 280.
8 . AIR 1925 Sind 286.
9 . Preamble to the Criminal Tribes Act, 1871.
10 . Section 24, Criminal Tribes Act, 1871.
11 . Section 26 Criminal Tribes Act, 1871.
12 . Sexual Offences Act, 1967 which decriminalized consensual
sexual acts between members of the same-sex. This was followed
in 2017 by the Policing and Crimes Act which gave ex post facto
amnesty and pardon to persons who had been convicted of
homosexual acts. Justice Nariman in his judgement in the Navtej
case notes that ‘the impetus for this law was the prosecution of
Alan Turing in 1952. Alan Turing was instrumental in cracking
intercepted code messages that enabled the Allies to defeat
Germany in many crucial engagements in the War. Turing
accepted chemical castration treatment as an alternative to prison
upon conviction, but committed suicide just before his 42nd
birthday in 1954.’
13 . Quoted in: Joseph, Sherry, ‘Gay and Lesbian Movement in India,’
Economic and Political Weekly , 31(33), 1996, p. 2228.
14 . Ironically, it was Bill Clinton who promulgated the ‘don’t ask,
don’t tell’ policy in the military, and failed to veto the Defence of
Marriage Act, 1996 which effectively prohibited states in the US
from recognizing same-sex marriages held in other jurisdictions.
The Act was finally struck down by the US Supreme Court in the
case of United States v. Windsor 570 US 744.
15 . Mentioned by Geetanjali Misra in her paper: ‘Decriminalizing
Homosexuality in India,’ Reproductive Health Matters 17(34),
2009, p. 22.
16 . In the context of the Emergency, refer to the speech of Ashok
Desai on the occasion of the 150th anniversary of the Bombay
High Court, reported in The Wire on 25 June 2019.
17 . Interview of Anjali Gopalan published in The Caravan on 7
February 2016.
18 . Naz Foundation v. Govt. of NCT of Delhi (2017) 15 SCC 619.
19 . Naz Foundation v. Govt. of NCT of Delhi (2009) 111 DRJ 1.
20 . See also Frontline , 18(18), published 1 September 2001.
21 . The National Coalition for Gay and Lesbian Equality v.
Minister (1999) 1 SA 6.
22 . ‘Impact of the Naz Foundation Judgement on the Gay, Bisexual
and Transgender People in Delhi: An Empirical Investigation,’
Centre for Health Law, Ethics and Technoloby, Jindal Global Law
School, March 2012.
23 . The Court at one point held that ‘we are constrained to observe
that the submission of the Learned ASG reflects rather poorly on
his understanding of the Constitutional scheme’, at paragraph 125
of the judgement. This chastisement did not lead the learned ASG
to mend his ways. Before the Supreme Court he made the false
averment that the Law Commission had recommended the
retention of the provision, when in fact the 172nd Law
Commission had recommended its abolition.
24 . Though the Court does not allow for formal transcripts, the same
were informally recorded and uploaded on the Net by the Lawyers
Collective, a legal NGO which was also involved in the case. The
transcripts can be founds online at:
https://www.lawyerscollective.org/wp-
content/uploads/2010/11/Proceedings-of-the-Final-Hearing-in-
Section-377-Case.pdf
25 . In the case of Anil Rai v. State of Bihar (2001) 7 SCC 318 the
Supreme Court has held that in case a judgement is not
pronounced within six months of it being reserved, the parties will
 be at liberty to move the Chief Justice for rehearing by a different
bench.
26 . This deference to Parliament seems most curious. The same judge
had no hesitation in striking down provisions of the Delhi Rent
Control Act, which gave protection to commercial tenants, on the
ground that it was violative of fundamental rights. It is apparent
that property rights deserved more protection than personal
liberty! See Satyawati Sharma v. Union of India (2008) 5 SCC
287.
27 . Justice H.L. Dattu eventually became the Chairperson of the
National Human Rights Commission.
28 . Rupa Ashok Hurra v. Ashok Hurra (2002) 4 SCC 388.
29 . National Legal Services Authority v. Union of India (2014) 5
SCC 438.
30 . K.S. Puttaswamy v. Union of India (2017) 10 SCC 1. Justice
Chandrachud, speaking for four of the nine judges, specifically
held that the judgement in the Koushal case was wrong. Justice
Kaul also held that the judgement in the Koushal case was wrong.
Thus, a majority of five of the nine judges specifically held the
Koushal judgement to be wrong.
31 . Naz Foundation v. Suresh Kumar Koushal (2016) 7 SCC 485.
32 . We cannot forget the contribution of Dr Menaka Guruswamy and
Arundhati Katju. They had approached me in 2015 with the idea
of filing a Writ Petition and it was largely they who convinced
these five individuals to file the petition.
33 . Navtej Singh Johar v. Union of India (2018) 1 SCC 791.
34 . Shakti Vahini v. Union of India (2018) 7 SCC 192.
35 . Sha n Jahan v. Asokan K.M. (2018) 16 SCC 368.
36 . Paragraph 144 of the Navtej judgement.
37 . Oscar Wilde denied that the term was a euphemism for
homosexuality but as per him it referred to platonic love between
two men. So willing was the jury to accept this interpretation that
the trial resulted in a hung jury. He was, nevertheless, convicted
when the case was tried finally and sentenced to two years in
prison.
38 . The last stanza of the song says, ‘I love the country but can’t stand
the scene, and I’m neither left nor right… I’m junk but I’m still
holding up this little wild bouquet.’

