Articles

The Indian Supreme Court’s decision in Navtej was, no doubt, a significant step in the direction of recognising queer rights in India, particularly in the private space. However, was it the queer rights jurisprudential revolution it is made out to be? As the judgment turns two, this article answers this question by analysing how other courts – whether domestic or foreign – have reacted to Navtej in their queer rights jurisprudence. On the domestic front, the Supreme Court’s positioning in the constitutional system as an ‘apex court’ implies little scope for resistance from the lower judiciary. This mandatory influence of Navtej has led to a queer rights revolution within India, specifically through the recognition of the right of queer couples to cohabit. On the international front, Navtej’s comparative influence has been felt in courts in Commonwealth countries dealing with queer rights issues. Even though some foreign courts have refused to employ Navtej’s reasoning in their decisions, the fact that Navtej has inspired queer rights litigation abroad also signifies its revolutionary impact.

The 2018 Navtej Singh Johar judgment of the Supreme Court of India that read down §377 of the Indian Penal Code, 1860 has been celebrated as a landmark moment heralding the progression of queer and transgender people from criminality to citizenship. However, this narrative is undermined by continuing forms of criminalisation and violence affecting trans and queer people, especially those from working class and Dalit backgrounds. In this context, this paper builds on an established trajectory of academic and activist critique to interrogate how §377 was made into an overarching symbol of homophobia and anti-LGBT discrimination in India, thus producing an aggrandised and homogenised narrative about its impact while eliding or downplaying various other forms of criminalisation and social violence. Further, this paper theorises the symbolic politics around §377 as a case of synecdochic symbolism wherein a part is made to stand in for the whole, arguing that anti-§377 campaigns strategically subsumed forms of violence or discrimination that were unrelated or very tangentially related to §377 under the sign of the law. The paper explores how synecdochic symbolism functioned as an appropriative mechanism to harvest the material violence faced by working class and Dalit transgender and queer people to strengthen the anti-§377 movement, while providing greater political benefits to queer and trans people from elite class/caste locations. It argues that synecdochic symbolism facilitated the emergence of an empowered queer citizen figure represented by elite LGBT people while offering only tentative protections to, and sometimes even endangering, less privileged trans and queer people.

This article looks at the issues faced by queer women in India through a legal lens. It identifies four issues for discussion­– privacy, live-in relationships, allegations of lesbianism in matrimonial disputes, and the pressure to enter heterosexual marriages. It engages in-depth with the first two while laying down the groundwork for the last two. This article asks whether the law in its current form, is aware of, and equipped to, address these issues. First, it finds that the Navtej Johar case, by permitting a right to same-sex sexual relations between adults in private, failed to understand the very nature of the privacy concern of queer women. Secondly, it critically analyses live-in relationship cases between queer women before and after the Navtej judgment to find that a lack of respect for the autonomy of women continues to characterise the disposal of these cases. It also finds that investigative illegalities and violations of the fundamental rights of privacy, dignity, and equality are visited upon these couples during the course of the case. Finally, this article provides legal and extra-legal solutions for addressing the problems identified here. It concludes by asking whether given the law’s limited success in delivering freedom to queer women, a narrow and measured engagement might be more profitable in the long run. It does not answer this question but raises it for future deliberation.   

In National Legal Services Authority v. Union of India (‘NALSA’) and Navtej Johar v. Union of India (‘Navtej’), the Supreme Court made grand declarations for equal rights for transgender and intersex persons and broadened sex discrimination to prohibit discrimination on the basis of gender identity and sexual orientation.  The Supreme Court, most importantly, recognised that gender identity forms the core of one’s personal self and is based on self-determination, not on surgical or medical procedure. Despite this, transgender persons face discrimination on a regular basis on the basis of their gender identity. They are deprived of their basic rights and legal recognition unless they can produce proof of sex reassignment surgery through medical certificates.  The common argument by the State is that welfare measures and reservations for transgender persons will be misused and the only way in which such fraud can be tackled is by the beneficiary medically proving that they are indeed transgender. This paper discusses the evolution of the constitutional right to self-determination of gender identity in India under Article 21. It examines how the right to life also includes the right to bodily integrity which precludes the reliance of a medical model to decide gender identity and examines Indian and comparative jurisprudence on this issue. It argues for the need to abolish a medical model of gender identity recognition and a re-affirmation of the right to self-determination of gender identity and a rejection of the claim of misuse and fraud which has been used frequently in India without any empirical data. I argue that we need to move towards a transformative equality model which embraces gender variance, based on the affirmation of the right to self-determination of gender identity that is premised on the right to live one’s life with dignity, privacy and the recognition of one’s right to bodily integrity. 

Transgender persons in India have historically been subject to violence and erasure through laws that have criminalised their lives and livelihoods. Despite recent legal and judicial developments that have purported to correct these historical wrongs, transgender persons’ relationship with the penal state continues to be fraught, evident in laws and practices that either target them, or address them as a distinct category, or neglect them entirely. One such site of legal and policy exclusion is a space that is itself relegated to the peripheries of public thought – the prison. Transgender persons in prison are likely to face particular harms on the basis of their gender identity that are compounded by harms that characterise the conditions of confinement. This paper is a preliminary inquiry into the status of transgender persons in Indian prisons. It demonstrates that while transgender persons are policed, criminalised, and made ‘hyper-visible’ in public spaces, they are ‘invisible’ in laws, rules, and practices that are framed for prison management. Further, it argues that centring the self-narratives of transgender prisoners is a necessary first step in understanding their experiences of prison and developing legal and policy responses.  

Taking inspiration from feminist judgment projects from around the world, this article provides an alternative judgment in the case around the decriminalisation of §377 in Navtej Singh v. Union of India, adjudicated by the Supreme Court of India in 2018. It places caste as central to the analysis of the persistence of §377, and its attendant legal and social denouncements of furtive sex especially along the lines of non-normative sexualities and genders

The authors examine the role of the truth defence in criminal contempt and address the reluctance of the judiciary in engaging with this defence, as evinced in the Prashant Bhushan contempt case.

NUJS Faculty and Students remember late Intellectual Property Law professor’s contribution as a teacher, scholar, legal professional and activist.

Is it constitutionally permissible to further constrict the already narrow right to access subsidised food grains by calculating the eligible beneficiaries on the basis of outdated population data? Although, the answer to this query must necessarily be in the negative; unfortunately, this is exactly what has been done through §9 of the NFSA which imposes an artificial restriction, unsupported by any ground level data. Legislatively, over 100 million people will be deprived of this most basic and fundamental of human rights. This article, therefore, seeks to pose a constitutional challenge to §9. Although, the Act has been in vogue for over half a decade, the extremely deleterious consequences of the artificial exclusions imposed by §9, have only exacerbated the heartrending human tragedies that have been wrecked on the most economically precarious due to the COVID-19 pandemic, which has, therefore, been  used as a case study to propose some structural reforms to the NFSA. Indisputably, the process of evolving and structuring policies to suit the aspirations of a vast country, is a gargantuan task; the need of the hour is to engage policymakers in a debate to rethink such provisions and guarantee nutrition for one and all.