I encourage liberals who wish to argue against, for example, the criminalization of homosexual sex, to engage with the honest toil of arguing that the reason such conduct ought not to be criminalized is that there is nothing immoral in it.

– Gerald Dworkin¹

THE Supreme Court, on 6 September 2018, overturned the Koushal judgement on Section 377 of the Indian Penal Code.² Predictably, the media erupted in celebration of the ‘decriminalization of homosexuality in India’ (something they had done with the Naz judgement too nine years ago), despite the fact that in both cases no such thing had happened. Criminal law experts continue to argue that homosexuality is decriminalized because they collapse acts with identity. Section 377 talks only about acts but was always read by criminal law experts as a penal provision for homosexuals, though the corpus of case histories under it show this was not necessarily the case. While decriminalization does not only mean striking down a provision in toto, the burden of the argument here is to show that what was needed was an engagement with the identity of homosexuality at the legislative and executive levels³ through a collective struggle and not a short-circuiting of the struggle via an emendation of Section 377 which actually does little for the LGBT cause in India.⁴

Consensual adult same-sex acts in private are now allowed, making it merely the equivalent of the Wolfenden Report in Britain in 1957.⁵ Britain took another ten years to turn the report into a law and that law too did not really legalize homosexuality. Indeed, the leglisation of homosexuality is still an ongoing process in Britain, partly due to the legacy of the Wolfenden report. India’s following this trajectory is limiting and the legal arguments for it convoluted, as is clear in the Navtej Johar judgement. Making something legal would mean positively legislating on the issue and extending other rights and benefits. Decriminalizing certain acts has a limited meaning, as acknowledged even by the court. The celebrations are wrongheaded and misguided.

As usual, scant attention was paid to the logic (or the lack of it) in the judgement, let alone the fact that the government had kept out of it and left it to the courts. This is not a merely pedantic quibble but goes to the heart of this otiose and pleonastic judgement. The judgement simply refuses to squarely face the question at hand – affirming a citizen’s right to be homo-sexual – settling instead for the heavy weather of the rhetorics of constitutional morality and transformative constitutionalism,⁶ to assert that right through a torturous route. While this route is necessitated by the frame of the juridical (the wrong frame for this assertion), the epigraph by philosopher Dworkin, revisiting the Devlin-Hart debate that followed the Wolfenden Report, articulates the problem with Hart’s (and subsequent liberal) arguments as the lack of honest toil. This is the case with Navtej Johar as well as is evident from its altogether inferior argumentation.

 

The judgement is quite at sea about how to define homosexuality – whether it is ‘natural’ or a matter of choice – and contradictions in the definition proliferate across all four opinions by Chief Justice Dipak Misra (and Justice Khanwilkar), Justice F. Nariman, Justice Chandrachud and Justice Indu Malhotra and run through the judgement to its conclusion. Once again, this is far from a minor definitional quibble as Section 377 hinges on the idea of unnatural sex or ‘sex against the order of nature.’

 

The first seventeen pages of the opinion by Chief Justice Misra and Justice Khanwilkar are riddled with irreconcilable contradictions and they do not cease there. Individuality, which is the idea on which the judgement opens, citing Goethe, Schopenhauer and Mill, is both inherent and inescapable but also the result of ‘self-determined design.’⁷ Shakespeare is invoked and ‘What’s in a name?’ is read as the essence and core of identity, ‘pivotal to one’s being’ even as it is satisfied only by ‘constitutional recognition.’⁸ Identity is individuality and signature but also ‘authoring one’s own life script where freedom broadens everyday. Identity is equivalent to divinity (sic).’⁹

Homosexuality is ‘equally natural and reflective of expression of choice’;¹⁰ identity is both ‘natural’¹¹ and ‘absolutely essential’,¹² on the one hand, yet non-acceptance affects it and renders it crushable on the other;¹³ gender is ‘intrinsic’¹⁴ and also the search for it is ‘a basic human ideal’;¹⁵ miraculously, ‘homosexuality, bisexuality and other orientations are equally natural and reflective of expression of choice’;¹⁶ both ‘natural variations and free thinking process’¹⁷ (emphases mine).

