[Ed Note: Over the next few days, we shall be discussing Danish Sheikh’s new book, Love and Reparation: A Theatrical Response to the Section 377 Litigation in India (Seagull Books, 2021). This is the first review of the book by Surabhi Shukla. The introductory post by Douglas McDonald can be found here.]
I read with pleasure, twice, Danish Sheikh’s, ‘Love and Reparation’, a collection of two plays, Pride and Contempt. There are several remarkably subtle manoeuvres that the playwright and the lawyer makes in these plays.
The Practice of Law
The most striking, from my point of view, was the ability of these plays, especially of Contempt, which plays out in the courtroom, to accurately demonstrate the acute unpredictability of courtroom operations—a lesson that extends well beyond the Section 377 cases. No matter your level of preparation, your understanding of precedent, your mastery of casuistry, the judge can render you speechless by picking on words and phrases that you had intended but as perambulatory in your otherwise rigorous and sophisticated argument. You are then in a bind. You must answer the judge but must also redirect the dialogue to make your case. Let me demonstrate with a quick example. The opening argument by the lawyer in Contempt is:
“Your lordships, I stand before you today in the matter of Suresh Kumar Koushal v. Naz Foundation. This is a matter that affects the lives of millions of citizens in our country. We argue that Section 377 of the Indian Penal Code is unconstitutional, that it criminalizes the intimate lives of lesbian, gay, bisexual, transgender individuals in the country, that it exposes them to harassment, blackmail, persecution, prosecution. In 2009, the Delhi High Court held that it does violate the constitution, that as far as two adults who have consensual sex in private are concerned, they should not, they cannot be criminalized the under the law…”
At this point, the judge interrupts him to restate his unfinished argument—‘so the question before us is whether the Delhi High Court judgment is correct or not.’ As we later learn, this is not the question. The lawyer wishes to argue that Section 377 violates Articles 14, 15, and 21 of the Indian Constitution. He tries again and again to reach his point, in four different scenes of Contempt, conceived as ‘Rounds I-IV’, reminiscent of a boxing match, or a ‘Run Lola Run’ kind of film. In each of the four rounds, the lawyer begins with the same opening statement, and each time he is interrupted, with the judge picking on a different word, but never allowing him to reach his point. These interruptions are followed by questions, the tone of which is heavy with the weight of the hierarchical relationship between the bench and the advocate.
Lawyer- I’m only trying to tell you where this law comes from and explain to you that the historical context will help us understand why it is that specific terms like gay and lesbian are not used in the law…
Judge 1- We don’t need a history lesson counsel. This is a court of law. You just tell us what this law means.
In the preface, Sheikh has mentioned he did not ‘need to alter any utterances made by the judges.’ For anyone interested in understanding the practice of the law, these scenes are extremely instructive. In this respect, I consider the play a teaching device.
Acts v. Identities
The next striking feature of Contempt is its depiction of the key arguments in Suresh Kumar Koushal v. Union of India. Contempt tries to show the difficulty the judges were having in seeing the law in the historical context in which it was written—especially, its intention to criminalize, as the lawyers argued, the homosexual identity, and not simply a sexual act. Further, the judges were not able to appreciate the disproportionate impact of the law on the queer community, especially on those whose non-conformity was visible. The judges were not persuaded that Section 377 negatively impacted the dignity of LGBT persons. It was the judges’ understanding that the law was neutral and applied to criminalize certain acts, but not identities. To this end, sample this question from the judges: ‘[b]ut which acts? Where is that in your pleadings? You say homosexuals are not unnatural—but which acts?’ Indeed, this is where they concentrated most of their questions; a focus reflected in the final judgment. The judges asked several explicit questions about the possible meanings of ‘carnal intercourse against the order of nature.’ A selection of these questions is presented below.
Judge 1- What if…a father inserted his tongue while kissing his child?
Judge 2- What about…the breast of a mother and child?
Judge 1- A mother puts her fist in the mouth of the child…
The jarring effect of these questions is fortified by the fact that Sheikh, ‘…didn’t need to alter the utterances made by the judges.’ These questions, seem, at once, to diminish the pleas of the queer community, and to distort them to the level of absurdity.
