“I am what I am,
So take me as I am”
-Johann Wolfgang von Goethe
Dipak Misra, the Chief Justice of India (CJI) has started his landmark verdict to decriminalize adult consensual same sex activities with this quotation. A five-judge bench of the Indian Supreme Court (SC) has cracked down the section 377 of the Indian Penal Code (IPC) unanimously in four different judgments on 6 September albeit the same section will still stand on the statute to deal with the ‘unnatural’ sexual offences against non-consensual sexual relationship between adults, minor and animal like sodomy and bestiality. This revolutionary judgment rewrites the history of the Indian minority LGBTQIA+ community. The century old Section 377 of the IPC, 1860 actually contains Victorian Christian morality that criminalize all sorts of sexual activities those are ‘against the order of nature’ and not penile-vaginal including homosexual and heterosexual behaviors, oral or anal sex etc.
However, the marginalized LGBTQIA+ community in India has a long history of plights and the legal battle to declare the dreaded S. 377 void begun in 1994 when ABVA, an NGO brought a petition in the Delhi High Court to scrap the S. 377 from the IPC. Afterwards, Naz Foundation filed a public interest litigation in 2001 whereas the court initially rejected that petition in 2004 although the SC ordered the High Court subsequently to hear the petition due to massive protest against the decision of the High Court. However, the Delhi High Court held in 2009 that the law is discriminatory and violates fundamental right of individual, thus found the section unconstitutional. Regrettably, it was a short-lived judgment and reversed by the apex court in 2013 while the judgment remarked the LGBTQIA+ community as ‘minuscule’ minority in India. Additionally, the SC validated the mentioned section and held that it is the parliament that can repeal the said provision not the court. Nonetheless, the review petition against this decision filed by the Naz Foundation was also dismissed by the SC in 2014. In the mean time, the SC has declared couple of milestone verdicts regarding the recognition of the transgender people as third gender and elimination of discrimination against them in 2014 and acknowledgement of the right to privacy as fundamental right under the constitution in 2017 while the court observed sexual orientation as an essential component of identity and the rights of LGBTQIA+ are real rights founded on sound constitutional doctrine. Finally, in early 2018 the SC bench led by CJI Dipak Misra sends the Naz Foundation petition to a larger bench for reconsideration and now this five-judge bench consisting of Dipak Misra, CJ; R F Nariman, J; Dr D Y Chandrachud, J; Indu Malhotra, J and A M Khanwilkar, J observed that ‘it cannot wait for a majoritarian government, if the fundamental right of the citizens are getting violated in the process’ and make it no longer illegal to love in early September this year.
However, CJI Dipak Misra opines that individual autonomy and liberty, equality for all sans discrimination of any kind, recognition of identity with dignity and privacy of human beings constitute the cardinal four corner of the Indian constitution. He agrees with the view that a person who has come of age and has the capability to think on his/her own has a right to choose his/her life partner. No one can escape from their individuality… Look for the rainbow in every crowd, CJ Dipak Misra added and according to him denial of self-expression is like death.
It is the individual orientation, which is naturally natural, and his/her identity and the inherent dignity and choice attached to his/her being not a matter to try before the court. Justice Chandrachud has rightly pointed out that constitutional morality, not societal morality, should be the driving force for deciding the validity of Section 377 while Justice Indu Malhotra remarked that “history owes an apology to the members of the LGBT community and their families for the delay in providing redressal for the ‘ignominy’ and ‘ostracism’ they have faced through the centuries”. They also held that homosexuality is ‘not an aberration’ but a ‘variation of sexuality’ and sexual orientation was an innate attribute of one's identity which cannot be altered.
Furthermore, the court declared its arbitral and irrational how the S. 377 criminalizes consensual sex between two adults in private. Same sex acts of intimacy require the same constitutional protection as heterosexual intimacy and it is the responsibility of the State to ensure that freedom. The court also affirmed that it is not mental disorder but something innate to a human being. The verdict also confirmed these people’s right to marry, adopt and have family. Moreover, the right to privacy and dignity as enumerated in Art. 21 of the Indian constitution and infringement of that right only because of sexual orientation is purely discriminatory. Partially struck down of the law is a move forward to return back the dignity to the citizen and honoring the individual rights and privacy that has been used to suppress innocent citizens in the last 157 years.
However, Bangladesh also has the same S. 377 in the Penal Code which stipulates whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Consequently, the members of the LGBTQIA+ community are compelled to survive under the fear of reprisal and persecution and suffered unjustified hostile discrimination only because of their inherent sexual orientation. Albeit now it is evident and recognized that sexual orientation of an individual is natural and part of a range of human sexuality which is not under the control of anyone. Hence it is the individual who will decide whom s/he will love not the law.
Nonetheless, equality, dignity, privacy, non-discrimination etc. are guaranteed by the Bangladesh constitution like India whereas the State cannot do discrimination on the ground of race, sex, color, place of birth, religion under the constitutional obligation. Moreover, the State should not interfere in individual’s personal choice and right to privacy. Thus no one can be penalized only on the ground of their sexual identity.
However, there is no large-scale movement against this archaic law in Bangladesh due to many reasons including fundamentalism, threat to life, limited freedom of expression on this issue, social taboo, cultural stigma, religious restriction etc. Prominent LGBTQI+ rights activist Xulhas Mannan and Mahbub Tonoy were being killed in 2016 and many activists are being threated by the fundamentalis.
Nevertheless, unlike India the law has never been challenged before the court in Bangladesh whereas it clearly violates the fundamental rights of equality, non-discrimination, right to life, privacy enumerated in the Articles 27, 28, 32, 39, 43 of the constitution. Sexually minority members are also entitled to full autonomy over the most intimate decisions relating to their personal life, including the choice of their partners and such choices must be protected under Art. 32 as the right to life and personal liberty would encompass the right to sexual autonomy as well.
However, the independent Bangladesh has completely failed to ensure equality of the LGBTQIA+ people like other majority heterosexual people to lead a dignified private life without fear of persecution. Hence the exemplary decision of the Indian constitutional court brings a golden opportunity for Bangladesh as well to test the constitutionality of the controversial S. 377 as the constitutional rights and principles are identical between these countries. Bangladeshi judiciary should adopt the transformative constitutional approach and progressiveness to interpret the constitution to uphold the right of an underprivileged group and to ensure equality.
