Diversity and Heterogeneity are the synonymous aspects often pondered upon when we associate ourselves with a nation like India.
Its culture, traditions, varied heritage, and different lifestyles. Although differing each other in multifold aspects, still the uniqueness of the nation to manifest these qualities in a binding thread shows the credibility of the social and constitutional morality inherited by our forefathers who drafted the social imperative of a document that will conjoin and rule the nation with whims and aspirations of the people called as the ‘Constitution’.
These whims and social plurality and its governance are not only limited to the rule of the majority but it in itself encompasses the social inherited values to equally treat and preserve the distinguished and unique minorities.
But with the rule and governance and functioning of over 1.3 billion people, we are often nixed in a situation witnessing a tussle between two fundamental aspects i.e., Social Morality and Constitutional Morality.
The distinction lies in balancing these two aspects of conflicting notions in response to which morality reigns superior in terms of Governance of the country and its people. Social Morality deals with the social sentiments, apathy, and characteristics of human behavior or the constitutional morality embedded in the social fabric of a document which gives us the way of life and learning to realize the true hopes and aspirations of the nations.
These conflicting opinions are often Judged in the High Courts and Supreme Court in various Judgements and orders where they try to balance such conflicts of social and constitutional morality and keep up the pace for the growth and development of the nation and make sure the Chariot of Societal development is equally carried forward by both the wheels of Social and Constitutional morality.
Such a stroke of balance took place when the Supreme Court faced a challenge in a case popularly known as Navtej Singh Johar V. Union of India where the question persisted about the constitutionality and social acceptability of Section 377 of IPC and to strike a balance on which the social fabric of society is maintained.
Social Morality cannot be defined as a basic set of rules/guidelines or a general rule to define what actually constitutes social morality. Instead, it’s an everlasting and changing concept that is highly multifaceted and has multifarious aspects associated with it. The scope of such an aspect keeps on augmenting once the horizon is broadened to include various issues of societies and the involved complexities.
But even with such complexities taken into consideration the Constitution the sacred document never fails to provide a remedy to even the most difficult attributes of society and the issues involved in it. So, Social Morality is defined under Article 25(1) which states the term ‘morality’ occurring in Article 25(1) of the constitution cannot be viewed with a narrow lens so as to confine the sphere of the definition of morality to what an individual, a section of society or a religious sect may perceive instead the term social morality can be construed and be appositely understood as being synonymous with Constitutional Morality.
Social Morality on a subjective aspect can be considered as those practices prevailing in society accepted and harmonized by it and is acceptable to a large extent and such practice doesn’t intrude into the peace and harmony of society by bringing a change leading to a mass exodus from age-old practices to new ways and bringing in an imbalance which is deemed unfit for society at large.
So, in the present case of Navtej Singh Johar one of the principled and primordial issues which stoke the constitution bench persisted to even if such practices are allowed where the LGBTQ Community is provided their rights related to privacy and sexual orientation by doing social justice will this justice do paramount damage to the age-old culture and religious and social fabric of society where the mindset and aspects of people living with peace and tranquility will be affected at large.
The Court tried to bring out the balance and took the support of such Social Morality in contrast to Constitutional Morality to determine will, aspirations, and way of living for the people according to the sacred document.
Constitutional Morality can be defined as a secular polity that implies the harmonization of Fundamental Rights, including the right of every individual, religious denomination, or sect, to practice their faith and belief, and such belief is derived from the Preamble and Part III and IV of the Constitution.
The Constitution Morality doesn’t include just the core defined constitutional principles instead it’s a framework encompassing virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time adhering to the other principles of constitutionalism.
Former CJI Dipak Misra in the case of Government of NCT of Delhi v. Union of India and others defined constitutional morality as:
“Constitutional morality, appositely understood, means the morality that has inherent elements in the constitutional norms and the conscience of the Constitution.”
Any act to garner justification must possess the potential to be in harmony with the constitutional impulse. We may give an example. When one is expressing an idea of generosity, he may not be meeting the standard of justness.
There may be an element of condescension. But when one shows justness in action, there is no feeling of any grant or generosity. That will come within the normative value. That is the test of constitutional justness which falls within the sweep of constitutional morality. It advocates the principle of constitutional justness without subjective exposition of generosity.”