TRANSGENDER RIGHTS AND WRONGS

1 . This case was brought to the Supreme Court by the National Legal
Services Authority and has been dealt with later in this essay.
2 . WP (C) No. 133/2012 filed in the Supreme Court of India.
3 . Kidwai, Rasheed, ‘Kamla Jaan to Kankar Munjare: Oddballs
Whose Political Legacy Matters in Madhya Pradesh,’ DailyO , 8
November 2018. https://www.dailyo.in/politics/kamla-jaan-to-
kankar-munjare-eunuch-politicians-you-need-to-know-to-
understand-what-s-at-stake-in-madhya-pradesh-assembly-
elections-bjp-congress/story/1/27674.html
4 . India TV, ‘Shabnam Mausi-India’s First Eunuch to Become an
MLA,’ 21 October 2014.
https://www.indiatvnews.com/politics/national/shabnam-mausi-
india-first-eunuch-hijra-politician-mla-inequality-
18963.html/page/1
5 . https://eci.gov.in/ByeElection/ByeFeb2000/bye_MP_AC85.htm
6 . Chatterjee, Rituparna, ‘History Is Made as Newly Elected Third
Gender Mayor Won’t Face Legal Hurdle,’ HuffPost , 5 January
2015. https://www.huffingtonpost.in/2015/01/05/madhu-
kinnar_n_6415540.html
7 . Gupta, Suchandana, ‘Eunuch’s Election as Mayor Annulled,’ The
Times of India , 11 December 2019.
https://timesofindia.indiatimes.com/city/bhopal/Eunuchamp39s-
election-as-mayor-annulled/articleshow/ 11067274.cms
8 . Verve , ‘The (Em)Power List 2018: Madhu Bai Kinnar,’ 3 July
2018. http://www.vervemagazine.in/people/the-empower-list-
2018-madhu-bai-kinnar
9 . Incidentally, anti-discrimination laws have been enacted in some
countries in South Asia, such as the Philippines, Taiwan and
Thailand to protect the LGBT community. In Thailand, four
 transgenders have been elected as Members in the current
Parliament. Two of them are transmen and the other two are
transwomen. The Nation Weekend (Saturday–Sunday), 1–2 June
2019, Manila, The Philippines.
10 . WP (C) No. 400 of 2012.
11 .(1984) 3 SCC 161.
12 . National Legal Services Authority v. Union of India (2014) 5
SCC 438.
13 . Section 24 (a) of the Criminal Tribes Act, 1871.
14 . Section 26 of the Criminal Tribes Act, 1871.
15 . (1970) 2 All ER 33.
16 . (1995) 1 NZLR 603.
17 . [2003] Fam CA 94.
18 . The NALSA judgement, paragraph 53.
19 . The NALSA judgement, paragraph 81.
20 . The NALSA judgement, paragraph 82.
21 . The Yogyakarta Principles were adopted in an international
conference held in Yogyakarta, Indonesia, in 2006. These
principles are like a charter of rights for the sexual minorities.
22 . ‘On 6 April 2017, Today the European Court of Human Rights
ruled that requiring sterilization of individuals seeking a change in
their legal gender recognition violates human rights. Twenty two
countries in Europe currently still require sterilization to access
gender identity recognition, however this decision mandates that
these countries amend their laws to reflect this positive ruling.’
See OutRight Action International, ‘European Court Ends
Forced Sterilizations of Trans People,’ 6 April 2017.
https://outrightinternational.org/content/european-court-ends-
forced-sterilizations-trans-people (accessed on 19 June 2019).
23 .
https://www.wpath.org/media/cms/Documents/Public%20Policies/
2019/WPATH%20Letter%20to%20Japanese%20Gov%20Officials
%20re%20Identity%20Recognition_May%20%2028%202019.pdf
24 .
https://www.wpath.org/media/cms/Documents/Public%20Policies/
 2019/WPATH%20Letter%20to%20Japanese%20Gov%20Officials
%20re%20Identity%20Recognition_May%20%2028%202019.pdf
(accessed on 19 June 2019).
25 .
https://kerala.gov.in/documents/10180/46696/State%20Policy%20
for%20Transgenders%20in%20Kerala%202015 (accessed on 21
June 2019).
26 . The Economic Times , ‘In a First, Kochi Metro Appoints
Transgenders as Its Staff,’ 20 May 2017.
https://economictimes.indiatimes.com/news/politics-and-nation/in-
a-first-kochi-metro-appoints-transgenders-as-its-staff/making-
progress/slideshow/58764414.cms (accessed on 21 June 2019).
27 . Hindustan Times , New Delhi, 3 June 2019.
28 . Hindustan Times , New Delhi, 22 June 2019.
29 . PTI, ‘Delhi’s Transgender Voters Excited at Voting for the First
Time under Gender Identity of Their Choice,’ The Hindu , 12
May 2019. https://www.thehindu.com/elections/lok-sabha-
2019/delhis-transgender-voters-excited-at-voting-for-the-first-
time-under-gender-identity-of-their-choice/article27108423.ece
(accessed on 20 June 2019).
30 . Tare, Kiran, ‘Lok Sabha Polls: Transgender Candidates Coming to
Fore in Maharashtra Politics,’ India Today , 22 March 2019.
https://www.indiatoday.in/magazine/nation/story/ 20190401-
transgender-candidates-lok-sabha-2019-maharashtra- 1484014-
2019-03-22 (accessed on 21 June 2019).
31 . Sharma, Betwa, ‘Why Apsara Reddy, Congress’s First
Transgender Office Bearer, Chose Politics Over London,’ HuffPost
, 6 February 2019. https://www.huffingtonpost.in/entry/apsara-
reddy-congress-partys-first-transgender-office-bearer-on-life-love-
and-politics_in_5c59b675e4b087104757e287 (accessed on 21
June 2019).
32 . Quint , ‘The Incredible Story of a Trans Woman Who Became a
Single Mother,’ 12 May 2019.
https://www.thequint.com/voices/women/transgender-single-
mother-gauri-sawant (accessed on 20 June 2019).
33 . Business Standard /IANS, ‘As Transgender, Bringing Up
Daughter Was Difficult: Activist Gauri Sawant,’ 13 October 2018.
https://www.business-standard.com/article/news-ians/as-
transgender-bringing-up-daughter-was-difficult-activist-gauri-
sawant-118101300226_1.html (accessed on 20 June 2019).
34 . Dabas, Maninder, ‘Meet Aishwarya Pradhan – India’s First
Transgender Civil Servant,’ IndiaTimes, 1 July 2016.
https://www.indiatimes.com/news/india/meet-aishwarya-pradhan-
india-s-first-transgender-civil-servant-255688.html (accessed on
21 June 2019).
35 . Qureshi, Imran, ‘Padmini Prakash: India’s First Transgender
News Anchor,’ BBC News, 29 September 2014.
https://www.bbc.com/news/world-asia-india-29357630 (accessed
on 21 June 2019).
36 . Gentleman, Amelia, ‘First Transsexual Celebrity, Rose, Makes a
TV Debut,’ The New York Times , 15 February 2008.
https://www.nytimes.com/2008/02/15/world/asia/15iht-letter.
1.10085268.html (accessed on 21 June 2019).
37 . Shrikumar, A., ‘Transgender Bharatnatyam Artiste Narthaki
Nataraj Is Named for the Padma Shri,’ The Hindu , 15 February
2019. https://www.thehindu.com/entertainment/dance/transgender-
bharatnatyam-artiste-narthaki-nataraj-named-for-the-padma-shri-
talks-about-her-love-for-classical-dance/article26280796.ece
(accessed on 21 June 2019).
38 . Quoted from
http://164.100.47.193/lsscommittee/Social%20Justice%20&%20E
mpowerment/16_Social_Justice_And_Empowerment_43.pdf
39 . Hindustan Times , ‘Supreme Court Notice to Centre on Plea
against Transgender Act,’ 28 January 2020.
https://www.hindustantimes.com/india-news/supreme-court-
notice-to-centre-on-plea-against-transgender-act/story-
HfBrPZBTFmusm9theecWoL.html
40 . https://www.prsindia.org/billtrack/transgender-persons-protection-
rights-bill-2016 . Accessed on 25 June 2019. This does not include
any analysis of the Bill of 2019.
41 . WP (MD) No. 4125 of 2019 and WMP (MD) No. 3220 of 2019
decided on 22 April 2019.

FROM THE MARGINS TO THE MAINSTREAM

1 . Milford, Michelle Renee, ‘ Hidden Battle . ’

https://hellopoetry.com/poem/1066986/hidden-battle/
2 . Butler, Judith, ‘Performative Acts and Gender Constitution,’
Theatre Journal , 40(4), December 1988, pp. 519–531.
3 . Mal, S., ‘The Hijras of India: A Marginal Community with
Paradox Sexual Identity,’ Indian Journal of Social Psychiatry ,
2018.
4 . Policy Brief: ‘Hijras/Transgender Women in India,’ UNDP, 2010.
5 . Deadname: This is the birth name of someone who has changed it.
The term is especially used by transgender persons who go by their
chosen name instead of their given name.
6 . Collyrium: An ancient medicated ointment, meant to clear
diseases of the eye.
7 . Carl Jung.

