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Rostrum’s Law Review | ISSN: 2321-3787

TRANSFORMATIVE CONSTITUTIONALISM AND THE EXPANSION OF LGBT RIGHTS IN INDIA: A HUMANISTIC ANALYSIS

  • Authored by - Abhay Kumar, Ganesh Prasad Pandey
  • Issue - RLR (2023) Volume VII Issue II

ABSTRACT

Following the decision in Navtej Singh Johar v. Union of India, the Indian Constitution is envisioned as a transformational constitution that revolutionised, modernised, and revitalised the equality values. This is the most thoughtful judgement since it not only decriminalises same-sex sexual interactions between adults but also establishes the concept of sexual autonomy. This judgement has jumped ahead of decriminalisation by recognising the claims of the LGBT community through Constitutional morality, establishing the groundwork for future LGBT rights and issues. In India, this would involve invoking the applicable articles of the Indian Constitution and its “ideals of justice, liberty, equality, and fraternity” in order to create opportunity and space for social transformation. In this framework, this paper seeks to achieve two goals.

Initially, the paper revisits the primary aspects of the judgement, explaining what notion of inclusiveness and plurality the Constitution espouses in a society treasured by the Supreme Court while delivering the judgement and discussing what makes it an example of “transformative constitutionalism.” Secondly, the study contends that once a law has taken root in our social, cultural, and legal consciousness, the task of eradicating the prejudice that it has nurtured is enormous. The paper basically looks at the role of social values and stigma in relation to some of the progressive laws in India that aim to mitigate regressive practises and assesses the challenge that the LGBT community is still likely to face in India in matters of same-sex marriage, inheritance laws, protection from assault and harassment, adoption, and many more.

Keywords- Transformation, LGBT, Constitutionalism, Plurality

INTRODUCTION

“I am what I am, so take me as I am”

      -Johann Wolfgang von Goethe

Future of millions of people and horizion of entire civilization can be shaped through constitution and this is being done since the inception. Clarification and broad interpretation of it by constitutional courts are the blood of modern democracies. The Supreme Court of India, as well as the several High Courts, have repeatedly reaffirmed that a static judicial interpretation of the Constitution would risk stifling the very essence of the Constitution in a society that is inherently dynamic. Viewing it as a revolutionary and transformative constitution, the courts have enthusiastically carried out their role as the watchdog for defending the rights of all people, regardless of gender, choice, or sexual orientation.

When viewed through a pragmatic lens, the Navtej Singh Johar v. Union of India case illuminates what is meant by the term “transformative constitutionalism,” in which the Indian Supreme Court harshly condemned the country’s anti-sodomy law as an affront to the Constitution’s foundational principle of equality. Everyone is entitled to the same treatment under the law, regardless of whether they are good or bad. This includes murderers, perpetrators, and even prisoners. The relevant provision of the colonial legislation in the Johar’s case was Section-377, which made it illegal to engage in “carnal intercourse contrary to the order of nature with any man, woman, or animal” while safeguarding only “penal-vaginal intercourse.” According to this clause, engaging in homosexual behaviour, even if done by two consenting adults, is a serious crime punishable by jail time. Thus, not only was the Lesbian, Gay, Bisexual, and Transgender (LGBT) group shunned by Indian society, but it was also denied a voice in discussions about protecting constitutional rights.

The sexual minorities have been recognized and accepted in various legal spheres however; the criminalization of homosexual conduct under Section 377 created nothing but a chilling effect. The principle of transformative constitutionalism is applied to ameliorate this condition. The purpose of transformative constitutionalism thus, is to steer the society with the help of legal institutions, in a direction of democratic egalitarianism with an increased protection of fundamental rights and other freedoms. However, the outlawing of homosexual conduct under Section 377 has had nothing but a chilling effect, despite the fact that sexual minorities have been recognised and welcomed in numerous legal domains. To help alleviate the effects of this predicament, the transformative constitutionalism principle is put into practise. Therefore, the goal of transformative constitutionalism is to steer society in the direction of democratic equality with an expanded protection of fundamental rights and other liberties with the assistance of legal institutions. This is the end goal of transformative constitutionalism.

