Posted by “I am what I am, so take me as I am”. The line of Goethe used by Deepak Misra J. as stated above tends to be a part of one of the most historical judicial pronouncement[1] of Indian history and above all, the same holds paramount importance as it upholds individual autonomy and verily adds new dimensions to individuality and self emancipation. In addition to the same emphasized on the universal concepts of individuality, liberty and dignity of the individual, right to privacy , equality of rights and freedom of expression, and highlighted the constitutional principles of transformative constitutionalism and constitutional morality and the doctrines of progressive realization and non-retrogression of rights[2]
The historical perspective of the whole debacle is ought to be taken and the incipient stage of the same came in the form of the case[3] where it was contended before the Delhi High Court that Section 377 of the Indian Penal Code tends to violate Article 14, 15, 19 and 21 of the constitution and the Delhi High Court favored the petitioners and relied on the following pronouncements[4]. An appeal was made for the same in the Supreme Court where a 2 judge bench presided and the verdict was overruled and it was held by the Court that the judiciary doesn’t have within its domain of power to decriminalize the provision and the same is within the parliament’s scope of authority[5]
With response to the same a new writ petition was filed which challenged with respect to the unconstitutionality of Section 377 of IPC[6]. Delving further, the legal contours are ought to be taken heed of which holds relevance here as the same encapsulates the reasoning and the urgent necessity of having a constitution that transcends beyond the notions which if adopted today would gives out the impression of an anachronistic constitution, but rather upholds evolved concepts of morality and individuality. The major contours were:-Constitutional Morality, Precepts of Equality, Arbitrariness, Right to life and Personal Liberty etc.
Upon a brief delineation of each of the element as stated above, the Supreme Court considered the element of morality to be more than just the existing societal norms and its version of what is considered to be natural and unnatural and evolving over these norms would give way to a heightened form of constitutionalism slowly paving a new way for a transformative Constitution. The observation as made sums up the need to go beyond the existing societal norm to a more magnanimous one can be construed from:- ― “It is obligatory to state here that expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating there from on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person”
The observation very well stresses the urge to have a transformative Constitution- “Transformation which is based on the continuing evaluation and modification of a complex material and ideological environment cannot be reduced to a scientific theory of change, like those of evolution or the half life of radioactive substances … practical change occurs within a climate of serious reflection, and diversity of opinion is in my view absolutely essential as a stimulus to theory”.
It is promptly construed that constitutionalism readily connotes a trust as reposed by the folks as a mean of legitimizing dominant powers of the govt. Delving deeper, it was in the case where the Supreme Court observed that:- “Indian Constitution is a great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy and its provisions can be comprehended only by a spacious, social science approach, not by pedantic, traditional legalism”[7].
COMPARATIVE CONSTRUCT WITH USA-THE CONSTITUTIONAL INSTRUMENTS INVOLVED
A comparative construct is ought to be drawn for getting more of an in depth analysis and the same can be easily done by taking into account the case[8] which to a certain extent paved the way for the legalization aspect in the domestic scenario. Delving further, the ruling was based on putting on scrutiny over the provisions that prohibited the same. It must be noted that the 6th Circuit bench did observe that provisions putting a ban on same sex marriage and holding that the same must be given the lowest extent of Judicial Review[9]
Another test that was put to use was the classification test backed by the constitutional provision of the US Constitution[10] which warrants reviewing any classification that at first instance gives the impression of suspect classification and any provision that encroaches upon someone’s rights can be considered as a suspect classification and if any classification backed on the basis of Race, Alienage, National Origin
It was observed by the court that when it comes to surface that the rights and its exercise is backed by the perpetual dominance of historical imperatives instead of the modernist imperative that allows the new generation to exercise their right then the latter must be adhered to for the makes it an inclusive action. Similarly, when examined at the helm of Substantive Due process the commonality of which is found in the 5th Amendment and the 14th Amendment, the difference being in its application as the former one is concerned with the actions of the federal government while the latter is concerned with the actions of the state
The element of having a compelling state interest must be ensured and the goal which is to be achieved through the legislation must be narrowly tailored to suit the needs of the government and thus doesn’t encroach upon the rights to the extent of these goals. Also, any alternative whichever would put least burden on the rights and its rightful exercise[11]. It was observed that the right to marry is protected by the 14th Amendment as well as the Due process clause
EXISTING STATE OF AFFAIRS- A WELL REASONED PRIDE ?
With reference to all the facts stated above, the existing state of affairs do to a certain extent challenge the notions on which the pride month is celebrated and that being in the form of a PIL[12]. The sole ground upon which remains to be an interpretation of marriage that not only remains to be narrow but also comes up as an exclusionary one too as the same considers marriage to be based for the purpose of procreation and other aspects which play material role including vital companionship has been aptly disregarded[13]
In addition to the same, it must be noted that there is pervasion of lacunas in the existing legislations as well whose interpretation does run counter to the whole spirit of inclusiveness and individual emancipation. The same is heightened by the pervasion which sometimes acts as an invasion in one’s right is the theological precepts and the religious aspects for the same cannot be ignored as well which is supported by the observation:- “The religious conscience ascribes to life a divine dimension that infuses all aspects of being, the authority of divine extends to all decisions, actions, times and places in the life of a devout”
CONCLUSION
It cannot be stated that the state of affairs is bleak with reference to the domestic context, however the ground reality doesn’t remain the same as the judicial pronouncements which have shaped our image in the modern world to be an inclusive democracy remains a sham when the same doesn’t reverberate with the minds of the people of our country who still abide by the anachronistic views which barely conforms to the tenet of inclusion and reasoned behavior. This to a fair extent does warrant us to do an introspection with reference to the existing faults and justice will not only be done, but would also seem to be done
[1] Navtej Singh Johar v. Union of India, AIR 2018 SC 4321
[2] Chakrabarti, D., 2019. GLOBAL THOUGHTS AND OPINIONS ON THE CONSTITUTION AND CONSTITUTIONALISM. 1st ed. The LAW Learners, p.481.
[3] Naz Foundation V NCT Delhi, 160 Delhi Law Times 277
[4] Gobind v. State of Madhya Pradesh and another (1975) 2SCC 148, Lawrence v. Texas 539 U.S. 558 (2003), Dudgeon v. UK, European Court of Human Rights Application No.7525/1976, The National Coalition for Gay and Lesbian Equality v. The Minister of Justice, South African Constitutional Court 1999 (1) SA 6
[5] Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors.
[6] Supra note 1
[7] AIR 1976 SC 490
[8] Obergefell V Hodges 576 U.S. 644 (2015)
[9] DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014)
[10] U.S. Const. amend. XIV, §1.
[11] Shelton v. Tucker, 364 U.S. 479, 488 (1960)).
[12] Abhijit Iyer Mitra & Ors vs UOI. W.P.(C) 6371/2020
[13] Damanjit Kaur, S., 2021. How Proud Are We of Our Pride ?. [Blog] THE CONTEMPORARY LAW FORUM, Available at: <https://tclf.in/2021/06/16/how-proud-are-we-of-our-pride/> [Accessed 1 July 2021].
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