Constitution trumps social morality

By Pritha Srikumar Iyer| Published: 07th September 2018 04:00 AM

A five-judge Constitutional Bench has pronounced a historic verdict allowing a batch of six writ petitions filed by LGBT persons seeking a declaration of their fundamental rights to life, equality and non-discrimination. Much of the debate is centred on the constitutional validity of Section 377 of the Indian Penal Code which criminalised any acts by LGBT persons when they physically expressed their love for their partner, privately and consensually.

Sexual orientation and gender identity being natural human attributes, the petitioners argued that Section 377 criminalised not just their acts, but the very identity of the LGBT community. Many of the petitioners testified to having grappled with mental health problems because of the rejection of their sexual identity, alienation by family, ridicule, bullying, blackmail, shame arising from being viewed as abnormal or deviant individuals and insecurity at their workplaces. The petitioners argued that Section 377 had detrimentally affected the health, relationships and academic and career prospects of LGBT persons.

Section 377 was based on the colonial-era law criminalising buggery. While England itself decriminalised homosexuality and acts of sodomy between consenting adults above the age of 21 in 1967, this colonial legacy has remained on the statute books of several former colonies. In December 2001, Naz Foundation, an NGO working on HIV/AIDS and sexual health filed a public interest litigation before the Delhi High Court challenging the constitutional validity of Section 377.

In 2009, the Delhi HC rendered its landmark judgment holding Section 377 to be unconstitutional on the grounds that it violated Articles 14, 15 (right to equality before the law, equal protection of the laws and non-discrimination) and Article 21 (right to life) of the Constitution. This judgment was challenged before the apex court. Moral and religious indignation was the thrust of the challenge.

On 11 December 2013, in Suresh Kumar Koushal vs Naz Foundation, the Supreme Court overturned the judgment of the Delhi HC. Infamously, the Supreme Court held that the LGBT community was only a “miniscule fraction” of the country’s population, that them being prosecuted could not be a basis for a challenge to Section 377, and relegated the decision to Parliament.

Four separate judgments have been authored by the five- judge Bench. However, all four judgments speak unanimously, and in one voice, on the core message—that Section 377 is unconstitutional. It is significant that in a plurality of opinions, running into several hundred pages, all the judges were unanimous on all counts.

That the court would strike down Section 377 as unconstitutional was widely anticipated. The scope and content of the debate in the hearings before this Bench were a sharp contrast to narrow concerns of the Koushal Bench. While the Koushal Bench was only concerned with the nature of sexual acts, this Bench engaged with the human right to love and companionship. While the judgment is bound to be a lodestar for human rights lawyers, in my opinion the most powerful and welcome takeaway was the unanimous emphasis on the need for state and society to take affirmative steps to ensure real equality and dignity of LGBT persons.

A common theme running through the opinions was that the values enshrined in the Constitution are independent of prevailing social values. Rather, ‘constitutional morality’ must shape ‘social morality’. The mere fact that a section of society finds same-sex relations to be ‘morally abhorrent’ cannot be grounds to deny LGBT persons their fundamental rights.

In keeping with this theme, Chief Justice Dipak Misra propagated the idea of ‘transformative constitutionalism’ for the creation of a society that fosters equality of opportunity for all persons. Justice Chandrachud expressly stated that decriminalisation is only the first step and that LGBT citizens are entitled to all rights available to any other citizen.

Justice Nariman held that the Yogyakarta principles (which lay down rights of sexual minorities under international law, including the right to family life, marriage) would be available to all LGBT persons. Both Justice Nariman and Justice Chandrachud referred to the prosecution of Oscar Wilde and the chemical castration of Alan Turing, highlighting the historical brutal treatment of LGBT persons by society. Justice Malhotra categorically wrote that history owes an apology to LGBT persons and their families, for the social ignominy suffered by them.

While the historical vilification and stigmatisation of LGBT persons cannot be undone, the court recognised the need to make reparations by advocating proactive steps to secure their rights in the future. To this end, Justice Nariman directed that periodic sensitisation programmes be conducted for police and other state officials, and that the judgment be widely publicised. Justice Chandrachud observed that homosexuality is not an illness that requires treatment. Rather, counsellors must help LGBT clients become more comfortable with who they are. He also called upon the medical community to help families and workplaces better understand sexuality.

Through these directions the court shows how the transformative power of the Constitution can be practically realised for the achievement of an equal and inclusive society. The government of the day while not taking a stand on the constitutional validity of Section 377, indicated that it was opposed to a plea for recognition of equal rights in family life. The verdict ensures that equal rights are no longer at the mercy of the majority.

Pritha Srikumar Iyer

Lawyer who appeared for 20 LGBTQ students and IIT alumni in Supreme Court

Tweets @PrithaSrikumar

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