LOVE AND MARRIAGE

1 . Article 16 (6) which provides for reservation to the economically

weaker sections was inserted vide amendment dated 12 January
2019. The word ‘family’ is included for the first time but not as a
repository of any right. It merely provides that the benefits of
reservation can be denied on the basis of, inter alia, family income.
2 . (1973) 4 SCC 225.
3 . K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 (‘the
privacy judgement’).
4 . See para 107 of the privacy judgement.
5 . Asokan K.M. v. Superintendent of Police WP Crl 25 of 2016
decided on 25 January 2016. It is interesting to note how the
composition of the Bench might significantly alter the outcome of a
 case. This order, permitting Hadiya to live as she wished, was
passed by a Division Bench of C.K. Abdul Rehim and Shaji P.
Chaly J.J. The ultimate judgement, which set aside her marriage to
her husband, was passed by another Division Bench comprising of
K. Surendra Mohan and K. Abraham Mathew J.J.
6 . This fact is recorded in the High Court order. It is relevant to note
that even this desire, though possibly comprehensible on the part of
a parent, seems to be inexplicable on the part of the Court when
dealing with a major with full mental capacity. It is no part of the
role of the Court to come in as a knight in shining armour, rescuing
people from fundamental decisions about their own lives! That
freedom to make even a wrong decision is the very thing that
separates the right to autonomy from the ‘big brother’ state. If the
Court substitutes its own decision for that of an individual, the
problem is graver for then the individual does not even have a
judicial forum to approach to seek redressal of her grievances.
7 . The Court directed that even her cell phone was to be taken away!
See Asokan K.M. v. Superintendent of Police WP Crl 25 of 2016
order dated 21 February 2016.
8 . See Asokan K.M. v. Superintendent of Police WP Crl 25 of 2016
order dated 30 January 2017. The High Court directed the parties to
explain how the name was put on the matrimonial site. However,
there is no record of what transpired further and hence it cannot be
ascertained as to who actually put the name on the site.
9 . This was further elaborated in the Section 377 case where, relying
on Hadiya’s judgement, the Court held that the right to choose a
sexual partner was constitutionally protected even if it meant
choosing a partner of the same sex. See Navtej Singh Johar v.
Union of India (2018) 10 SCC 1.
10 . ‘5 Percent of Indian Marriages Inter-caste; in Mizoram, 55
Percent (Special to IANS),’ Business Standard , 11 May 2016.
11 . p. 485.
12 . p. 483.
13 . Madhavrao v. Raghavendrarao ILR 1946 Bom 375.
14 . Section 2 of the Act said that ‘notwithstanding any text, rule or
interpretation of the Hindu law, custom or usage, a marriage
between Hindus, which is otherwise valid, shall not be invalid by
reason only of the fact that the parties thereto belong to the same
gotra.’
15 . Third in the line of the mother and fifth in the line of the father.
16 . This fact has been recorded by the Law Commission in its 242nd
report – see, particularly, paragraphs 2.1–2.5.
17 . As per one newspaper report this was because Sonia’s family had
promised her that they would accept her wedding if she came back
to her parents’ home. See ‘12 Get Life in Jail for 2009 Haryana
Honour Killing,’ Indian Express , Chandigarh Edition, 30
September 2011.
18 . These facts have been taken from an article by Neha Dixit: ‘A
Taliban of Our Very Own,’ Tehelka , 15 August 2009.
19 . 242nd Report, Law Commission of India.
20 . Shakti Vahini v. Union of India (2018) 7 SCC 192.
21 . Ibid .
22 . In fact, concentration of power in centralized institutions is
possible as a necessary pre-condition for the creation of the
modern state. See Francis Fukuyama’s The Origins of Political
Order .
23 . This has been the general view of the Supreme Court. For
instance, the Court while dealing with Shariat courts and
organizations issuing fatwas held that ‘In any event, the decision
or the fatwa issued by whatever body (including Dar-ul-Qaza)
being not emanating from any judicial system recognized by law,
it is not binding on anyone including the person, who had asked
for it. Further, such an adjudication or fatwa does not have a force
of law and, therefore, cannot be enforced by any process using
coercive method. Any person trying to enforce that by any method
shall be illegal and has to be dealt with in accordance with law.’
Vishwa Lochan Madan v. Union of India (2014) 7 SCC 707.
24 . Chapter 9.3: ‘Her father protects (her) in childhood, her husband
protects (her) in youth, and her sons protect (her) in old age; a
 woman is never fit for independence.’
25 . Manusmriti 5.154.
26 . Singh, Kirti, Law Commission on crimes and killing in the name
of honour, 6 JILS (2014–15) 63.
27 . As per Hindu belief, there are three human goals or purushartha –
dharma, artha and kama, or piety, profit and pleasure. Each of
these goals has separate texts. Kautilya’s Arthashastra and
Vatsyayana’s Kama Sutra deal with the latter two goals and offer
women a greater role in society. Dharma, on the other hand, had
multiple texts. Of these, the Manusmriti is the best known,
possibly because of the adoption of the text by the English rulers.
As per this text, inter-caste marriages were greatly frowned upon.
See for instance Chapter 3.4: ‘4. Having bathed, with the
permission of his teacher, and performed according to the rule the
Samavartana (the rite on returning home), a twice-born man shall
marry a wife of equal caste who is endowed with auspicious
(bodily) marks. Chapter 8.352 and 353: Those men who are
addicted to intercourse with the wives of other men, the king shall
banish after having branded them with terror-inspiring
punishments. For out of that arises the admixture of castes among
people; whence follows root-rending unrighteousness, tending to
total destruction.’
28 . See Marriage: A History; How Love Conquered Marriage,
Stephanie Coontz.
29 . Rao, Prakasa, Marriage: The Family and Women in India ,
1982, p. 17.
30 . An interesting study of matrimonial advertisements in the
newspaper shows these societal shifts. See ‘Changing Pattern in
the Indian Arranged Marriage Market: A Longitudinal Study’ by
Aparajita Chattopadhyay and Debashis Ganguly at
https://iussp2005.princeton.edu/papers/51840
31 . See, for instance, the Protection of Women from Domestic
Violence Act, 2005.
32 . Navtej Singh Johar v. Union of India (2018) 10 SCC 1.
33 . Ibid., p. 116.
34 . (2014) 3 SCC 220. This was the judgement whereby the Supreme
Court first reversed the Delhi High Court judgement
decriminalizing homosexuality, i.e. Naz Foundation v. Union of
India (2009) 111 DRJ 1.
35 . p. 499. Three other judges joined in the judgement of Justice
Chandrachud, i.e. Chief Justice Jagdish Khehar and Justices R.K.
Aggarwal and Abdul Nazeer.
36 . See the privacy judgement, p. 635.

FROM ADULTERY TO SEXUAL AUTONOMY

1 . (2018) 10 SCC 1.
2 . ((2019) 11 SCC 1.
3 . (2019) 2 SCC (Cri) 84.
4 . Section 498A of the Indian Penal Code makes criminal conduct
that amounts to cruelty as well as harassment for the purposes of
seeking dowry.
5 . AIR 1954 SC 321.
6 . State of Madhya Pradesh v. Gopal D. Thirtani (2003) 7 SCC 83.
7 . Air India Cabin Crew Association v. Yeshwaswni Merchant
(2003) 6 SCC 277.
8 . 1985 Supp SCC 137 ( Sowmithri Vishnu judgement).
9 . Ibid.
10 . (2014) 1 SCC 1.
11 . Sowmithri Vishnu judgement.
12 . Ibid., para 12.
13 . 1988 2 SCC 72 ( V. Revathi judgement).
14 . Ibid., para 5.
15 . Ibid.
16 . Indian Hotel & Restaurant Association (AHAR) v. State of
Maharashtra (2019) 3 SCC 429. The Supreme Court struck down
allegedly regulatory measures relating to dance bars in Mumbai as
being excessive, and merely a device, to force a prohibition on
dance performances.
17 . Joseph Shine v. Union of India, para 105.
18 . Ibid., para 189.
19 . Ibid.
20 . Ibid.
21 . Ibid., para 274.
22 . Ibid., paras 29 and 30.
23 . Ibid., para 103.
24 . Ibid., paras 141 and 142.
25 . Ibid., para 29.
26 . Ibid., para 35.
27 . Ibid., para 168.
28 . Guruswamy, Menaka, ‘Lesser Citizenship of Indian Wives,’
Tehelka , 8 May 2015.
29 . Joseph Shine, para 182.
30 . 84th Report, Law Commission of India.
31 . 172nd Report, Law Commission of India, p. 22.
32 . Report of the Committee on Amendments to Criminal Law, pp.
113–118.
33 . C.R. v. U.K. Publ. ECHR, Ser. A., No. 335-C.
34 . 167th Report on the Criminal Law (Amendment) Bill, 2012;
Department-Related Parliamentary Standing Committee on Home
Affairs, Rajya Sabha Secretariat, New Delhi, March 2013, p. 44.
35 . Ibid., pp. 47–48.
36 . Independent Thought v. Union of India (2017) 10 SCC 800.
37 . The Court clarifies that ‘it has not dealt with the larger question of
marital rape of adult women, since that issue was not raised before
us by the petitioner or intervenor,’ at para 108.
38 . See note 36, p. 845.
39 . Ibid., p. 846.
40 . Ibid., p. 897.
41 . Ibid., p. 855.
42 . MANU/GJ/0291/2018.
43 . (2014) 1 SCC 1.
44 . Ibid.
45 . Ibid.
46 . Ibid.
47 . Ibid.
48 . Ibid.
49 . Navtej Singh Johar v. Union of India (2018) 10 SSC 1.

