An atonement for a grievous error
The building blocks of that bridge are Article 14 (equal protection of laws), Article 15 (nondiscrimination), Article 19(1)(a) (freedom of expression), and Article 21 (life and personal liberty). And its foundation is the concept of fraternity, which is at the heart of our Constitution’s Preamble. Fraternity, in the words of Justice DY Chandrachud, “envisaged a transformation in the order of relations not just between the state and the individual, but also between individuals: in a constitutional order characterised by the Rule of Law, the constitutional commitment to egalitarianism and an anti-discriminatory ethos permeates and infuses these relations.”
And it was, indeed, a transformation. It is no surprise that Section 377 was part of the Indian Penal Code of 1860, a brutal law imposed upon us by an alien, colonial regime, exemplifying alien cultural values. It was part of an entire web of laws that treated segments of society as inferior (the Criminal Tribes Act), trapped within communitarian diktats (regimes of “personal law”), incapable of exercising freedom (censorship laws), and so on. And this was a regime that was maintained by force and coercion.
But for decades, Indians protested, mobilised, organised, and campaigned against this regime. And in doing so, they articulated a grammar and a language of personal liberty, of substantive equality, and of fraternity; a grammar and a language opposed to the rule of force, the establishment of hierarchies (on grounds of caste, gender, etc.), and the walls that separated people from their fellow human beings. This was the meaning of the Indian freedom struggle, and this was what culminated in the drafting of independent India’s Constitution. Our Constitution was — and is — meant to transform both the relationship between the individual and the State, and between individuals and individuals, in the direction of liberty, equality, and fraternity. This was what the Delhi High Court meant when it placed “inclusiveness” at the heart of the transformative constitutional order.
And it was this that the Supreme Court reclaimed last week. Navtej Johar is not only an atonement for a grievous error, but a gateway towards greater freedom.
Gautam Bhatia is one of the lawyers who represented Voices Against 377, a coalition of organisations which challenged Section 377 before the Court The views expressed are personal