Book examines Supreme Court judgements on sex, sexuality, gender

The Supreme Court has been performing a delicate balancing act between social practices and personal rights since its inception nearly 70 years ago but has woken up to the enormous task ahead of it in relation to issues of sex, sexuality and gender only in the relatively recent past, says a new book.

"Sex and the Supreme Court: How the Law Is Upholding the Dignity of the Indian Citizen", edited by Saurabh Kirpal, attempts 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 and the book explores the relationship between the law, that is, the Constitution, the rights of an individual, and how these rights are enforced by the apex court.

An examination of the nature of the 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 book, published by Hachette India, says.

"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," it says.

On September 6, 2018, the Supreme Court created history by reading down Section 377 - reversing an archaic law laid down by the British in 1860 and decriminalising homosexuality for the first 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 apex court has firmly placed the individual at the centre of the constitutional firmament, and set a course for progressive societal reform.

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.

In this collection of writings, legal luminaries offer 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 Kirpal - offer legal perspectives of judgements on sex, sexuality and gender.

Petitioners like Ritu Dalmia, Keshav Suri and Zainab Patel provide personal narratives of being a part of the LGBTQ community in India, while journalist Namita Bhandare gives an 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" also reveals the power of the country's courts to uphold the privacy, dignity and safety of its citizens.