Dr. Manoj Malik
S.D.B. Law College, Sikandrabad (BSR)
Homosexuality is no cirme. From fearing “State and society, gays now have law on their side” 1 Supren court has consigned over 158 years of discrimination against the LGBT community, wrought by enactment of the Indian penal code in 1860, to the annals of history. Section 377 IPC, that denied India’s homosexual citizens the right to pursue their sexual orientation, applies no more to consensual sexual behavior. In restoring their rights to equality before law, personal liberty. Privacy and life with dignity- all fundamental rights guaranteed to an Indian citizen which should have been theirs from birth- a grave constitutional wrong that questioned the Republic’s commitment to “minorty rights stands corrected.”2 The next logical step would be to recognize gay marriage. What supren court does in the realm of safeguarding individual liberties must shine like a beacon for lower court to replicate. The defence of a person’s right – “even when you disagree with that person-keeps democreacy, dissent and diversity alive.”3 De-fanging a Victorian era law that hounded the rain-bow crowd, the Supreme Court in a landmark judgement on Sep 6, 2018 legalised consensual sexual relations among gay adults by partially striking down Section 377 – a momentous event, perhaps the first step towards the gradual embrace of the LGBTQ community and hesitant acquiescence into alternative sexuality. In a unanimous 5-0 verdict, Chief Justice Dipak Misra led Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra in declaring that a two judge bench’s decision in December 2013 in the Suresh Koushal case, which had recriminalised Section 377 was rarbitrary, fallacious and retrograde” In the Suresh Koushal case, the Sc had reversed a Delhi high court verdict which had de-criminalised gay sex among consenting adults by reading down the controversial Section 377. As it righted the error it made five years ago with yet another verdict which seeks to expand personal freedoms, the court invoked “transformative constitutionalism” and stuck a confessional note, saying history owed an apology to LGBTQ members and their families” for the wrongs in flicted on them.CJI Misra, writing for justice Khanwilkar and himself, said targoting LGBTQ community members for their sexual preference violated their funda mental right to equality (Article14), right to freedom of expression (Article 19) and right to choice coupled with right to dignity (Article 21) Section 377 IPC, so far as it penalizes any consensual sexual relationship between two adults. Be it homosexuals (man and man), heterosexuals (man and woman) or lesbians (woman and woman) cannot be regarded as constitutional. However, it anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penel offence under of Section 377 IPC, the CJI said The CJI, who read the judgment for Justice Khanwilkar and himself to begin the pronouncement of verdict, started by saying there were four separate but concurrent opinions, The tense anticipation inside the court melted the moment he said Section 377 was partially struck down to decriminalise gay sex. Only the strict court etiquette prevented gathered LGBTQ members from applauding out of relief. Justice Nariman said, “Persons who are homosexuals have a fundamental right to live with dignity…”4 we further declare the such groups are entitled to the protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them. We further direct that Section 377 insofar as it criminalises homosexual sex and transgender sex between consenting adults is unconstitutional.” He directed the Centre to take measures for wide publicity of the judgment at regular intervals through media and initiate sensitization programmes for society. Government and police officials to “reduce and eliminate the stigma associated with such persons” by making them aware of the plight of LGBTQ community.”5 Justice Chandrachud who authored the lengthiest judgment at 181 pages, said it was axiomatic that lesbians, gays, bisexuals, transgender and queermembers continued to be denied a truly equal citizenship a seven decades after independence. “The law has imposed upon them a morality which is an anachronism. Their entitlement should be as equal participants in a society governed by the morality of constitution. That in essence is what section 377 denies to them. The shadows of a receding past confront their quest for fulfillment,” he said. “It is difficult to right the wrongs of history. But we can certainly set the course for the future. That we can do by saying that lesbians, gays, bisexuals and transgender have a constitutional right to equal citizenship in all its manifestations…” he said. The case is about an aspiration to realise constitutional rights. It is about a right which human being has, to live with dignity. It is about enabling there citizens to realise the worth of equal citizenship Above all, our decision will speak to the transformative power of the Constitution For , it is in the transformative of society that the constitution seeks to assure the values of a just, humane and compassionate existence to all.” Frowning at the discrimination mated out to the community, the CJI said, “Discrimination of any kind strikes at the very core of any democratic society. When guided by transformative constitutionalism, society is dissuaded from indulging in any form of discrimination so that the nation is guided towards a resplendent future… the courts must step in whenever there is a violation of fundamental rights, even if the rights of a single individual are in peril.”7 The Supreme Court on 6 Sep. 2018 said decrimiunalising Section 377 to recognize sexual rights of LGBTQ community members was just the “beginning of the process for full enjoyment of legitimate constitutional rights by them like any other citizen.”8 This could lead to ancillary lead battles as well as legislative reforms for LGBTQ members to enjoy other rights – marrying a person of their choice (as has been held by the SC in the Hadiya-Safin Jahan case), adoption of children, guardianship rights and right to inherit property from partner. Of course, this could also make them liable to the flip side of these rights – right to divorce, entitlement to alimony, booking a partner for domestic violence (will it also extend to section 498A of IPC that punishes a spouse for cruelty in matrimonial, or partner’s, home for dowry), custody right of