Yet the ‘freedom that is required to be attached to sexuality still remains in the pavilion with no nerves to move’¹⁸ and when ‘biological expression, be it an orientation or optional expression of choice, (sic) is faced with impediment, albeit through any imposition of law, an individual’s natural and constitutional right is dented.’¹⁹

 

Sexual orientation is defined in the most absurd way imaginable: every human being ‘has certain basic biological characteristics’²⁰ (homosexuality) and acquires or ‘develops some facets’²¹ under certain circumstances (bisexuality) or has a ‘proclivity’ which is constant and unchanging (heterosexuality)²² (sic). This convoluted nonsense is to make the argument that the act, not the identity, is criminalized (Koushal’s argument) even as the whole drift of this judgement is to argue that the identity is criminalized.

Nevertheless, sexual identity is also ‘an essential attribute of privacy’²³ and the ‘organization of intimate relations is a matter of complete personal choice’,²⁴ though, finally, ‘sexual orientation is one of the many biological phenomena which is natural and inherent in an individual and is controlled by neurological and biological factors.’²⁵

Justice Chandrachud, the new gender superhero of Indian law, who cites everyone from Leonard Cohen to Eve Kosofsky Sedgwick and Nivedita Menon to Vikram Seth, seems to fall more firmly on the side of a constructivist understanding of gender and claims that sexuality should be ‘viewed as fluid’²⁶ though he begins by speaking of the simple right to ‘live, love and partner as nature made them’²⁷ (italics mine). This contradiction persists right through his opinion as he simultaneously holds on to the ideas of compulsory heterosexuality, discrimination against the LGBT community and the closet, on the one hand, and autonomy, privacy and ‘deconstructing the polarities of binary genders’²⁸ (sic) on the other.

 

Justice Malhotra falls back entirely on the sexual orientation is intrinsic, innate and immutable thesis. For her, this is the basis on which Section 377 violates Articles 14, 15 and 21. These positions taken by the three decisions are both internally and mutually contradictory. One wonders how Gautam Bhatia thinks that the judgement holds both ideas in an equilibrium. Such an equilibrium is unattainable as the positions are constitutively contradictory. Bhatia delineates CJI Misra’s untenable employment of both positions as judicious and also reads him on the crucial matters of acts vs. identities and dignity as settling for the choice-based argument, a wilful settling of Misra’s confused position.²⁹

The implications of this confusion are many but the central one is that the question of the sexual acts in question in Section 377 is left unexamined. This points to a squeamishness in actually confronting what is at the heart of Section 377, which is sodomy. While the judges engage in conceptual muddles about whether homosexuality is natural or unnatural and the etiology of homosexuality, quite outside the scope of their expertise or ambit, what they do not confront is the sexual conservatism of Section 377. What they leave out of their critique of Koushal, for example, is the rank sexual conservatism of that judgement. For Koushal, fellatio and frottage are unnatural and against the order of nature. An open discussion of these acts along with sodomy, would have sufficed instead of reams of pages on whether or not homosexuality is natural.³⁰ Does it really matter one way or another? The airy rhetoric of progressive Indian judges occludes any candid discussion of sex and sexuality. Indeed, Navtej Johar appears a more conservative judgement than Koushal.

 

This becomes clear in the judgement’s attempt to engage with the key question of the Christian and heteronormative basis of the phrase ‘acts against the order of nature.’³¹ While all the concurring opinions agree that the phrase lacks clarity and clear content, Vanshaj Jain reminds us that: ‘the phrase "carnal intercourse against the order of nature" forms the crux of s.377; it is the actus reus on which the crime is based. If the content is unclear as the judges rightly point out, only two consequences can follow: either the court provides a clear guiding principle to determine the content of this phrase for future use or it strikes down the entire provision for vagueness. Troublingly, the court does neither.’³²

 

