For long, criminality, marginality and entrenched stigma were the attributes that defined LGBTs in India. They were the most degraded lot who were considered physically, religiously, morally, socially, medically and legally untouchables. But in the last two and half decades, the discourse on sexual orientations started changing to the favour of LGBTs. They organised and gave a sustainable legal challenge to the generalised norms of heteronormative prejudice enshrined in Section 377 of the Indian Penal Code. They finally won the legal battle. Nonetheless, it is still not welcomed by the homophobic mainstream society of India.
It is historically established that dominant groups often try to exclude the alternative rationalities of marginalised groups by reinforcing stigma against them. For instance, we have witnessed a society which condemned members of Scheduled Caste and Scheduled Tribes as a menial class with no human dignity, a society which incapacitated their women in general and widows, devadasis in particular, a society that was not able to recognize blacks even as a human being. This is also true in the case of LGBT groups. In India, LGBTs were granted gender recognition on self-identification basis only in 2014 by the Supreme Court in NALSA v. Union of India.
Undoubtedly, it is the organised prejudice of the heterosexist majority that creates the phenomenon of “minority stress”. As a result, the LGBTs, a minuscule minority, had to lead their life with chronic depression on daily basis. They were witch-hunted, burnt to death, exiled, evicted, whipped and what not. The net consequence of this criminal negativity was the growth of alienation that systematically prohibited their chances of active and equal participation in the life pattern of modern society. Splintered social-support and minority-stress–associated low self-esteem contribute to a high prevalence of self-destructive behaviours, such as substance abuse, suicide, and risky sexual behaviour.
But as the society evolved and constitutional rights progressed, law and courts were forced to recognize the rights of these groups despite the opposition from majoritarian traders of religion and societal morality. The recent historic verdict of Supreme Court in Navtej Singh Johar v. Union of India has shown a progressive path by recognizing the dignity of LGBT community. An LGBT member is a human being and has all the rights to live life with human dignity.
Constitutional courts across the globe recurrently adventure the term ‘dignity’ while deciding cases about reproductive rights, racial equality, gay marriage, and bioethics. Judges and jurists take up dignity as an important legal value, but they usually do not explain what it means and often imply that it has one obvious core meaning. Jeremy Waldron in his article “How Law Protect Human Dignity” ventured even to define this term “dignity”:
“Dignity is the status of a person predicated on the fact that she is recognized as having the ability to control and regulate her actions in accordance with her own apprehension of norms and reasons that apply to her; it assumes she is capable of giving and entitled to give an account of herself (and of the way in which she is regulating her actions and organizing her life), an account that others are to pay attention to; and it means finally that she has the wherewithal to demand that her agency and her presence among us as human being be taken seriously and accommodated in the lives of others, in others' attitudes and actions towards her, and in social life generally.”
Emmanuel Kant, on the other hand, has initially used dignity as a 'value idea’, though in his later work he too talked of 'respect' which a person needs to accord to another person, thereby, speaking of it more as a matter of status. It is for this reason that U.N. Charter (1945) adopted dignity of the individuals as one of the core values.
The Constitution of India, which is not only a legal but a social document, almost revolutionary in its aim of transforming a medieval hierarchical society in modern egalitarian democracy, removed all the vestiges of past discrimination and sworn to do justice “to all of its citizens.” It, in a sense, rejected the Benthamite idea of justice which advocated ‘maximum happiness to maximum numbers’ and leave a chunk of society unhappy and ill-fated. The entire point of having fundamental rights in the Constitution, as proposed by Justice Nariman, is to ensure liberty and dignity of an individual which cannot be toyed with by majoritarian governments. The Supreme Court, which is duty bound to protect the rights of even a ‘discrete and insular’ minority – such as the LGBT, is required to be steered by constitutional morality and not by majoritarian, societal or religious morality.
The discrimination against LGBT arises and perpetuates due to stereotypes of gender roles and gender inequality. And therefore, Justice DY Chandrachud makes a radical connection between discrimination based on ‘sexual orientation’ and discrimination based on ‘sex’ which is mandated as a prohibited ground of discrimination by Article 15(1) of the Constitution. This persecution on the ground of ‘sexual orientation’ severely affected their right to participate in public life, schools, employment, health-care facilities leading to violation of the substantive equality, freedom of expression and right to privacy. Consensual sexual acts, whether homosexual or heterosexual, in a private space, do not impair public decency or morality, and, therefore, an integral part of the right to privacy.
The archaic law i.e., Section 377 despoiled Article 14 of the Constitution because it is not based on any intelligible differentia. It failed to differentiate between consensual and non-consensual acts that even Section 375, which defines rape, provided. It has no reasonable nexus with the object of criminal law—to prevent harm. Instead, it punishes LGBT community even for action by consenting adults in a private space, which is manifestly arbitrary. Modern medical and psychiatric studies have recognized that transgender and gays are not persons suffering from mental disorder and cannot, therefore, be penalised. Even if it is a disability, we need to recognize this as any other disability.
Though there may be numerous legal implications of this judgment as it has been in other jurisdictions, the legislature will have to intervene ultimately to provide a comprehensive policy mechanism to ensure that these groups are not physically victimised, socially segregated and culturally stigmatised.
Dr. Yogesh Pratap Singh is Deputy Registrar, Supreme Court of India, Dr. Afroz Alam is Associate Professor and Head of Department of Political Science, Maulana Azad National Urdu University (MANUU), Hyderabad.
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