TRANSFORMATIVE CONSTITUTIONALISM THROUGH LGBT+ RIGHTS

Constitution is seen as a fundamental part of any State and its functionaries. A Constitution of a country that embodies the principles of equality and is not stagnant but keeps on evolving with the advent of the philosophical changes in the society is the one that survives the test of time. Indian Constitution which was brought into force on 26th January, 1950 has stood adequately strong and has not been rendered ineffective. The various amendments brought in it by the legislature and the several landmark decisions of the judiciary have put the Constitution of India on a high pedestal having the supremacy. The progressiveness of the Constitution with the change in the circumstances is a necessary requirement to adapt to the growing consequential forwardness in the community. This progressivisms or transformative factor ensures that the policies and laws of the country conform to and work for the people and their needs.

In the year 2018, the Supreme Court of India expanded the meaning of several Articles of the Constitution to accommodate the increasing nature of the society. It also put a halt to the unwanted weed of the archaic principles and the customary practices and the beliefs that restrict the implication of the Constitution and acts as a barrier to the certain people in the community. Be it the decisions of the Sabarimala Judgement or passive euthanasia judgement or the judgement of right to privacy, all of these have contributed to the advancement and evolvement of the Constitution of India.

Section 377 Judgement (LGBT+ Rights)

The judgement relation to Section 377 has proven to be a remarkable one in recent times. Section 377 of the Indian Penal Code, 1860 was the one Section that penalized the offence of homosexuality. It stated that if a person have sexual intercourse with a person of the same sex or gender, then it will be considered as against the nature and they will be imprisoned for ten years and fine. The landmark judgement was given in the case of Navtej Singh Johar & ors. V. Union of India thr. Secretary Ministry of Law and Justice[1] (2018) which non-criminalised the sexual intercourse between person of same sex and who are consenting parties to it.

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This decision held that homosexuality is not criminalised. It brought a forward and positive change in the society as well as the Constitution. The very institution and establishment of the Constitution is its evolving nature. If it remains stagnant to the surrounding legal and political condition, it will be inoperative in no time. Thus, this is a crucial judgement taken by a five-judge bench of the then Chief Justice of India, Shri. Dipak Misra; Justice D. Y. Chanderchud; Justice R. F. Nariman; Justice A. M. Khanwilkar; and Justice Indu Malhotra. They put a stop to such an archaic principle that can have no relevance at all in the present society. The section of IPC that deals with it is operational in relation to unnatural offences but it has omitted the criminalisation of homosexuality.

The major impact of this decision on the Constitution of India is monumental. The decision affected Article 14, 15, 19 and 21 of the Constitution of India. First and foremost, every person has a right to his/her sexual orientation. This sexual orientation is a part of his right to life. It further pertains that the Constitution of India guarantees the fundamental right to its citizens of the right to life. The right to life framework impliedly specifies the right to live a life that is based on human dignity and is not averred by any kind of distinction. Every person in the country has a right of choice and it is this choice that encompasses the principle under Article 21. One of the important things is that everyone has the freedom of speech and expression guaranteed under Article 19 (1) (a). The freedom to speak freely and to express them in any way a person likes is essential part of the right.

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The discrimination and biasness on the basis of a person’s sexual orientation is the gross unjust and violation of their fundamental human rights. Human rights are the inherent existent right prevalent and present with all. These rights are given importance throughout international forums. Sexual orientation of a person comes under the ambit and definition of the Article 21 which provides for right to life and to live with dignity. Thus, a person that identifies themselves whether as gay, lesbian, bisexual, transgender or queer (LGBT) has a right to live their life with dignity and on the same pedestal as everyone else. Their choice of sexual orientation should have no effect on their fundament inherent human rights.

That is the reason that LGBTQ+ has right of not to be discriminated in any forum or parameter of their life whether it is their workplace, home or other surroundings. They have the same status as any other individual in the society as being an integral part of it. This equality is to be maintained by Article 14 which provides for right to equality before law. Everyone is treatment with equal ambit. Along with these phenomena, the Supreme Court of India also touched in its judgement that Article 15 highlights about no discrimination or prejudice in any form or ground like race, sex, religion etc. which is important as when biasness occurs, opportunities are snatched and people are given inferior status.

This judgement also highlighted the Right to Privacy of an individual in relation to his sexual orientation or with whom he/she engages in sexual relations. It was cited from the judgement of Justice K. S. Puttaswamy (Retd.) and anr. V. Union of India and ors.[2] (2017). With whom a person engages with in sexual intercourse or whether they themselves are gay, bisexual, etc. is a personal matter of a person away from state or government jurisdiction. Anyone who is LGBTQ+ has right not to be punished for it. It is pertinent to understand that this judgement widely broadened the scope of the Articles in the Constitution along with ensuring rights to people of the country. This progressive response to the dynamic society led to further the scope of the Constitution and its articles.

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Conclusion

Thus, it can definitely be said that the expansion and the transformation of the Constitution is necessary. It is imperative so that the law of the land that governs every individual is not archaic but adaptive to the recent changes and several distinct issues arising in the society. The judgement that came in pursuant to it in relation to the legalisation of homosexuality and a principle that is seldom discussed in the Indian society was efficiently dealt with. It gave new hope and brought fruitful progress in the very nature of the Constitution.

[1]  W. P. (Crl.) No. 76 of 2016

[2]  Writ Petition (Civil) No. 494 of 2012

Author: Arushi Anand,
Vivekananda Institute of Professional Studies, 4th Year

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