THE BEAST IN OUR MIDST

1 . The strange spelling could be attributed to a numerologist guiding

the film’s fate. Regardless, the error is not mine.
2 . ‘Actual 2008 footage of how Tanushree Dutta was attacked when
she walked out of Nana Patekar song,’ YouTube:
https://www.youtube.com/watch?v=lfEeoCPJ7j4
3 . Shankar, Karthik, ‘Why I Published a List of Sexual Predators in
Academia,’ BuzzFeed , 25 October 2017.
4 . Menon, Nivedita, ‘Statement by Feminists on Facebook Campaign
to Name and Shame,’ Ka la , 24 October 2017.
5 . Author interview with Anoo Bhuyan.
6 . Ibid.
7 . Author interview with Paromita Vohra.
8 . Author interview with Bhanwari Devi.
9 . Pandey, Geeta, ‘Bhanwari Devi: The Rape That Led to India’s
Sexual Harassment Law,’ BBC News, 17 March 2017.
10 . The same Justice J.S. Verma would go on to head a committee
named after him, formed by the then UPA government in the
aftermath of the gang rape and murder of a young student in Delhi
in December 2012. The Verma Committee was tasked with
suggesting changes in the law dealing with sexual assault and
violence.
11 . Mody, Zia, 10 Judgments That Changed India , New Delhi:
Penguin Random House, 2013.
12 . Ibid.
13 . Comments made at an open meeting on MeToo organized at
Jamia Milia Islamia by the Network of Women in Media in
January 2019.
14 . Mody, Zia, 10 Judgments That Changed India , New Delhi:
Penguin Random House, 2013 .
15 . Author interview with Bhanwari Devi.
16 . Auerbach, Taylor, ‘“Bucks Night for 1200 People”: Families
Horrified by Cruise Bender,’ 9News, 1 October 2018.
17 . Author interview with Mahima Kukreja in December 2018 in
Mumbai.
18 . Ibid.
19 . ‘Report Garima, Sexual Harassment at Workplace,’ INBA and
Netrika Consulting, Indian National Bar Association.
20 . The postscript to this story came a year later in November 2019
when Utsav Chakraborty took to Twitter to ask, ‘Why would so
many women lie about one person?’ His contention was that as
many as four women who had previously spoken up, including
Kukreja herself, were lying or editing mutual flirting on text, or
sexting, as non-consensual.
He claimed that an exchange with Kukreja was edited to reveal
only one side. He dredged out another conversation with a woman
whom he admittedly asked for topless photographs but added that
after that episode, she had stayed in touch, even wishing him on
his birthday. A third woman was dismissed as a ‘garden variety
fake accuser’.
He also stated that in the course of a phone conversation with
Kukreja and her sister, a lawyer, in November 2018, he was
threatened with legal action if he publicly released any
information that could damage Kukreja’s reputation.
The conversation was recorded without Kukreja’s permission,
or knowledge. Threatening legal action against a possibly illegal
act is not against the law anyway. But the question remained: If
the women had been lying, why had he apologized a year earlier?
‘It wasn’t a real admission,’ Chakraborty said. ‘I did it because I
felt like I had no choice. I had no lawyers, no PR team to guide
me. That’s why I deleted it later.’
Regardless of the veracity of Chakraborty’s belated
explanation, he remains silent about why his videos were taken
down by AIB – presumably after an exercise of due diligence. But
the he-said-she-said stalemate led to larger questions about the
credibility of the MeToo movement. ‘It’s always women who
 come under scrutiny,’ Kukreja told me on the phone three months
after Chakraborty’s accusations on social media. ‘Frankly, I am
exhausted.’
21 . I worked with Sunday from 1991 to about 1999. My editor was
Vir Sanghvi. Akbar had moved on.
22 . Wahab, Ghazala, ‘M.J. Akbar, Minister and Former Editor,
Sexually Harassed and Molested Me,’ The Wire , 10 October
2018.
23 . Bhandare, Namita, ‘My #MeToo Moment Goes Back 30 Years
and I Have the Right to Be Angry,’ ThePrint , 8 October 2018.
24 . Ramani, Priya, ‘To the Harvey Weinsteins of the World,’ Vogue ,
12 October 2017.
25 . Author interview with the complainant in the Tehelka case.
26 . http://www.knowyourlaw.com/tarun-tejpal-sex-scandal-facts-the-
fingertips/
27 . Ibid.
28 . Author interview with the journalist.
29 . News18 , ‘The Complete Email Trail of the Tarun Tejpal Sexual
Assault Case,’ 28 November 2013.
30 . Ibid.
31 . The Times of India , ‘Tarun Tejpal Faces Arrest after Being
Booked on Rape Charge,’ 22 November 2013.
32 . Ohri, Raghav, ‘RK Pachauri Case: Teri Internal Probe Backs
Complainant,’ The Economic Times . Last Updated: 23 May 2015.
33 . Aiyar, SA, ‘RK Pachauri Needs to Go,’ The Economic Times , 22
July 2015.
34 . Bhandare, Namita, ‘Trial by Public Opinion,’ Livemint , 24 July
2015.
35 . Ibid.
36 . Vidal, John, ‘Rajendra Pachauri Speaks Out Over Sexual
Harassment Claims,’ The Guardian , 26 March 2016.
37 . Author interview with Vinta Nanda.
38 . Interview with Paromita Vohra.
39 . Supreme Court notice dated 20 April, signed by the additional
registrar.
40 . Nemo judex in causa sua.
41 . Beard, Mary, Women and Power: A Manifesto , Profile Books,
2017.
42 . Author interview with Justice Sujata Manohar.
43 . Ibid.

