- J. Daniel Elam*
On Thursday, 09th September 2018, the Supreme Court of India delivered a significant decision to read down Section 377 of the Indian Penal Code, 1860, which had been used to criminalise homosexual sex. Although Section 377 is notoriously vague in its definition, its application across India had been to silence, police, and persecute LGBT Indians. The decision not only overruled the 2009 judgment (Naz Foundation v. Govt. of NCT of Delhi), but also included an unprecedented apology for past injustices (para 20, page 48). The judgment is far more visionary in its scope and in its concept of justice as compared to those judgments written by previous courts and in other countries that have decriminalised homosexuality. The Supreme Court of India has taken juridical initiative in setting forth guidelines for legal justice in advance of and as a precedent for social justice. Former Chief Justice Dipak Misra and Justice A.M. Khanwilkar deserve praise for their decision and for their boldly written judgments.
The decision and the judgment will rightly receive praise for a number of reasons and will likely serve as guidance for other post-colonial countries whose versions of Section 377 were based on the same documents by T.B. Macaulay. However, one of the sources that the judgment relies upon should receive special attention and praise for its prescience: it is a quote from Dalit activist and leader B.R. Ambedkar’s ‘undelivered lecture’ from 1936, Annihilation of Caste. In the quoted section, Ambedkar describes in detail the components necessary for a democratic society. The judges offer the quote at length- here is their selection:
An ideal society should be mobile, should be full of channels for conveying a change taking place in one part to other parts. In an ideal society there should be many interests consciously communicated and shared. There should be varied and free points of contact with other modes of association. In other words there must be social endosmosis. This is fraternity, which is only another name for democracy.[1]
Along with many other scholars and Dalit activists, I have written about the importance of this particular paragraph.[2] In it, Ambedkar goes beyond the traditional conceptions of democracy as merely a political system to claim the necessity of shared social experiences, like ‘fraternity’. In 1936, it was a response to the common claim among upper-caste Hindu reformers that the ‘problem of untouchability’ was neither political nor social, but religious in nature. Ambedkar’s claim in Annihilation of Caste is that neither society nor any responsible government could exist at all if a certain set of people were fundamentally and perpetually excluded from participating in those societies and governments. In order for India to declare itself a ‘society’ or a ‘nation’ apart from the British Raj, it must first establish ‘varied and free points of contact’ and ‘associated living’. ‘Points of contact’, ‘associated living’, and ‘conjoint communicated experiences’ are all acts that require inter-caste touching, dining, and marriage; Ambedkar’s demand is both poetic and literal in this context.
It might be possible that the judges included Ambedkar’s Annihilation of Caste because they aligned the oppression of caste-based hierarchy with the oppression faced by LGBT people. (Though this might be the case, Dalits face different forms of discrimination as compared to LGBT people in India, and Dalit LGBT people face even more different forms of discrimination.) This would, as well, be an allusion to Ambedkar’s insistence on social democracy (or ‘fraternity’) as the sole guarantor of political democracy. On those terms alone, the recognition of the denial of citizenship and democratic belonging in both cases is an important step in the right direction by the Supreme Court. In doing so, the Supreme Court openly acknowledges that the production of hierarchical citizenship – or the refusal of civil protections – is a crime that must be redressed.
But any citation of Ambedkar would have made this point clearly enough. The judges’ choice of this particular paragraph stands out for an additional, crucial reason. The most curious term in this paragraph, though it is often overlooked, is ‘social endosmosis’. The term was coined by Ambedkar’s mentor at Columbia University, John Dewey. For Dewey, ‘social endosmosis’ is the product of placing people who would not otherwise meet, in close contact with each other – ideally in public school classrooms. ‘Endosmosis’, a word Dewey borrows from nineteenth century biophysics, describes the sensation of intimacy and contact with others, which produces political actors who realise they are dependent on everyone else in a society. Without sharing the world with everyone else – without ‘social endosmosis’ – people in all positions of privilege or disadvantage would fail, wither, and die. A lack of sharing, communicating, and appreciating points of contact does not only hurt those most at risk but also isolates those in positions of power. A group of people without ‘social endosmosis’ is on a course guaranteed for failure and extinction.[3]
At the beginning of their decision, the judges declare that LGBT people have individual rights over their identity and identification for which they cannot be criminalised, and which may not be denied by the state. This is a relatively straightforward claim, and it is one on which many countries have previously decriminalised homosexuality and LGBT people. Asserting the right of the individual to self-identify and act in accordance to their identity is a necessity for a liberal democracy.
At the same time, LGBT people face forms of discrimination that continue long after they ‘come out’ or identify as LGBT. Among the foremost problems facing LGBT people (and especially LGBT youth) is familial rejection and social isolation. For LGBT people who have been denied the right to social goods – like sexual health care, protection from violence and abuse, and the right to free association – the right to self-identify becomes a relatively hollow right. Across the world, LGBT people struggle to fit into societies that reject them, and LGBT people die significantly younger than their heterosexual peers and are more likely to suffer from depression. Granting an individual right to identity is a necessary but insufficient step in correcting previous abuses.
This is precisely why Ambedkar’s commitment to ‘social endosmosis’ and ‘fraternity’ matters: by citing this particular demand in Annihilation of Caste, Misra and Khanwilkar move one step beyond simply reading down Section 377. Their vision for a properly just, fair, and healthy political community involves individuals coming together in community to forge a democracy that leaves out no one. The judgment becomes, by way of this decision, that LGBT people deserve not simply to exist as individual citizens but that LGBT people deserve to be supported and embraced as equal citizens in India. Like Ambedkar and Dewey assert, this will not only benefit the LGBT community, but will benefit all members of the Indian political community. It will save the lives of LGBT youth, but it will also benefit their heterosexual friends, who will grow up with a wider range of identities available to them. This ruling guarantees the right of Indians, collectively, to assert the democratic community that Ambedkar envisioned.
The Section 377 ruling articulates the juridical vision for such a community – by both humbly apologising for past atrocities and boldly proclaiming a renewed democratic vision. It is written in such a way that opens the possibility for not only more rights but more democracy. Whereas ‘rights’ may be granted to individuals – and are incredibly important to demand and defend – democracy is that which the collective produces together. This key difference is all the more crucial in a fractured political landscape, especially in India, where the rights discourse has served the interests of majoritarian rule as much as (if not more than) it has served to protect minorities. The 377 ruling is a judgment that pushes us one step closer to the world Ambedkar imagined in 1936. Although we are still far away from that world, at least this judgment is facing in that direction.
*J. Daniel Elam is an Assistant Professor at the University of Hong Kong.
[1] B R Ambedkar, ‘Annihilation of Caste’ in Valerian Rodrigues (ed), The Essential Writings of B.R. Ambedkar 276. (In the Supreme Court ruling, the quotation is found on page 171.)
[2] Many essays in a forthcoming Oxford University Press anthology (edited by Aakash Rathore Singh) discuss this, as well as the forthcoming Cambridge Companion to B.R. Ambedkar (edited by Anupama Rao and Shailaja Paik). V. Geetha has written about Ambedkar’s library for The Wire (https://thewire.in/caste/unpacking-library-babasaheb-ambedkar-world-books). See, most notably, Anjani Kapoor and Manu Bhagavan, ‘Beyond the Nation: Ambedkar and the Anti-Isolation of Fellowship’ in Anand Teltumbde and Suraj Yengde (ed), The Radical in Ambedkar (Delhi: Penguin, 2018).
[3] John Dewey, Democracy and Education (1916); see especially chapter 7.