While Naz had not called for the striking down of Section 377 altogether, thereby not tackling the question of sodomy/homosexuality head on, this judgement repeats that but further confounds matters with all opinions participating in a troubling extended analogy with Section 375, arguing that the 2013 amendments to that section (on heterosexual rape) render most of Section 377 redundant. In doing so, the judgement, as Jain points out, ‘glosses over the conceptual boundaries of a criminal law provision whose content it was called upon to decide.’³³

While all the judges claim that the concept is unclear and undefined, they do not define it either. If Justice Chandrachud accuses it of ‘vagueness of expression and indeterminacy of content’,³⁴ Justice Malhotra deems it ‘too open-ended.’³⁵ Jain calls this unimpeachable reasoning but this is far from the case. Vague criminal law provisions violate constitutional criminalization. What is meant by the term ‘acts against the order of nature’ is perfectly clear in actuality. Any sexual activity that is not heteronormative and procreative is unnatural. It is equally clear that the crux of the provision is a conception of sexuality that needs to be spelled out and instead it is poked at by a protracted and untenable analogy with Section 375. Section 375 is about coercion and violence; Section 377 is about consensual sexual intercourse. What is the point of this ludicrous analogy?

Jain shows the conceptual interdependence of Section 375 and Section 377 and the erroneous implications the opinions in Navtej Johar draw from the analogy. He does not, however, ask why they leave the normative content of Section 377 unclear. Why does the question of sodomy need to be approached from the quite different context of the rape provision? Heterosexual women are forced to use Section 377 against their husbands because there is no marital rape provision. Other than that there is no connection between the two provisions. The 2013 amendments do nothing to address the question of ‘unnatural acts’ or ‘acts against the order of nature.’ The amendments have to do with heterosexual rape and the broadening of the definition to include non-penovaginal activity. They do not address the quite different histories and contexts of sodomy between men. The judgement repeats the silence of patriarchal, masculinist society on the question of sodomy in a bizarre enactment of society’s codes of conservatism.

 

Building on the petitioners who take the eclectic set of arguments from Naz and add the cases since, there is no coherence in the argumentation of the judgement at all. All the opinions go through the same paces – from NALSA to Puttuswamy – and the same accounts – the history of Section 377, constitutional morality, transformative constitutionality, right to privacy, consent, international precedent, the Yogyakarta principles – with no real engagement with the contradictions in, or the implications of, each and between these accounts.

 

To take just one example, the question of privacy is not seriously engaged with at all. While the public nature of offence is acknowledged (which Naz had not acknowledged at all), it is simply asserted that privacy also implies safety in public.³⁶ The question of hijra public sex work is still left unaddressed. While the judgement acknowledges the class and caste biases inherent in the idea of privacy, this is simply resolved by announcing that ‘the right to privacy must also be seen as the right to public spaces’,³⁷ just as sex must be read as sexual orientation.³⁸ These rhetorical sleights of hand do not constitute arguments; indeed they are merely assertions. Further, even as the private becomes the public, we are urged to see the private acts of LGBT adults as not only consensual but ‘innocent’³⁹ (sic). We are also reminded that ‘a man’s house is his castle’⁴⁰ and sexual orientation is an ‘innate facet of individual identity.’⁴¹

The conceptual contradictions in all these assertions remind us of the earlier definitional contradictions. They show no cogent thought process or argumentation. Just everything that might be got hold of is thrown into the mix even if it is contradictory and untenable, even across the length of one sentence.

If there is a contradiction between static and fluid conceptions of sexuality, the conception of constitutional morality is entirely static. It was one of the key ideas of the Naz judgement which gets carried over to Navtej Johar. The conceptualization of it strains to loosen itself from the muck of the social and the entanglements of the psychic. It is a curiously disembodied idea in both judgements and not theorized coherently either.