The Court depicted ‘constitutional morality’ as the goals and ethics of the Constitution and the qualities that make a comprehensive society. It perceived the Constitution as a device to change society. A choice on whether a corrective arrangement disregards central privileges should be directed by the standards of established profound quality and not cultural profound quality. Where a protected court observes that an arrangement disregards established profound quality, it should be struck down.
With this approach, the Court went ahead with the morals of the Constitution and decided to adjudge the issue based on constitutional merits.
Constitutional Morality V. Social Morality on Jurisprudential Aspects
The most important question which came up before the Supreme Court pertained to what symbolizes Social Morality in the context of the LGBTQ community and whether the society at large will accept the demands of the LGBTQ community in response to their sexual orientation and privacy as decided in the Privacy Case or whether providing such rights to the community by the court can lead to a stiff situation in society where the social fabric of Men and Women and their marital and sexual rights will be hampered by disturbing the social morality at large.
For such answers, the constitution was referred and a comparison was made in response to what reigned supreme the social morality or the constitutional morality.
The Court took note of the various theories and approaches of Jurisprudence given by various Jurists to De clout such issues.
(A) Utilitarian Theory
According to Bentham’s Utilitarian Theory. Bentham as a philosopher gave a statement as ‘all punishments are in itself is evil’. Bentham considered pleasure to be the highest social aspect of a human in society and believed that punishments must be restorative and be only applied to remove large social issues and should not act as a rule or sanction to give pain.
Bentham believed that Pleasure irrespective of religion, caste, creed, sex, or homosexuality these aspects should be considered outside the ambit of morality or social recognition and should be devoid of Sodomy laws and believed if an act provides pleasure and is not an impediment to pain to the person it should be accepted by the society.
Bentham provided 3 principles that needed to be tested for sodomy laws.
They are: ‘(i) if they produce any primary mischief,
(ii) if they produce any secondary mischief i.e., harm to the stability and security of society,
(iii) if they cause any danger to society. To justify his first principle, he believed that two adults who consent to enjoy the freedom of sexual orientation in homosexual acts within confined spaces amongst themselves and aim to achieve pleasure don’t affect society as it’s a choice of private and personal freedom. For the second principle, Bentham believed homosexuality doesn’t affect society at large as it takes place in a confined space and by willing partners.
For the last principle, he contended that since homosexual exercises in themselves don’t bring on any damage, there is no risk regardless of whether they have a cascading type of influence on others or not. Thus, all the sodomy laws failed to contradict the theory of pain and pleasure as enunciated by Bentham and thus are arbitrary and sodomy laws failed to justify their stance in consonance with Utilitarian Theory.
(B) The Harm Principle
Johan Stuart Mill gave his composition ‘On Liberty’ and augmented/propelled the ideas of ‘The Harm Principle’, as per which, the State can intrude by putting sanction into a person’s private life only if it resulted in any mischief upon others while doing his acts. And for this, he postulated some conducts:
(I) Self regards which are those behaviors that don’t influence the general public and are simply identified with oneself. These behaviors ought not to involve grants either by the State or by the general public.
(ii) Those behaviors causing hurt distinctly to a few however include no lawful freedoms violations and ought to be justified by public judgment and hence don’t need approval by the state.
(iii) Those behaviors which abuse the legitimate privileges of others should be put as a matter of sanction by the state and public criticism.
In this manner, his standard went about as a negative apparatus restricting those criminal laws that were used to rebuff activities that are seen to be immoral however isn’t harmful. Henceforth, homosexuality laws condemn oneself with respect to conducts which here ought to not be made as a subject of permit either by the state or the general public.
(C) Debate over Lord Devlin and Hart’s Morality
Lord Devlin’s view on legal moralism was cautious through his speech ‘The enforcement of Morals’ in 1959 which was absolutely against the report of The Wolfenden Committee set up to think about the penalization of homosexuality.
As per Lord Devlin, society holds its unity together assuming there is a ‘universal common morality’. In this manner, society has the ability to settle on the questions of social morality and furthermore can utilize the law to build up on it.
He expressed that the general public would be separated because of the absence of profound quality. Devlin recommended that the normal social morality or “collective judgment of the society” ought to be found out thinking about the reasonable man.
In this manner, Devlin’s hypothesis of profound morality can be viewed as a settling factor for a society where cultural moralism is directing law enforcement and discipline and sanctions to be imposed on the people who attempt to weaken such society by working on something indecent or immoral.
