Law, Gender and Sexuality in India: Litigation - King's College London
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Law, Gender and Sexuality in India: Litigation
and Advocacy
Professor Dipika Jain
ETLP,15th to 19th January 2018
Dickson Poon School of Law
King’s College London
Professor contact email: djain@jgu.edu.in
COURSE DESCRIPTION
“Law, Gender and Sexuality in India: Litigation and Advocacy” will critically engage
with three judgements of the Indian Courts on sexuality and gender minority rights and
cultivate an understanding of the gender, sexuality and the law discourse in India.
The Supreme Court of India has had a steady history of progressive judicial activism; with
many recent judgments granting or expanding both constitutional and human rights, the
Supreme Court has been touted as a source for progressive reforms in India. In December
2013, however, the Court issued a surprising decision overturning a 2009 Delhi High Court
( Naz Foundation) decision and reinstating Section 377—thus, re-criminalizing private
consensual same-sex intercourse (Koushal Case). The Court’s judgment represented a
striking withdrawal from global trends recognizing LGBT rights and human rights
principles. In April 2014, a landmark judgment delivered by the Supreme Court in NALSA
v. Union of India recognized a third gender category (beyond man and woman) entitled to
equal rights under the Constitution of India. The judgment in NALSA v. Union of India is
a clear departure from the Supreme Court’s restrictive rights analysis and narrow
constitutional reasoning in Koushal judgment recriminalizing private consensual same-sex
sexual acts. Beyond the question of the Court’s constitutional duty, the benches in Koushal
and NALSA diverge widely on the scope of the rights guaranteed by the Constitution itself.
The Courts in all the three judgements either employs or rejects legal and judicial
innovations developed in foreign jurisdictions. For example, the NALSA judgment relies
heavily on the Court’s ability to create new law when required to respect India’s
1international convention obligations (as long as such law does not contradict current
statutory law). The judgement also cites several foreign statutes which have guaranteed the
equality of transgender and gender variant persons as well as mandated certain legal and
social entitlements. These include namely: Australia’s Sex Discrimination Act and Sex
Discrimination Amendment, European Union Legislation (Recital 3), and Argentina’s
Gender Identity Law. Such transnational perspective in the class is likely to deepen one’s
understanding of transnational sexuality and gender norms and discourses in other
jurisdictions vis-a-vis India.
The central questions this course seeks to explore is: How do Courts construct and engage
with identity, constitutional morality, public morality, rights of sexual and gender
minorities? The course focuses on the role of Courts in creating and reinforcing sex, sexual
orientation, desire, and gender norms.
In addition, the course will also critically evaluate strategies employed by activist in India
to engage with litigation. This course will draw from a wide range of materials including
law review articles, fiction, non-fiction, newspaper articles, films, comics etc.
Keywords: sexuality; law; desire; culture; intimacy; transgender; gender; Hijra; erotic
GOALS
This course will train students to
1) understand the legal and human rights issues relating to gender identity and sexual
orientation,
2) cultivate an understanding of the gender, sexuality and the legal discourse in India,
3) appreciate the litigation strategies of activists in India.
LERANING OUTCOMES
Students will be able to
1) demonstrate ability to think critically,
2) discuss and problematize central themes addressed through the course,
3) work effectively in a group setting,
4) appreciate the legal discourse on sexuality and gender in India and
5) critically engage with the Public Interest Litigation system in India as used by the
activists.
Due to the short, intensive format (5 classes of 2,5 hours each) of the course, the assessment
is based on attendance and participation.
2COURSE SYLLABUS
The following programme is intended to be only a guide and is subject to variation. The course
is divided into five modules:
Tuesday, 15th January 2017
Class I – Setting the Stage
Reading:
• Gayle Rubin, ‘Thinking Sex: Notes for Radical Theory of the Politics of Sexuality’
in Richard Guy Parker and Peter Aggleton, Culture Society and Sexuality
(Psychology Press, 1999).page 143 to 155
• Arvind Narrain and Gautam Bhan, Because I Have a Voice: Queer Politics in India
(Yoda Press, 2008). Page 1 to 10
Movie:
• Film, All About My Mother, directed by Pedro Almodóvar (16 April 1999)
Please watch this movie and do the readings and write a one to two-page reaction paper
reflecting on all three. The reaction paper may be submitted to djain@jgu.edu.in.
Tuesday, 16th January 2017
Class II – Decriminalized Citizens
Readings:
• Nivedita Menon, ‘India: Section 377: How natural is normal?’, January 2014,
available at: http://www.sacw.net/SexualityMinorities/nivedita01Jan2004.html
• Ratna Kapur, ‘Too Hot to handle: The Cultural Politics of Fire’ in Brinda Bose,
Translating Desire: The Politics of Gender and Culture in India (Katha, 2002).
Cases:
• Naz Foundation vs. Govt. of NCT of Delhi, WP(C) No. 7455/2001, available at:
https://www.escr-net.org/sites/default/files/Court_decision.pdf
3Movies:
• Film, Fire, directed by Deepa Metha (6 September 1996)
Wednesday, 17 January 2017
Class III – Re-criminalized Citizens
Readings:
• Dipika Jain, Impact of the Decriminalization of Homosexuality in Delhi: An
Empirical Study, Arkansas Journal of Social Change and Public Service (January,
2013).
• Danish Sheikh, The Road to Decriminalization: Litigating India’s Anti Sodomy
Law, Yale Human Rights and Development Journal, (2014)
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1117&context=y
hrdlj
• Ashley Tellis, Disrupting the Dinner Table: Re-thinking the ‘Queer Movement’ in
India, Jindal Global Law Review (2012)
https://www.academia.edu/4066880/Disrupting_the_Dinner_Table_Re-
thinking_the_Queer_Movement_in_Contemporary_India?auto=download
Cases:
• Suresh Kumar Koushal and another vs. NAZ Foundation and Others, Civil Appeal
No. 10972 of 2013 http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070
Movies:
• Film, Aligarh, directed by Hansal Mehta (4 October 2015)
Wednesday, 18 January 2017
Class IV – Recognition of Transgender Rights: Rights Revolution?
Readings:
• A. Revathi and Nandini Murali, A Life in Trans Activism (Zubaan Books, 2016).
• Dipika Jain et al, Legally Invisible, Seminar (January 2014)
• Dipika Jain,
4• Aniruddha Dutta, Contradictory Tendencies: Supreme Court’s NALSA Judgement
on Transgender Recognition and Rights, Journal of Indian Law and Society (
2014) (http://www.manupatra.co.in/newsline/articles/Upload/FC172F97-B266-
4AA2-8739-0BDB7E2D966C.pdf
Cases:
• NALSA vs. Union of India, WP (Civil) No 604 of 2013, available at:
http://supremecourtofindia.nic.in/outtoday/wc40012.pdf
Movies:
• Film, My Life in Pink, directed by Alain Berliner (28 May 1997)
Thursday, 19 January 2017
Class V –Action and Application
This class will be dedicated to practical application of critical method to some of the core
popular culture texts on sexuality and desire. Students will be divided into three groups.
Each group will engage with one of the following. Students are expected to engage
seriously with this assignment and present the engagement in class. There will be a detail
discussion on each of the presentations. Questions of litigation and advocacy will also
emerge from these presentations.
Group a:
• Film series, X-Men Series, produced by Lauren Shuler Donner (2000 – ongoing)
Group b:
• Film, Aligarh, directed by Hansal Mehta (4 October 2015)
Group c:
• Film, The Danish Girl, directed by Tom Hooper (31 December 2015)
5You can also read
