Debjyoti Ghosh*

Who is an ideal citizen? Someone who bows to the superiority of the constitution of a democracy? Someone who follows the law? Someone who follows the (hetero)normativity set in place by the larger society? Someone who marries a person of the opposite gender and peoples the country with little patriots? The notion of the universal citizen, while founded on political liberal traditions, overlooks several sections of society that are treated unequally and inequitably. By ignoring the power dynamics within society, it expresses the positionality of the dominant groups in society, whose views are normalised and generalised. These carry on being reproduced in the collective psyche of the citizens. Thus, citizenship furthers the interests of those who are the “normal”, the “mainstream”, that is, those assimilated within the objective abstractions of liberal citizenship (Young, 1989, 1990).

Political liberalism, a value through which democracies are supposed to function tends to ignore several power dynamics that appear in the relational nature in which we as humans in a society function. It assumes objective abstraction, something attributed to males, and, consequentially, dismisses body and emotion. Thus, non-males – for the longest time defined as only women – didn’t qualify for being full citizens because of the apparent irrationality governing them. Such an exclusionary assumption only emerges in the first place because what is said to be “universal” about citizenship actually expresses the positionality of the dominant groups in society, whose views are normalised and generalised: generally, able-bodied white men. Deeply rooted in patriarchy and imperialism, citizenship in liberalist traditions is, in a nutshell, for the distinct group of the “civilised”.

Citizenship can be viewed, thus, as a historically patriarchal and exclusionary political project. These deep roots carry on being reproduced in the collective psyche of the citizens creating modes of oppressions for anyone who doesn’t fit into this construct. Young identifies five types of oppression: exploitation, marginalisation, powerlessness, cultural imperialism, and violence. According to her, any oppressed group would be experiencing at least one, if not more, of these oppressions. These groups “includes women and other groups as defined as different, because its rational and universal status derives only from its opposition to affectivity, particularity and the body”.

Thus, in different contexts, citizenship has left out (and still leaves out) people of colour, indigenous people, cis women, and does not acknowledge and recognise several minority groups – some of whom still fall through the cracks in well-established democracies such as India. Since its inception, the concept of being an Indian citizen has been fraught with uncertainty. Painted with the brush of nationalism, Indian citizenship has been pitted against the citizenship ideas of Pakistan, time and again. Yet, it is the same jingoistic idea of citizenship that the polity carries with it while trying to exclude particular populations from exercising equal rights as citizens. The LGBT+ population of India is one such group. This grouping is problematic by itself because it encompasses several lives at multiple intersections of sexuality, gender, caste, class, religion. While the acronym might be small, the reality is as expansive as the diversity of the Indian subcontinent. We resort to this acronym partly because of the type of precarity that law and society thrust on the population jointly, even though the level of precarity differs for each and every one of these sexual and gender identities, and each individual as well given the heterogeneity of our population.

LGBTQI+ rights have had an uphill journey in India, and it still carries on. On one hand, particular groups of people are keen on transgender rights being upheld because of the broader identity being located within the paradigms of Hindu mythology. On the other, the stereotypes around masculinities and femininities deny larger social acceptance of most queer identities, particularly by conservative factions. This denies basic rights to LGBTQI+ citizens. The legislative inequalities, while recently reduced, are far from being resolved. Thus, queer citizens are burdened with all the duties owed to the State, without necessarily having access to rights.

This was a long time coming, given that the first time the queer populace of India felt a glimmer of hope from the judiciary was in July 2009 with Delhi High Court’s judgment in Naz Foundation vs Government of NCT of Delhi (160 Delhi Law Times 277). However, that hope was crushed in 2013 by the Supreme Court of India with Suresh Kumar Koushal vs Naz Foundation (Civil Appeal No. 10972 OF 2013). In the latter, the bench opined that queer people made up a ‘miniscule (sic) fraction of the country’s population’, and, thus, there was no need to grant such relief. Such a bizarre reading of minority rights would have made even first year law students balk. Hence, when a fairly expansive judgment was given in September 2018 with Navtej Singh Johar and others vs Union of India (while only decriminalizing consensual non-procreative sexual behaviour), it was a massive sigh of relief, as it could now be a stepping stone to gain access to rights 1 . In many ways, this was a watershed moment in Indian Judicial history – very few judicial decisions have had such far-reaching effects. With Navtej, Section 377 of the Indian Penal Code was read down and non-procreative consensual sexual behaviour between adults was decriminalised. This section, in its various avatars, is something that still manages to cast its awful shadow across different former British colonies till date. While the law was meant to criminalise such non-procreative sexual behaviour between everyone, it was used particularly to harass men who have sex with men, transgender women and transvestites.

This epic moment wasn’t without its trials. The Government of India’s reaction in the courtroom was to delay the proceedings as much as possible. This might have been a reaction to the overall conservativeness of the ruling party’s vote bank (irrespective of religious factions). In fact, seldom had an issue brought the most conservative of Hindus, Muslims and Christians together to agree on one thing – their opposing the reading down of Section 377. . Despite everything, it came through. However, who did it come through with? The petitioners ranged from a group of queer people from an elite institution, a person who is the scion of one of the larger privately owned hotel chains in India, and several openly gay lawyers representing the petitioners. There was a shift from the previous case that had been represented by several NGOs, with queer people from all walks of life. There was a definite gentrification of the petitioners – something that probably helped create a narrative about queer people being contributing citizens, the excelling citizens, the elite. Nevertheless, it was a moment of victory – something that everyone could share in.

