“Did the Supreme Court, in obiter, but even so, just give Suresh Kumar Kaushal a well-deserved kick in the pants?” asks the Facebook status of a gay lawyer friend. Another is rushing to a TV station to celebrate the Supreme Court’s privacy judgment in a live show. As usual, there is no reflection on what privacy actually means and to whom.
Those of us who critiqued the Naz judgment in its use of privacy had pointed out the classist nature of the idea of privacy. That it would do little for hijras, most of whom practise public sex for a living, that it would not apply to Dalit and Adivasi women choosing to live with each other, whether or not they could afford private dwellings. Our argument was that the private sphere is a highly limited, bourgeois and problematic idea that has its provenance in a Western history that has a fractured and limited bearing on the contexts here.
The Naz judgment spoke of the private sphere as one which “allows persons to develop human relations without interference from the outside community or from the state”. The utter absurdity of such an idea should be apparent. The private sphere is made up of precisely the outside community and the state. This untenable binary between outside and inside is fantastical — where is this purely wonderful space without interference? Does it exist? And what about the violence against women and sexual minorities in the private sphere of the family, for example, for which recourse to the state is often the only way out?
The privacy judgment continuing Naz’s logic says, “The exercise of autonomy enables an individual to attain fulfilment, grow in self-esteem, build relationships of his or her choice and fulfil all legitimate goals that he or she may set.” Once again, this idea of autonomy is delusional, to say the least. It is part of a notional and fanciful judgment upholding citations from international judgments and ideas that we must emulate and reach — talk about colonialism! — even as we must also, as Naz told us, get over the Judaeo-Christian taboo on homosexuality.
Those guys with all these fantastic judgments have the taboos, we don’t. We were always cool about homosexuality till they came along — talk about naive postcolonialism! It is fashionable to attack the Kaushal judgment as nativist, ill-informed and wrong-headed but it is actually a judgment that more realistically maps the sexual conservatism of the society we live in and is scrupulous in its avoidance of judicial overreach and elite globalised judicial activism.
Thursday’s privacy judgment by the Supreme Court picks on two of Kaushal’s weak arguments against Naz — the numbers (the miniscule minority, he was referring to the number of LGBTs persecuted under Section 377 in its 150-year history) and its reliance on exclusively foreign judgments — and cites them as constitutionally untenable. In contrast, it says: “Sexual orientation is an essential attribute of privacy.” Why is it then that we seek to bring it into the public sphere of legal and state recognition at all? A simple question worth mulling over as we celebrate this ludicrous judgment.
(The author is an LGBTQ activist)