LOVE AF­TER THE TIME OF 377

India Today - - STATES - SID­DHARTH NAR­RAIN

The unan­i­mous ver­dict of the Supreme Court’s five-judge con­sti­tu­tional bench in Navtej Singh Jo­har & Ors., de­crim­i­nal­is­ing ho­mo­sex­u­al­ity and recog­nis­ing the con­sti­tu­tional rights of LGBTI per­sons, has led to a mas­sive out­pour­ing of emo­tion and cel­e­bra­tions across the coun­try and around the world. Read­ing the four opin­ions to­gether, it is clear that at the heart of the ver­dict lies an over­whelm­ing en­dorse­ment of the right to per­sonal au­ton­omy and choice. The judges have held that this right in­cludes the right to choose one’s part­ner, the right to sex­ual au­ton­omy and agency, the right to love, to live one’s life with dig­nity, not con­fined just to the pri­vacy of the home but at­tach­ing to the body of the in­di­vid­ual and ex­tend­ing to pub­lic spa­ces.

This ex­pan­sive read­ing of per­sonal au­ton­omy—and the cen­tral­ity of this right to the judges’ rea­son­ing—can be seen as an ex­ten­sion of the Supreme Court’s own de­ci­sions af­ter the 2013 Koushal de­ci­sion, re­in­stat­ing Sec­tion 377 of the In­dian Pe­nal Code (IPC) and re-crim­i­nal­is­ing ho­mo­sex­u­al­ity. This string of cases in­cludes NALSA (2014), recog­nis­ing cit­i­zen­ship rights of the trans­gen­der com­mu­nity; Put­taswamy

(2017), up­hold­ing the fun­da­men­tal right to pri­vacy; Shafin Ja­han (2018), up­hold­ing the right to be in a re­la­tion­ship of one’s choice; Sha­yara Bano (2017), declar­ing that a law could be struck down as un­con­sti­tu­tional if it is man­i­festly ar­bi­trary; Com­mon Cause, recog­nis­ing the right to a dig­ni­fied death of those who have slipped into a per­ma­nent veg­e­ta­tive state; Shakti Vahini (2018), recog­nis­ing the right to choose a life part­ner as a facet of in­di­vid­ual lib­erty, where the court has op­posed the practice of hon­our killings as a threat to the con­sti­tu­tional right to in­di­vid­ual lib­erty.

Cen­tral to the judges’ ex­po­si­tion of the right to per­sonal au­ton­omy is the right to dig­nity, linked to the right to pri­vacy and the right to ex­er­cise choice with­out fear. What is sig­nif­i­cant, and con­nects to the line of cases pre­ced­ing this judg­ment, is the court’s link­ing of the right to dig­nity to the idea of fra­ter­nity. Ac­cord­ing to the judges, just as the state is bound to pro­tect in­di­vid­ual rights, it is equally in­cum­bent on so­ci­ety to re­spect in­di­vid­ual rights. Navtej Jo­har thus opens up fur­ther pos­si­bil­i­ties for a di­verse range of sit­u­a­tions where per­sonal au­ton­omy and the right to choice of in­di­vid­u­als have been cur­tailed.

The sec­ond clus­ter of ar­gu­ments that runs through the four con­cur­ring opin­ions in this case is a ro­bust read­ing of the right to equal­ity, both un­der Ar­ti­cle 14 (the right to equal­ity and equal pro­tec­tion of the law) and Ar­ti­cle 15 (pro­hi­bi­tion against dis­crim­i­na­tion based on re­li­gion, race, caste, sex, etc.) of the Con­sti­tu­tion. The judges hold that the dis­tinc­tion made by Sec­tion 377 between ‘nat­u­ral’ and ‘un­nat­u­ral’ sex­ual in­ter­course is ar­bi­trary, un­sup­ported by sci­en­tific ev­i­dence, and does not with­stand le­gal scru­tiny. The court recog­nises sci­en­tific de­vel­op­ments, in­clud­ing guide­lines of the Amer­i­can Psy­chi­atric As­so­ci­a­tion, the World Health Or­ga­ni­za­tion and a 2018 Po­si­tion State­ment by the In­dian Psy­chi­atric So­ci­ety, all of which state that ho­mo­sex­u­al­ity is no longer con­sid­ered to be a men­tal health dis­or­der, and can­not be al­tered by any ‘treat­ment’. The court recog­nises ho­mo­sex­u­al­ity to be a nat­u­ral vari­a­tion of a range of sex­u­al­i­ties found in na­ture.