TRIPLE TALAQ

1 . (2017) 9 SCC 1.
2 . See reference to the Shah Bano case later in this essay.
3 . Dhavan, Rajeev, ‘Why J.S. Khehar Was Arguably One of the
Worst Chief Justices of India,’ DailyO , 21 August 2017.
4 . Rajagopal, Krishnadas, ‘Once Again, Supreme Court Upholds
Chief Justice of India as “Master of Roster”,’ The Hindu , 6 July
2018.
5 . Sharma, VVP, ‘Religious Diversity of Triple Talaq Bench Justices
Only a Coincidence,’ News18 , 11 May 2017.
6 . Shayara Bano v. Union of India , (2017) 9 SCC 1, para 141, p.
202. Interestingly, on 14 November 2019, at the time of writing, in
Kantaru Rajeevaru v. Indian Young Lawyers Association ,
Review Petition (C) No. 3358/2018 (the Sabarimala Review ), the
Supreme Court referred certain important questions arising out of
the interpretation of Articles 25 and 26 of the Constitution,
including ‘whether the “essential religious practices” of a religious
denomination, or even a section thereof are afforded constitutional
protection under Article 26’.
7 . Suresh Kumar Koushal v. Naz Foundation (2014) 4 SCC 1.
Subsequently, overruled by Navtej Singh Johar v. Union of India
(2018) 1 SCC 791.
8 . The Times of India , ‘Why Media Got the Triple Talaq Order
Wrong – Initially,’ 22 August 2017.
9 . Hindustan Times , ‘Triple Talaq: AIMPLB Says SC Verdict
“Huge Victory” As It Protects Muslim Personal Law,’ 22 August
2017.
10 . Agnes, Flavia, ‘Whose Fight Is It Anyway,’ Indian Express , 12
June 2017.
11 . See sub-section (2)(a) of Article 25.
12 . 1985 (2) SCC 556.
13 . Mulla, Principles of Mohammedan Law, 22nd ed., Lexis Nexis,
2013: ‘Mahr or Dower is a sum of money or other property which
the wife is entitled to receive from the husband in consideration of
the marriage.’
14 . The Muslim Women (Protection of Rights on Divorce) Act, 1986.
15 . Danial Lati v. Union of India , (2001) 7 SCC 740 (5J).
16 . Hussain, Sabiha, ‘A Socio-historical and Political Discourse on
the Rights of Muslim Women: Concerns for Women’s Rights or
Community Identity: (Special reference to 1937 and 1939 Acts),’
Journal of International Women’s Studies , 16(2), pp. 1–14.
17 . Muslim Personal Law (Shariat) Application Act, 1937.
18 . Hussain, Sabiha, ‘Muslim Women’s Rights Discourse in the Pre-
Independence Period,’ Centre for Women’s Development Studies,
2006.
19 . Ibid.
20 . Mulla, Principles of Mohammedan Law , 22nd ed., Lexis Nexis,
2013.
21 . (2016) 2 SCC 36.
22 . Ibid.
23 . (2016) 2 SCC 36.
24 . Kumar, Niraj, and Akhilendra Pratap Singh, Invalidating Instant
Triple Talaq: Is the Top-down Approach of Reforming Personal
Law Prudent? , 11 NUJS L. Rev 2 (2018).
25 . Pathak, Sushant, and Jamshed Ali Khan, ‘Exposed: How Maulvis
Take Money for One Night Stand with Divorced Women Trying to
Save Marriage,’ India Today , 16 August 2017.
26 . (2002) 7 SCC 518.
27 . (2003) 8 SCC 369.
28 . (1995) 3 SCC 635.
29 . Hameed, Syeda Saiyidain, Voice of Voiceless: Status of Muslim
Women in India , National Commission for Women, 2000.
30 . Ibid., pp. 23–24.
31 . Ibid., p. 25.
32 . Ibid., p. 26.
33 . Kirmani, Nida, ‘Mobilising for Muslim Women’s Right in India,’
Open Democracy , 14 January 2011.
34 . Goradia Divan, Madhavi, ‘A Civil Crime,’ Indian Express , 25
September 2018.
35 . AIR 1952 Bom 84.
36 . Ibid.
37 . Ibid.
38 . See Article 13 of the Constitution.
39 . (1981) 3 SCC 689.
40 . (1994) Supp (1) SCC 713.
41 . (2001) 7 SCC 740 (5J).
42 . (1985) 2 SCC 556 (5J).
43 . (2003) 6 SCC 611 (3J).
44 . (1996) 8 SCC 525.
45 . Ibid., paras 26 and 15.
46 . Indian Young Lawyers Association v. State of Kerala (2019) 11
SCC 1, paras 276, 278.
47 . (1996) 9 SCC 548, para 87.
48 . (2003) 8 SCC 369, paras 49 and 50.
49 . AIR 1952 Bom 84, paras 5 and 7.
50 . (2004) 12 SCC 770, para 9.
51 . This was what formed the basis of Justice Indu Malhotra’s
dissenting judgement in Indian Young Lawyers Association v.
State of Kerala, (2019) 11 SCC 1.
52 . Shayara Bano v. Union of India , (2017) 9 SCC 1.
53 . Mohammed, Tahir, Statues of Personal Law in Islamic Countries
, 2nd ed., Universal Law Publishing, 1995.
54 . Haider, Nadya, ‘Islamic Legal Reform: The Case of Pakistan and
Family Law,’ Yale Journal of Law and Feminism , 12(2), 2000.
55 . The Report of the Commission on marriage and family laws,
1956. Reprinted in Studies in the Family Law of Islam , Vol. 39.
56 . The Economic Times , ‘ET View: Passage of Triple Talaq Bill a
Moment of Great Importance for India’s Legislative History,’ 31
July 2019.
57 . Ibid.
58 . Nair, Sangeeta, ‘Triple Talaq Bill Gets President’s Assent,’ Jagran
Josh , 1 August 2019.
59 . Section 4 of The Muslim Women (Protection of Rights on
Marriage) Bill, 2019.
60 . Hall, Jerome, ‘Interrelations of Criminal Law and Torts,’
Columbia Law Review , 43(6), September 1943, pp. 753–779.
61 . Indian Penal Code, 1860.
62 . Shayara Bano v. Union of India , (2017) 9 SCC 1.
63 . Office of Registrar General and Census Commissioner, India,
2011 Census Data.
64 . Ibid.
65 . Justice Rajinder Sachar Committee, Report on Economic and
Educational Status of the Muslim Community of India , 2006.
66 . Doepeke, Mithhias, Michele Tirtilt and Others, ‘Women’s
Empowerment and Development: The Family Connection,’
VoxDev , 3 October 2017.
67 . Bernasek, Alexandra, ‘Banking on Social Change: Grameen Bank
Lending to Women,’ International Journal of Politics, Culture
and Society , Vol. 16, no. 3, 2003, pp. 369–385.

