Expected India Supreme Court ruling could shape future LGBTQ rights cases

India’s Supreme Court is being closely watched as it is expected to issue a constitutional ruling that could shape the future of LGBTQ rights litigation.

The decision will determine whether courts can continue to rely on the law. doctrine of constitutional moralitythis is the principle that has underpinned several landmark rights decisions. At a hearing in April, the Indian government asked the Supreme Court to reject the doctrine, arguing that it has no constitutional basis and should not guide judicial decisions.

For many years, the Supreme Court Constitutional moral principles that treat the Constitution as a living document: A person whose enduring promises of justice, liberty, equality, and fraternity do not remain fixed in the times in which they were written, but must be applied to the changing realities of society.

In April, India’s government asked the Supreme Court to review the constitutional basis behind two landmark judgments: one that struck down the country’s adultery law and one that decriminalized consensual same-sex relationships, arguing that both relied on a subjective invocation of constitutional morality and should no longer be treated as good law.

A nine-judge bench considering a constitutional issue referred to it by the Supreme Court 2018 Sabarimala temple incidentIndia’s Solicitor General Tushar Mehta, who allowed menstruating women to enter one of Hinduism’s holiest shrines after centuries of bans, argued that “constitutional morality” has no literal basis in the Constitution, but is a vague and indeterminate concept that has evolved judicially.

Mehta said the government was not against the Supreme Court’s decision to strike. Section 497 of the Indian Penal Codecriminalized adultery if it was based on Article 14 A constitution that guarantees equality before the law and equal protection of the laws. Instead, he argued, the court should not have relied on what he called “vague and subjective” doctrines of constitutional morality to reach its conclusion.

Mehta told the Supreme Court that the 2018 judgment in Navtey Singh Johar v. Union of India, which decriminalized consensual same-sex relationships, was wrong.moral” is based on majoritarian or mob morality while relying on constitutional morality as the basis of its reasoning.

Mehta cited extensively then-Justice Antonin Scalia’s dissent in a 2003 U.S. Supreme Court decision to support his argument against relying on constitutional morality. Lawrence vs. Texas.

Scalia argued that courts should not import foreign legal trends or allow evolving societal values ​​to drive constitutional interpretation, arguing that justices should remain neutral arbiters rather than participants in broader cultural debates.

Referring to the Supreme Court’s landmark decisions in Navtej Singh Johar and Joseph Shine, Mehta questioned whether the verdict reflected the constitutional vision of India’s founding generation..

“If these judgments, Navtej Johar, Joseph Shine and others, are read by Dr Ambedkar, Kanhaiyalal Munshi, Alladi Krishnaswamy Iyer and others, I don’t know if they will be surprised or shocked or say this is what we wanted. I believe, they did not want this to happen,” he told the court.

“A new trend begins. It’s Naz Foundation vs Delhi NCT government.”,” Mehta said. “This is the Delhi High Court’s judgment, finally affirmed in Navtey Johar, that sodomy… “In our scheme of things, constitutional morality must outweigh arguments of public morality, even if it is the majority view.” In a country where democratic principles govern, majoritarian thinking always prevails. When testing a law is at issue, the majority always passes the law. How can you define morality based on this?”

The Naz Foundation case was the beginning of a landmark constitutional challenge to Section 377 of the Indian Penal Code, a colonial-era provision that criminalized consensual same-sex relationships between adults as being “against the order of nature.” A public interest litigation was filed in 2001. naz foundationNGOs working on HIV/AIDS and sexual health argued that the law violated fundamental rights guaranteed by the constitution.

In 2009, the Delhi High Court ruled in favor of the group, holding that Article 377 violates the right to equality under Article 14 of the Constitution, protection from discrimination under Article 15, and life and personal liberty under Article 21 of the Constitution.

The Delhi High Court’s judgment was short-lived.

In 2013, the Supreme Court Suresh Kumar Kaushal vs. Naz Foundation The ruling was overturned and homosexuality was re-criminalized under Article 377.

The court ruled that the law affected only a “small portion” of the population and said it was up to Congress, not the judiciary, to decide whether to keep the provision on the statute books. Five years later, the Constitutional Bench of the Supreme Court Navtej Singh Joharunanimously overturned the 2013 ruling and held that Article 377 was unconstitutional. The decision was the culmination of a years-long legal challenge by the Nas Foundation to the colonial-era regulations.