Theatrical Overtures and their Legal Significance
In Contempt, Danish Sheikh also employs a theatrical device with a profound legal significance. The judges are seated for the duration of the play in the audience—symbolizing that the judges are a part of the society and one cannot necessarily expect them to be unaffected by societal morality. A poignant legal point is made through this manoeuvre—constitutional morality, an account of which was missing from the judgment, is certainly not instinctive. It needs to be cultivated. Some characters in Contempt appear as witnesses speaking through their affidavits in the re-enactment of the proceedings in Suresh Koushal. Danish has clarified that each of these affidavits begins, ‘with one foot planted in reality’. Not only does this allow him to showcase the experiences of some other members of the queer community, it also conveys how evidence is submitted at the higher judiciary level, and indeed how evidence was submitted in the Suresh Kumar Koushal case.
The second play, Pride, takes place after Section 377 has been read down. It deals with the meaning of the newfound legality for queer persons. Different characters in that play are occupied with different questions, partly shaped by the presence of the law. While one character comes to understand the entanglement of love and shame, when earlier he thought that legally Section 377 was not such a ‘burden’ for him, certain other characters demonstrate that their day to day life has not really changed because they are still harassed on the street.
There is a series of illuminating exchanges between the lawyers for Naz Foundation and Navtej Johar, where one glimpses the different legal strategies in these cases. The Naz Foundation lawyers believed that they had worked hard for nearly three decades to bring the LGBT issues to light and to get the court and public to understand the issues, which accounted for the eventual victory: ‘this is a case about patience. Perseverance.’ The Navtej lawyers believed that the eventual success was due to producing before the court, five gay men and women who were able to tell the court their experiences because of the presence of Section 377: ‘[t]he last time we stood before the Supreme Court in 2012, the judges asked a question: “Do you know any gay people?”…There were no LGBTQ voices before the court…[w]e made the human cost of the case tangible.’
As I have mentioned before, Sheikh introduces different queer experiences through affidavits in Contempt. In Pride, he does so through interludes. Together, they provide not only a sense of history, but also attempt to show how experiences vary by class. To that extent, these plays are also about queer history and sociology. If there is one thing I found confusing, it was the use of characters in Pride—for example, Person 3 in Pride seemed to play more than one role. Perhaps when one sees the play performed, one is not confused, but the experience was different as a reader of the plays.
The plays have many beautiful, teachable, tragic, and touching moments. However, the enduring legacy of these plays is the humour that all of the characters seem to posses. Dialogues are cleverly laced with sarcasm and quick wit. I am reminded of the episode of the ‘young genius’ lesbian who initially decides to deal with her forced visit to the psychiatrist with ‘fortitude’, but ultimately, decides to ‘really screw him’. Then there is the story of the transgender woman, who was a ‘well-fed’ child and therefore failed to die by hanging. The ability of these characters to see the absurd in their traumatic life situations and to laugh at it conveys their braveness. But, they are also inspirational and uplifting. I hope they will provide a moment of relief to the members of the queer community. I am sure they will make me smile for a long time to come.
- Section 377 of the Indian Penal Code criminalized carnal intercourse against the order of nature. In 2018, in the Navtej Singh Johar v. Union of India case, it was found that private consensual sex between consenting adults of any gender/sex could no longer be criminalized under 377. In 2013, the Supreme Court of India, in Suresh Kumar Koushal and Ors. v. Naz Foundation and Ors. had refused to find the same.
- LBGT= lesbian, bisexual, gay, and transgender. As defined by the Supreme Court in NALSA, transgender persons include all those whose gender identity does not match with the sex assigned at birth, regardless of any medical procedure. It includes, transmen and transwomen, non-binary, gender-fluid, regional variations of transgender populations, etc.
Surabhi Shukla completed her B.A.LL.B. (Hons.) from the National Law School of India University (NLSIU) in 2011 and her LL.M. from the UCLA School of Law in 2012. She was awarded the Dean’s Tuition Fellowship and the Narotam Sekhsaria Foundation Scholarship to attend UCLA. She has worked at the ACLU of Southern California in Los Angeles, the Williams Institute at UCLA, the Supreme Court of India, and taught as an Assistant Professor of Law at the O. P. Jindal Global University, India, before starting her DPhil at Oxford. She blogs on sexual orientation and gender identity cases in Indian courts, at: https://lawandsexuality.com/
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