JG: As a founder member of The Alternative Law Forum (ALF) you have engaged with conventional law and at the same time looked for spaces which are beyond the law. Do tell us a little bit about how ALF came about and how it has evolved over the years.
Arvind Narain (AN): ALF was started in March 2000, by a collective of lawyers with the belief that there was a need for an alternative practice of law. We recognize that a practice of law is inherently political. We are committed to a practice of law which will respond to issues of social and economic injustice.
We say that we are alternative in two ways. Firstly, in terms of the persons and groups with whom we work. There is a close link between the law and the accumulation of capital and it would not be out of place to say that the law in its mainstream sense is meant to facilitate capitalist accumulation. We are alternative in the sense that we want to use law to benefit those who stand outside the framework of capitalist accumulation. Hence, our clients are sex workers, labourers, sexual minorities as well as religious and caste minorities.
We are also alternative in the sense of seeing that the law should be perceived in its social, cultural and political context and that the use of law should be combined with other tools such as mass mobilization, campaigning and working closely with groups working at the ground level with a range of socio-political issues.
Over the past few years ALF has grown from being a legal service provider to becoming a space that integrates alternative lawyering with critical research, alternative dispute resolution, pedagogic interventions and more generally maintaining sustained legal interventions in various social issues. We are also committed to an inter-disciplinary interrogation of the law using creative forms. ALF perceives itself simultaneously as a space that provides qualitative legal services to marginalized groups, as an autonomous research institution with a strong interdisciplinary approach working with practitioners from other fields, as a public legal resource using conventional and unconventional forms of creating access to information, as a centre for generating quality resources that will make interventions in legal education and training, and as finally a platform to enable collaborative and creative models of knowledge production.
JG: Do you believe there is a limitation within juridical law that limits the scope in engagement with social transformation? In your practise as a litigating lawyer, have you experienced the limitations of law as an instrument for social transformation?
AN: Our thinking at ALF is that law should be seen as a social political and cultural tool that can assist in bringing about social change. If you think of the law as purely courtroom based law, there are serious limitations, but the moment we understand that change in the law is also linked to changes in society, we begin to appreciate law in its context. Law as only courtroom based law, without involvement of activism has its limitations as then possibly your vision of social transformation may become limited to changes in the law alone.
JG: ALF has been involved with research and advocacy on sexuality and sexual minorities related issues. Can you share with us any interesting research studies that might have been conducted in recent times?
AN: We were part of the People’s Union for Civil Liberty report on transgender rights, as well as co-edited ‘Because I Have a Voice’ and ‘Law like Love: Queer Perspectives on Law’. We are waiting for the publication of our volume on medicalisation of homosexuality and gender identity to come out.
JG: In your book ‘Law Like Love’, you have shared stories and anecdotes of various people. Has there been any work around archiving of sexuality related issues that ALF might have engaged with? How necessary do you think archiving is in the law and sexuality arena?
AN: My colleagues have been involved in trying to conceptualize and build a queer archive based in multiple sites. The idea of an archive is important for the reason that every struggle needs its history. We need to honour and remember those who have contributed to the process of social transformation. Inspirational figures such as Famila who was a remarkable activist who really awakened a whole range of Lesbian, Gay and Bisexual people to transgender issues was for example, one such figure who should be remembered. That would be one role for an archive, which could function as a source of inspiration for the future by remembering the past.
JG: From the Delhi High Court judgment on Section 377 in 2009 to the recent The National Legal Services Authority (NALSA) judgment in 2014, the law has expanded its fold for understanding diverse sexual and gender identities. How do you see the potential of the judgments translating into ground level realities? What kind of changes has been affected and what are the ones that you hope for?
AN: The role of these judgments taps into the expressive power of law. The fact that for the first time in Indian legal history, homosexuality is not seen as ‘animal like’ but rather as a form of intimate expression between two persons is not only a shift for the law but also paves the way for a wider shift in the way society sees these relationships. Similarly the NALSA judgment signals recognition that the right to expression includes the right to dress and attire and that expression of one’s gender is a constitutionally protected right. The struggle for implementation of these recognitions at the level of law in every context is really the task of activism. This is a work in progress being carried out by diverse groups across the country.
JG: You were involved in working on child rights and juvenile justice at the (National Law School of India University (NLSIU)) NLSIU Centre for the Child and the Law. Do you think that the Juvenile Justice (Care and Protection of children) Act, 2000 is at par with other international provisions around the world for care and protection of children? Also with the recent debate around lowering the juvenile age from 18 to 16 years, is there a need for more legal provisions focusing on child rights? Has the Act been effective enough in providing better conditions for children who need care and protection?
AN: At that point in time when the Act was passed, we were dissatisfied with it as we felt it did not go far enough in term of protection of child rights. However today the Act with the minimum age of 18 years seems to be a bulwark against a more brutal penal philosophy based solely on punishment, going even up to the death penalty. I would be morally, ethically and legally opposed to the death penalty and hence would argue that the Juvenile Justice Act is clearly a step in the right direction (no death penalty for juveniles) but it does not go far enough in terms of embodying the current international consensus on child rights protections.