UNDERSTANDING MUSLIM LAW IN THE MODERN CONTEXT

1 . The Delhi High Court had in 2007 held that the instantaneous
triple talaq was not an immediate irrevocable divorce. Instead, as
per the judgement, the talaq was to be construed as a single,
revocable talaq. Effectively, even after the pronouncement of the
term ‘talaq, talaq, talaq’, the divorce could be revoked during the
period of the iddat , i.e. during the three monthly periods of the
wife. Masroor Ahmed v. State (NCT of Delhi): ILR (2007) 2 Del
1329: 2007 SCC Online Del 1357.
 2 . The Supreme Court held that talaq-e-biddat was unconstitutional
in 2017. Shayara Bano v. Union of India : (2017) 9 SCC 1.
3 . ‘For many Muslims therefore, the word “Shariah” simply means
“justice”, and they will consider any law to conform to the Shariah
as long as it promotes justice and social welfare.’ See Vikør, Knut,
‘Muslim Journeys, Item #226: “Sharia” from Oxford Islamic
Studies Online,’ 4 June 2014.
4 . Nasr, Seyyed Hossein, The Study Quran, Harper One, 2015.
5 . The expression ‘reverence God’ is a statement of affirmation of
faith and trust in God and it signifies the approval of God that the
debtor should dictate and the creditor should not remove or weaken
the debtor’s covenants.
6 . Nasr, Seyyed Hossein, The Study Quran , Harper One, 2015.
7 . There are several collections of hadis – such ‘Sahih Al Bukhari’,
‘Sahih Muslim’, Imam Malik’s Muwatta, etc.
8 . Nasr, Seyyed Hossein, The Study Quran , Harper One, 2015.
9 . Al-Imam Muhammad ibn Idris al-Shafi‘i: Founder of the Shafi‘i
school of law.
10 . Al-Sha ’i’s Risala: Treatise on the Foundations of Islamic
Jurisprudence , translated by Majid Khadduri, pp. 111–112.
11 . Here ‘the Apostle’ is a reference to Prophet Muhammad.
12 . Nasr, Seyyed Hossein, The Study Quran , Harper One, 2015.
13 . See M. Siddiq (dead) through LRs v. Mahant Suresh Das &
Ors , (2020) 1 SCC 1, particularly paras 998 to 1018 for a
historical perspective of the application of the doctrine in India.
14 . Section 37 of the Bengal, Agra and Assam Civil Courts Act, 1887
(which is applicable even today) is an example. There are other
similar enactments covering other states and territories in India.
The said Section 37, for ready reference, reads as follows:
37. Certain decisions to be according to Native law.
(1) Where in any suit or other proceeding it is necessary for a
Civil Court to decide any question regarding succession,
inheritance, marriage or caste, or any religious usage or
institution, the Muhammadan law in cases where the parties are
Muhammadans, and the Hindu law in cases where the parties are
 Hindus, shall form the rule of decision except in so far as such law
has, by legislative enactment, been altered or abolished.
(2) In cases not provided for by sub-section (1) or by any other
law for the time being in force, the Court shall act according to
justice, equity and good conscience.
15 . An excellent but simple explanation of ijtihad and how it is to be
exercised is given in Al Risala (supra) at pp. 302–303:
And he asked: How is ijtihad [to be exercised]?
[Shafi‘i] replied: God, Glorified and Praised be He, has
endowed men with reason by which they can distinguish between
differing viewpoints, and He guides them to the truth either by
[explicit] texts or by indications [on the strength of which they
exercise ijtihad].
He asked: Will you give an example?
[Shafi‘i] replied: God erected the Sacred House and ordered
men to face it [in prayer], when it is in sight, and to seek its
direction [by ijtihad] when they are at a distance from it. And He
created for them the heaven and the earth and the sun and the
moon and the stars and the seas and the mountains and the wind
[as guiding indications by which they can exercise ijtihad]. For
God said:
It is He who has appointed for you the stars, that by them you
might be guided in the darkness of land and sea [Q. VI, 97].
And He said:
And landmarks and by the stars they might be guided [Q. XVI,
16].
Thus [God] instructed men to be guided by the stars and
[other] indicators, and by His blessing and help they know the
direction of the Sacred House. So those who can see it from their
places [may perform the prayer] and those who cannot see it
should either be informed by those who have seen it or seek
guidance by means of certain indications such as a mountain,
which might point to [the direction], or a star indicating the north
and south, or the sun, whose rising and setting is known, pointing
 out the direction for him who performs the evening [prayer], or
the seas [which might also be a guiding indication] and the like.
Thus men should seek, through the reasoning power which
God has implanted in them, the direction in which He made it
incumbent for them to face [during prayer]. If it is thus sought,
through their reasoning power and their knowledge of the
indications [pointing to it], men can fulfil their duty.
[God] has made it clear that the duty He imposed on them is
[to pray in] the direction of the Sacred Mosque, not always to face
the House [al-Kaba] itself. If the right direction is not known with
the same certainty as is possessed by those who see it, it is not
permissible to hold that one can face any direction one wishes
without [a guiding] indication.
16 . See, Sunan Abu Dawud, Kitab al-Aqdiyah , Vol. III, Chapter
1348, Translated by Prof. Ahmad Hasan, Kitab Bhavan, 1990
reprint.
17 . That is, the roots of jurisprudence: (i) the Quran; (ii) the Hadis ;
(iii) Ijma ; and (iv) Qiyas (analogy) or Aql (systematic
reasoning).
18 . Faruqi and Faruqi, The Cultural Atlas of Islam , Macmillan,
1986, pp. 267–268.
19 . Hodgson, Marshall G.S., The Venture of Islam , The University
of Chicago Press, Volume 1, 1974, p. 335.
20 . One definition of mufti and fatwa is as follows: A mufti is a
specialist on law who can give an authoritative opinion on points
of doctrine; his considered legal opinion is called a fatwa .
Schacht, Joseph, An Introduction to Islamic Law , Clarendon
Press, 1982, p. 73.
21 . A qazi (or qadi ) is a judge appointed by the political authority or
state. He or she may pass judgements in his or her jurisdiction in
respect of many legal matters, including divorce, inheritance,
property, contractual disputes, etc. Ibid., p. 188. A qaza or kada is
a judgement, which must be given according to the madhab to
which the qadi belongs. Ibid., p. 196.
22 . The ruling of a qazi settles a dispute between two parties. The
ruling is binding, although if the qazi is not a jurist, he should on
all legal questions consult a mufti . Abdur Rahim, pp. 171–172,
370. The fatwa of a mufti is an advisory decision, while a qaza of
a qazi is a binding court judgement. Hodgson, Marshall G.S., The
Venture of Islam: Volume 1, The Classical Age of Islam , The
University of Chicago Press, 1974, p. 338.
23 . Rahim, Abdur, The Principles of Islamic Jurisprudence ,’ 2nd
Revised Ed., Kitab Bhavan, p. 172 (in respect of qazis).
24 . In Vishwa Lochan Madan v. Union of India , (2014) 7 SCC 707.
25 . See Satappa v. Mahomed-Saheb : AIR 1936 Bom 227.
26 . See, Statement of Objects and Reasons of Kazis Act, 1880 (Act
XII of 1880), which reads as follows:
Under the Mohammadan Law the Kazi was chiefly a Judicial
Officer. His principal powers and duties are stated at some length
in the Hedaya, Book XX. He was appointed by the State, and may
be said to have corresponded to our Judge or Magistrate. In
addition, however, to his functions under the Mohammadan Law,
the Kazi in this country, before the advent of British rule, appears
to have performed certain other duties, partly of a secular and
partly of a religious nature. The principle of these seems to have
been preparing, attesting and registering deeds of transfer of
property, celebrating marriages, and performing other rites and
ceremonies.
Certain of his duties having thus survived the passing of Act
XI of 1864, the Kazi is still a functionary of considerable
importance in the Mohammadan community. What was originally
in some sense an accidental adjunct of his judicial office has
become his principal and only duty, and in some parts of the
country at least, the presence of a kazi at certain rites and
ceremonies appears now to be considered by Mohammadans
essential from their point of view.
27 . Faruqi and Faruqi, The Cultural Atlas of Islam , Macmillan,
1986, pp. 267–268.
28 . It is believed by some scholars that the ability to use the process
of itjihad ended around 900 CE . Wael B. Hallaq, quoting Joseph
Schacht, says ‘[about 900 CE ], however, the point had been
reached when the scholars of all schools felt that all essential
questions had been thoroughly discussed and finally settled, and a
consensus gradually established itself to the effect that from that
time onwards no one might be deemed to have the necessary
qualifications for independent reasoning in law, and all future
activity would have to be confined to the explanation, application,
and, at most, interpretation of the doctrine as it had been laid down
once and for all’. See, ‘Was the Gate of Itjihad Closed,’
International Journal of Middle East Studies , 16(1), 1984, pp. 3–
41. The article goes on to argue that this closure is, in fact, a
misconception. There was sufficient historical evidence, as per the
author, to prove to the contrary.
29 . ‘ Taqlid means following the opinion of another person without
knowledge of the authority for such opinion.’ See: Abdur Rahim,
supra, p. 164.
30 . For example, it is generally perceived that interest is prohibited
under the Shariah. This is based on the understanding that ‘ riba ’,
which is clearly forbidden in the Quran, means usury or charging
of interest on money lent. The Arabic word riba , however, simply
means ‘increase’. Interest does not necessarily mean riba . For
example, if the rate of interest is equal to the rate of inflation then,
in real terms, there is no increase (i.e., no riba ). This makes it
clear that charging of interest, ipso facto , does not amount to riba
. It would be riba if it results in increase in real terms. Thus, it is
necessary to understand the full meaning of Arabic words used in
the Quran and the context in which they are used.
31 . Muslim law operates in this sphere since the general law of the
land specifically permits this.
32 . The territory of the erstwhile princely state of Awadh (of Nawab
Wajid Ali Shah fame), of which the capital was Lucknow.
33 . By virtue of Section 3(b) of the Act.
34 . This effectively implied that statutory enactments would take
precedence over the applicable personal law.
35 . See Section 2 of The Muslim Personal Law (Shariat)
Application Act, 1937 which reads as under:
2. Application of Personal Law to Muslims –
Notwithstanding any customs or usage to the contrary, in all
questions (save questions relating to agricultural land)
regarding intestate succession, special property of females,
including personal property inherited or obtained under
contract or gift or any other provision of Personal Law,
marriage, dissolution of marriage, including talaq , ila, zihar,
lian, khula and mubaraat, maintenance, dower, guardianship,
gifts, trusts and trust properties, and wakfs (other than
charities and charitable institutions and charitable and
religious endowments) the rule of decision in cases where the
parties are Muslims shall be the Muslim Personal Law (
Shariat ).
36 . Nasr, Seyyed Hossein, The Study Quran , Harper One, 2015.
37 . Ibid., p. 192.
38 . This was a case where the custom was less favourable to women
than the Shariah. The law stepped in and custom was overridden
by the Shariah.
39 . Section 2 of the 1939 Act includes grounds such as desertion,
impotence, insanity, certain specified grounds of cruelty, etc.
40 . Certain segments of the Muslim community always considered
the talaq-e-biddat to be immoral or even illegal. There was no
consensus on its applicability. In the case of Masroor Ahmad , the
Delhi High Court has noted that the Shia schools do not recognize
this as a valid form of divorce.
41 . See note 2.
42 . See note 1.
43 . For example, by the process of interpretation that had been given
in the Masroor Ahmad case rendering the process into one of a
single revocable divorce.
44 . Muslim Women (Protection of Rights on Marriage) Act, 2019.
45 . See the note above dealing with the closure of the gates of
ijtihad .

