The Conscience of Democracy

The judgement repealing Section 377 was about more than just decriminalizing homosexuality. It was a call to introspection.

“I am what I am. Take me as I am…” read the opening lines of the Supreme Court verdict in the case of Navtej Singh Johar v Union of India.

I was in a television studio, live on air, watching these words flashed across TV screens, but scarcely being able process the implications just yet.

“No one can escape from their individuality.” “The danger which threatens human nature is not the excess, but the deficiency of personal impulses and preferences.”

With these opening remarks, referencing Johann Wolfgang von Goethe, Arthur Schopenhauer and John Stuart Mill, the great German and British philosophers of the European Enlightenment, the five-bench justices of the Supreme Court of India began to articulate the first words of a promissory note of freedom and equal citizenship to the Indian LGBTQ community.

For more than 150 years, Section 377 remained in the Indian Penal Code as a grotesque specimen of colonial conceit and Victorian prudery. It was an enduring reminder of the Westerner’s gaze upon India as nothing more than a land of wanton licentiousness and naked savages who had to be civilized. As such, Section 377 sought to preside over the variegated expressions of human desire in a land that was historically replete with multifarious expressions of genders and sexual identities.

Gradually, a civilization that was renowned the world over for its sexual, intellectual, philosophical and aesthetic radicalism atrophied into a stultified shadow of its former self under British puritanism.

It is a sad irony, therefore, that more than 70 years after India shrugged off its colonial shackles, the ones who are the most ardent defenders of this culturally alien law happen to be self-styled upholders of Indian culture – sanskriti – and Indian nationalism – desh bhakti.

But now, finally, almost seven decades after the lofty aspirations of Life, Liberty, Equality and Freedom of Expression for all were enshrined into the Indian Constitution, this Court awakened the conscience of the world’s largest democracy.

Over the course of almost 500 pages, the judges of the Supreme Court besieged Section 377 – the archaic British-era law – from different angles. Section 377, the Court observed, violates Article 14 – the promise of Equal protection; Article 15(1) – the promise of non-discrimination on grounds of sex; Article 19(1)(a) – the promise of freedom of expression; and, Article 21 – the protection of one’s right to life and personal liberty.

With unassailable strands of philosophical, legal, and constitutional challenges, the Court exposed the puritanical law to be “irrational, indefensible, and manifestly arbitrary.”

But this judgment was not merely about decriminalizing homosexuality. More fundamentally, this was a call to introspection. For somewhere along the way, the Court observed, the State had lost sight of its proper relationship with its people. Were the high ideals of the Constitution merely a symbolic pretension with no hope of realization in the social and political life of citizens?

Taken in the light of the failure of successive governments to realize these ideals, the Navtej Singh Johar judgment was an acknowledgement of the State’s violation of its social contract with its citizens.

Taken in the light of the Court’s 2013 Koushal verdict, this judgment was an act of contrition.

Through the jurisprudence of Constitutional morality, this Court was speaking to every citizen who felt alien in their own country, to every soul that hid in the ignominy of their own secret truth, to every child that grew up drenched in shame, to every atypical person who was overwhelmed by the majority. To all of them, this Court said, you matter.

“The unique being of an individual is the salt of his or her life,” this Court said. “One defines oneself. That is the glorious form of individuality.”

Recognizing the intersectional nature of identity, this judgment was a consummate defense of the miniscule minority of One in a nation of more than a billion identities; where the negotiations between individual freedoms and national cohesion may often be difficult, but the consequence of not even trying risks nullifying the very soul of a diverse nation.

And hence, warning us against “any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy,” the Court reminds us that we are a civilization of people who have always juggled multiple modes of identities. It is time that we regarded this as our strength, not our weakness.

I am sure that like many millions of other Indians, I will always remember September 6, 2018, because on this day, I not only breathed the first gasps of freedom in my entire life, but I also felt more Indian than I ever did. And proudly so.

Jai Hind.