RAMESH THAKUR and MICHAEL KIRBY. The 2018 decision merits a rich tribute for its transformative constitutionalism (The Hindu 30.12.2018)

Trapped in a frozen political process amidst heightened public passions, Section 377 of the Indian Penal Code (IPC) was out of sync with contemporary values on gender orientation. It is the courts that have been used as the key to unlock social progress. In a historic judgment, in Navtej Singh Johar v. Union of India (2018), the Supreme Court stepped into the public policy void created by the timidity of political parties to strike down Section 377 that had criminalised homosexuality as an unnatural offence.  

Realigning public policy

Dipak Misra was the Chief Justice of India from August 28, 2017 to October 2, 2018. The enduring legacy of the Supreme Court on social policy is in inverse proportion to the brevity of his tenure. In that compressed time period, the court delivered several far-reaching judgments. Those verdicts shone a light on the constitutional morality of contested and evolving social mores and the need to realign public policy to changing social contexts.

Constitutionalism is the modern political equivalent of Rajdharma, the ancient Hindu concept that integrates religion, duty, responsibility and law. Every constitutional system of governance creates an apex court to be the final, authoritative arbiter of facts in dispute, to elaborate on the meaning of relevant laws and their applicability, and to ensure conformity of laws to the Constitution. The custodian of India’s collective constitutional conscience is the Supreme Court.

A Constitution prescribes rules for the authoritative allocation of values. It strikes a balance of the different branches and layers of government, the liberty of citizens, the authority of the state, and the cohesiveness of society. Every Constitution is underpinned by a distinctive legal philosophy and embodies the social purposes of a political community. It subjects the fleeting political passions of the day to the scrutiny of constitutional constancy.

Correcting a basic error

Instead of viewing prospective legislation as the solution, the court diagnosed the long history of legislative inactivity as the problem in the Section 377 case. Espousing the concept of the Indian nation and people as a pluralistic, diverse and inclusive modern society, the long-operating colonial law was judged to abridge constitutionally guaranteed fundamental rights and human dignity when applied to the private conduct of consenting adults. The burden of the penal law targeting sexual minorities was lifted.

Derived from the text and purpose of the Constitution, the dignity and right of adults to have control over their individual behaviour in a modern, democratic society was reaffirmed. In 2013, in Suresh Kumar Koushal v. Naz Foundation,the Supreme Court had overturned an enlightened ruling of the Delhi High Court in 2009. The reversal of the 2013 Koushal verdict by the Supreme Court in Navtej Johar corrected a basic error of constitutional reasoning.

In a modern democratic society, sexual orientation is nothing to boast about, nor is it something to be ashamed of. Judges sometimes find it difficult to understand and express the burden that law can cast upon women or minorities in their society. All over the world, LGBTIQ (lesbian, gay, bisexual, transgender/transsexual, intersex and queer/questioning) people are forced to pretend to be different from what they experience in reality. This has resulted in a forced silence that has denied the majority of the heterosexual community a full opportunity to understand and work through the lived experience of the LGBTIQ minority. The understanding, sensitivity and expression of legal principle in the Navtej Johar judgment was greatly moving and uplifting. The vital point made was that for constitutional purposes, the LGBTIQ minority is part of, and incontestably included in, the diverse plural Indian nation.

The 2013 Koushal verdict was contemptuous of the LGBTIQ minority. By contrast, the approach of the court in Navtej Johar was respectful and inclusive. The LGBTIQ community’s small size is irrelevant. As the Supreme Court said, constitutional courts “are under an obligation to protect the fundamental rights of every single citizen without waiting for the catastrophic situation when the fundamental rights of the majority of citizens get involved.” The court emphatically rejected the subjection of a minority to “societal pariah and dereliction”, and said that Section 377 “mars their joy of life”.

In the case of countries with similar constitutional and legal traditions, using a common language of decision-making and a shared tradition of analogous reasoning has cross-fertilising effects across different constitutional jurisdictions. Former Chief Justice Misra and colleagues made numerous references to contemporaneous decisions of constitutional courts in considering the validity of homosexual offences in India. Their written reasons contain important analyses describing the emerging constitutional jurisprudence of the U.S., Canada, South Africa, the U.K., and the European Court of Human Rights.

An affirmation of human dignity

The critical examination provided a powerful indication of the worldwide trend acknowledging the error of the approach previously taken in penal legislation like Section 377. By reference to this stream of jurisprudence, the Navtej Johar decision shows that laws such as Section 377 represent a serious overreach of criminal law. Such law is incompatible with constitutional notions of human dignity, equality and privacy. The verdict is a cornucopia of textual analysis, ancient and modern history, India’s political history, philosophical reasoning, and doctrinal application. It deserves a rich tribute for its transformative constitutionalism. In the pantheon of affirmations of human dignity and liberty in this world, this historic judgment, that Section 377 “denudes members of the LGBT communities of their constitutional right to live fulfilling lives”, will certainly be included.

In turn, the particular identity of the IPC as the inspiration for other national penal legislation, especially in other former British colonies, makes it obvious that such countries must face and respond to the magisterial reasoning of the Supreme Court of India in this historic judgment.

In an age where everything is temporary, this is a decision that will ring through the centuries — and not only in India.

Michael Kirby was a Justice of the High Court of Australia (its apex court) from 1996 to 2009. Ramesh Thakur, a former UN Assistant Secretary-General, is emeritus professor at the Australian National University.

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One Response to RAMESH THAKUR and MICHAEL KIRBY. The 2018 decision merits a rich tribute for its transformative constitutionalism (The Hindu 30.12.2018)

  1. Rosemary O'Grady says:

    A propos ‘frozen political processes’ – I re-read The Prostitution Papers (Kate Millett) on Boxing Day. After many years… and, what struck me is: whatever the grund-norm issue – where there is money to be made (grafted) out of human misery, it shall be done – and the so-called ‘authorities’ are into it with a vengeance (sic). And that’s why this kind of change appears as a small miracle. Praise the Lord and whatever other gods – for a Good Judge.

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