The judges aban­don a for­mal­is­tic read­ing of the ‘in­tel­li­gi­ble dif­fer­en­tia’ test, over­rul­ing an ear­lier de­ci­sion in Air In­dia vs Nargesh Meerza (1981), in which the Supreme Court had up­held a dis­crim­i­na­tory rule that al­lowed for dis­par­i­ties in pay and pro­mo­tion­re­lated poli­cies for men and women in flight cabin crew. The court based its de­ci­sion on a very nar­row in­ter­pre­ta­tion of Ar­ti­cle 15, and jus­ti­fied this step through gen­der stereo­typ­i­cal views of the roles of men and women, per­pet­u­at­ing the no­tion that the obli­ga­tion of rais­ing a fam­ily was to be borne by women. This bench, in its read­ing of the equal­ity pro­vi­sions, recog­nises that a law that is on the face of it neu­tral can have a dis­pro­por­tion­ately dis­crim­i­na­tory im­pact on a sec­tion of so­ci­ety. In this spe­cific case, Sec­tion 377 does not specif­i­cally men­tion ho­mo­sex­u­als, but it has been ap­plied over­whelm­ingly to tar­get LGBTI per­sons.

The court not only ex­plic­itly re­jects the ra­tio­nale in Nargesh Meerza, but goes a step fur­ther hold­ing that the qual­ity pro­vi­sions in our Con­sti­tu­tion must be in­ter­preted to chal­lenge gen­der stereo­types, a het­eronor­ma­tive bias, bi­nary for­mu­la­tions of hu­man sex­u­al­ity, and must in­stead, in Jus­tice D.Y. Chan­drachud’s words, pro­tect “the flu­idi­ties of sex­ual ex­pe­ri­ence” and “plu­ral ways of life and in­fi­nite shades of love and long­ing”.

The judges read Ar­ti­cle 15 ex­pan­sively to read non-dis­crim­i­na­tion based on sex­ual ori­en­ta­tion into the

CEN­TRAL TO THE JUDGES’ EX­PO­SI­TION OF THE RIGHT TO PER­SONAL AU­TON­OMY IS THE RIGHT TO DIG­NITY, LINKED TO THE RIGHT TO PRI­VACY AND THE RIGHT TO EX­ER­CISE CHOICE WITH­OUT FEAR

term ‘sex’, re­ly­ing on prece­dents such as NALSA, as well as a plethora of in­ter­na­tional case law. In this, they reit­er­ate the logic laid down in Naz Foun­da­tion, in which the Delhi High Court had also come to a sim­i­lar con­clu­sion. An­other as­pect of the judg­ment that strongly res­onates with Naz Foun­da­tion is the judges’ re­it­er­a­tion of the role of the courts, and their un­equiv­o­cal de­ci­sion that con­sti­tu­tional moral­ity al­ways trumps so­ci­etal moral­ity.

Re­ject­ing the logic in Koushal of the “pre­sump­tion of con­sti­tu­tion­al­ity” (that the Con­sti­tu­tion brings into force pre-colo­nial law un­less they are ex­pressly amended), the court says that such a pre­sump­tion does not come into place in a case like this, where the pe­ti­tion­ers have demon­strated a clear vi­o­la­tion of fun­da­men­tal rights.

The court em­pha­sises that the role of the courts is to step in to pre­vent vi­o­la­tions of fun­da­men­tal rights, when the leg­is­la­ture and ex­ec­u­tive have failed to do so. The court has held that it is the duty of the court to pro­tect the rights of ‘dis­crete and in­su­lar’ iden­ti­ties, how­ever ‘mi­nus­cule’ their num­bers may be. In do­ing so, the court recog­nises that Sec­tion 377 was never just about pros­e­cu­tions, but about the threat of be­ing pros­e­cuted, about black­mail, fear and the per­pet­u­a­tion of a cul­ture of si­lence and stig­ma­ti­sa­tion of LGBTI iden­ti­ties.

