The article presents the arguments favoring the equality of treatment to LGBT community.
- EThe United Nations Human Rights Council recently passed a resolution creating a post of an independent expert on sexual orientation and gender identity.
- This expert will be tasked with the job of studying and reporting annually on the nature, the cause, and the extent of discrimination faced by lesbian, gay, bisexual and transgender (LGBT) persons around the world.
- Although, India chose to abstain from the voting.
- Disingenuous explanation
- At Geneva, Ministry of External Affairs spokesperson said that the matter is sub judice and Supreme Court is yet to pronounce its decision, that is why india abstained from voting.
- This purported justification, though, is somewhat disingenuous, and it presents to us the hidebound nature of our Republic’s institutional machinery.
- There is no doubt that matter is sub judice but that has scarcely stopped India from voting to embrace a series of amendments that weaken the larger resolution adopted to appoint an independent expert.
- One of these amendments that was adopted after India voted in its favour, explicitly states that the expert’s mission would ensure, at all costs, respect for the sovereign right of every country to implement its own national laws.
- In India’s case, this is a direct reference to Section 377 of the Indian Penal Code, which makes even consensual homosexual activity a crime.
- Therefore, any report of the newly appointed expert would have to give sufficient weight to the fact that India’s laws proscribe, and even criminalise, homosexuality.
- A long history
- When viewed in this light, it’s clear that India’s abstention in the principal vote to appoint the expert is anything but a display of neutrality.
- This decision was neither a product of indecisiveness nor does it signify any expression of disinterest on the subject.
- In July 2009, the Delhi High Court, recognising the inherent injustice in Section 377’s operation, and found that the law, in persecuting a community purely based on the sexual orientation of its members, was patently opposed to the Constitution’s essential promises.
- However, just over four years later, in Suresh Kumar Koushal v. Naz Foundation, the Supreme Court reversed this finding. Here, a bench of two judges refused to see the LGBT community as equal partners in our citizenry.
- Instead, the court restored Section 377 notwithstanding the effect that such laws might have on the fundamental right of a person to be treated with equal concern, and of the right that such persons have to be allowed to freely make ethical choices on how they seek to live their lives.
- Section 377, plainly read, punishes with imprisonment for life or for a term of up to 10 years any person who voluntarily has “carnal intercourse against the order of nature with any man, woman or animal”.
- At its core, therefore, is an intention to enforce a decree against actions that are professed to be beyond the warrants of society’s moral compass
- Only, that in the case of criminalising homosexuality, it is the outlawing of the act that is immoral, and not the act itself.
- As the American philosopher Martha Nussbaum has argued, the Supreme Court’s verdict in Koushal shows us that there is an almost pathological emotion of disgust at the heart of any perceived rationale for criminalising homosexuality, when such acts cause no actual harm to any person whatsoever.
- It is undeniable that a society’s moral judgment must play some role in determining the extent of its criminal laws.
- However, a conscientious legislator who is told a moral consensus exists, must test the credentials of that consensus.
- Justice Singhvi’s judgment is predicated on a bizarre belief that the only point of a democracy is to accept the majority’s verdict. But, as is evident from any sensible reading of the Constitution, democracy demands something more than the enforcement of the popular will.
- It requires a commitment, among other things, to our bill of rights, specifically to Part III of the Constitution.
- A fervent plea to the Chief Justice of India:
- A failure to annul the Supreme Court’s verdict in Koushal would only perpetuate what is really a gross miscarriage of justice.
- Ultimately, the court’s legitimacy as a vital pillar of our democracy depends on its ability to nullify popular will when the decisions of the majority transgress the Constitution’s guarantees.
- By reversing Koushal, the court can help usher India into a more equal future, where the tyrannical belief of some does not deny to any person the right to be treated as an equal member of society, and the right to enjoy the Constitution’s foundational liberties.
Question: The court’s legitimacy as a vital pillar of our democracy depends on its ability to nullify popular will when the decisions of the majority transgress the Constitution’s guarantees. Analyse this statement in context of Supreme Court’s judgement in Suresh Kumar Koushal v. Naz Foundation case.
Suggested approach:
- In our constitution every individual enjoys the basic fundamental rights.
- Majority decision cannot be imposed upon individual and deny him his basic rights.
- Analysis of SC judgement in Koushal case.
