The rights of the LGBTQ+ group is an issue of contention in most parts of the world today. India, being a socially sensitive and a culturally diverse land consisting of different creed of people, has not been that open as far as recognising the LGBT rights are concerned. An archaic law from the colonial times was scrapped only recently, when in Navjot Singh V/S Union of India the Apex Court decided that Section 377 held no constitutional validity and consequentially decriminalised consensual homosexuality, triggering almost immediate Pride Marches across the nation and setting off a mood that the judicial neglect in Suresh Kumar Koushal v/s NAZ Foundation had been corrected at last. In this regard, a detailed study on the facts and obiter dicta for both the cases Koushal v/s NAZ, 2013 and Navjot Singh Johar v/s Union of India 2018 would prove insightful without doubt.
Need for Justice: Why the re-decriminalisation?
The basis for the 2013 judgement by the Supreme Court, which drew much flak from all quarters, was the Delhi High Court’s order in 2009 pertaining to the decriminalisation of homosexuality. In Naz Foundation v/s Govt of NCT, Delhi, the Delhi High Court had taken the view that Article 15 of the Constitution prohibits discrimination on several enumerated grounds including sex. Discrimination, as per the High Court’s observations, were grounded in stereotypical judgements and generalisation about the conduct of either sex. The Delhi High Court judgement was challenged in the Suresh Koushal case, wherein the top court opined that acts which fell within the ambit of Section 377 IPC could only be determined with reference to the act itself and to circumstances in which it is executed. The Court believed that Section 377 IPC would apply irrespective of age and consent, for section 377 does not criminalize a particular set of people with a definite orientation, but only identifies certain acts which when committed naturally results in an offense under the law. The Court further observed that those who indulge in carnal intercourse in ordinary course and those who indulge in carnal intercourse against the order of nature constituted different classes of people, and that people in the latter category cannot claim that Section 377 suffered from the follies of arbitrariness. In what could be considered the final nail on the coffin moment for the LGBT movement in 2013, while reading down the 377 IPC, the Court mooted that it could not be overlooked that only a miniscule fraction of the country’s populace constituted the LGBT and the fact that in the last 150 years, less than 200 people had been prosecuted- hence rallying against the minority itself, the safeguard of whose rights formed the pillars of a democracy. While passing the order, it remarked that in its (Delhi High Court’s) anxiety to protect “so-called” rights of LGBT persons and to declare that Section 377 violates the right to privacy, autonomy and dignity, the High Court had extensively relied upon judgements of other jurisdictions- which as expected did not cut much ice with legal luminaries and the champions of the LGBT rights.
The 2018 verdict pronounced by the Supreme Court in the Navjot Singh Johar v/s Union of India is a much welcome relief. There were quite a number of interesting observations made by the Bench during deliberation and debate over the case. The Court noted that in the Suresh Koushal case, it had earlier erroneously upheld the constitutional validity of Section 377, stating that the LGBT population constituted only a miniscule fraction of the total population and that the fact that the Section was prone to being misused was not a ground to scrap it. The Bench felt that this was constitutionally impermissible, as the rights of even one individual is sacred and it was the duty of the Court to protect it. It also clearly brought out the fact that the Constitution was a “living, organic document” that was capable of evolving with the newfangled demands of the society. The role of the Courts, according to the bench, grows more important when the rights of a special class or minority group has been violated since the dawn of time. Therefore, it felt that it was their duty to robe the judiciary with the “armoury of progressive and pragmatic interpretation” to combat the evils of the society. Furthermore, it emphasized that transformative constitutionalism not only included within its purview the rights and the dignity of the people, but also to develop a supportive atmosphere wherein every person is bestowed with the opportunity to grow socially, economically and politically. Persons belonging to the LGBT segment of the society were denied such opportunities and oppressed at all possible junctions, resulting in a scenario of distasteful discrimination that struck at the very heart of a democratic society. Subsequently, it remarked that constitutional morality overrules social morality; and that nothing but constitutional morality can be allowed to permeate in the Rule of Law. The KS Puttaswamy v/s Union of India case elevated privacy to the stand of a fundamental right. The reasoning in Koushal case, wherein homosexuality was criminalised again as because the LGBT population was a minority, was found out of tune with constitutional mandates. The Court opined that the said reasoning was fallacious, as the makers of the Constitution could have never implied that the fundamental rights would only be extended to the majority, and not the minority.
The Way Forward
The takeaway is clear: The Supreme Court has now once again reaffirmed the fact that a citizen’s rights are inalienable, whosoever it be. To term the decision historic would be in more ways than one, an understatement. By one single masterstroke, the verdict restores the equality before the law of all sexual orientations and identities, which cover a diverse set of traits and people. More importantly, the decision brings to the forefront the apex court’s willingness to make the Constitution truly transformative- adapting and evolving with the ever shifting dunes of time. While India does have one of the largest constitutions of the world, legal perfection would arise only when the Constitution becomes flexible enough to leave behind social prejudices and civic ills of the past. Gender equality in India has always attracted the attention of the nation as a whole- and there, at last, seems to be hope that the most humiliated, damned and condemned would rise again to the pedestals of social success and acceptance.
In retrospect, the decriminalisation of section 377 IPC is indeed an appreciable verdict and a positive step. Now that the impetus has been provided, it is time that the subtler details are looked on carefully: the need to promote inclusivity in society. Those who have been ostracized and deprived of their legal, personal and political rights for long must be welcomed back into the society. However, this seems to be a difficult challenge. It is very easy to be an armchair commentator and paint flowery pictures of the reality that seems apparent. Social stigma is a dreaded disease in India; to eradicate it would require awareness drives from the grassroot levels. The 2014 NALSA judgement declared the transgenders as the third gender, and ruled that all private and public sector organisations must ensure workplace equality. MNCs have led the charge, which is a wonderful thing to observe. Bringing in sectorial reservation for the transgenders would ensure their livelihood and bring in economic security for their families, hence implementing the policy directives of the Constitution along with promoting the ultimate target of gender equality. This judgement is probably a move towards the New India we all want to see- a India apolitically united in its stand to secure the rights of the unrecognised, a India that celebrates, as it always had in the past its diversity; and a India that cherishes and celebrates variants from the perceived order of nature and accepts them as our own.