Anish Gawande, the first openly gay national spokesperson for India’s main political party, Sharachandra Pawar, told the Washington Blade that the doctrine of constitutional morality not only underpins Navtey Singh Johar, but also forms one of the fundamental principles of India’s constitutional law, calling it a “very important concept.”

“This document provides a moral backbone to this document in a way that prevents the implementation of proposed constitutional amendments that would violate the very spirit on which the Constitution was founded,” Gawande said. “Constitutional morality is a very important antidote to social morality. Thanks to the Constitution, we were able to crack down on things like dowry. Thanks to the Constitution, we were able to ban even regressive religious practices that could be contrary to human dignity. It was also a very important framework that allowed us to advance LGBTQ rights against claims by practitioners and leaders of various religious sects about the social immorality of LGBTQ people.” ”

“The most important part of constitutional morality, which is a legal doctrine established by the courts, is that it is a very effective bulwark against majoritarianism and unilateral decisions of the executive over the judiciary and, in a sense, against the legislature,” he added.

Gawande said these factors make constitutional morality a “very important concept” in Indian constitutional jurisprudence.

He said that if the Supreme Court ultimately narrows or rejects the doctrine, decisions that have relied on constitutional morality, including the landmark Navtey Singh Johar decision, could come under new scrutiny. But he added that he did not believe the Supreme Court would take such a step because it would be against its own institutional interests.

Gawande said the government asserts several reasons to challenge the principles of constitutional morality. One, he said, is that the attorney general has opposed the doctrine in cases involving religious issues, arguing that courts should not rely on it in constitutional decisions.

“But the downside of this could be down the road for LGBTQ rights and the rights of all kinds of persecuted minorities,” he said.

“Secondly, in principle, the Article 377 judgment is of course based on constitutional morality, but it is also based on many other fundamental rights, such as the right to privacy, which Puttuswami upheld before the Naftey Singh Johar judgment,” Gawande added. “In Navtej, the right to privacy is also cited as a crucial condition for the decriminalization of ‘sexual intercourse against the order of nature.’ The fact that Article 377 is completely absent from the statutory books in the Suraksha Samhita Penal Code gives us some respite. At least the mention of Article 377 is not yet imminent after reading the constitutional morality, but a new Article Section 377 could be introduced, and if introduced, the judicial mechanisms available to challenge the new Section 377 would be significantly reduced.

Ankit Bhupatani LGBTQ activistsaid he did not believe the Supreme Court’s review of constitutional morality would lead to the recriminalization of consensual same-sex sexual relations.

He argued that the 2018 Navtey Singh Johar decision was based on multiple constitutional principles that go beyond constitutional morality, but warned that weakening those principles could make future LGBTQ rights more difficult to secure through the courts.

“If I had to make an informed guess as to why the government doesn’t like the concept of constitutional morality, it’s because it wants to narrow the scope of judicial review and restore elected legislatures as the primary architects of social policy,” Bhupatani said. “However, we already know that Congress’ ability to enact laws related to LGBT rights is not cause for optimism.”

“The only real way to advance LGBT rights in India is through the judiciary,” he added. “But if the government’s argument is accepted by the Supreme Court, it will mean that the next gay Indian who goes to court seeking marriage, adoption, inheritance, or the job he was fired from will find it more difficult to secure these rights from the only institution where he can expect a positive outcome.”

Bhupatani said the decriminalization of consensual same-sex sexual relations will likely survive because the Navtej Singh Johar judgment is also based on constitutional principles of privacy and equality. But he warned that weakening constitutional moral principles could slow widespread progress for LGBTQ rights.

“The community kept the floors and lost the stairs,” he said. “No one is treated like a criminal, but no one is elevated.”

“The smart thing about this bill is that it allows the government to act in both directions, especially with the so-called constituencies that think that enacting laws on social issues is the job of elected parliamentarians, not judges,” Bhupatani said. “This shows that the 2018 decision was a judicial overreach that should never have happened. For everyone else, let’s be honest, the decision was not a call to re-criminalize anyone. Both messages, one allegation.”

Bhupatani said the impact of the government’s position extends beyond LGBTQ rights, arguing that asking the Supreme Court to treat the arguments in the Navtey Singh Johar case as “bad law” raises broader questions about India’s commitment to constitutional rights. He said such a move could also affect how India’s constitutional democracy is perceived internationally.