“Every
cloud has a silver lining.” This proverb goes well with the historic
judgement passed by the Supreme court on 6th September 2018 in the
favor of LGBT community rights. This has been much debated topic since a long
time. Nothing could be more blessing than the enactment of Article 377 for the
relief of LGBT community. The hearing of the petitions began with a bench consisting
of Chief justice Dipak Misra and justices DY Chandrachud, AM Khanwilkar, Indu
Malhotra, and Rohinton Fali Nariman. It was truly a
landmark decision which struck down a 19th century law criminalizing
homosexuality in India.
What role
does the Indian Constitution play towards the emancipation of the society’s
most marginalized and excluded? What vision does the Constitution espouse with
respect to basic fundamental rights and freedoms? And what conception of
inclusion and pluralism does the Constitution pursue in a society that remains
deeply divided and disjointed? All these searching questions came to form a
distinct part of the decision of the Indian Supreme Court (Court) when it was
called upon to rule on the constitutional validly of Section 377
of the Indian Penal Code, 1860. It was
not the first time however, that the Court was examining Section 377 on the
touchstone of the Constitution, as the case previously travelled through
several levels of judicial adjudication involving different jurisdictional
procedures.
Embodying
the ethos of Victorian morality, Section 377, a colonial-era law, criminalized
‘…carnal intercourse against the order of nature with any man, woman or
animal…’. Anything that was not penal-vaginal sexual encounter was ‘against the
order of nature’ and as a consequence ‘unnatural’. Through this provision,
homosexual acts even between consenting adults was considered and proscribed as
a criminal offense punishable with imprisonment. Thus, a significant section of
the population comprising the LGBT+ community remained perpetually ostracized
by the Indian society, persecuted by State authorities and marginalized in the
discourse of constitutional rights. Therefore, when the Court decided in Navtej Johar v Union of India that Section 377 in
so far as it criminalizes same sex acts between consenting adults, violates the
constitutional mandate enshrined under the Fundamental Rights chapter,
especially, Art. 21 (life and personal liberty), Art. 14 (equality and equal
protection of laws), Art. 15 (non-discrimination) and Art. 19 (Freedom of
expression), truly, it was a historic undoing of injustice towards the LGBT+
people. In other words, as a result of this decision, LGBT+ people who were
historically and by default considered ‘criminals’ under the law, came a bit closer
to acquiring an ‘equal moral membership’ of the society and the State. It was a
tough as well as a long road but at the end everything seemed to be mightier.
Let us
look back into the history of India from where the seeds of this discrimination
were actually sown. India has a long tradition of tolerance for all kinds of
beliefs, faiths, philosophies, and
ways of living. This takes us back to the 1800s. Lord Macauley first created
this law in 1860 when he was the President of the Indian Law Commission. The
reason for this law was because the British WANTED TO “impose Victorian values”
on the colony of India. Not only were such values trying to be inflicted on the
Indian society but also the Constitution of India wanted to “…narrow
constructions of patriarchal gender relations and heteronormativity” (Ramasubhan 91).
is that the support has come not just from the queer people, but across a range
of actors, movements and institutions.
Progressive groups, state bodies like the National Human Rights Commission,
teacher’s associations, professional associations including the medical and
mental health establishments, women’s groups, student groups, trade unionists
and private companies came out publicly against the judgement. Thousands across
the country stood together, repeating the chant that brought together our
resistance: ‘No Going Back’.
In declaring Section 377 to be unconstitutional, however,
the Court was deeply reflective about the fact that for Constitutional rights
to acquire a meaningful purpose for the marginalized communities, disciplining
State action alone will not be sufficient. In this regard, the Court did not
mince words when it stated that it is both, criminality of the law and the
‘silence and stigmatization’ of the society towards the LGBT+ community that
orchestrates the marginalization and the exclusion of the former. Implicit in
that claim was the understanding that inequality, hierarchy and prejudice
transpires as much from State action as it does from societal sanctions,
community conventions and private relationships. In the context of such social
realities, what is the stated role of the Constitution and the laws? Is the
mandate of the Constitution simply confined towards ordering the relationship
between the State and the individual (vertical) or does the Constitution have
an equal role to play in shaping normative values among individuals within the
society?
The Court unequivocally embraced the latter narrative and
found that the Indian Constitution envisions an expansive role for both the
State and the individual to actively promote social change within the contours
of the Constitution. It seeks transformative change ‘in the order of relations
not just between the State and the individual, but also between individuals’.
The transformative potential in Indian Constitution is a conscious ‘attempt to
reverse the socializing of prejudice, discrimination, and power hegemony in a
disjointed society’. Therefore, the Constitution, the Court surmises, obliges
not only the State not to violate fundamental rights, but also individuals to
‘act in a manner that advances and promotes the Constitutional order of
values’.
“Sexual orientation” is an essential attribute of
privacy. Discrimination against an individual on the basis of sexual
orientation is deeply offensive to the dignity and self-worth of the
individual. This judgement can be considered as a revolutionary one in a
society like India. But every judgement has two parts, one is written and other
is its execution. The written part is progressive and reformist and its
execution includes sensitizing the society and institutions in accepting what
is written in this judgement. That may take time. Till then I would like to put
forth some suggestions. The first step is sex education in schools and at
homes. The second step is that the law enforcement agencies such as the police
needs to be more sensitized towards the LGBT people. Similarly, our media and
film fraternity can play a very important role in imparting knowledge and
disseminating true information about LGBT people.
To conclude, we all are equal. Nobody should be discriminated on whatsoever
ground. In the last few years LGBT are
gaining acceptance in many parts of India. Many Bollywood films have dealt with
homosexuality. They have also fair well at the box office. There’s a
transformative constitutionalism which is happening and the real import of
transformative constitutionalism lies in positive measures that the State ought
to take in bringing the Constitution closer to the most deprived. Indian
society needs to shrug off its old thinking and come out of the widely
prevailing homophobia.
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