10 September 2019
Lessons of Section 377 judgment
Source: By Dr Menaka Guruswamy: The Indian Express
This day, one year ago, the Supreme Court in their judgment in Navtej Singh Johar held that LGBT Indians would be protected by constitutional values of equality, non-discrimination, dignity, expression, life and liberty. The Court read down Section 377 of the Indian Penal Code, 1860 or the unnatural sexual offences penal provision. Today, as we celebrate a year of freedom for queer India, we must also look to our Constitution and its values that fuelled the court battle and enabled this victory.
In April 2016, five LGBT Indians led by Navtej Singh Johar, on the back of a soul-shattering court loss in 2013, and curative petitions that were left unheard, believed enough in the Constitution’s promises of equality, dignity, non-discrimination, life and liberty to let us lawyers take their stories to court.
Between early 2018, when the Supreme Court issued notice on this case, to July 2018 when the hearings started, five more writ petitions would be filed. From Keshav Suri, the scion of a business house, to Arif Jafar who had been imprisoned for being gay; from young IITians wearing coloured kurtas and jeans to the veteran LGBT activists of the Humsafar Trust, queer Indians came to court in waves that threatened not to stop till they were given their rightful place as citizens. Such was their belief in the promise of the Constitution that it would act as a beacon of hope for queer Indians to approach the court.
We have a long way to go towards full citizenship. Full citizenship would include social and civil rights, the ability to have joint bank accounts or a lease for a home or marriage to a partner. Subsequent to the judgment, we face many new obstacles such as the Surrogacy Bill and the Transgender Bill that are waiting to be notified.
As we embark on the journey towards full civil rights, let us take a moment to reflect on the lessons offered by jurisprudence of the Johar court in how to use the Constitution to build coalitions and make change in India today. To appreciate this, lets us start from the origins of the Constitution.
The Constitution of India is special. Drafted between 1946 to 1949, it envisaged a new country. This new nation would make reparations for previously socially-sanctioned discrimination like the caste system. India’s Constitution is unique in its approach for making reparations for the historical discrimination that defines the present and future of marginalised communities. By contrast, America’s Constitution makes no apology nor enables reparations for slavery.
The Johar court was aware of the expectations of our Constitution and her drafters. Therefore, they located their decision in core constitutional expectations of counter-majoritarianism and constitutional morality. What are these expectations? And why are they relevant for all of India, and not just queer India?
Counter-majoritarianism is the role courts adopt to prevent muscular majorities from trampling upon minorities, who are numerically weaker or even less influential. Constitutional morality is the morality of the Constitution or core values like equality, non-discrimination, liberty for all. Both counter-majoritarianism and constitutional morality have their origins in Ambedkar’s vision of a Constitution addressing historical discrimination against lower castes.
Our constitutional commitment to addressing caste discrimination has meant that courts, through the years, have made it their role to go against majoritarian social morality that may well be in favour of maintaining the caste system. This judicial role of going against majoritarian morality to protect constitutional morality would move the court to protect LGBT citizens. This court would not abdicate its responsibilities when confronted with the violation of fundamental rights of a group of citizens.
In early 2016, the constitutional protection of inter-caste and inter-religious couples inspired us lawyers to frame the key Johar plea: The right to a sexual partner. It would be reflected in the court’s judgment of the right to a companion for all — including LGBT Indians. This shows that we are reinforced by each other’s freedoms, and weakened by state or society-sanctioned discrimination against any set of citizens.
The Johar court’s finding that the Constitution protects the right not to conform in food, dress, ideology, faith or sexuality is a constitutional lifeline to religious, sexual and political minorities. It is constitutional light that can only keep shining in our current political climate, if minorities and historically-discriminated groups form coalitions in this quest to keep our constitutional values intact. Our freedoms do not exist in silos; they exist in tandem with each others.
In constitutional litigation, we use existing rights of freedom and dignity of one marginalised group to extend it to another, arguing that such rights are due to every citizen. Similarly, diverse movements must recognise that in standing with each other, in ensuring the freedoms and equality of each group, they shore up their own.
It is also time for movements working on gender, caste and labour issues to embrace their LGBT brethren within and outside. Similarly, queer citizens in India must also realise that a national register used against one community can well be extended to another. German history teaches us this. In isolated communities, we have little power. But in coalitions, we have the ability to fight for the fulfillment of the promises of our Constitution.
The fraying of social fabric and the normalisation of discrimination in present day India batters constitutional values of fraternity, equality and dignity. This leads to a weakening of the Constitution itself.
The vision of the Constitution’s drafters, still holds promise for so many; queer and straight, conforming and non-conforming, newly empowered and also the newly persecuted. The Constitution enables all of us to express our hearts, amplify our voices and powers our aspirations; it is that vision that we celebrate, today. It is that vision that we must defend.