Relevance: GS Paper II
Why has this issue cropped up?
In its decision in Navtej Singh Johar v. Union of India last week, the Supreme Court has finally struck down the colonial-era law criminalizing homosexuality and the lives of LGBTQ persons.
Why did the court decriminalize homosexuality?
- The provision violated the rights of LGBTQ persons to dignity, equality, privacy and expression.
- Section 377 of the Indian Penal Code intruded into a zone of intimate decision which is entitled to constitutional protection.
- The guarantee of equality at its heart was the guarantee of equal citizenship. The criminalising ambit of Section 377 violated this guarantee as it “singles out people, by their private choices” and “marks them as less than citizens — or less than human”.
- Section 377 encoded a stereotypical morality which has deep-ranging social effects. The right not to be discriminated against on grounds of one’s sexual orientation is violated by the prejudicial stereotypes about the LGBTQ community fostered by Section 377.
- The denial to LGBT persons of the right to dignity is incompatible with the morality of the Constitution.
- The idea that majority opinion should prevail over the right to dignity and liberty of the minority was explicitly rejected.
Transformative Constitution
- The logic of this case is anchored within what is called “a transformative Constitution”.
- The purpose of having a constitution is to transform society to embrace therein the ideals of justice, liberty, equality and fraternity.
- The mandate to transform society in allegiance to the Constitution is a task vested in the state, the judiciary and the citizen.
- The implications of a transformative Constitution are wide ranging and its power can be harnessed by inter-caste, inter-religious and same sex couples, all of whom are battling a form of social morality which is at odds with the Constitution.
Way forward
- If a law has taken root in the social, cultural and legal consciousness, the challenge of extirpating the prejudice which the law has fostered is still immense. Denotified Tribes still face prejudice and violence at the hands of the state and society even after the colonial-era Criminal Tribes Act was repealed in the late 1940s. It is this immense task of combating the prejudicial attitudes encoded in Section 377 which has to continue.
- SC was cognizant of this challenge and mandated the Union of India to give “wide publicity to the judgment” and conduct “sensitization and awareness training for government officials and in particular police officials in the light of observations contained in the judgment”.
Conclusion
The court, through this decision, has harnessed the transformative power of the Constitution and amplified a way of thinking rooted in the values of respect for dignity, equality and fraternity. If this way of thinking, rooted as it in the struggle against forms of discrimination perpetrated by a conservative social morality, becomes more widely accepted, India will be less of a majoritarian democracy and more of a form of constitutional democracy.
