The Supreme Court in a historic decision in Navtej Singh Johar v Union of India decriminalized LGBT lives by reading down Section 377. It has been argued that this judgment was long overdue and merely put the stamp of legality on a changed socio-political context in which criminalizing the lives of LGBT persons was no more acceptable. In fact, many opposition parties including the Congress, AAP, CPI, CPM, Trinamool Congress, BJD, JD(S) and CPI (ML) had all declared their support for the decriminalization of LGBT lives and welcomed the historic judgement. However the fact that India still had a long way to go in finally accepting LGBT persons as full citizens was evident in the notable silence of the Union Government and the BJP.
As J. Chandrachud aptly noted, though the Union government submitted in Court that they would ‘leave matters to the wisdom of the Court’, they never ‘conceded to the contention of the petitioners that the statutory provision is invalid’. The Union Government in the course of the litigation was not proactive in protecting the rights of LGBT persons. To put it more strongly, the Union Government failed to discharge its constitutional responsibilities and ensure that the right to dignity and expression of the LGBT community was protected.
The ambivalent and constitutionally untenable position that the current BJP government took during the Section 377 litigation is not merely one of academic interest but continues to have live consequences for LGBT persons. This is because the abolition of Section 377 is not the end point of the struggle. As the judgment in Navtej eloquently acknowledges, ‘the presence of the provision on the statute book has reinforced stereotypes about sexual orientation’ as well as ‘societal disdain’. The fact that the law is no more, does not mean that prejudices and stereotypes about the LGBT community will automatically disappear. Any long term struggle will have to continue to fight these stereotypes and prejudices which are the root cause of the violence and discrimination that LGBT persons continue to face. This requires determined action by political society, civil society as well as the state.
While civil society has been active in repeatedly asserting the notion that LGBT persons are human beings entitled to the full panoply of human rights and sections of political society have at least welcomed the shift in mindset brought about but the judgment, the BJP government has been conspicuously silent. The Prime Minister has not seen fit to issue a single statement or a single tweet assuring LGBT persons of the full protection of human rights.
In fact, to the contrary responsible state functionaries such as the Union Law Minister have expressed reservations about the use of the concept constitutional morality and the Attorney General has been quoted as saying he hopes that ‘constitutional morality dies’. This discomfort with constitutional morality is really a subtle attack on the idea that minorities must be protected from the whims of a majoritarian morality. The heart of the judgment in Navtej Singh Johar was based on the idea of constitutional morality and it was invoked by all five judges. As per Navtej Singh Johar, the rights of the LGBT community to dignity and equality cannot be held hostage by a majoritarian morality. The rights of the LGBT community are secured from the morality of the majority by the morality of the Constitution.
The notion of ‘constitutional morality’ is a check to the power of a majoritarian government. As J. Nariman. put it, ‘The very purpose of the fundamental rights chapter in the Constitution of India is to withdraw the subject of liberty and dignity of the individual and place such subject beyond the reach of majoritarian governments so that constitutional morality can be applied by this Court to give effect to the rights, among others, of ‘discrete and insular’ minorities.’
As C.J. Mishra put it:
“It is the responsibility of all the three organs of the State to curb any propensity or proclivity of popular sentiment or majoritarianism. Any attempt to push and shove a homogeneous, uniform, consistent and a standardized philosophy throughout the society would violate the principle of constitutional morality. Devotion and fidelity to constitutional morality must not be equated with the popular sentiment prevalent at a particular point of time.”
The failure to abide by constitutional morality has translated into an abject failure to protect the right to life and liberty of Dalits, Muslims, women, and LGBT persons. By allowing mobs to take the law into their own hands and murder at will, the Union Government has failed the Constitution. The union government has failed to appreciate and respect the Constitutional scheme for the protection of all citizens from the harm which is caused by ‘popular morality’. Coming specifically to LGBT persons, the Union Government has failed to implement the Navtej Singh Johar judgment by, taking measures to ‘ensure that this judgement is given wide publicity through the public media and initiat[ing] programs to reduce and finally eliminate the stigma associated with such persons’ and by undertaking ‘periodic sensitization and awareness in the light of observations in the judgment’ for police and government officials.
One hopes that the next administration is formed by the Congress party under Rahul Gandhi’s leadership, will fulfill its oath to ‘bear true faith and allegiance to the Constitution of India’ and ensure that the right to dignity and equality of all persons is upheld.