The Case that Shook Conscience Highlighting Dharma as Law and Justice in India

The Supreme Court of India unanimously held that Section 377 of the Indian Penal Code, 1860, which criminalized ‘carnal intercourse against the order of nature’, was unconstitutional. The archaic backing due to which this section attracted culpability was because of the notion that consensual intercourse between same sex adults is an against the natural order of this world.

This notion was rubbished aside by 5 judge Bench of Supreme court of India. The issue came into limelight when in 2009 Naz Foundation v. Govt. of N.C.T. of Delhi, when Delhi high court held section 377 to be unconstitutional, but it was reverted back to power in 2014 case of Suresh Kumar Koushal v. Naz Foundation. Due to this error of judgement Navtej singh johar , a dancer filed a petition for striking down section 377 of Indian penal code terming it violative of article 14,19,21 of Indian constitution. The court relied on National Legal Services Authority v. Union of India 2014 judgement which reiterated gender identity is intrinsic to one’s personality, and 2017 K.S. Puttaswamy v. Union of India judgement that held that denying the LGBT community its right to privacy on the ground that they form a minority of the population would be violative of their fundamental rights. IT also expressed upon the fact that consenting adults have right to choose partners relying on two judgements of Shafin Jahan v. Ashokan K.M and Shakti Vahini v. Union of India.

India also went a change on its social structure due to the awareness of this topic and rights of same sex couples. This was indeed a major leap of India towards progressive regime. Justice Mishra, Justice Khanwilkar and other 3 judges’ bench have indeed earned their names to be put in black and white in the books of history.

 Due to the timeline of these cases a silent revolution was sparked side by side in which question of rights of LGBT arose. People became aware on the topic of rights and how it is granted by the constitution of India under article 14,19,21 etc. but it never seems to enforced by any legislative or executive body. It is now realized that homosexuality is not a new concept but it dates as back to ancient Greek or even further even in orthodox religious groups like Christian and Muslims. But the cycle of evolution has seemed to be reversed in the rights of LGBT and is not evolved as other rights are evolved after French revolution and renaissance.

In India if we trace back, we can say that first spark was ignited in late 1980’s when the first gay magazine Bombay dost was published and later a lesbian weekly Sakhi which discussed these issues in public. New terms were introduced to the world like Sexual orientation and gender identity. There were many cases of violence in India due to ignore among people about the concept of gender identity and specially if the victim did not associate itself to the general norms of social construction like male or female. The concept of queers was recognized much later on. Multinational research firm IPSOS released report on LGBT+ pride 2021 global survey which concluded that 17% of Indian population identified as homosexual. This number can be much larger as the report only included the people who actually opened up about their gender identity and sexual orientation. The most visible people in the Indian population are the transgender who are mainly those who gender differs from what when they were born.

Their pathetic condition in India is visible to everyone but one seems to take up the cause of helping them ultimately, they resort to begging and even extortion. In the 21^st century some NGOs have taken up this cause of helping them to earn a decent livelihood and refrain from begging and other uncivil means. The recent report of transgender in pandemic lockdown being one of the most marginalized community and are unable to earn a decent 2 meals a day led me to take the opportunity at your organization when I read about your commitment to work by writing articles of socio-legal topics that we see daily around us, but never take time to think about it.

The issue of same sex marriage still prevails in India the judges many a times have remarked in their orbiter dicta that the Indian society has not evolved to that nature that couples can openly come up to the society in a homosexual relation. Although homosexual intercourse is not a crime under section 377 but marriage still hasn’t been made legal in any sense neither any judicial backing can be traced to included homosexual couples under the ambit of married couples in the surveys. Various instance can be seen when a homosexual couple run away and marry against the wishes of society or social norms.