 

For Chief Justice Misra and Justice Khanwilkar, constitutional morality ‘cannot be martyred at the altar of social morality’⁴² though only ‘as long as its expression is not against decency or morality.’⁴³ Apart from the tautology of this formulation, it is surely apparent that this separation is both philosophically and practically untenable. Desires are social and psychic and so is what is lawful and constitutional. For the judges, constitutional morality is pitted against social morality as if the former has no moorings in the social, let alone the psychic. The implicit idea is that social morality is regressive and constitutional morality per se progressive but worse, that constitutional morality hovers above the social and can be plucked in to smother the social at will.

Further, Chief Justice Misra and Justice Khanwilkar inform us that the concept of constitutional morality is ‘not limited to the mere observance of the core principles of constitutionalism’⁴⁴ or constitutional provisions, but ‘rather it 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.’⁴⁵ The Constitution is the force which ‘ushers in’ pluralism and inclusivism even as it has fixed principles. Quoting Ambedkar, they argue constitutional morality is not Indian society’s ‘forte’ but it is the ‘duty’ of the state and the judiciary to strengthen it. Despite it not being their forte, miniscule minorities are allowed to aspire to ‘different things for themselves’⁴⁶ provided, once again, that they are within ‘their legal framework and neither violates any statute nor results in the abridgement of fundamental rights of any other citizen.’⁴⁷

 

Constitutional morality, to them, maintains the ‘heterogeneous fibre’⁴⁸ in society curbing any ‘propensity or proclivity of popular sentiment or majoritarianism.’⁴⁹ They write: ‘Any attempt to push and shove a homogeneous, uniform, consistent and a standardized philosophy throughout the society would violate the principle of constitutional morality. Devotion and fidelity to constitutional morality must not be equated with the popular sentiment prevalent at a particular point of time.’⁵⁰

Yet it is precisely a standardized and homogeneous idea of constitutional morality that is being promulgated. Asymmetrical attitudes are to be fostered so long as they are ‘within the legal and constitutional framework.’⁵¹ Repeatedly, this idea of a framework independent of asymmetries contradicts the idea of ‘freedom and liberty’ which is apparently the ‘quintessence of constitutional morality.’⁵²

Citing himself from another judgement, Chief Justice Misra defines constitutional morality through the example of generosity vs. justness. The former may have condescension but the latter has only ‘normative value’ and no ‘subjective exposition.’⁵³ Constitutional morality is seen as purely objective, free from the mess of history, transcending the stuff of heterogeneity even as it upholds it. The courts are the independent and ‘final arbiter’ of the Constitution upholding its ‘cherished principles’ and not even ‘remotely guided’ by majoritarian and popular perceptions.⁵⁴ Only constitutional morality ‘can be allowed to permeate into the Rule of Law.’⁵⁵

The naivete and wishful thinking of this conceptualization apart, these pronouncements barely mask the anxiety around the social that lurks beneath them. They show that the normative is anything but objective (free of subjective exposition and not even remotely guided by the majoritarian and the popular) and nor are the Constitution and Rule of Law theorized as above; the social and the psychic only betrays the psychic anxieties of judges who see themselves as transparent receptacles of the pure air of constitutional morality.

 

Justice Chandrachud begins by acknowledging that people wrote the Constitution based on an idea of ‘collective destiny’⁵⁶ even as he claims ‘the people may not have played any role in the actual framing of the constitution.’⁵⁷ He then repeats the series of contradictions in the delineation of constitutional morality already seen: ‘ideals and vision’ vs. a past of ‘social inequality and prejudice’; ‘liberating society’ from ‘supremacist thought’; ‘vision’ vs. ‘reality’; ‘text and spirit’ vs. ‘popular notions’; ‘majoritarian vs. minority’.⁵⁸

Justice Chandrachud also abrogates all claims of the social, giving the Constitution/constitutional morality the job of challenging, liberating, establishing, promoting, reversing, transforming, checking, guaranteeing, guiding, facilitating, vigilantly safeguarding, monitoring, preserving, fostering, authoritatively leading, assuring, declaring, impacting, superseding, requiring, discharging, just some of the verbs and verbal phrases he uses, all of which show the masculinist anxiety behind his theorization. Citing Naz, he also repeats the distinction between ‘popular morality’⁵⁹ which is based on ‘shifting and subjecting notions of right and wrong’⁶⁰ (sic) and by implication, objective and unshifting constitutional morality, a point also reiterated by Justice Malhotra and Justice Nariman.

