State of the Union: The case of Indian liberty

“The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”
— Justice Kennedy

The 800th anniversary of the origin of human rights universally, the Magna Carta, was recently celebrated. It is also the bedrock of the chapter on fundamental rights enshrined in Part III of the Indian Constitution. The right to equality and equal protection of all laws provided in Article 14 read with the right to life and personal liberty enshrined in Article 21 and the fundamental freedoms contained in Article 19 collectively form the golden triangle of rights. They have also been qualified as a part of the basic structure of the Indian Constitution.

Article 21 of the Indian Constitution states that “no person shall be deprived of his life and liberty except according to procedure established by law.” Since most other constitutions use the term “due process of law”, this gave rise to the apprehension that if the law laid down a tyrannical procedure it would still be constitutional. “Due process” envisages the larger concept of natural justice and the right to be heard before being condemned, etc. Thus, 28 years after the Constitution came into force, “due process” was read into Article 21, as an obvious part of our fundamental rights, by the Supreme Court of India.

However, on the aspect of the human rights of the LGBT (lesbian, gays, bisexuals and transgenders) community, the comprehension of liberty and equality by the Supreme Court of the United States and our Supreme Court are in apparent contradistinction. Last fortnight in the landmark judgement, Obergefell v. Hodges, the American Supreme Court by a wafer-thin majority of 5:4 held that all the states were mandated by the 14th Amend-ment to licence same-sex marriages and to recognise such marriages as lawfully licensed even if performed outside their states. This decision supplements the dicta in United States v. Windsor, wherein the Supreme Court had invalidated the DOMA (Defence of Marriage Act) to the extent that it barred the federal government from treating same-sex marriages as valid even when they were lawful in the state where they were licensed.

Compare this to the judgment of the Indian Supreme Court in Suresh Kumar Koushal vs Naz Foundation, whereby the enlightened if not radical decision of the Delhi high court to strike down Section 377 of the Indian Penal Code to the extent of sex among consenting adults, was reversed. It would not be entirely incongruous to say that the Supreme Court’s decision was a disappointment for the LGBT movement and the promise of liberty to all.

The liberal epistle of the majority opinion (quoted above) authored by Justice Kennedy sets the pitch for the protection of the basic human rights of the LGBT community. Justices Ginsburg, Breyer, Sotomayor and Kagan supported the opinion while Chief Justice Roberts, Justices Scalia, Alito and Thomas dissented in four separate judgements. The fundamental civil liberties preserved in the 14th Amendment of the Ameri-can Constitution protect the dignity of an individual, and also the personal choices that define his or her identity, thereby protecting him or her from unequal treatment. The majority of the judges recognised that “the identification and protection of fundamental rights” was the primary judicial duty of the court while interpreting the Constitution.

While holding that there was no basis for states to not recognise lawful same-sex marriages simply because they were marriages between same sex couples, the US Supreme Court noted, “The dynamics of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter.”

The contrasting decision of the Indian Supreme Court in Suresh Kumar Koushal vs Naz Foundation is anchored in conservatism. The court should have perhaps reflected whether it is appropriate to even entertain an appeal ostensibly filed by a self-styled minder of Indian morals on a matter of such fundamental import, especially when the then government was in support of the progressive view taken by the Delhi high court.

The conformist outlook towards the “miniscule” LGBT community is apparent in the phrase “so-called” prefixed to “rights of the LGBT persons” in its decision. This raises the question: Can the human rights of any individual be illusory? The most arresting rationale not to endorse the rights of the LGBT community is the shift of onus on to the legislature. Noting that the criminal law had been amended in the aftermath of the December 2012 gangrape, and that Section 377 had been left untouched, the Indian Supreme Court held that it could not strike down or interpret a statute in such a way that its meaning would be completely altered.

For a libertarian court that is entrusted with the duty of preserving the primary personal privileges and self-esteem of the individual, this reasoning may be diminutive of the standards that the Supreme Court has always and correctly set for itself. Its liberal interpretation of the fundamental rights (especially right to life and liberty), and their elevation to be within the ambit of the basic structure of the Constitution has enlarged the soul of fundamental rights by placing them well beyond the black and white typescript of Part III.

The dignity of the individual has been placed on a pedestal by our constitutional scheme. A traditionalist interpretation of what constitutes the sweep of morals and values in the Indian ethos ostensibly ignores the very permissive expanse of ancient Indian texts and arts. Should they, in any case, be a source for an analysis of the right to equality before law and the right to life and personal liberty?

The interpretation of the “due process” clause missing from the text of Article 21 further shows the sensitivity of the apex court that liberty is indivisible, though it can be circumscribed by reasonable restrictions, but any excessive transgression of that liberty by the state or its instrumentalities ought to be curbed resolutely. The reluctance of the Supreme Court to void a provision which infringes upon the right of choice and to exercise it with dignity requires a revisit. Fascinatingly the same very court in NALSA v. Union of India has acknowledged the concept of transgender rights.

A financial daily quoted the minister of law and justice as saying that Section 377 requires a fresh pair of eyes. This led to an immediate clarification from him that he had made no such statement. He is right, as the present political establishment is the epitome of revivalism. Even the idea that sexual minorities can also have rights is anathema to them. The Indian Constitution unequivocally echoes the words of Justice Kennedy. It eschews bias against a person for his or her sexual identity and lifestyle choice. As the government of the day is the most sterling example of medievalism, the Supreme Court should consider stepping in again, to let freedom reign.

The writer is a lawyer and a former Union minister. The views expressed are personal. Twitter handle @manishtewari