‘I AM WHAT I AM’
Chief Justice Dipak Misra started his and Justice Khanwilkar’s judgement by quoting the famous German poet and philosopher Arthur Schopenhauer, who said: ‘I am what I am, so take me as I am.’ The import of the poem, as well as that of the judgement, was to affirm the identity and individuality of members of the LGBTQ community. The thrust of the judgement of the Chief Justice was to recognize that a person of alternative sexuality had the right to choose their own partner.
In a series of earlier judgements, the Supreme Court had recognized the right of a woman to marry a man of a different caste or religion. This right to choose one’s sexual partner was held to be part of the right to privacy and had its constitutional basis in Article 21 of the Constitution. The argument, which was accepted by the Court, was that to have the right to life implied the right to live life with dignity and autonomy. After all, it is meaningless to say that you have a right to live your life if that life is stripped of all freedom, individuality or choice. The right to life has to be meaningful and one of the most important aspects of that would be the right to live with a person of your choice.
Privacy and autonomy were ultimately parts or facets of the right to live with dignity. The Court has this to say about dignity:
“Dignity is that component of one’s being without which sustenance of his/her being to the fullest or completest is inconceivable... The purpose of saying so is that the identity of every individual attains the quality of an individual being only if he/she has the dignity. Dignity while expressive of choice is averse to creation of any dent. When biological expression, be it an orientation or optional expression of choice, is faced with impediment, albeit through any imposition of law, the individual’s natural and constitutional right is dented. Such a situation urges the conscience of the final constitutional arbiter to demolish the obstruction and remove the impediment so as to allow the full blossoming of the natural and constitutional rights of individuals.” ”
Though cast in ornate language, the passage contains the heart of the reasoning of the judgement. It basically says the following:
1. An individual has the right to live with dignity.
2. The right to dignity contains a right to make a free choice about one’s self.
3. The law cannot curtail such a choice.
4. It is the obligation of the constitutional courts to ensure that any invalid restrictions on such choices are struck down.
‘THE LOVE THAT DARE NOT SPEAK ITS NAME’
Justice Rohinton Nariman started his judgement by quoting the famous lines of Lord Alfred Douglas’s poem ‘Two Loves’ . This poem was sought to be used as evidence against Oscar Wilde in his trial for gross indecency. The poem is about an older man who sees two younger men, the first of whom claims to be Love, presumably between ‘a boy and a girl’. The second man also calls himself Love, but is accused by the first man of not being love, but shame. At this point, the second man dejectedly says that he is not shame but love, but a ‘love that dare not speak its name.’ The poem, even though disavowed by Oscar Wilde, speaks of the ignominy of homosexuality that people dare not even mention its existence.
This poem captures the essence of the judgement of Justice Nariman—a judgement with rich historical context but at the same time one that looks towards the future. It is a judgement that neatly wraps its value judgements in constitutional theory and practice.
The judgement also brings out the argument that in our constitutional democracy, when ascertaining the content of any right, it is ‘constitutional morality’ that is the touchstone upon which any law is to be judged. The judgement holds as under:
“It must not be forgotten that Section 377 was the product of the Victorian era, with its attendant puritanical moral values. Victorian morality must give way to constitutional morality as has been recognized in many of our judgments. Constitutional morality is the soul of the Constitution, which is to be found in the Preamble of the Constitution, which declares its ideals and aspirations, and is also to be found in Part III of the Constitution, particularly with respect to those provisions which assure the dignity of the individual. Given … the right of every citizen of India to live with dignity and the right to privacy including the right to make intimate choices regarding the manner in which such individual wishes to live being protected by Articles 14, 19 and 21, it is clear that Section 377, insofar as it applies to same-sex consenting adults, demeans them by having them prosecuted instead of understanding their sexual orientation and attempting to correct centuries of the stigma associated with such persons... The fundamental rights chapter is like the North Star in the universe of constitutionalism in India. Constitutional morality always trumps any imposition of a particular view of social morality by shifting and different majoritarian regimes.”
This elevation of constitutional morality as a legal tool finds its echoes in the other judgements in the 377 case too. Some commentators question the precise term ‘constitutional morality’ and even go on to say that there is no sanction for such a concept in the explicit text of the Constitution. This ignores the fact that the Constitution is an organic document—a living text. Its meaning has to be developed and expanded with the changing times.
However, there are certain values that the Constitution always espouses. The ideas of justice, liberty, equality and fraternity contained in the Preamble and the fundamental rights chapter are just such values. They form the immutable core of the Constitution, and these values will always be enforced by the Court.