AN AXIS SHIFT

1 . Indian Young Lawyers Association v. State of Kerala (2019) 11

SCC 1 (‘Sabarimala judgement’ by Justice Chandrachud).
2 . Paragraphs 20–22 of the Sabarimala judgement.
3 . S. Mahendran v. The Secretary, Travancore Devaswom Board,
Thiruvananthapuram AIR 1991 Ker 43.
4 . See the Kerala High Court judgement, footnote 3.
5 . Paragraph 25, part B of Judgement dated 28 September 2018 by
Justice D.Y. Chandrachud in Writ Petition (Civil) No. 373 of 2006.
6 . 1981 Supp (1) SCC 87, p. 210.
7 . Adi Saiva Sivachariyargal Nala Sangam v. State of Tamil Nadu
(2016) 2 SCC 725.
8 . Paragraph 446 of the Sabarimala judgement.
9 . The Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt , (1954) 1
SCR 1005.
10 . Paragraph 447 of the Sabarimala judgement.
11 . Paragraph 106 of the Sabarimala judgement.
12 . Paragraph 110 of the Sabarimala judgement.
13 . (2014) 9 SCC 1.
14 . (2018) 10 SCC 1.
15 . (1973) 4 SCC 225.
16 . Article 356: Provisions in case of failure of constitutional
machinery in the State.
17 . See note 13.
18 . See note 14.
19 . Of course, the fundamental right under Article 26 will have to be
balanced with the rights of others contained in Part III as a matter
of harmonious construction of these rights as was held in Sri
Venkataramana Devaru . But this would only be on a case-by-
case basis, without necessarily subjecting the fundamental right
 under Article 26 to all other fundamental rights contained in Part
III. This is discussed further in the section relating to the religious
denomination test.
20 . Under Articles 25 to 28 of the Constitution of India.
21 . Shirur Mutt case, (1954) 1 SCR 1005.
22 . Para 80, S.P. Mittal v. Union of India (1983) 1 SCC 51.
23 . Para 96 of the Sabarimala judgement.
24 . Shastri Yagnapurushdasji v. Muldas Bhundardas Vaishya , AIR
1966 SC 1119.
25 . Sidheswar Shai v. State of West Bengal (1995) 4 SCC 646, a
similar structured aspect of the Hindu religion was examined, and
the Supreme Court held that the Ramakrishna Mission or
Ramakrishna Math is ‘a religious denomination’.
26 . (2014) 5 SCC 75.
27 . Commissioner of Police v. Acharya Jagadishwaranand
Avadhuta , (2004) 12 SCC 770.
28 . Para 122 of Judgement dated 28 September 2018 in Writ Petition
(Civil) No. 373 of 2006.
29 . Justice Malhotra noticed that the practice of restricting the entry
of women belonging to the age group of 10 to 50 years was
challenged as being violative of Articles 15, 25 and 26 of the
Constitution before a Division Bench of the Kerala High Court in
S. Mahendran v. The Secretary, Travancore Devaswom Board,
Thiruvananthapuram & Ors , AIR (1993) Ker 42. Justice
Malhotra observed that in that case, the High Court held that the
restriction on the entry of women between the ages of 10 to 50
years was in accordance with the practice prevalent since time
immemorial, and was not violative of Articles 15, 25 and 26 of the
Constitution. Justice Malhotra also observed that since the
judgement of the Kerala High Court was not challenged any
further, and has attained finality, the findings contained in the
judgement of the Kerala High Court deciding a Writ Petition under
Article 226 were findings in rem, and the principle of res judicata
would apply.
30 . AIR 1980 SC 707.
31 . Notable among them are the following:
King Emperor v. Khwaja Nazir Ahmad [(1943–44) 71 IA
203] is known for its celebrated dictum of ‘if a thing has to be
done, it should be done in accordance with law or otherwise not’
.
Hanooman Prasad Pandey v. Babbooee Munraj Kunwaree,
(M.L.A. 393) is known for its decision on the issue of the
power of the widow or the limited heir to alienate the estate
inherited by her.
Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC 1 is
known for its famous dictum that ‘ they also serve who only
stand and wait ’.
32 . (1973) 4 SCC 225.

THE GROWING SIGNIFICANCE OF DIGNITY JURISPRUDENCE

IN THE FIELD OF HUMAN RIGHTS

1 . The United Kingdom and Israel would be such examples.

2 . Though Western thinking is that the concept of human dignity has
a history of 2,500 years, in many Eastern civilizations including
India, human dignity as a core human value goes back much
longer.
3 . Barak, Aharon, Human Dignity: The Constitutional Value and
the Constitutional Right , Cambridge University Press, 2015.
4 . Based on the approach of Thomas Aquinas (1225–1274) in his
work Summa Theologia.
5 . See Hill, Thomas E., ‘Humanity Is an End in Itself,’ Ethics , 91(1),
October 1980, pp. 84–99.
6 . Kant, Immanuel, Critique of Practical Reason and Groundwork
of the Metaphysics of Morals.
7 . See Pfordten, Dietmar von der, ‘On the Dignity of Man in Kant,’
Philosophy , 84(329), July 2009, pp. 371–391.
8 . Delivered on 25 February 2010 at the Indian Institute of Public
Administration, New Delhi.
 9 . To the aforesaid, Professor Baxi adds: ‘I still need to say that the
idea of dignity is a metaethical one, that is, it marks and maps a
difficult terrain of what it may mean to say being “human” and
remaining “human”, or put another way, the relationship between
“self”, “others”, and “society”. In this formulation the word
“respect” is the keyword: dignity is respect for an individual person
based on the principle of freedom and capacity to make choices,
and a good or just social order is one which respects dignity via
assuring “contexts” and “conditions” as the “source of free and
informed choice”. Respect for dignity thus conceived is
empowering overall and not just because it, even if importantly,
sets constraints state, law, and regulations.’
10 . Waldron, Jeremy, ‘How Law Protects Dignity,’ The Cambridge
Law Journal , 71(1), March 2012, pp. 200–222.
11 . Fukuyama, Francis, Identity: The Demand for Dignity and the
Politics of Resentment , Farrar, Straus and Giroux, 2018.
12 . (1997) 1 SCC 416.
13 . (1980) 3 SCC 526.
14 . (1984) 3 SCC 161.
15 . (2006) 8 SCC 212.
16 . The Vishaka judgement ( Vishaka v. State of Rajasthan AIR
1997 Supreme Court 3011) would always be remembered in this
context.
17 . (2014) 5 SCC 438.
18 . (2017) 10 SCC 1.
19 . (2018) 10 SCC 1.
20 . See the judgement in the case of Navtej Johar v. Union of India
above.
21 . (2019) 3 SCC 39.
22 . (2017) 9 SCC 1.
23 . (2019) 11 SCC 1.
24 . This case is now a subject matter of a seven-judge bench where
the issues pertaining to religious faith vis-à-vis individual rights
are going to be taken up.
 Notes on Contributors

Justice B.D. Ahmed is a former judge of the Delhi High Court

and the Chief Justice of the Jammu and Kashmir High Court.
He is a renowned scholar of Islamic law. He authored the
judgement in the case of Masroor Ahmad in 2007, which had
declared that instant triple talaq ought to be considered as a
single revocable divorce, thereby mitigating its harshness.

