Supreme Court unlocks expansive notions of freedom

In a landmark judgment last week, the Supreme Court (SC) junked Section 377 of the Indian Penal Code that denied a sizeable minority of the LGBT community the right to pursue its sexual orientation. In doing so, a five-member Constitution bench of the apex court unanimously articulated, through four separate judgments, that the Indian society must respect the rights of the LGBT community to live with dignity as part of the right to liberty and privacy guaranteed under the Constitution. This removes the 150 years of discrimination and legal hurdle to about three to four per cent of Indians who belong to the LGBTQ community to seeking a life of equality and privacy with majority heterosexual members of the Indian society.

After the SC’s nine-judge Constitution bench judgment on the Right to Privacy as a fundamental right under Article 21 in July last year and the quashing of instant triple talaq in August 2017, decriminalising queer or different sexual orientation is yet another significant judicial intervention. By restoring the rights of the LGBT community to equality before the law, personal liberty, privacy and life with dignity, the SC has corrected grave constitutional wrong that questioned the Indian State’s commitment to minority rights. This was largely expected, more so after the Right to Privacy judgment. At that time Justice D Y Chandrachud had called out the 2013 two-judge bench decision of the SC on Section 377 as ‘unsustainable’, noting that the ‘right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed under Articles 14,15 and 21 of the Constitution’.

The September 6 judgment on Section 377 is not only about the right to practise different sexual orientation without fear of law but also about freedom – the freedom for all Indians to have the same rights of equality, dignity and privacy in their personal lives. The SC has made it clear that the personal sexual preferences of adult individuals is indeed as nature made them, and that it is lawful for them to be themselves. The idea of what is ‘natural’ can differ from individual to individual and the idea of what is ‘natural’ to the LGBT community is obviously reflected in their sexual orientation. What the SC has said is that the majority cannot dictate its idea of ‘natural’ sexual preference to the minority LGBT community and the ‘freedom of choice cannot be scuttled or paralysed on the mercurial stance of the majority’.

Social exclusion, identity seclusion and isolation from the mainstream on the basis of different sexual orientation negate the fundamental rights of an individual in a democratic republic. The judgment shows that the apex court is open to consider more expansive notions of freedom, while the government lacked political courage to overturn a highly contentious and unfair penal provision that denied the LGBT community the fundamental right to equality under Article 14. The SC decision on Section 377 also leads people to believe that the judiciary is the last bastion of fundamental rights in India, more so because the lawmakers had their chances to undo a colonial wrong but chose to do nothing. Morality is subjective, but collective legislative wisdom should have stepped in to undo a wrong that was a cause of injustice to the LGBT community.

The fact that the legislature refused to act and the petitioners sought judicial intervention to protect their constitutional rights suggests that the legislature is not as much open to valid grievances of injured individuals as the judiciary is, even if the broader public (majority) disagrees. Like the Right to Privacy judgment which was hailed internationally, the Section 377 judgment will put India on par with some of the world’s evolved democracies as it recognises true freedom of gender identity, equality and sexual expression in an evolving democratic society.

The fight for gay rights has come a long way since Naz foundation, an NGO, had petitioned the Delhi high court against Section 377 in 2001. It was dismissed but the SC returned the petition to the high court to reconsider it on merit. After a long hearing, the court decriminalised sex between consenting adults of the same gender by holding the penal provision ‘illegal’ in 2009. The 2009 judgment of the Delhi high court was overturned by the SC in 2013 and subsequently, it also dismissed a review plea. While in 2013, the SC restored the criminality of sexual relationship between persons of the same sex, the court now has not only reversed the 2013 verdict that described the LGBT community as a ‘minuscule fraction of the country’s population’ but also given precedence to constitutional morality and individual rights over social mores.

Interestingly, in its 2013 judgment that affirmed Section 377, the SC had said that legislators, not judges, must decide its fate. But Parliament failed to take a call on it. Curiously, the government also did not take a categorical stand on the contentious penal provision in the court, but remained silent by leaving the matter to the court to decide. The government’s, and also the ruling party’s, silence over the judgment is not surprising, given the observation of the RSS, the BJP’s ideological parent, that ‘homosexuality is not natural’. The indifference and prejudice of much of the Opposition, except the Congress and the Left, can also be seen in their silence on the judgment. The Section 377 judgment is just a beginning in the LGBT community’s fight against social conservatism. As social mores don’t change easily, their release from criminality will require a far greater struggle on their part to gain acceptance for their sexual orientation on a par with heterosexual men and women. It is hard to expect elected lawmakers, swung by votes, to strike down laws which concern constitutional rights of citizens. Thankfully, the SC has had an exemplary record of interpreting the Constitution in way that expands human rights in India. It does not wait for the government to repeal laws and take a call on contentious issues. As the government had argued that privacy is an abstract issue before the SC recognised privacy as a fundamental right, it is probably best to expect the court to consistently uphold an idea of India where equality, individual liberty and diversity remain alive. Now let’s wait and watch what the SC has to say on Aadhaar and adultery.

A L I Chougule is an independent senior journalist

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