Another interesting point about Justice Nariman’s judgement is the final order he passed. The judgement directed the Union of India to give the judgement ‘wide publicity through the public media, which includes television, radio, print and online media at regular intervals, and initiate programmes to reduce and finally eliminate the stigma associated with such persons. Above all, all government officials, including and in particular police officials, and other officers of the Union of India and the States, be given periodic sensitization and awareness training of the plight of such persons in the light of the observations contained in this judgement.’
The judgement was thus forward-looking and not merely reactive. Unfortunately, however, it appears that this direction seems to have been ignored as no publicity, much less sensitization and awareness training, appears to have been taken by the Government since then.
DEMOCRACY IS COMING
Justice D.Y. Chandrachud used a song written by Leonard Cohen to make a point about the issues in the case. The song, written by Cohen in 1992, goes a bit like this:
“Democracy/ It’s coming through a hole in the air…/ It’s coming from the feel/ that this ain’t exactly real,/ or its real, but it ain’t exactly there./ From the wars against disorder,/ From the sirens night and day,/ From the fires of the homeless/ From the ashes of the gay:/ Democracy is coming...”
The precise meaning of the words is not exactly clear. One reasonable interpretation, however, is about the fact that democracy is not merely something that’s imposed by a powerful state or organization. Instead, it is something that often comes through ‘a hole in the air’, that is, through the small acts of individuals whose lives need to change. The song seems to capture the idea of democracy as a participative concept rather than the majoritarian juggernaut that it is sometimes understood to be.
The judgement is also a testament to the idea of the individual as the centre of the constitutional firmament who enables democracy through the protection and enforcement of fundamental human rights.
“Our Constitution, above all, is an essay in the acceptance of diversity. It is founded on a vision of an inclusive society which accommodates plural ways of life. The impact of Section 377 has travelled far beyond criminalizing certain acts. The presence of the provision on the statute book has reinforced stereotypes about sexual orientation. It has lent the authority of the state to the suppression of identities. The fear of persecution has led to the closeting of same-sex relationships. A penal provision has reinforced societal disdain … Above all, this case has had a great deal to say on the dialogue about the transformative power of the Constitution. In addressing LGBT rights, the Constitution speaks—as well—to the rest of society. In recognizing the rights of the LGBTQ community, the Constitution asserts itself as a text for governance which promotes true equality. It does so by questioning prevailing notions about the dominance of sexes and genders. In its transformational role, the Constitution directs our attention to resolving the polarities of sex and binaries of gender. In dealing with these issues we confront much that polarises our society. Our ability to survive as a free society will depend upon whether constitutional values can prevail over the impulses of the time. ”
The above passage makes a statement as to the understanding of the interaction between an individual and the society, as well as the role of the Constitution and the Court in the course of that interaction. Each individual is an autonomous person who is entitled to live free from prejudice and inequality. Society is envisaged as a pluralistic society—one where we rejoice, rather than cower in fear of, variety and difference. It is not the role of society to make life impossible of norm, but instead, to be inclusive.
Sex and the Supreme Court: How the Law is Upholding the Dignity of the Indian Citizen (Hachette India, 2022)
The Constitution is, so to say, the holy text; it does not merely confer rights on individuals but also has the power to transform the lives of oppressed people. And if the Constitution is the holy text, the judges would be the high priests. Without a sensitized and empathetic judiciary, the words of the Constitution would be empty promises. It was judicial indifference that resulted in Section 377 being retained on the statute books, and it was the clear presence of empathy that resulted in Section 377 being read down.
‘HISTORY OWES AN APOLOGY’
Nowhere was the empathetic attitude of the Court as apparent as the judgement of Justice Indu Malhotra. In the memorable concluding words of her judgement, she said this:
“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognize that homosexuality is a completely natural condition, part of a range of human sexuality. The misapplication of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’. ”
This was the crux of the matter. The Court recognized that homosexuality was not some alien concept, but was part of the human condition and a normal variation of sexuality. Once sexuality is seen as an integral part of the identity of any person, to criminalize it is to dehumanize a person and to render them as less than equal citizens. Every right that is available to an average person should also be available to a member of the LGBTQ community.
But these rights have always been there in the Constitution. What changed with this judgement was the empathy that the judges felt with the suffering and discrimination faced by the members of the community. Empathy enables a person to see the humanity in another person, and that is the first step to accord them the same rights and dignity that we show ourselves. The ability to place yourself in the shoes of another makes you understand how the shoe pinches.
Excerpted with permission courtesy Saurabh Kirpal and Hachette India, 2022