Namita Bhandare has a master’s degree in journalism from

Stanford University and close to 30 years of reporting
experience. She was appointed India’s rst gender editor for the
newspaper Mint and, as an independent journalist, continues to
write on issues relating to women and gender.

Ritu Dalmia is a noted chef with restaurants spread across India

as well as Italy. She, along with Navtej Johar, was the petitioner
in the lead petition which led to the reading down of Section
377.

Madhavi Divan is a Senior Advocate and the current Additional

Solicitor General for India. She appeared for the Government in
the Shayara Bano case, which led to the invalidation of the
practice of triple talaq.
Dr Menaka Guruswamy is a Senior Advocate at the Supreme
Court of India. Her litigation practice includes successfully
seeking reform of the bureaucracy in the country through xed
tenure, defended federal legislation that mandates that all
private schools admit disadvantaged children and, most recently,
the overturned Section 377, the colonial-era law which
criminalizes consensual same-sex relations. Dr Guruswamy is
amicus curiae appointed by the Supreme Court in a case
concerning 1,528 alleged extra-judicial killings by security
personnel. Dr Guruswamy’s most recent publications include a
co-edited volume of essays on Founding Moments in
Constitutionalism (Hart/Bloomsbury, 2019), an essay on
constitution-making in South Asia in the Handbook on
Constitution-Making (Edward Elgar, 2019) and an essay titled
‘From the Movement Party to Movement Court’ in
Revolutionary Constitutionalism (Hart/Bloomsbury 2020). Dr
Guruswamy was educated at Oxford University, Harvard Law
School and the National Law School of India. She was the B.R
Ambedkar Research Scholar and Lecturer in Law at Columbia
Law School from 2017 to 2019 where she taught constitutional
design in post-con ict democracies.

Arundhati Katju is a lawyer in the Supreme Court of India,

practising white-collar defence, civil and commercial law. In
2018, Arundhati successfully represented the lead petitioners in
the Indian Supreme Court’s judgement in Navtej Singh Johar
and others v. Union of India , where the Court struck down
India’s 157-year-old sodomy law. She holds a BA LLB (Hons.)
degree from the National Law School of India University,
Bangalore, and an LLM from Columbia Law School, where she
was a Human Rights Fellow, Herman N. Finkelstein Memorial
Fellow and a CLAGS Duberman-Zal Fellow. In 2019, she was
named one of TIME Magazine’s 100 Most In uential People of
the Year. Alongside her litigation practice, she is presently a
Senior Fellow at the Center for Contemporary Critical Thought
at Columbia University.
Justice M.B. Lokur is a former judge of the Supreme Court of
India and is currently a judge of the Supreme Court of Fiji. He
was a member of the Social Justice Bench in the Supreme Court
and is the author of many landmark judgements, including the
judgement that declared that sex with a wife who was a minor
amounted to rape.

Zainab Patel is a transgender woman and human rights activist.

She impleaded in the NALSA judgement, where the Supreme
Court recognized transgender persons as a distinct gender and
constitutionally guaranteed their social and political rights.

Mukul Rohatgi is a Senior Advocate in the Supreme Court of

India and is a former Attorney General for India. He appeared
for the government in the triple talaq case and for the
petitioners in the Navtej Johar case.

Justice A.K. Sikri is a former judge of the Supreme Court of

India and is currently a judge at the Singapore International
Commercial Court. He was the author of many path-breaking
judgements, including the case of NALSA where the Court
recognized transgenders as a separate gender.

Keshav Suri is the youngest executive director at The LaLiT

Suri Hospitality Group. He is involved in the Group’s
expansion, quality management, building marketing strategies,
operations and F&B revenues. A rm believer of responsible
entrepreneurship, Keshav Suri has been working with several
NGOs and activists to help mainstream marginalized
communities. He is also one of those who petitioned to revoke
Section 377 in the Supreme Court of India. Under his
leadership, the Group has provided opportunities to more than
100 queer people, and has established itself as one of the safest
places in the country. Having taken up the cause of building an
inclusive nation, he launched the Keshav Suri Foundation, with
a mission to embrace, empower and mainstream the LGBTQ+
community. He was also instrumental in setting up the D&I task
force with FICCI, which he co-chairs.
 Acknowledgements

As will obviously be the case in any anthology, my thanks are

also due to each of the contributors for this book. They are
authors who come from disparate backgrounds and beliefs.
However, they are all deeply committed to the cause of
bettering the life of the most oppressed and marginalized
communities. The eagerness with which they accepted the
writing assignment and the zeal and promptitude with which
they wrote the essays made my task as editor considerably easier.
I must also thank Hachette India and, in particular, Rukmini
Chawla Kumar. She not only planted the idea of the book in my
head, but also diligently pursued and encouraged me through
the writing.
Finally, this book would not have been possible without my
family members: My father, Justice B.N. Kirpal, who imbued in
me the love for the law and the desire to use it to make real
change; my mother, Aruna Kirpal, who encouraged and
supported me in my studies, in my career as well as my personal
life; my partner in love and life, Nicolas Bachmann, who put up
with my tantrums when I was writing this book. I hope we see
an India where all of us are full citizens.
After studying physics at St Stephen’s College in Delhi, Saurabh
Kirpal read law at the University of Oxford and did his Master
in Law at the University of Cambridge. Following a brief stint at
the United Nations in Geneva, he returned to Delhi, and has
been practising law at the Supreme Court of India for over two
decades now. He has appeared in a range of matters involving
fundamental rights, and his clients cross the political and
ideological spectrum. He was the counsel for Navtej Johar, Ritu
Dalmia and others in the case that led to the reading down of
Section 377 of the Indian Penal Code in 2018.
 SEX AND THE SUPREME COURT
How the Law Is Upholding the Dignity
of the Indian Citizen

At 12.12 p.m. on 6 September 2018, the Supreme Court of

India created history by reading down Section 377 – reversing an
archaic law laid down by the British in 1860 and decriminalizing
homosexuality for the rst time in modern India.
Yet, this is not the only ruling that the Supreme Court has
made in recent times championing the rights of an individual to
her or his identity and dignity. From empowering the
transgender community and lending teeth to the prevention of
sexual harassment of women at the workplace, to protecting the
privacy, rights and dignity of women and minorities on issues
such as interfaith marriages, entering the Sabarimala temple, the
controversial triple talaq and the striking down of the adultery
law – the highest court of the land has rmly placed the
individual at the centre of the constitutional rmament, and set
a course for progressive societal reform.
This remarkable collection of writings by legal luminaries is
the only book to offer sharp insights into each of these crucial
rulings. Justice M.B. Lokur writes on the issues that affect the
transgender community; Justice B.D. Ahmed elucidates on
Muslim law in the modern context; and Justice A.K. Sikri
addresses the fundamental concept of dignity, which binds
together all the essays in this book. Some of the best-known
names in Indian law – Mukul Rohatgi, Madhavi Divan, Menaka
Guruswamy, Arundhati Katju and Saurabh Kirpal – offer legal
perspectives of judgements on sex, sexuality and gender. From
petitioners like Ritu Dalmia, Keshav Suri and Zainab Patel, we
hear personal narratives of being a part of the LGBTQ
community in India, while journalist Namita Bhandare provides
a powerful account of the struggle against sexual harassment.
An unprecedented documentation of the rulings that have set
a standard for the rights and liberties of sexual minorities and
women in India, Sex and the Supreme Court is also an invaluable
record for posterity – for it reveals the power of the country’s
courts to uphold the privacy, dignity and safety of its citizens.
www.hachetteindia.com