State cannot peep into bedrooms affaires, declares supreme court

P R Krishnan

LEGALLY, constitutionally, judicially and morally speaking, Thursday, September6, 2018, was a historic day for India. A five member constitutional bench of the Supreme Court of India struck down part of section 377 of the Criminal Procedure Code(CrPC) as “violative of the right to equality and the right to live with dignity ”. The unanimous verdict with one stroke of judicial wisdom, the top most court of the country, in the Navtej Johar  V/s Union of India case, flung the 1860 colonial law which criminalized homo sexuality into the dust bin of history. The judgment declared that “state has no business to peep into bedroom affairs of citizens of Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) community”. This land mark ruling made India the 26th country in the world where homo sexuality has now become legal.

Declaration of the judgment followed celebration by groups of people of LGBTQ community not only in different parts of India but in cities like New York, London, Paris, Tokyo, Moscow and in many other parts of the globe. The five-member constitutional bench unequivocally declared that a two member bench decision of December13,  2013 of the Supreme Court in the Suresh Kaushal V/s Nas foundation case, which re-criminalized section 377 of IPC “ was arbitrary, fallacious and retrograde “.

The judgment has come out at a time when the political atmosphere in the country is contaminated by and predisposed towards religions, castes and communalism.  This is also the time, we see that civil liberties, human rights and freedom of artistic expression is being suppressed by political forces that control the state power. 

In the four concurring opinions cumulatively running into 493 pages, the judgment abhorred imposition of majoritarian view on the LGBTQ community to snuff out their fundamental rights. The judgment has made it clear that denial of opportunities to choose partners in life for members of this community who are citizens of the country like others amounts to violation of their fundamental rights to equality (Article 14), right to freedom of expression (Article 19)and right to choice, coupled with right to dignity (Article 21) of the Republican Constitution.

Among the five judges of the top court, the striking observation of Justice Indu Malhotra to summarize was “history owes an apology to the members of the LGBTQ community and their families for the ignominy and ostracism that they have suffered through the centuries. The most penetrative remark by justice Y.D  Chandrachud in his judgment was “158 years is too long a period for the LGBTQ community to suffer the indignities of denial. The case is about an aspiration to realize constitutional rights.

It should here be noted that this section 377 of the British era which treats consensual sex by adults of the same sex as an offence and provides punishment for life in prison, is modeled on Britain’s Buggery Act of 1533.  Though, subsequently that was scrapped in Britain, it survived in India, despite independence in 1947, from colonial rule.

Handing down a historic verdict on a crucial topic like this was no doubt a herculian task and a big challenge for the constitution bench. The conflicting views of different sections of people were wide and deep. The arguments of the statuesque idealists were that “same sex relations is not in consonance with the law of nature”. They insisted that it is unnatural and hence impermissible.  Their further contentions were that such relations are not based on Indian culture. The religious and communal organizations also came out with arguments that same sex demand is only of 0.3 percent of Indian population and 99 percent of its people are against it.  Hence it should not be allowed.  They also vehemently argued that same sex problem is not a matter which falls within the spheres of judiciary and therefore no courts should make attempts to adjudicate on such an issue.

The worst part of the case was the stand taken by the BJP led Narendra Modi Government. It took a position of “no stand in the case” and left the matter for the decision of the court. This was obviously with a view not to antagonize the orthodox and conservative sections within the society. This stand of the union government was assailed by one of the members of the constitution bench, Justice D.Y Chandrachud, in a public function subsequent to the judgment.

Never-the-less what Justice Chandrachud has said firmly in his judgment in this case is this: “ we are aware of the perils of allowing morality to dictate the terms of criminal law. If a single homogenous morality is carved out for a society, it will undoubtedly have the effect of hegemonising or othering the morality of minorities. The LGBTQ community has been a victim of predominant Victorian morality which prevailed at the time when the Indian Penal 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 Vishwa Hindu Parishad’s view in the case was “invalidation of Section 377 will herald animal like behavior in the society”. Its further contention was “homosexuality is an imported disease ”.  Muslim organizations and Christain bodies have also expressed strong objections.  Rejecting all such and other arguments for maintenance of this section, the chief justice Mishra, as the lead umpire in the case has stated; “the constitutional morality cannot be martyred at the altar of social morality. 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, because, the foundation of constitutional morality rests upon the recognition of diversity that pervades the society ”.

The judgments underlined this fact by saying that “a free society could be created only when individual identity, including sexual preferences, was protected and citizens were allowed to express themselves freely without being fettered by social exclusion or identity seclusion”. The judgment highlights the need for changes in outlooks and emphasizes by point-blank stating “  the overarching ideals of individual autonomy and liberty, equality for all sans discrimination of any kind, recognition of identity with dignity and privacy of human beings constitute cardinal four corners of our monumental constitution forming the concrete substratum of our fundamental rights that have eluded certain sections of our society who are still living in the bondage of dogmatic social norms, prejudiced notions, rigid stereotypes, parochial mindset and bigoted perceptions  ”.

What was however surprising to note was the fact that almost all mainstream political parties except CPI(M) maintained neutrality on the issue like what the RSS and  BJP headed union government did in the matter before the Supreme Court.  The CPI(M) took a positive stand and supported the demand of this community.  As a matter of fact, the CPI(M) had in its 2014 Lok Sabha election manifesto stated that the LGBTQ community should be conferred with this right as enjoyed by other sections of the people. The CPI(M) has accordingly welcomed the judgment. This apart, the CPI(M) led LDF government in Kerala had introduced a transgender policy in 2015.  Later on, the state administration followed it up with creation of a Transgender Board under the social justice department.  The state government has also issued identity cards for transgenders and offers educational programmes for training the transgender persons.

What needs a special mention before concluding this write up for the members of the LGBTQ community is that, this is just a beginning of a bigger battle for freedom for full enjoyment for their legitimate constitutional rights.  In that, the state has  a major role to play. Based on the judgment, it is now the responsibility of the union government to bring appropriate legislative reforms conferring constitutional rights for marriage between consenting adults within their community.  Consequent ancillary measures such as for adoption of children, guardianship rights and rights to inherit property from partners etc. are essential for realization of these rights to the members of LGBTQ community.

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