MAHARASHTRA NATIONAL LAW UNIVERSITY, MUMBAI.

JURISPRUDENCE
SEMESTER-IV
FINAL DRAFT

NAME: SIDDHANT LOKHANDE.

ROLL NUMBER: 2017-054.

COURSE: B.A., LL.B.(Hons.)

SUBMITTED TO: Prof. Abhijit Rohi

DATE OF SUBMISSION:18TH MARCH 2019.

The experience to date illustrates, the development of frameworks to embrace diversity and
induce solidarity within and across outgroups is a difficult and delicate task. 1 Anti-
subordination progress therefore always will be uncertain, perhaps sometimes impossible. But
as judges one must be devoted to the achievement of social justice for sexual minorities and
other disempowered outgroups, one cannot evade the role judges play in a legalistic society.2
This burden was taken up upon themselves by the judges on the bench while deciding the case
of Navtej Singh Johar v. Union of India. The paper will begin with looking into the majoritarian
notions of gender identity and its impact on the laws of the country, later the paper will
overview the shift in the notions and the impact of that shift on the decision of the court in the
case of Navtej Singh Johar.3

"Cultural war" is a phenomenon that very much affects contemporary law and lawmaking in a
society wedded to "government by law" and justified by the belief that its laws are
presumptively just-and hence, justified-precisely because they are formally "democratic."4Yet
the version of "democracy" that predominates in this country accommodates subordination
through cultural war and backlash law-making because it valorises and enforces majority self-
interest, even while it problematizes majoritarian power when it verges on a formal, as opposed
to a functional, form of cultural supremacy."5

In a close call, and on other occasions, prevalent forms of majoritarianism strongly caution
against the use of judicial power to upset the arrangements put in place by those able to
dominate the political institutions. The initiation of Queer legal theory, as envisioned here, is
made possible and necessary by the formation of a Queer community and consciousness that
literally did not exist before because of the majoritarian notions of gender identity. Queer legal
theory is made possible by this newfound sensibility because this new community has attained
"sexual minority-hood"-- Gays, Lesbians, Bisexuals, and the trans- gendered now form bona
fide and functional minorities akin to women and racial or ethnic minorities. The initiation of
Queer legal theory is made necessary as well by the sense of resolute opposition to continued
subordination that in recent years has arisen among sexual minorities and that increasingly

1
Franciso Valdes, Latinafo Ethnicities, Critical Race Theory, and Post-Identity Politics in Postmodern Legal
Culture: From Practices to Possibilities, 9 LA RAZA L.J. 1, 2- 7 (1996)
2
MARY ANN GLENDON, A NATION UNDER LAWYERS (1994)
3
NAVTEJ SINGH JOHAR & ORS. V. UNION OF INDIA THR. SECRETARY MINISTRY OF LAW AND
JUSTICE , WRIT PETITION (CRIMINAL) NO. 76 OF 2016, India: Supreme Court (2018)
4
JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980)
5
JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTTrUTIONAL LAW 374- 80 (4th ed. 1991).
seems to define sexual minority consciousness, which was strongly reflected in the Navtej
Judgement as well as in the Puttuswamy judgement wherein the court recognised the idea that
sexual orientation of a person is not the matter of general public interest but rather involves
private decision of an individual.

Hence, it is no coincidence that contemporary Feminist, Critical Race and Queer agendas
resemble each other: all three of them seek an end to the ideological occupation of our jobs,
homes and hearts-- ourselves. Likewise, it is no coincidence that Feminist and Queer progress
is opposed by common adversaries: traditionalist forces that oppose sex/gender equality and
that argue for a "return" to "traditional values" (by which they mean a return to heightened
societal control over bodies, personalities, desires, and aspirations) are the main adversaries
both of Feminists and of Queers. In the courtrooms, legislatures, and streets of the land, women
and sexual minorities spook the same forces because we pursue the same sex/gender goals; in
both instances the pursuit of equality is clashing with the traditions of hetero- patriarchy.6
During the past decade or so, the law's sister disciplines have been developing a critical theory
that today is a powerful tool available for importation into and application within legal culture.
This critical theory, known as social constructionism, is a powerful critical tool, both outside
of and within legal culture, because its basic point advances a fundamental insight: that the
human condition is a social construction, and not a "natural" or necessary condition.7

Generally, social constructionism challenges the notion of an "essential" or inherent reality,

and thereby it questions the validity of the status quo as a set of conditions that can be justified
as such. Instead, social constructionism focuses on the way in which conditions or
circumstances thought to be "just so" are in fact arranged by socially dominant forces. By
reminding us at all times that the status quo is a humanly constructed reality, social
constructionism reminds us that the status quo cannot make claim to inherent value or
legitimacy.

Despite Queer theory's potential to expose social inequality, it has not yet captured the attention
of the public. But it surely is reflected in the judicial decisions, which has enabled and
legitimized the discourse surrounding the queer legal theory.