H.L.A. Hart was absolutely resistant and stood in opposition to Lord Devlin’s system. He expressed that there is no common morality holding a society together. As indicated by him, “law is morally relevant,” but “not morally conclusive.”
He contended that with regards to homosexuality, it is absolutely a question of ‘private profound quality’ as it establishes private sexual demonstrations, and since it’s a private matter the general public holds no interest or law in this manner and has zero commands over it. He further explains to pen in ‘majoritarian morals’ under Section 377.
He expresses that such majoritarian morals are forced upon the minority despite the fact that assuming it implies social cohesion and this is actually what had befallen the society. Subsequently, Hart’s ideals of ‘critical morality’ prompts a more described structure of Devlin’s ‘common morality’. Taking perspective on all the criminal law theories and legal philosophies, it is seen that established moralism holds a lot higher spot than cultural moralism.
Consequently, the court appropriately deciphered that Section 377 was in a manner used to suppress the views of minorities of gays and characterized such minorities as crooks for their private ‘self-regarding conducts’. The criminalization of sexual gay demonstrations truly holds no jurisprudential premise and henceforth was needed to be truly decriminalized and was subsequently done by the Constitution bench.
Application of interpretation of statutes
The Hon’ble Supreme Court correctly interpreted Section 377 of IPC, 1860 utilizing the brilliant principle of understanding to remove any sort of arbitrary action or injustice which would not have been imaginable by a mechanical or plain understanding of the statute.
It had viewed sexual orientation as a ground identical to sex in Article 15 of the Constitution. The court had likewise disposed of the regulation of the assumption of presumption of constitutionality of pre-colonial laws while interpreting. It had not expected a Victorian law to be protected.
The doctrine of severability held the section to be invalid to the degree it condemns the consensual homosexual acts between adults in private and the other rest of the part was left enforceable and consequently held
Experimenting and engagement with the Constitution Of experimentation, it is said that if experimentation is done on the Constitution, it can do wonders. Ramachandra Guha in his book India After Gandhi (2007), contended that granting of voting rights in form of a universal adult franchise was a widespread grownup establishment and was an incredible development in Indian History.
It was an article of trust. Additionally, in law, the milestone of the Keshavananda Bharti case or popularly known as the basic structure case catches that milestone where the 13 Judges experimented with the constitution and led to a declaration of a one-of-a-kind analysis. It was the advancement and experimentation that led to the Basic Structure Doctrine.
Thought, around then as well, similar to now, numerous curious personalities examined the Supreme Court regarding the conceptualization, adequacy, and efficacy of the Basic Structure Doctrine. Be that as it may, refuting all such unwarranted worries, the notable experimentation driven by the Supreme Court ended up being a benchmark.
A quiet unique aspect to be noted reflects that it wasn’t the voice or uproar of the constitution instead its silence that led to such experimentations and coming up with absolutely irrefutable solutions for problems that existed then and for generations to follow. This being said, protected constitutional morality is only the most recent in the series of different hushes of the Constitution, of which Basic Structure was the first in 1973.
The Constitution of India on different events has alluded to its unique record as a scintillating and dynamic document. Aside from being the fundamental administering law of the country, it is additionally viewed as a social archive. Likewise, the Constitution was conceived to secure and advance the fundamental freedoms of minorities and classes of people who had been deliberately and generally impeded and victimized.
This basic guideline involved that the Constitution knew about the status quo at the hour of its commencement, nonetheless, in contrast to the American Constitution; it picked and tried to change the society from what it was with changing circumstances.
Despite the society being marginally diversified, it expected to accomplish fairness rather than supporting the status quo. One of the fundamental reasons for the Constitution is considered to be reformatory affects the society to improve things and this goal is the basic mainstay of transformative constitutionalism.
The Supreme Court of India, while interpreting, the Constitution fuses the idea of transformative constitutionalism. Basically, this indicates that the Constitution tries to change society for good instead of supporting the current values bought in by the majority.
The Court in Navtej Singh Johar took on this line of thinking expressively. The Court articulated the internal thirst of the Constitution to change the Indian culture and in this manner, embrace the goals of justice, liberty, equality, and fraternity.
This additionally recommends that the Constitution can change with time and embrace cultural necessities. It is this capacity of the Constitution which provides it with the personality of a dynamic, living, and natural document.
As to Section 377 of the IPC, the Court saw that society has continuously changed a great deal and has developed from what it was in 1860 when IPC was brought into force. Sexual minorities have been perceived and acknowledged in different lawful spheres around the world notwithstanding, criminalization of homosexual conduct under Section 377 makes only a chilling effect on society. The standard of transformative constitutionalism is applied to improve this condition.
