Hindustan Times ST (Mumbai)

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

 ?? SAMIR JANA/HT ?? For decades, Indians campaigned against section 377
SAMIR JANA/HT For decades, Indians campaigned against section 377

Newspapers in English

Newspapers from India