Transformative Constitutionalism played a very important role in determining the Court’s basis of its reasoning in Navtej Singh Johar. However, the question which remains is whether merely by decriminalization of homosexual conduct, that is, by removing a negative barrier without ensuring any positive rights for the LGBT community, how far will the society be transformed? If societal transformation through constitutional values was the purpose of the Navtej Singh Johar judgment, it can be considered nothing more than a first step towards enhancing the position of the homosexual community in the society.

BREAKING THE LEGAL BATTLE: FROM NAZ TO NAVTEJ

In national debates in India, the topic of LGBT rights has a tenuous hold. A letter supporting the challenge to S. 377 signed by a number of celebrities led by Vikram Seth and a series of incidents, including violent right-wing Hindu protests against a movie depicting a lesbian relationship in 1998, the arrest of HIV/AIDS outreach workers at Lucknow in 2001, the entrapment of a number of men by the Lucknow police in 2006, and so on, led to support in liberal media for decriminalisation. Multiple legislative initiatives by Dr. Shashi Tharoor, a Member of Parliament, to decriminalise gay behaviour were unsuccessful because of a lack of popular support and reactionary legislators.

The most significant development in LGBT rights occurred in Naz Foundation v. NCT of Delhi, in which a Division Bench of the Delhi High Court ruled that Section 377 “criminalizes consensual sexual acts of adults in private, which is violative of Articles 21, 14 and 15 of the Constitution.”  Naz started out not as a quest for a new model but rather with the original idea in mind. In Lawrence v. Texas, which went all the way to the U.S. Supreme Court, the investigation was conducted because the facts were “exceedingly simple.” Houston police visited a home after receiving a complaint of a disturbance involving guns and found future petitioners Lawrence and Garner engaged in a mutually consenting sexual act. They stood trial and were found guilty “of deviate sexual intercourse in violation of a Texas statute prohibiting certain intimate sexual conduct between two persons of the same sex.” Bowers v. Hardwick is the leading case, thus the State Court of Appeals upheld the conviction. The Supreme Court agreed to hear the case on certiorari so it may rule on whether the challenged law violated the Fourteenth Amendment’s Equal Protection or Due Process clauses. Justice Anthony Kennedy wrote the majority opinion, which found that the Texas legislation was unconstitutional because it violated the Due Process Clause: “Nor shall any State deprive any person of life, liberty, or property, without due process of law.”

After the Naz case, some conservatives, led by Suresh Kumar Koushal, appealed the High Court’s decision to the Supreme Court, where the justices ultimately overturned the Delhi High Court’s ruling and issued a decision that was universally panned. Both the analysis and the approach taken by the court were heavily criticised.  It failed to address Naz’s multiple arguments, painted a picture of international law as “schizophrenic,” and noted that the Delhi High Court heavily relied on foreign judgements in its haste to protect the “so-called rights of LGBT persons.” Judgements from other countries cannot be used to determine whether or not an Indian law is constitutional, according to the Court. It has been widely pointed out that this description completely misrepresents Naz.

In the end, the Supreme Court decided in favour of the LGTB community, holding that they are entitled to equal rights under Articles 14, 15, 19, 21, and the rest of the fundamental rights chapter of the Constitution, effectively reversing the Delhi High Court’s judgement in the Kaushal’s case and reaffirming Naz. Two prior major decisions, in NALSA and KS Puttaswamy, paved the way for this progressive ruling in Navtej.

NALSA, in a fundamentally contradictory ruling, deemed transgender people to be a ‘third gender,’ despite the fact that it acknowledged differences between the situation at hand and the one in the Kaushal’s case. As was argued in the Kaushal’s case, the fact that homosexuals only make up a “miniscule friction” of the overall population of this country means that their pain and suffering do not warrant any constitutional protection. In this specific instance, however, the NALSA case stated that a “Constitutional Court cannot be a mute spectator when those rights are violated, but is expected to safeguard those rights knowing the pulse and feeling of that community, though a minority, especially when their rights have gained universal recognition and acceptance” and further clarified that discrimination based on “sexual orientation or gender identity” violates Article 14.