children and allowing one to slap rape charge if the partner wriggles out the promise to marry after establishing consensual sexual relation. Of the five judges on the bench, CJI Dipak Misra touched upon this issue while Justice D Y Chandrachud devoted some pages of his judgment to this aspect – enjoyment of all constitutional rights by LGBTQ community members. Justice Chandrachud made an elaborate reference to LGBTQ community’s future rights. He said, “In seeking an adjudication of the validity of Section 377, there (LGBTQ) citizens urge that the acts which the provision makes culpable should be decriminalized. But this case involves much more than merely decriminalized. But this case “involves much more than merely decriminalizing certain conduct which has been proscribed by a colonial law.”9 While handing down a historical verdict decriminalizing Section 377 to give LGBTQ community members freedom from fear of prosecution for their sexual orientations, the Supreme Court relived in its judgment the difficult task of umpiring intense arguments drawing fault lines – majority view versus minority; and the tussle between social morality and constitutional morality. Declaring constitutional morality as the winner, the bench view said majoritarian view cannot extinguish the rights of a community in minority exual prefence and that over their social morality cannot be used to snuff out fundamental rights of even a single individual, be it LGBTQ or Any One else. As the lead umpire, CJI Misra said: “Constitutional morality embraces within its sphere several virtues foremost of hem being the espousal of a pluralistic and inclusive society. The concept of constitutional morality urges the organs of the State, including the Judiciary, to preserve the hetaro geneous nature ofsociety and to curb any attempt by the majority to usurp the rights and freedoms of a smaller or minuscule section of the populace.” “Constitutional morality cannot be martyred at the altar of social morality and it is only constitutional morality that can be allowed to permeate into the Rule of Law. The veil of social morality cannot be used to violate fundamental rights of even a single individual, for the foundation of constitutional morality rests upon the recognition of diversity that pervades the society,” he said. The CJI said: “It is the concept of constitutional morality which strives and urges the organs of the State to maintain such a heterogeneous fiber in the society, not just in the limited sense, but also in multifarious ways. It is the responsibility of all the three organs of the State to curb any propensity or proclivity of popular sentiment or majoritarianism.” “The test of popular acceptance, in view of the majority opinion, was not at all a valid basis to disregard rights which have been conferred with the sanctity of constitutional protection, he opined. Other four Judges equivocally agreed with the CJI’s view that “freedom of choice cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on the mercurial stances of majoritarian perception,”10 Justice Nariman differentiated between morality and criminality and said: “Morality and criminality are not co-extensive – sin is not punishable on earth by Courts set up by the State but elsewhere; crime alone is punishable on earth. Buy cout set up by the state but else where crime alone is punshable on earth. To confuse the one with the other is what causes the death knell of section 377, insofar as it applies to consenting homosexual adults,” He said: “The very purpose of the fundamental rights chapter in the Constitution of India is to withdraw the subject of liberty and place such subject beyond the reach of majoritarian governments so that constitutional morality can be applied by this Court to give effect to the rights, among others, of ‘discrete and insular’ minorities.” We are aware of the perils of allowing morality to dictate the terms of criminal law If a single, homogeneous morality is carved out for a society, it will undoubtedly have the effect of hegemonizing or ‘Othering’ the morality of minorities, The LGBTQ community has been a victim of the predominant (Victorian) morality which prevaild at the time when in Indian penel code was drafted and enacted. Therefore, we are inclined to observe that it is constitutional morality, and not mainstream views about sexual morality, which should be the driving factor in determining the validity of Section 377.” The constutution bench judgement in Navtej singh Johar and other vs Union of India a win water-shed moment in Indian constitutional Jurisprudence. The constitution does not just protect minorities, the individual is the basic unit of the constitutinal scheme. The court has thus reiterated its commitment to its counter majoritarian role. The court has emphasised the dynamic nature of contititional interpretation and indeed of the constitution itself. This dynamic interpretation ensure that the constitution indures across genarations. Judgement notes, dynamic interpretation is also essential to enable transformative contitionalism. The very parpose of contitionalism is to transform society.
Reference1. ‘Majority cannot criminalise minorty’s sexual orientation ‘sc says constitionalis morality triumphs over social morality; The Times of India, New Delhi, Sep 7, 2018.2. ALOK PRASNNA KUMAR and ARGHYA GUPTA, Historic and Necessory ;The Times of india, New Delhi, Sep 7, 2018.3. MENAKA GURUSWAMY: This is what Real Freedom feels Like. Hindustan Time New Delhi, Sep 7, 2018.4. URVASHI VAID; Forword -Looking 377 order holds lessons or the world; The Times of india, New Delhi, Sep 8, 2018.5. No going back on LGBT rights; A historic ruling but society must keep in step with this Hindustan Time New Delhi, Sep 7, 2018.6. ARUNDHATI KATJU; Right over wrong- with section 377 verdict, SC imphasised dynamic nature of constution its counter – Majoritarian role Indian Express, New Delhi, Sep 8, 2018.7. BIBEK DEB ROY; A law of its time; Indian Express, New Delhi, Sep 8, 2018.8. AMIT VERMA; Consent won battle, the war remains, The Times of india, New Delhi, Sep 9, 2018.9. GURUCHARAN DAS; Gays and colonial brain washing, Learn form india’s open exuberant past and respect those who differ from us; The Times of India, New Delhi, Sep. 12, 2018.10. DEEPAK MISRA: CJI; Protected rights fulcurum of any free society; The Sunday Express, New Delhi, Sep 9, 2018.
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