They are beaten or separated from each other through coercive measures. A social group of citizens recently proposed an amendment in the form of uniform civil code to be introduced in the report of the law commission of India. With every changing government there are contradictory statements that can be deduced about this topic and no one can stand its ground. The rights who claim to reclaim the glory of India by reviving the past fail to recognize the validity of lGBT rights which was recognized in ancient Vedic times though not enforced. The left who seems to carry the flag of liberalization and progressiveness fail to take notice of the evolution of lGBT concept in the 21^st century. Developed countries like UK,USA,Canda have even included the rights in black and white.

Penal provisions are attracted if anyone infringes their rights. Indian society is ready to gradually accept the facts and face reality the only hindrance is the ignorance, which is main cause of halt of evolution in India. The education sector needs to be reformed children should be made aware about this topic from a young age. Every person should get the opportunity to explore his orientations and freely choose it without facing any backslash from society. The simple discrimination like having only two options of male and female in gender section of any form to perpetual and state of misery that is endowed upon homosexual should be brought in light. The societies conscience needs to be revived we are not a backward society we just need to be made aware.

 Another aspect of dharma dominating over Justice is misinterpretation of article 48 of Indian constitution. The article specifically mentions to forbid sacrificing or killing of cattle which are milch or draught. Milch cattle is the one which can produce milk in its present state and draught cattle is the one which can be used in fields for doing labor. This makes perfect sense as sacrificing these animas would cause more harm than good as these are perfectly suited to earn a livelihood and use. But the government had created on image of protecting all types of bovine animals and due to creation of link of cow killing to religion, it is now seen as a taboo to procure a cow for slaughter purpose. On the other hand, it is perfectly valid for slaughter houses and other southern states of India, west Bengal to slaughter cows and export it to foreign nations. The contradiction can be clearly seen and is a matter of repentance how general public falls for it. (Garg, 2020)

Next statutory legislation that comes to mind is foreign contribution regulation act 1976 which has been actively used by civil societies and NGOs.  The missionaries and foreign religious organizations have been excluded from its ambit. It is the need of hour to inculcate these in the act by amendment. The temples, mosques and other religious organizations receive huge donations and cash and kind but the most of it goes unaccounted for. The reality is that no one can bat an eye against these issues as sentiments of people are involved. But the government has to take a tough stand and include this institution in foreign contribution act and also make them to compulsorily file income tax returns.

A new trend is also being seen in the India society of ban and restriction on basic fundamental right of choosing the religion of our own choice. Most of the Indian government states have passed an anti-conversion law which puts a person in jail if he suspected of converting a person to another religion. It may curb some malpractice of forceful conversion by means of allurement or fraud, but the elephant in the room is the fundamental right which is being blatantly infringed upon. The laws still prevail and have passed the scrutiny of all tests.

The issue of Citizenship amendment act (CAA) and National register of citizen (NRC) was the boiling issue in India which led to violence in various parts of country. The main contention was Muslims refuges were excluded in the act who want to gain Indian citizenship. Lot of hue and cry was created if we see the crux of the act, it was to help the refugees or persecuted minorities of neighboring countries in India who would want to take refuge in India. The contention is perfectly valid subject to a condition that are Muslims not prosecuted there even if they are in majority? We can see the case of Rohingya Muslims in Myanmar ,Ugiyar Muslims in China and even Muslim population in Afghanistan, Pakistan occupied Kashmir which are a victim of terrorism.

The farmer protest in India was followed by the above incident in which the farmer community which were mainly from Punjab and Haryana demanded striking down of farm bill,2020. They left their homes and marched towards Delhi in the aspirant to pressurize government to cancel this Law. One of the contentions of government was that this community is aligned with Khalistan supporters. Khalistan movement led to demand by Sikh’s religion community to have a separate state with autonomous body. Due to their religious identity the famers group were equated with them. This stand reflects the kind of society we are building on. We have moved away from open mindedness to a narrow concept of world, seeing the world through the prism of religion alone

Author: Amaan Ahmad is a student at Faculty of Law, Delhi University.

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