How much have we actually progressed since then? While on paper, LGBT rights seemed to have gained ground, but in actuality, we are a long way from finding open representation in most public offices. Senior Advocate Saurabh Kirpal was among the queer lawyers representing the petitioners in Navtej. He has fought several legal cases of high importance, has proved himself to be an able lawyer over the past few decades, and is also an author of two books. Kirpal has always been open about him being gay, and having a partner who is a Swiss National. In 2017, the Delhi High Court’s Collegium recommended Kirpal’s name for elevation to the status of a judge of the Delhi High Court. One might have thought that his work might have stood him in good stead. Instead, it was in November 2021 – a good three years later – that the Supreme Court of India’s Collegium approved the recommendation and sent the recommendation forward to the Government of India.

The Government of India’s Research and Analysis Wing (‘R &AW’) sent two objections, one in 2019 and another in 2021. The objections cited are that Kirpal has a partner who is a Swiss national, and that he has an intimate relationship with him, and that Kirpal is open about his sexuality. The Union Law Minister wrote to the Supreme Court’s Collegium, stating that although, “homosexuality stands de-criminalised in India, nonetheless same-sex marriage still remains bereft of recognition either in codified statutory law or uncodified personal law in India”. Also, Kirpal’s “ardent involvement and passionate attachment to the cause of gay-rights” would render him biased in any case regarding LGBT+ rights.

Merely going by this logic, any heterosexual person who’s a judge must be biased towards any heterosexual person defending their right to be anything under the law. Moreover, it seems like anyone who has a relationship that is not legally contracted, i.e., a marriage under any of the legislations in India, or recognised under them, is incapable of delivering a sound judgement merely on the basis of the letter 1 It also helped in the transgender rights movement, which had gained momentum with the NALSA judgment granting recognition to transgender people. However, given that the population was also affected by Section 377, it was a victory all round of the law and the Constitution of India. Also, this differentiation perpetuates the idea that LGBT+ citizens of India are lesser citizens. They are unworthy of equality and equal treatment under the eyes of the law.

Much to everyone’s surprise and delight, the Supreme Court of India’s collegium did not give in to the Government of India’s objection. Instead, in January 2023, it iterated that the objections raised by the R&AW do not hold in good stead as several people holding posts of constitutional importance have partners who are foreigners. Kirpal’s partner being Swiss is of no negative consequence as Switzerland is friendly towards India. Also, it was pointed out that the fact that he is open about his sexuality is something that Kirpal ought to be lauded for. The collegium was also happy to look the other way about Kirpal speaking to the press about his candidature, given that there has been an unprecedented delay in the entire procedure. The fact that the issue of Kirpal being in a relationship with a person of the same gender has come under the scanner shows the sheer hypocrisy of the Indian polity. The double standards for people in non-heterosexual relationships and the constant need to prove worthiness as a loyal citizen is a tiresome affair (Chandrachud et al, 2023).

On 13th March, 2023, the Supreme Court of India decided to refer the matter of same-sex marriage, as per them a matter of “seminal importance”, to a constitutional bench of five judges. In the meantime, the Government of India has raised several objections to same-sex marriage. Primarily, it is looking at marriage as an institution or contract between a man and a woman. While this definition has been disavowed by several countries across the world, the Government of India keeps upholding this within the guise of what it considers to be national values, and thus, is steeped in conservatism. Also, despite much proof against it, the representative of the Government of India said that there is no stigma towards queer identities in India.

Herein lies the question – at what point is a citizen worthy enough to have equal rights under the law? Also, assuming there is no stigma or discrimination suffered by LGBTQI+ people whatsoever, does it justify disallowing them the rights that cis-heteronormative heterosexual people have always enjoyed? With this narrative, the state machinery is authorising a cis-heteronormative version of the nation, and to use Mahmood Mamdani’s (2020) term, continuously produce LGBTQI+ citizens as “permanent minorities”. Queerness disrupts the normativity that the State wants to reproduce. It upsets the State even further when that queerness infiltrates the highest offices of the land. As much as we want to be a part of the mainstream socio-political fabric, the “Othering” will continue for a long time. While Kirpal’s (hopeful) appointment to the Delhi High Court may be yet another move to certify the acceptability of middle-class queerness, it is definitely a win for the queer community at large. In fact, the Supreme Court of India’s collegium lauding his openness about his sexuality is already a win for the community. What remains to be seen is how long the community will survive on legislative and judicial crumbs being thrown our way, and how long only the gentrified will be served such accolades.

*Debjyoti Ghosh is a human rights lawyer and academic originally from Kolkata, India, and currently based in Johannesburg, South Africa. He is a postdoctoral researcher at the Department of Sociology, University of Pretoria, South Africa and is also affiliated with the Centre for Asian Studies in Africa, University of Pretoria.

1. Faulks, K. (2000). Citizenship (1st ed.). Routledge. https://doi.org/10.4324/9781315008608 https://main.sci.gov.in/pdf/ Collegium /19012023_105547.pdf
2. Mamdani , M. (2020). Neither Settler nor Native: the Making and Unmaking of Permanent Minorities. Cambridge, MA: Harvard University Press.
3. Sharma, P. (2023), Supreme Court Refers Petitions Seeking Legal Recognition For Same-Sex Marriage To Constitution Bench   
4. Walby, S. (1994). IS CITIZENSHIP GENDERED? Sociology, 28(2), 379–395. http://www.jstor.org/stable/42857698
5. Young, I.M. (1990) ‘Justice and the Politics of Difference’. Princeton, NJ: Princeton, 1990.
6. ——— (1989)‘Polity and Group Difference: A Critique of the Ideal of Universal Citizenship’. Ethics 99, no. 2 (1989): 250–274.