Last week, the 16-year-old Naz Foundation case got a fresh lease of life. Approaching the Supreme Court to activate its narrowest of reliefs, the curative, the petitioners walked out of the courtroom with something unexpected. The likeliest outcome had been a dismissal, given the court’s limited record with curative petitions. The hoped-for outcome had been for the three-judge bench to admit and start hearing the matter on the limited grounds that a curative constitutes. In the end, the court decided to help us dream again. By referring the matter to a five-judge Constitution bench, the court has helped us dream a little bigger than usual.
What happens next? What does this mean for the case? Of what matter might our constitutional aspirations be composed? One could give a cautious, measured response and locate the answer in more established doctrine. But a tempered response would not do justice to a situation so gloriously unprecedented. One of the wonders of this litigation has been how it has added to our larger vocabulary of justice, how, for instance, the Delhi High Court decision revitalised Ambedkar’s notion of constitutional morality. Even when the decision was struck down in Koushal, this particular conception went from strength to strength in mainstream discourse. So with possibilities now multiplying, with five judges of the Supreme Court gearing up to sit on a matter involving “significant constitutional interpretation”, here is my wild little dream.
I hope that the court finally seizes upon the chance to expressly recognise a fundamental right to love.
Even though love as a constitutional right has never been expressly articulated in Indian jurisprudence, this isn’t as far-fetched a notion as one might think. For one, this very litigation has been gradually inching towards the idea. When Naz Foundation, a Delhi-based NGO working on HIV/AIDS-related issues approached the Delhi High Court back in 2001, the mainstay of their argument was the right to health. The factual foundation focused on how Section 377 impeded HIV/AIDS-prevention efforts by rendering outreach workers vulnerable to prosecution, and thus violated the constitutional right to health. Intimacy, at this point, was not quite at the foreground of the matter.
A few years into the process, a group of NGOs under the name, Voices Against 377, impleaded themselves into the case. Significantly, the intervention brought together affidavits from a range of individuals talking about their specific experiences of marginalisation under the law. The affidavits brought a range of lived experiences into the courtroom. One of them was the story of a gay man’s experience of coming out, and navigating homophobia. It also brings in the language of love. He notes, “I had fallen in love with a man, we were in a romantic relationship. My parents accepted him as my boyfriend and treated him as a part of our family. We had a deep bond and a caring and loving relationship. Despite this acceptance, we were unable to feel equal to other intimate relationships which are recognised under the law of this country.” The language of love opened the door towards a constitutional rights articulation focused on dignity, autonomy and privacy.
The Naz Foundation decision affirmed this. The operative paragraph of the judgment was simple — if you are a consenting adult having sexual relations within a private domain, you would not be considered a criminal. To get to this holding, the judges made some crucial jurisprudential connections, including an articulation of the right to privacy that moved away from the idea of a private domain only constituting the four corners of one’s home. Instead, privacy was an idea that rested in one’s person, that protected one’s ability to make decisions about one’s intimate life — decisional privacy.
What they still didn’t do, however, is use the word love.
Four years later, the Supreme Court’s reversal of the judgment was met with a large degree of outrage. The decision was accurately characterised by Vikram Seth as a bad day for law and love. In declaring that the section only dealt with acts and not identities, the judges sliced out the idea of relationality from the picture. Where is the question of love when all you are asked to refrain from is certain acts of sex? Never mind, of course, the fact that those acts just happen to be associated with a certain section of the population.
Two months ago, as the curative was slowly inching towards its hearing, Justice A.P. Shah, who delivered the Delhi High Court judgment, gave a public lecture in Delhi. He noted how that document had inaugurated a certain conversation in the country, compelling a move away from the language of homophobia towards a vocabulary of choice, of personal autonomy. And then, finally, for the first time, in no uncertain terms, he articulated it: It was also, essentially, about the fundamental right to love.
With the Supreme Court now lies the potential not just to set right a great wrong, but to burnish this idea into the vocabulary of justice. Love is an imperilled notion in this country today. When it goes against social conventions, it is treated as a world-shattering threat: Inter-caste unions are met with honour killings, inter-faith relationships are understood as religious insults. To recognise a right to love is to create a constitutional claim against these wrongs, to send a salvo against intolerance from the highest constitutional court in the country. The court has given us hope. Now let us see if it alchemises that hope into justice.