JG: The debate around Age of Consent has not provided enough space for young people to discuss their sexual and reproductive rights. What are your views about the age of consent being 18 years?
AN: The way the law currently functions, one needs to have a cut off date. It will be unsatisfactory as clearly there will be those who should be treated as children but over the age of 18 years and those who should be treated as adults but under the age of 18. The rule of 18 actually is based on the principle of lack of capacity to appreciate choices which one may make and in an ideal world we should be able to treat each person according to the principle of their maturity and capacity to appreciate decisions they make. So the question is how do we have a finely tuned system which is able to respond to the nuance of each individual person’s maturity and yet preserve the basic function of law which is certainty and predictability? Till such time I see no other way forward than to go with 18 as a cut off date for deciding who is a child.
JG: What about the idea of evolving capacities of young people and the idea of ‘mature minors’ – and the argument that keeping the age of consent at 18 years tends to infantalise all those below 18?
AN: On the argument of infantilization of everybody under 18 under the current legal regime, the way to counter that can be if the law regulating childhood is also based on ‘evolving capacity of the child’. Again tough to implement practically but we need to think on these lines to evolve this highly nuanced system.
JG: Amidst the furore and the widespread public clamouring for the death penalty in the wake of the 16th December Delhi gang rape, how does one make a case for a more sensitive, human rights perspective while talking about law and justice? How can empathy become a viable means of transacting with those who deem the death penalty as the only solution to a crime ‘as heinous as rape’?
AN: I did some thinking around this by contrasting two judgments one delivered by Justice Yagnik in the brutal murder of 98 Muslims and rape of Muslim women in Naroda Patiya in 2002 and the Delhi rape case. The judgment in the Naroda Patiya case might be a gesture to the way forward. Justice Yagnik in the Naroda Patiya decision gestures towards a new way of thinking about the logic of punishment. She rejects the retributive logic implicit in the argument about the ‘collective conscience of society’ and forces us to explore deeper questions about unthinkable violence, responsibility and punishment. The call to address, ‘violent crime in a more constructive way’ is most compelling in the context of the public outrage and response to the Delhi rape incident. While there was anger on the streets, there seemed to be very little space for mourning. Would a politics centred on a collective mourning have changed the way we responded to the Delhi rape incident? Could there have been a shift from the angry insistence on the death penalty, if we had collectively spent more time on grieving for the life that had been lost?
We need to think of justice not from the point of view of anger but rather sorrow. Hannah Arendt in her book Eichmann in Jerusalem makes the point that maybe justice is born from the feeling of sorrow rather than anger. If we build a culture of collective mourning rather than collective anger over what happened in Delhi on December 16 (2012) would that be the basis in feeling and emotion for the articulation of justice? I did write an article on this titled, Sexual Violence and the Death Penalty.
JG: Constitutional Morality has been evoked by Justice AP Shah in the Naz Foundation judgment in the year 2009 to protect the rights of sexual minority groups. Can you elaborate a bit on this concept of ‘Constitutional Morality’ and how different it is from Public morality? What are your views on this articulation?
AN: The notion of constitutional morality was articulated by Dr. Ambedkar. Our thinking of the reason for this articulation would be that if the rights of the minorities are at the receiving end of majoritarian sentiment in a hierarchical society like India, then very clearly minorities will have no rights. What the concept of constitutional morality tells us is that India is a constitutional democracy and not a majoritarian democracy and hence the judiciary has a specific responsibility to protect the rights of ‘unpopular minorities’ from the whims and fancies of majority prejudice.
JG: In your recent presentations, you have explored the idea of love through lives of queer figures from historical archives such as Sappho, Roger Casement, Bayard Rustin, Edward Carpenter as well as Chelsea Manning in contemporary times. What kind of potential do you think that love has to challenge conventions and the law?
AN: I think it has a remarkable potential particularly in the Indian context. Some of the hidden and unsung heroes of this country have been those who have sought to love against the dictates of family and society. Young men and women who have challenged the ‘natural order of society’ have paid for the challenge with their lives. If love is so threatening to barriers of caste, religion, gender and sexuality, obviously there is something deeply disruptive there.
What the amazing stories of Chelsea Manning, Casement, Rustin and Carpenter do in particular is to take the idea of love from the idea of one person to articulate the idea of love as the basis of a politics based upon empathy for the suffering other.
JG: With the recent NALSA judgment and admission of the curative petition on Section 377 by the Supreme Court how hopeful are you about the role of law in affirming sexual rights for all?
AN: If we take our engagements with the law as part of a wider struggle to bring about social, cultural and political change, yes I am hopeful that law can shift the public discourse towards greater respect for the sexual rights for all.
JG: What would be your message for young SRHR activists who work at the grass roots level? Any final thoughts and observations you would like to share…?
AN: Before 2009, if you had asked me if Section 377 would go, I would have said not in my lifetime, but obviously 2009 happened. So as an old anarchist saying goes, ‘Be realistic, demand the impossible!’
Cover Image: The Hindu