Constitutional Court engages in a dialogue not only with the state but also with different sections of society. In that dialogue, by its decisions, Constitutional Courts motivate, persuade, cajole and nudge civil society towards what has been called Constitutional Morality.
- Constitutional values are embraced in the Preamble of our Constitution, that we shall secure to its citizens JUSTICE, LIBERTY, EQUALITY, FRATERNITY assuring DIGNITY to the individual.
- That is the core of the case. It is about how the decision of this Hon’ble Court will ensure that those Constitutional values are applicable to the LGBTQI communities.
- Before the Naz Petition was filed, Arif Jafar, the Petitioner in WP 100 of 2018 before your Lordships was arrested on, amongst other offences, under 377 IPC. He spent 49 days in custody before he was released on bail. No lawyers were available to appear in Lucknow at that time.
- In 2001 when the Naz Foundation Petition was filed hardly any gay man was, except Ashok Row Kavi, the Petitioner in WP No. 101 of 2018, willing to come forward to file a petition in court.
- But today people falling all over each other to file a petition. The CJI had to tell people that we cannot entertain any more petitions but they will be all heard. In a way it is good thing. The LGBTQI community can be out. But this changed because of judgment of the Delhi High court Naz Foundation
- A lot of the activists in the LGBTQI communities always say that not only the final verdict but the language of the Naz judgment was liberating. That is how civil society bought into the justice system and has vested interest in. I urge you to use language, which will be liberating for the ordinary member of the LGBTQI community.
- After the Naz judgment, Dr. Siras, a professor from Allahabad University, on whom the film, “Aligarh” is made, had approached me to get his the misconduct charges against quashed as his room was invaded by photo-journalists. The judges who handled the case were apprehensive about the nature of the case; professor exposed in a homosexual relationship by photojournalists. The judges drew strength from the judgment in Naz Foundation. In turn Dr. Siras drew strength from the decision of the Allahabad High Court. I want you to see the judgment which records Dr Siras’s statement.
- The same thing happened with NALSA. I cannot tell you how many transgender persons have been to my office carrying the NALSA judgment and telling that how great it is and how it is or it is not implemented. The NASLA judgment is like a bible and armour to the Trangender activists-their only protection against an oppressive state and hostile society.
- But Koushal dashed their dreams. A lot of the members of the communities had to withdraw from public activities. Prosecution of cases u/S377 increased and in particular blackmail and extorting became frequent. We get a lot of clients who are threatened with blackmail but cannot do anything because they are afraid of reporting to the police about that, lest they would be arrested under S377. This infringes their right to access justice.
- When the transgender activists go to the police station to make a complaint, the police retort by saying that in the police station the Constitution has no role, only the IPC is applicable. That is why I say that language of your judgment will be important.
- It is well said that when India attained independence, the LGBTQI communities, and for that matter a lot of communities, did not attain independence fully. The LQBTQI communities now seek to attain full independence from the yoke of a British colonial law, which has oppressed them for nearly 160 years and continues to oppress them even after independence. A 19th Century law is being applied in the 21st century, when it is repealed long ago in the country of it s origin.
- That independence is in your hands. You can liberate them from the yoke of colonialism. But do so with words which will strike a chord with an ordinary member of the LGBTQI community. Their tryst with destiny will be met when tears from their eyes are wiped out.
Read the written submissions by Senior Advocate Anand Grover here.