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Justice for LGBTQ community

Kashmir Times. Dated: 9/10/2018 2:55:37 PM

The Supreme Court ruling on Section 377 of IPC extends the frontiers of personal freedom for a large minority of Indians

Thursday, September 6, 2018, was a historic day for a large minority of people in sexual orientation of Lesbian, Gay, Bi-sexual, Transgender and Queer community (LGBTQ) when the Supreme Court decriminalized Section 377 of Indian Penal Code. The SC judgment has also granted equal rights to LGBTQ minority in the country so far as sexual choices are concerned. The IPC provision was a British legacy that survived for 71 years in the post independence India and witnessed rumblings of one form or the other for over 30 years, the period during which the law has been challenged by the minority community. It is particularly important in the Indian society, which has been bogged down by the blind-faith and contempt for the people belonging to LGBTQ community due to regressive thought process of the majority population. Despite the fact that Indian society has over the past two and a half thousands years recognized the existence of such people, the hypocrisy in accepting such people has done not only injustice to such people but also resulted in discrimination against them for unknown reasons. The message from the SC’s landmark judgment decriminalising gay sex is that social morality cannot trump constitutional morality. It is a reaffirmation of the right to not only love and but also enjoy equal rights to life under the provisions of the Indian Constitution. In a 5-0 verdict, a Constitution Bench has corrected the flagrant judicial error committed by a Division Bench in Suresh Kumar Koushal (2013), in overturning a reasoned judgment of the Delhi High Court reading down Section 377. The 2013 decision of the High Court meant that the LGBTQ community’s belatedly recognised right to equal protection of the law was withdrawn on specious grounds: that there was nothing wrong in the law treating people having sex ‘against the order of nature’ differently from those who abide by ‘nature’, and that it was up to Parliament to act if it wanted to change the law against unnatural sex. The court has overruled Suresh Kumar Koushal and upheld homosexuals’ right to have intimate relations with people of their choice, their inherent right to privacy and dignity and the freedom to live without fear. The outcome was not unexpected. Somehow the judgment of the SC also appears to have been influenced by the developments world over on these issues. When the courts considered Section 377 earlier, the litigation on these issues was initiated by voluntary organisations. When those affected by the 2013 verdict approached the Supreme Court, it was referred to a larger Bench to reconsider Suresh Kumar Koushal case.
Delving into the history of such cases, it has come to light that in the intervening years, two landmark judgments took forward the law on sexual orientation and privacy and formed the jurisprudential basis for the latest judgment of the Apex Court. In National Legal Services Authority (2014), a case concerning the rights of transgender people, the court ruled that there could be no discrimination on the basis of sexual orientation and gender identity of an individual. In Justice K S Puttaswamy (2017), or the ‘privacy case’, a nine-judge Bench ruled that sexual orientation is a facet of privacy, and constitutionally protected. The Chief Justice of India Dipak Misra’s opinion lays emphasis on transformative constitutionalism, i.e., treating the Constitution as a dynamic document that progressively realises various rights. In particular, the CJI invokes the doctrine of non-retrogression, which means that once a right is recognised, it cannot be reversed. At least, the four opinions have extended further the frontiers of personal freedom and liberated the idea of individual rights from the pressure of public opinion. Constitutional morality trumps any imposition of a particular view of social morality, says Justice R H Nariman, while Justice D Y Chandrachud underscores the ‘unbridgeable divide’ between the moral values on which Section 377 of IPC is based and the values of the Indian Constitution. Justice Indu Malhotra, the only woman judge in the Bench, strikes an interesting note when she says history owes an apology to the LGBTQ community for the delay in providing the redress and justice to them. The dilution of Section 377 marks a welcome departure from centuries of retrograde thought process, that has been high on the minds of the majority of Indian population. This verdict will definitely help sexual minorities ‘confront the closet’ and realise their rights. But one thing has to be borne in mind that there is still a long way to go for the LGBTQ minority in view of the fact that it takes time to change the mindset of the people in such a big country like India. The laws, regulations and guidelines that provide for equality before law irrespective of their sexual orientation will take some time to go down the majoritarian thinking population of the country. There are still many challenges that will stare in the face of the LGBTQ minority community, when it comes implementation of the SC judgment.