 

If the conception of constitutional morality is static there is a self-propelling motor to the idea of transformative constitutionalism in Navtej Johar. If Naz went on about constitutional morality, Navtej Johar adds to it the artillery of transformative constitutionalism. If the first idea suffered from an abstract and static understanding of something called constitutional morality quite distinct from public morality, the latter tries imbues the Constitution with an immanent capacity to transform the world.

Chief Justice Misra understands it as the ideals of the Preamble of the Constitution which are a ‘guiding laser beam’⁶¹ (Star Wars, anyone?) to ‘make right’⁶² Indian society, ‘revolutionary’⁶³ in its aim in transforming a ‘medieval, hierarchical society’,⁶⁴ guiding the nation to ‘a resplendent future.’⁶⁵ Transformative constitutionalism is, for him, the transforming of Indian society through the Constitution, a ‘pragmatic’ programme.⁶⁶

For Justice Chandrachud, transformative constitutionalism is the Constitution asserting itself ‘as a text for governance which promotes true equality.’⁶⁷ Further, ‘it does so by questioning prevailing notions about the dominance of sexes and genders’,⁶⁸ whatever that means. It is quite clear that Justice Chandrachud understands the capacity of transformation as immanent to the Constitution. He claims that ‘in its transformational role, the Constitution directs our attention to resolving the polarities of sex and binarities of gender.’⁶⁹ (sic)

 

In the rousing conclusive set of paragraphs of his opinion, he finally avers that: ‘For those who have been oppressed, justice under a regime committed to human freedom, has the power to transform lives. In addressing the causes of oppression and injustice, society transforms itself. The Constitution has within it the ability to produce a social catharsis. The importance of this case lies in telling us that reverberations of how we address social conflict in our times will travel far beyond the narrow alleys in which they are explored.’⁷⁰

The smug assumption of the ‘us’ and the ‘we’ is only matched by the self-assurance of the homogeneous ideas of ‘human freedom’ and ‘social catharsis’ and outdone by the self-appointed superiority of how to address social conflict in our time, soaring out of the ‘narrow alleys’ in which the lesser among us are trapped.⁷¹

 

Are the courts competent to legalize homosexuality? Is it their job? The legislature and the judiciary have distinct functions and while legal scholars like M.P. Singh have argued that such a legalization is beyond the scope of judicial power in India,⁷² a powerful swathe of legal scholars, from Upendra Baxi to the swashbuckling hero-lawyers behind the Naz and Navtej Johar judgements would argue that the role of the courts is much wider.⁷³

 

However, this wider scope has not been arrived at in the Navtej Johar judgement through any engagement with the social from which it emerges. Instead, it has sought to distill the social and offer pure pronouncements on constitutional morality and transformative capacity. This has necessitated an erasure of the messiness of the social and the psychic in the production of the Indian homosexual subject as much as subjects resistant to it. This necessity is determined by the frame of the juridical and its aims in the judgement. As Dworkin asked the liberals in the epigraph to this essay, it is important to engage with the question of the immorality of homosexuality, not paper over it with the rhetoric of morality of the Constitution. As B.R. Ambedkar reminded us, constitutional morality is merely the top dressing on a deathly, undemocratic Indian societal soil. That soil has to be dug up and grappled with.⁷⁴

The honest toil on the question of homosexuality in India remains to be done.

 

* I would like to thank Latika Vashist, Nithin Manayath and, especially, Amit Bindal for critical comments on this essay. All errors that remain are mine alone.

Footnotes:

1. Gerald Dworkin, ‘Devlin Was Right: Law and the Enforcement of Morality’, William and Mary Law Review 40(3), 1999, p. 943.

2. https://www.sci.gov.in/supremecourt/2016/14961/14961_2016_Judgement_06-Sep-2018.pdf Henceforth Navtej Johar.