The judges iden­tify the ideals of plu­ral­ity, di­ver­sity, in­clu­sive­ness, equal­ity, fra­ter­nity and lib­erty, among oth­ers, as be­ing cen­tral to the char­ac­ter and vi­sion of the In­dian Con­sti­tu­tion. They high­light the trans­for­ma­tive na­ture of the In­dian Con­sti­tu­tion, as a doc­u­ment that is vi­brant, dy­namic and com­mit­ted to social trans­for­ma­tion.

In their pow­er­ful ar­tic­u­la­tion of con­sti­tu­tional moral­ity, espe­cially through the con­sti­tu­tional value of fra­ter­nity, the judges are clear that they are not just speak­ing about state vi­o­la­tions of rights, but also vi­o­la­tions by other ac­tors in so­ci­ety. Their judg­ment is a di­rect chal­lenge to the val­ues that un­der­pin hon­our killings, the ob­struc­tion of in­ter-re­li­gious and in­ter-caste mar­riages, kid­nap­pings, forced mar­riages, house ar­rest, and other forms of vi­o­lence per­pe­trated by fam­i­lies on their own kith and kin to pro­tect their rep­u­ta­tion.

The court en­vis­ages this judg­ment as not just about guar­an­tee­ing LGBTI per­sons their rights, but equally as a vi­sion of the kind of so­ci­ety we live in. Their ar­tic­u­la­tion of con­sti­tu­tional moral­ity and the value of fra­ter­nity is as much about what it means for the ma­jor­ity of this coun­try as it means for its mi­nori­ties.

An im­por­tant as­pect of this judg­ment is its re­liance on the doc­trine of non-ret­ro­gres­sion. As per this doc­trine, the State should not take de­lib­er­ate steps that erode or re­verse rights. The court holds that if it were to ac­cept the law laid down in Koushal, it would lead to a ret­ro­grade step in the pro­gres­sive re­al­i­sa­tion of rights un­der the Con­sti­tu­tion.

The judges have ac­knowl­edged the par­ents and fam­i­lies of LGBTI per­sons, many of whom have been in­ter­venors in dif­fer­ent stages of the le­gal chal­lenge to Sec­tion 377. The court quotes the late Jus­tice Leila Seth, who, in the wake of , wrote a mov­ing ar­ti­cle from the point of view of a mother and a judge, crit­i­cis­ing the judg­ment as in­hu­mane and pro­foundly cruel.

Jus­tice Indu Mal­ho­tra, in her con­cur­ring opin­ion, in an ex­tra­or­di­nary state­ment, states that his­tory owes an apol­ogy to LGBTI per­sons and their fam­i­lies, for the ig­nominy and os­tracism they have suf­fered through the cen­turies. The re­morse ev­i­dent in Jus­tice Mal­ho­tra’s state­ment sums up the mood of the court, which, in over­turn­ing the Supreme Court’s 2013 de­ci­sion in Koushal, has made amends for the grief, pain and rage caused by the cal­lous words of the judges in that case.

Navtej Jo­har in­au­gu­rates a phase of heal­ing and hope, a mo­ment of joy, re­mem­brance and grat­i­tude, of over­whelm­ing re­lief and re­flec­tion, an op­por­tu­nity to pause and look back at the years of tire­less ac­tivism, of count­less un­told sto­ries, of in­ti­mate en­coun­ters with the law, of joy­ous team spirit in the face of ad­ver­sity and of the con­tri­bu­tions of peo­ple in dif­fer­ent ca­pac­i­ties from all over the world. This judg­ment is part of an ex­tra­or­di­nary po­lit­i­cal and emo­tional jour­ney and a con­tin­u­ing strug­gle for equal rights. It is a pow­er­ful in­dict­ment of the hypocrisie­s of so­ci­ety that drive the ex­treme vi­o­lence and bru­tal­ity faced by those who dare live life on their own terms.

THE COURT EN­VIS­AGES THIS JUDG­MENT AS NOT JUST ABOUT GUAR­AN­TEE­ING LGBTI PER­SONS THEIR RIGHTS, BUT EQUALLY AS A VI­SION OF THE KIND OF SO­CI­ETY WE LIVE IN

Newspapers in English

Newspapers from India

© PressReader. All rights reserved.