The Court saw that the judiciary has the obligation to guarantee that a feeling of transformation for betterment is spread in the society through the Constitution just as different arrangements of law.
The reason for transformative constitutionalism hence is to augment society with the assistance of lawful organizations, towards a path of democratic egalitarianism with an expanded assurance of fundamental rights and other crucial freedoms and different opportunities.
The bench applied this rule to hold that the ideals and values revered in our Constitution should be a reformatory step to achieve change in cultural convictions. Penalizing homosexual conduct, according to the bench, restricted people of the LGBTQ community of their fundamental rights and was arbitrary in response to guaranteed freedoms under Part III of the constitution.
The Court proceeded to hold that Section 377 abridges the Right to Life and Liberty and equal protection of laws. Nonetheless, the basic principle in the entire judgment exuded from the ‘transformative constitutionalism’ aspect of the Constitution.
In the decriminalization of consensual gay intercourse between two adults, the Constitution guaranteed that the gay as well as the whole LGBTQ people group can live a fearless life with freedom from state intrusion in consensual intimacy.
Additionally, the Court while taking a precautionary position perceived that the entire homosexual community had been abused, and denied equality within the country, which is committed to providing individual freedom and human opportunity decided that the transformation of society was a necessity. Transformative constitutionalism involves that the Constitution all by itself can deliver social therapy.
In such a case, the transformative force of the Constitution is a manner by which the Constitution addresses the remainder of society. Basically, Constitution assumes a significant part in examining the current ideas concerning the predominance of genders and sexes.
It assumes an extraordinary part just as coordinates the society’s conscience towards settling the polarities of sex and paired nature of sex. By virtue of this, “…the constitutional values prevail over the impulses of the time.”
The conception of ‘transformative constitutionalism’ has been adopted by the apex court in its other judicial decisions as well. While decriminalizing the age-old offense of adultery, the Court in Joseph Shine26 perceived the transformative ideals of the Constitution and what it meant for society.
One of the basic purposes of the law is considered to act as a guiding light the new decisions of the Supreme Court try to change the state of affairs which exists in society by declaring the transformative idea of the Constitution and the qualities which radiate from it.
In this way, transformative constitutionalism played a vital role in deciding the Court’s reasoning and thinking behind the Navtej Singh Johar Judgement. In any case, the question which remains is whether simply the decriminalization of homosexual conduct, that is, by removing a negative notion without guaranteeing any certain freedoms for the LGBTQ people group, how far will society be changed.
Assuming cultural change through protected freedoms was the motivation behind the Navtej Singh Johar judgment, it tends to be viewed as just an initial move towards improving the place of the Gay community in society.
Though being an initial advancement toward understanding the freedoms of minority LGBTQ people group, it was an incredibly critical one. It reversed the decision in the first instance of Suresh Kumar Koushal where the court had relied upon morality to uphold the constitutional validity of Section 377.
Navtej Singh Johar, then again, tries to change the current majoritarian societal assessment according to homosexuality. Be that as it may, the truth will surface eventually with respect to how far the Constitution and the law would be effective to accomplish its transformative
Society is changing and the country is on the route to a vision of development and solidifying its stance in the world order, but change is always miffed with resistance in society as it’s a gradual process and can never be achieved in a radicalized manner such ideas take time just like a plant.
The Judgement of the Supreme Court in the Navtej Singh Johar case represents those seeds of fundamental autonomy as enshrined in the constitution and fulfillment of the aspirations of the constitution to give a way of life to the people associated with the LGBTQ community.
Although such movements are many times faced with both active and passive resistance from society but as a constitutional court the Supreme Court was able to balance both the wheels of the chariot i.e., Social and Constitutional Morality.
Even though there exists resistance from the society based on orthodox principles and way of living according to their followed cultural and traditional practices, the Judgement demystifies a stand which state every law, culture, tradition, or practice is subservient if it infringes the rights guaranteed under Part III of the constitution and the freedoms and fundamental principles embedded in it.
The approach by the Court to solidify its stance and realize the needs of society in itself is commendable as it opens up a gateway for society to happily accept the change and move way forward in response to treating its minorities and the mechanism of Transformative Constitutionalism represents the change, experiments and new ways through which these positive changes can be brought in the society for good.