3. M.P. Singh has been the only legal scholar who argued ever since the Naz judgement that it is the job of the Parliament to review Section 377 and that doing it via the constitutional violation argument does not hold. See Mahendra P. Singh, ‘Decriminalisation of Homosexuality and the Constitution’, NUJS Law Review 2, 2009, pp. 361-380. See also, M.P. Singh, ‘Constitutionality of Section 377, Indian Penal Code – A Case of Misplaced Hope in Courts’, NUJS Law Review 6(4), 2013, pp. 569-574.

4. The AIDS Bhedbhav Virodhi Andolan (ABVA) in Delhi has launched such a struggle since the late ’80s and continues to do so. This legacy has been entirely ignored by the judgement. See http://aidsbhedbhav-virodhi-andolan.blogspot.com/2019/. See also P.S. Sahni, ‘An Open Letter to Indian Parliamentarians to get Section 377, IPC Repealed in Toto’, ABVA, New Delhi.

5. It is instructive to read this judgement in relation to the Wolfenden Report. The Wolfenden Committee had been formed because too many powerful men in Britain had been booked under the law for homosexual relations. Powerful men were also behind the petition to the Supreme Court on 377. This power explains the rather cautious demand that the petition makes instead of an outright demand that homosexuality be recognized and legalized. More importantly, this power made the judicial route the one chosen instead of a struggle on the ground, something which does not behove the powerful classes. It is this classist and closeted cautiousness that marks both the demand and the arguments made in favour of it.

6. If the Naz judgement was 100 pages too long, Navtej Johar is about 450 pages too long. It appears that while Indian judges can’t stop citing foreign judgements, they never learn anything from their length nor do they seem to have heard about the Plain English movement within legal writing begun decades ago. Almost 500 pages of contradictory, confused, repetitive argumentation spiked with purple rhetorical flourishes make the judgement painful to read but also shows the flailing around the elephant in the room – the question of homosexuality’s absence from affirmative identitarian and political discourse – which is avoided altogether, even as high flapping around it never ceases across the length of it.

7. Navtej Johar, CJI Misra and J. Khanwilkar at 3.

8. Id., p. 4.

9. Id., p. 4.

10. Id., p. 16.

11. Ibid.

12. Id., p. 6.

13. Ibid.

14. Ibid.

15. Id., p. 9.

16. Id., p. 16.

17. Ibid.

18. Id., p. 71-72.

19. Id., p. 85.

20. Id., p. 91.

21. Ibid.

22. Ibid.

23. Id., p. 104.

24. Id., p. 149.

25. Id., p. 160.

26. Navtej Johar, J. Chandrachud at 82.

27. Id., p . 5.

28. Id., p. 56. This is one of his subheadings.

29. Indeed, Bhatia even heroically re-writes J. Malhotra’s opinion for her, replacing immutability by arguing that hers amounts to a radical re-reading of Article 14 that ‘rules out certain kinds of classifications at the threshold. In her view, legislation based on an ‘intrinsic or core trait’ fails that threshold inquiry. I would put it slightly differently: legislation based on a core trait (related to personal autonomy) a trait that has been a historical or present site of systemic discrimination, is ruled out under Article 14’ (italics in original). It is unfortunate that Bhatia, an exemplar of the rhetorical heroes of constitutional morality, transformative constitutionality and so on, resorts to, bringing the contradictions of the judgement in line with their reasoning. See, ‘Civilization Has Been Brutal: Navtej Johar, Section 377, and the Supreme Court’s Moment of Atonement’, available at: https://indconlawphil. word press.com/2018/09/06/civilization-has-been-brutal-navtej-johar-section-377-and-the-supreme-courts-moment-of- atonement/

30. See my attempt at a more productive critique of Koushal in Ashley Tellis, ‘Violence Against the Law: Reading Sexual Minority Judgements in Contemporary India’, in Jyoti Dogra and Latika Vashist (eds.), Rethinking Law and Violence. Oxford University Press and the Indian Law Institute, forthcoming.

