In 1983, Justice H.R. Khanna wrote, “We are told those who try to preserve and protect the efficacy of fundamental rights have an elitist approach…While listening to these exhortations we have to bear in mind that it were precisely these arguments which were adopted by those who set up totalitarian regimes by making a mockery of the provisions of the Constitutions in some of the Afro-Asian countries.”
An allegation of elitism, specifically “urban elitism”, was made with respect to the demand of same-sex marriage in an ongoing case before the Supreme Court. A similar allegation was made not long ago in the case on right to privacy. Although the court brushed aside this argument in both the cases, it is likely to be invoked again in future rights-based litigation. It appears compelling and has a strong appeal. The argument delegitimises a demand by indicating it to be a whim of privileged few. It raises the question, should the legislature/courts discuss such issues at all or is it a waste of time? Therefore, this argument of ‘urban elitism’ deserves critical scrutiny.
A demand categorised as ‘elitist’ implies that it comes from a ‘few privileged’ sections. It is also deemed unnecessary by the larger lesser privileged sections who are burdened with the real issues of life. To suggest that a demand is “urban” implies that it is relevant to people in urban settings and irrelevant outside. The opposition to a supposed ‘urban elitist’ demand is rooted in the perceived irrelevance of such demands to human life.
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In the context of same-sex marriage, the argument of urban elitism gets frequently buttressed with visuals of people in burlesque costumes in urban settings. These visuals and arguments do not objectively explain the phenomena or further social or legal discourse. Instead they trivialise it and tend to arouse disdain and a sense of ‘othering’.
Modern science empirically recognises homosexuality as a naturally occurring phenomena across demographics, countries and cultures. The Supreme Court operated on this understanding while deciding Navtej Jauhar v Union of India where consensual sex among homosexuals was decriminalised in 2018.
Sociologically urban spaces have always provided a sense of personal safety in anonymity. Large cities also give a sense of inclusion by sustaining small but sizable communities in otherwise diverse populations. Therefore, what seems like an “urban” demand is largely attributable to a sense of safety that facilitates expression of desire without fear of physical hurt or social ostracisation. It is not an urban demand but is often expressed freely in urban areas. The desire to marry exists irrespective of urban spaces and, thus, is not urban by nature. Therefore, the apparent occurrence of this demand in urban spaces is purely situational and not a causative factor for homosexuality or the desire to marry.
Similarly, sexual orientation or the desire to get married are not a function of wealth. It is another matter that the rich can afford to contest causes before the courts. They can take refuge in their private spaces and enjoy amenities. They can perhaps live with lesser social capital compared to those without financial security. People with resources are obviously able to raise their demand without fear of consequences that may become incumbent on the lesser privileged. Thus, creating the illusion that this demand comes from those who are rich. But it is only a matter of false correlation.
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In the case of right to privacy, the government’s contention was that only a few elites were concerned and their concerns were not shared by the majority. The court reasoned that such assertion was based on misunderstanding of the constitutional position. Our Constitution places the individual at the forefront of its focus, guaranteeing civil and political rights in the Part III of the Constitution.
This begs another question. Let’s assume that a demand comes from a privileged few residing in urban spaces or any other cultural, linguistic or ethnic minority group. Should it be rejected merely because the people demanding it are fewer in number and others do not share their concern?
While larger numbers create political outcomes, the law always protects the individual and minority so that they can have an equal participation in society. Therefore, the legality of demands cannot be assessed in terms of numerical strength but within the confines of legal principles. Numbers are relevant in assessing political support. Characterisation of a demand as urban elitist often places reliance on political support than legal merit of that demand. In a democracy committed to rule of law, such logic has never found favour with the courts.
Arjun Harkauli and Aditya Pratap Singh Rathore are lawyers based in New Delhi.