Sec 377: SC has signalled a fresh phase in the evolution of rights jurisprudence
When asked in 2006 how he would rate the Supreme Court, Fali Nariman had a devastating riposte: “Do you feel like reading any of their judgments?”
That cannot be said about the court’s magnificent judgment delivered on September 6, reducing to ashes Section 377 of the Indian Penal Code. In a unanimous verdict in Navtej Singh Johar v Union of India, a Constitution Bench headed by Chief Justice Dipak Misra declared the offending provision inapplicable to consensual sexual relationships between adults. The LGBTQ community stands liberated.
Here is a judgment worthy of reading and rereading. It will endure as long as the court and the Constitution. The Supreme Court does here, and does exceptionally well, what constitutional tribunals are meant to do. It draws on the submissions made in court, lifts the discourse through layered research and then applies prodigious analysis to distil the core of the case. The challenge before the court was not about physical acts but about identity. A section of Indians found themselves criminalised for simply being who they are. This, the court held, destroys dignity and so severely undermines a person’s self esteem that the offending provision had to be declared unconstitutional.
Courts derive legitimacy from the power of reasoning and analysis in their judgments. Thursday’s verdict is rigorous in its analysis, careful in its survey of global jurisprudence and, most of all, sensitive to the human condition. The judgment is founded on the recognition of the need for intimacy in developing human relationships. The heart of the judgment is the court’s belief that the Constitution creates zones of privacy and spaces for individuals to not conform. Constitutional morality trumps majoritarian notions. Indeed, no matter how small a minority, the Constitution will spring to its defence where the actions cause no harm.
This has been a long journey. In 2000, a group of activists and lawyers began strategising on whether and how to challenge Section 377. The Naz Foundation case was lodged in the Delhi High Court in October 2001.
The Delhi High Court in 2009 reached the same conclusion in the Naz Foundation case the Supreme Court eventually did, on Thursday. However, after several twists and turns, that case met a grim end in a judgment of the Supreme Court in December 2013.
This led to a fresh round of strategic thinking on how Koushal could be overturned. At one point, activists contemplated the possibility of certain state governments amending Section 377. The legislative route, however, meant that the Supreme Court’s decision would survive.
When the government refused to acknowledge the right to privacy, the Supreme Court was compelled to set up a panel of nine judges to reconsider previous decisions. On August 24, 2017, in an offshoot of the Aadhaar case, the Supreme Court took the opportunity to examine Koushal. The nine-judge bench in Puttaswamy recognised a constitutional Right to Privacy. The judgment also declared the law laid down in the Koushal case wrong. However, it did not overrule it.
Finally, with the Supreme Court’s verdict, Suresh Kumar Koushal is now buried.
The verdict decisively restores to members of the LGBTQ community, long overdue access to the experience of full citizenship. This is a moment to be savoured by the LGBTQ community, finally, full citizens of India.
The Court also points the nation down a constitutional path: “Let us move from darkness to light, from bigotry to tolerance and from the winter of mere survival to the spring of life ― as the herald of a New India ― to a more inclusive society.” Inclusiveness is a core constitutional value.
Beyond the LGBTQ community in India, the judgment will bring cheer across the globe to other communities seeking their place in the sun. Moreover, by crafting doctrines of progressive realisation of rights and non-retrogression, the court has signalled a fresh phase in the evolution of human rights jurisprudence. Reassuringly, the Constitution remains a wellspring of hope and rejuvenation.
Shyam Divan is a senior advocate. He appeared for Voices against 377
The views expressed are personal
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