6
JAMES DAVISON HUNTER, CULTURE WARS: THE STRUGGLE TO DEFINE AMERICA (1991) .
7
FORMS OF DESIRE: SEXUAL ORIENTATION AND THE SOCIAL CONSTRUCTIONIST
CONTROVERSY (Edward Stein ed., 1990).
Three primary models of sexuality have dominated Western twentieth-century discussion:
natural, biological, and social. The natural model relies on the idea of universal norms.8 Its
proponents believe society has a moral and ethical obligation (and capacity) to encourage
"natural," and discourage "unnatural," sexualities.9 For example, sexual relations between
married persons are considered "natural" but incest and pederasty are "unnatural." Under the
biological model, sexuality is an innate force that society must struggle, though fail, to
contain.10 Consequently, sexual desire may jeopardize other social norms (such as a
monogamous marital relationship) because the sexual actor "just couldn't help himself." So far,
the natural and biological theories have monopolized popular, and legal, discourse. Yet, Queer
theorists adopt a social model, which treats sexuality as the product of intersecting cultural and
historical events.11 The aforesaid was also accepted by Chief Justice Dipak Mishra in his ratio
and he went on ahead and analysed the discourse surrounding sexual orientation. Queer theory
recognises the idea of multiple identities and local narratives challenging the notion of
universality, all the judges recognize the nature of sexual orientation as inherently individual
and also attribute it the protection of privacy. The Queer legal embraces indeterminacy, making
it broadly inclusive across the lines that have traditionally defined gender and sexuality. 12CJI.
Dipak Mishra went on to say that inclusiveness is one of the essential attributes of the Indian
constitution, in recent past judiciary has been key institution wherein the impact of post-modern
ideology is most evident. The theory critically examines the manner in which heterosexuality
has, silently but saliently, maintained itself as a hidden yet powerfully privileged norm; and an
implicit, if not explicit, questioning of the goals of formal equality that, on their face, simply
reify the very categories that have generated heterosexual privilege and Queer oppression.'13
This fact that the social morality is guided by the majoritarian perception was taken into
consideration and social morality was juxtaposed with constitutional morality and it was held
unanimously that constitutional morality shall prevail over social morality. Any attempt to push
and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the
society would violate the principle of constitutional morality is what the court concludes. The

8
WILLIAM N. ESKRIDGE, JR. & NAN HUNTER, SEXUALITY, GENDER, AND THE LAW 227 (1997).
9
Supra Note 7.
10
Id.
11
Id.
12
Laurie Rose Kepros, Queer Theory: Weed or Seed in the Garden of Legal Theory, 9 Law & Sexuality: Rev.
Lesbian, Gay, Bisexual & Transgender Legal Issues 279 (1999-2000)
13
Fineman, Martha & Jackson, J.E. & Romero, A.P.. (2009). Feminist and queer legal theory: Intimate
encounters, uncomfortable conversations. Feminist and Queer Legal Theory: Intimate Encounters,
Uncomfortable Conversations. 1-490.
theory in general has affected large part of the elite Indian society and still is gradually being
naturalised into lower class groups.

Queer theory arose in a cultural, historical, and theoretical context. It has relied on other
theories, like lesbian feminism, to contribute scholarship to its development. It has also shared,
with critical race and other minority theories, the goal of serving historically oppressed
communities.14 So as LGBT political theory has borrowed many of its strategies from the civil
rights movements of the 1950s and 1960s, and are being utilized at present for mass
mobilization of the community against the hetro-normative notions of sexuality. Valdes
proposes eight strategies for LGBT and argues for an ultimate goal of "sex/gender dignity and
freedom for every individual."15 Many of the strategies suggested by Valdes are recognised as
arguments against the validity of Sec 377 of the Indian Penal Code. One of the most important
strategy which has been recognised by the court is that transcending "privacy" means
promoting the idea that sexuality functions in public, as well as private, life. Based on the
decision in K.S.Putttuswamy16 the court held that sexual orientation is also an essential attribute of
privacy, also it was held that it is imperative that the protection granted for consensual acts in
private must also be available in situations where sexual minorities are vulnerable in public
spaces on account of their sexuality and appearance.17

Jurisprudents are increasingly realizing that the strength of a narrative may be a compelling, or
dispositive, factor in decision making.18 "' Moving toward a Queer legal narrative means
Queers must inform judges who, as Posner candidly recognized, generally lack any personal
experience as Queers, of the contours of Queer experiences."19Narratives will help judges root
legal understanding of Queers in reality rather than heterosexist fiction. As a result, while the
evolution of a Queer narrative may be slow, convincing courts to listen will eventually become
a self-sustaining task because the judicial narrative will both reflect and construct social
reality.20 Simultaneously, narratives will serve as real world reminders to Queer theorists of

14
Laurie Rose Kepros, Queer Theory: Weed or Seed in the Garden of Legal Theory, 9 Law & Sexuality: Rev.
Lesbian, Gay, Bisexual & Transgender Legal Issues 279 (1999-2000)
15
Id.
16
Justice K.S.Puttaswamy(Retd) vs Union Of India (2017) (10 SCC 1)
17
Id.
18
See Larry Cata Backer, Tweaking Facts, Speaking Judgment: Judicial Transmogrification of Case Narrative
as Jurisprudence in the United States and Britain, 6 S. CAL. INTERDISC. L.J. 611 (1998).
19
RICHARD A. POSNER, SEX AND REASON 1 (1992). "Renaissance Judge"
20
Supra Note 16.
the concrete and compelling effects of hetero-sexism and encourage them to continue
developing LGBT in politically meaningful ways.