Constitutional morality triumphs over Societal morality


Today, September 6, 2018 was a historical day for India.

Today the Supreme Court of  India upheld the point of view that Constitutional morality should rule over societal morality. That means the morality that is envisaged by the Indian Constitution of 1950, a democratic liberal morality that ensures freedom of expression and equality before law should triumph over societal morality which considers some Indian citizens, those belonging to LGBTQ community, unequal.

Pic Courtesy Times of India

In an unanimous judgement, five judge Constitutional bench of Indian Supreme Court declared section 377 of India Penal Code, a colonial legacy which criminalise homosexuality unconstitutional.

Below are some of the observations made by the Judges:

Only Constitutional morality and not social morality can be allowed to permeate rule of law

Section 377 is arbitrary. The LGBT community possesses rights like others. Majoritarian views and popular morality cannot dictate constitutional rights. We have to vanquish prejudice, embrace inclusion and ensure equal rights.

Sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of freedom of expression.

The provision of IPC had resulted in collateral effect in that consensual sex between LGBT persons is criminalised, and is violative of Article 14, Supreme Court

This case is much more than just decriminalising a provision It is about an aspiration to realise constitutional rights and equal existence of LGBT community as other citizens

To deny the LGBT community of their right to sexual orientation is a denial of their citizenship and a violation of their privacy. They cannot be pushed into obscurity by an oppressive colonial legislation.

History owes an apology to those who have been persecuted and socially ostracised because of Section 377.

Here is the time line of what happened in a long drawn out legal battle that finally resulted in victory for democracy and freedom of individuals.

Even though Supreme Court did not consider the issue of same sex marriage, there are enough signs in the judgement to indicate that in not so far away future it will be legalised.

The judgement underlines the progressive nature of Indian Constitution of 1950 created by Ambedkar and Nehru in the background of the freedom movement. Let us hope that in all other issues also the Court will ensure that Constitutional morality eventually triumph over majoritarian morality.

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