Navtej Singh Johar v. Union of
India
“I am what I am, so take me as I Am”
If
Supreme Court’s Right To privacy Judgement was validation to individualism, it
may not be exaggeration to say that its Judgement in Navtej is liberation to
mankind. It is also peculiar here to note how change in perception of Judges of
the apex court for ‘Constitutional Morality’ and ‘minuscule population of
LGBTIQ Community’ not only signifies societal growth but also vindicates the
living tree doctrine of Interpretation of Indian Constitution.
In
four separate opinion [CJI. Deepak Misra with J. Khanwilkar; J. Rohinton
Nariman; J. D Y Chandrachud; J. Indu Malhotra]
all 5 Judges read down Section 377 declaring section 377
Unconstitutional to an extent applicable to consenting adults while bestiality
and non-consenting intercourse still remains in the purview of section 377.
It
has in totality realise the rights of the LGBTIQ community and empowered them
with the tool to express, fairness, self-determination and more importantly to
love. The Court asserted that Individual autonomy and liberty, equality sans
discrimination are not only related to existence with human dignity but also
constitutes Cardinal Constitutional Principle.
The
Court in this case differentiated in the concept of Social Morality and
Constitutional Morality and underlined that the intention of constitution is to
transform the society strategically and do not impose upon itself the
majoritarian view, it further dwells into that social morality may vouch for
sexual intercourse amongst man and woman but it is ‘Constitutional Morality’ in
its essence which prevails, as put by Justice Chandrachud.
Peeping
into the ambiguity of “order of nature “as to what actually it is, it said that natural identity or orientation of a person is essential to existence and his
/ her identity is given by nature itself therefore is natural and a person
cannot be discriminated on his/her natural identity or orientation. The court also acknowledged that fundamental
rights are available to all sections of society and whether they are in
majority or miniscule in society is immaterial
While
reading down the section on the ground it violates right to equality, free
speech and privacy under Article 14, 19 and 21 held that the intelligible
differentia between natural and unnatural could not be located and there was no
reasonable nexus in classification of people with the intent of legislature.
J.
Nariman however went on to say there is no presumption of constitutionality of
pre constitutional era laws which might now even raise question over some of
other archaic and colonial laws ( Sedition etc.)
It
has been big, gutsy and determined struggle stretched over past 20 years by the
LGBTIQ community of validation of their rights. In course of which there has
been exploitation , hatred, discrimination of the community and even SC wasn’t
able to serve them their due in 2013 but in rather corrective way now that the
rights has been realised and 377 is partially struck down we need to sensitise
people , community and moreover the police of this country about LGBTIQ .
The
Judiciary has done what was long due and the ball is now in the court of common
people like you and us who have to expand the horizon of our thoughts and be
receptive of the rights which were denied to the LGBTIQ for decades as ‘Law
grows from society, Society grows from law’