While declaring that privacy was a fundamental right under the Indian Constitution in the Puttaswamy case, five of the nine judges made a remarkable observation: they said that “sexual orientation is an essential attribute of privacy,” overturning the Court’s 2013 judgement in Suresh Kumar Koushal v. Naz Foundation (a completely separate proceeding). Additionally, they criticised it for its use of the phrase “so-called rights of LGBT persons,” arguing that such rights are in fact “real rights founded on sound constitutional doctrine” rather than simple “so-called rights.”

CONSTITUTIONAL MORALITY TRIUMPHING SOCIAL MORALITY

Courts around the world have struck down similar laws, including Section 377, on the global principle that mere social morality is insufficient cause to limit the ability to engage in harmless, constitutionally protected activity. The idea of transformative constitutionalism in the Johar case rests on a massive moral architecture, and this gap between constitutional and social morality persisted throughout the case. “to curb any proclivity of popular sentiment or majoritarianism,” the Constitution says, “urges the organs of the State to maintain such a heterogeneous fibre in the society.” It is incomparable to the prevailing mood at every given moment in history.

Justice Deepak Mishra, who was Chief Justice of India at the time and who believes it is the job of the constitutional court to uphold constitutional morality over social morality, said that if a constitutional court determines that a provision of law violates a constitutional morality precept during the course of testing the provision’s constitutional validity, then the provision must be declared unconstitutional.

In S. Khushboo v. Kanniamaal, the court said emphatically that “notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy.” Crime and immorality are not synonymous.

Since the Delhi High Court’s decision in the Naz Foundation case was overturned in the Suresh Koushal case, and since the main worry in the Johar case was that the Suresh Koushal bench had been largely governed by social morality inclined on majoritarian notion when the issue, in veracity, needed to be addressed against the backdrop of constitutional morality, it is important to consider the implications of these cases. Based on this historical context, the pertinent observation of bench is taken as follows:

“It is the concept of constitutional morality which strives and urges the organs of the State to maintain such a heterogeneous fiber in the society, not just in the limited sense, but also in multifarious ways. It is the responsibility of all the three organs of the State to curb any propensity or proclivity of popular sentiment or majoritarianism. Any attempt to push and shove a homogeneous, uniform, consistent and a standardized philosophy throughout the society would violate the principle of constitutional morality. Devotion and fidelity to constitutional morality must not be equated with the popular sentiment prevalent at a particular point of time.

Any asymmetrical attitude in the society, so long as it is within the legal and constitutional framework, must at least be provided an environment in which it could be sustained, if not fostered. It is only when such an approach is adopted that the freedom of expression including that of choice would be allowed to prosper and flourish and if that is achieved, freedom and liberty, which is the quintessence of constitutional morality, will be allowed to survive.”

Since Section 377 was a Victorian era law and it has very less to no relevance anymore, there is no concrete reason to continue with a repressive old law. Constitutional morality tries to restrict a particular majoritarian notion of social morality from prevailing and affecting even a smallest group of people with different sexual orientation. The right to live a life with dignity is guaranteed by the Constitution of India to every of its Indian citizen and LGBT community are the equal citizen of this country having all the rights to live life on the ideals of justice, equality and liberty. It somehow shoves     the idea of progressive realization of rights for the LGBT community people and securing a better tomorrow for this community.

TRANSITIONING PAST THE JOHAR’S DECISION

The transition from Naz to Navtej Singh Johar, from PIL to writ petition, from sexual orientation to legal status, and from personal privacy to equal treatment is significant and far-reaching. The Johar verdict concludes the years-long fight against Section 377 in court. It’s a beginning towards ensuring equality for the LGBT community in India, and it could pave the way for similar reforms in other areas, such same-sex marriage, adoption by same-sex couples, inheritance rights, and many more.

The social celebration of the union and the legal privileges which the partners are entitled to out of that holy tie are the two main aspects of marriage. Sadly, despite the reinterpretation of IPC section 377, lesbian, gay, bisexual, transgender, and asexual (LGBT) couples are unable to legally enter into marriage and hence are denied access to the same basic rights and privileges as heterosexual married couples. Furthermore, it is always arguable that denying someone their fundamental right to life and personal liberty is also denying them their right to marry. The government should investigate the possibility of a new law to regulate such partnerships and introduce broad adjustments to the current legal framework as a means of easing the burden on such couples.

