Personal Liberty And Criminal Justice System

Ankur Mittal, Additional Advocate General

Date : 28/02/2019

Personal Liberty And Criminal Justice System

The framers of the Indian Constitution had a vision in their minds while framing the Constitution of India, to foresee certain aspects which although were not acceptable 71 years ago but which could become an integral part of the society with the change and evolution in society and thus, the founding fathers wanted the Constitution to be an adaptable document rather than a rigid framework for governance. With the said vision in minds, every word of the Constitution was chosen in such a manner that with changing ethos of the society, the new interpretation to the provisions of the constitution could be given as per the evolution of society with the passage of time. Accordingly, the structure of the Indian Constitution was built on the principles of liberty, equality and fraternity considering the same to be the principles of life deeming it to be of utmost importance for the very existence of democracy. The aforesaid principles have been an integral part of the Constitution of India however; the same have been interpreted and given a new meaning with the change in society by the competent Courts of law.

The judicial interpretation and meaning given to the abforsaid principles can be seen in the latest judgment passed by the Constitution Bench of Hon'ble the Supreme Court of India incase titled Navtej Singh Johar v. Union of India, 2018 (5) R.C.R. (Criminal) 547 wherein the Hon'ble Supreme Court of India struck down the provision of Section 377 of the Indian Penal Code being unconstitutional in so far as it criminalises homosexuality. The said judgment further classifies the enormous and extraordinary transformative power vested in the Constitution of India. It is pertinent to mention here that many new judicial interpretations of law on different subjects have been given by the judicial institutions but Navtej Singh Johar (supra) has been the most radical one.

The Indian Constitution was aimed at bringing "social revolution", with the objective of eradicating deep inequalities and discriminations that existed in the society, which is evident from the doctrine of progressive realization of Rights as the rationale behind the said doctrine was the dynamic and ever growing nature of the Constitution under which the rights have been conferred upon the citizens. The Hon'ble Supreme court has also observed that, "the ultimate goal of our magnificent constitution is to make right the upheaval which existed in the Indian society before the adopting of the Constitution".

The provision of Section 377 of IPC provides for the punishment with imprisonment for life or for a term of up to 10 years to a person who voluntarily has "carnal intercourse against the order of nature with any man, woman or animal". The term, "against the order of nature", has been used to persecute members of the LGBT community for several years.

However, in the case titled Navtej Singh Johar (supra), Section 377 has been found to be in violation of the Fundamental Rights as the same did not stand the test of the Right to Equality as guaranteed under Article 14 of the Constitution, the Right against discrimination as guaranteed under Article 15 of the Constitution, the right to free expression as guaranteed under Article 19 of the Constitution and the Right to Life and Personal Liberty as guaranteed under Article 21 of the Constitution.

The Hon'ble Apex Court has observed that the "Indian Constitution is a great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy and its provisions can be comprehended only by a spacious, social-science approach, not by pedantic, traditional legalism."

The Hon'ble Supreme Court demonstrated the manner of applying transformative constitutionalism by referring to the cases titled Shafin Jahan vs. Asokan K.M. & Ors. (Hadiya case), wherein the right of two consenting adults to get married was upheld; and Shakti Vahini v. Union of India, wherein the social strictures against marital unions through khap panchayats were struck down by transforming the society with the change in time.

The Hon'ble Apex Court further elaborated the transformative constitutionalism by observing that, "The ability of a society to acknowledge the injustices which it has perpetuated is a mark of its evolution. In the process of remedying wrongs under a regime of constitutional remedies, recrimination gives way to restitution, diatribes pave the way for dialogue and healing replaces the hate of a community. For those who have been oppressed, justice under a regime committed to human freedom, has the power to transform lives. In addressing the causes of oppression and injustice, society transforms itself. The Constitution has within it the ability to produce a social catharsis. The importance of this case lies in telling us that reverberations of how we address social conflict in our times will travel far beyond the narrow alleys in which they are explored."

In view of the above, it would not be wrong to state that the judgment in Navtej Singh Johar (supra) has brought about a social transformation in the Indian society and has expanded the scope of the fundamental rights guaranteed to the citizens under Articles 14, 19 and 21 of the Constitution of India. The act which was once considered to be illegal and punishable under law has now become legal, which proves the supremacy of Indian constitution. It is owing to this judgment that the members of Lesbian Gays Bisexual Transgender community (LGBT Community) would be able to live with dignity & would be able to give expression to their individual identity, which is a win for the Constitution of India and the correct interpretation of the fundamental rights

guaranteed under Article 21. The Hon'ble Supreme Court, in this regard, has observed that, "Destruction of individual identity would tantamount to crushing of intrinsic dignity that cumulatively encapsulates the values of privacy, choice, and freedom of speech and other expressions."

The citizens of India have been a witness to the harassment caused to the members of LGBT community by the police, social ridicule, criminal trials and imprisonment for their sexual orientation for which they were not responsible. The Hon'ble Apex court while observing that, "they suffered because of something over which they had no control and that History owes an apology to the members of this community and their families ... for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution", has held the provision of section 377 of the Indian Penal Code, which criminalises consensual sexual acts between adults of the same sex to be unconstitutional in the case Navtej Singh Johar(supra).

The Hon'ble Apex court has while highlighting the plight of members of LGBT Community observed that "Section 377 has consigned a group of citizens to the margins. It has been destructive of their identities. By imposing the sanctions of the law on consenting adults involved in a sexual relationship, it has lent the authority of the state to perpetuate social stereotypes and encourage discrimination. Gays, lesbians, bisexuals and transgenders have been relegated to the anguish of closeted identities. Sexual orientation has become a target for exploitation, if not blackmail, in a networked and digital age. The impact of Section 377 has travelled far beyond the punishment of an offence. It has been destructive of an identity which is crucial to a dignified existence." It has been further observed that "A criminal provision has sanctioned discrimination grounded on stereotypes imposed on an entire class of persons on grounds prohibited by Article 15(1). This constitutes discrimination on the grounds only of sex..."

Despite being one of the most controversial sections and despite there being numerous different ideas on the subject from different schools of thoughts, the Hon'ble Supreme Court of India in the case Navtej Singh Johar (supra) has beautifully elaborated as to how the concept of Article 21 of the Constitution can welcome the right to personal liberty to be enjoyed by the LGBT community by expanding its ambit and by decriminalizing the consensual sex amongst adults in private by observing that the sexual orientation was natural and people had no control over it. The court found that Section 377 violated the rights of the members of the LGBT community by being in violation of their right to dignity, identity, and privacy, all covered under Article 21 of the Constitution.

The Judgment in case Navtej Singh Johar (supra) has laid down the foundation of a modern, liberal and a broad minded society, which would not only be helpful for a

particular section of the society in leading a life of dignity but would also go a long way in strengthening the ideals of liberty, equality and fraternity.

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