“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).
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.