In this aspect, the ability of an LGBT couple to become parents remains a significant barrier. There are two main legal frameworks in India for adopting a child: the Hindu Adoption and Maintenance Act, which applies only to Hindu couples, and the Central Adoptive Response Authority, which assists adoptive parents of all faiths. However, homosexuals are not permitted to adopt through either route because of the stigma attached to publicly acknowledging their marital status. The laws and regulations of CARA prohibit a male partner from adopting a female child, and the other spouse in a same-sex couple from having any legal rights to the kid if the couple chooses a single parent adoption policy. Background checks on PAPs are so thorough that their relationships are often revealed, which further inhibits the authority from approving adoptions to such couples.

The same-sex couples who live together under one roof are recognised in the landmark case of Indra Sarma v. V.K.V. Sarma, but maintenance cannot be paid to the partner who is less financially secure because the laws governing them, section 125 of the Criminal Procedure Code of India and the Protection of Women from Domestic Violence Act (DV Act), 2005, are gender-specific and use terms like wife/woman and husband/man. They don’t take into account the problems with violence and upkeep that same-sex couples confront. According to the nation’s current legislation, homosexual couples are therefore not protected in the event that one partner deserts the other or inflicts violence on the other.

The same is true for other areas of the law, which do not make any allowances for LGBT couples. For instance, under the Workmen’s Compensation Act of 1923, a worker’s dependents are also entitled to receive compensation from the employer in the event of the worker’s death; this includes the worker’s spouse, unmarried children, minor legitimate children, widowed mother, and disabled children. Since same-sex couples cannot legally marry in the United States, they are left without access to basic financial support in the event that one of them is killed on the job.59 However, this is not the only act that grants privileges to married couples that are denied to same-sex couples simply because their marriage is not recognised by India’s legal system. Because of the way in which the Provident Fund Scheme, 1952 and the Payment of Gratuity Act, 1972 define “family,” they do not apply to homosexual and lesbian couples.

The same sex pair is deprived of a plethora of additional rights and privileges that married couples routinely enjoy. They would love nothing more than to be able to file their taxes as a married couple and get the benefits of joint property ownership and a lower interest rate on their mortgage. In addition to being ineligible for advantages like healthcare policies, vacation plans, etc., there are many obstacles in the road, from being unable to open simple joint bank accounts to making nominations in the event of insurance policies.

CONCLUSION

The Navtej case highlights the Constitution’s transformative aspect, which can be interpreted as an unrelenting demand for India to become more open, pluralistic, and progressive in order to shield its most marginalised citizens from the tyranny of the majority. No legislative development, however progressive or transformative, has much relevance with respect to such protection and articulation of rights formerly denied to the LGBT people unless accompanied by a synchronised social transformation. The State and civil society alike must work together to bring about this change. For all its potential to alter the course of law, the Navtej case will remain a footnote in the annals of justice until the language of compassion and empathy embedded in the judgement is adopted as the norm in government agencies, the lower judiciary, the police, and civil society. The only way the unrecognised rights of marriage, adoption, inheritance, protection from harassment, assault, and forced conversion can become actualities is if the ratio decidendi of the judgement is followed in spirit rather than in text. Possible actions include training government employees, reviewing the legal framework to include more inclusive terminology, and holding workshops and social media campaigns aimed at raising awareness among parents.

Although we have only scratched the surface thus far, the Navtej Singh Johar case deserves celebration since it is a progressive judgement in a socially not so progressive culture like India. The LGBT community continues to face a great deal of prejudice and discrimination from the general public. By guaranteeing LGBT people’s rights in the constitution, it rejects the view of society that labelled them as criminals and perverts. The executive and the judiciary both have huge roles to play now in altering the national psyche. It is past time for the government and the courts to accord LGBT persons the same civil rights and respect accorded to the heterosexual population. The state should do more than simply give its blessing to same-sex marriages; it should also work to reform the current laws and accommodate the needs and rights of homosexu

Author(s):

Abhay Kumar, Assistant Professor, Department of Law, Rajiv Gandhi University (A Central University), can be reached via email at legallyabhay@gmail.com

Ganesh Prasad Pandey, Assistant Professor, Chanakya National Law University, can be reached via email at gppandey@cnlu.ac.in

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