31. Navtej Johar, J. Chandrachud at 32-33.

32. Vanshaj Jain, ‘Navtej Johar v. Union of India – What Remains of Section 377?’ Available at https://indconlawphil.wordpress.com/2018/09/10/guest-post-navtej-johar-v-union-of-india-what-remains-of-section-377/

33. Ibid.

34. Navtej Johar, J. Chandrachud at 35.

35. Navtej Johar, J. Malhotra at 21.

36. Navtej Johar, J. Chandrachud at 76.

37. Id., p. 77.

38. Navtej Johar, CJI Misra and J. Khanwilkar at 22 (citing NALSA)

39. Id., p. 151.

40. Ibid.

41. Navtej Johar, CJI Misra and J. Khanwilkar at 18.

42. Id., p. 159.

43. Id., p. 97.

44. Id., p. 74.

45. Id., p. 74.

46. Id., p. 76.

47. Ibid.

48. Id., p. 77.

49. Ibid.

50. Ibid.

51. Ibid.

52. Id., p. 78.

53. Ibid.

54. Ibid.

55. Id., p. 159.

56. Navtej Johar, J. Chandrachud at 166.

57. Id., p. 167.

58. Id., p. 166-167, p. 169, p. 162.

59. Id., p. 162 (citing Hart).

60. Id., p. 173 (citing Naz).

61. Navtej Johar, CJI Misra and J. Khanwilkar at 65.

62. Ibid.

63. Ibid.

64. Ibid.

65. Ibid.

66. Navtej Johar, CJI Misra and J. Khanwilkar at 66.

67. Navtej Johar, J. Chandrachud at 179.

68. Ibid.

69. Id., p. 179.

70. Id., p. 180.

71. Gautam Bhatia, has offered a somewhat more historicized definition of transformative constitutionalism in his book, The Transformative Constitution. He maintains that it is an understanding that comes alive only in the context of broader historical and political demands from society. That this contradicts Navtej’s definition of it just outlined is the least of it. More disturbingly, while Bhatia’s account of Anuj Garg, his first chapter illustrating transformative constitutionalism, builds a large and catholic historical context for it, his account of Naz drops the idea of context altogether and sticks to theoretical/legal/philosophical concepts. This not only undermines his own idea of transformative constitutionalism, it shows scant respect for the complex histories – even purely in terms of legal cases that he might have read closely – of s. 377. The absence of these submerged histories is telling. It is not just his devaluing of various histories of homosexual struggle in India that is glaring here. It is the question of why the judicial route needs the heavy weather of constitutional morality and transformation to read down a Christian and sexually conservative penal provision. See Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts. Harper Collins, Delhi, 2019.

Indeed, surely the violations of Articles 14, 15, 19 and 21 of the Constitution are not reducible to the interdiction of some sexual acts in private. All the judges ignore the history of ABVA’s case calling for the repeal of s. 377 much earlier than the Naz petition altogether and the need to speak of same-sex subjects as equal under the law, as does Bhatia. The heavy weather of constitutional morality and transformative constitutionalism is surely wasted on merely some acts proscribed in private.

72. See footnote 3.

73. Gautam Bhatia, derides the PIL as a ‘wrong turn’, as ‘not consistent with the text’ of the Constitution (even as he has just told us that we must read the text in relation to the ‘broader canon’ of the social), that it takes on fully legislative and executive functions and ‘misunderstands the role of the courts in our constitutional scheme vis-à-vis popular democracy.’ He appears to forget that Naz was a PIL and that the Navtej Johar judgement does precisely all the things he decries. It demands that the court take on quasi-legislative and executive actions; it misunderstands the role of the courts which, as M.P. Singh has pointed out in relation to Naz and Koushal, is procedural and not substantive; and it attributes to itself powers to change society through a legal sleight of hand.

74. B.R. Ambedkar, Speech to the Constituent Assembly on 25 November 1949. Constituent Assembly Debates, Volume 12, 1978, p. 979.