From Legal Desk
New Delhi: Referring to the judgements passed in 2018, which were landmark for the Supreme Court of India for its expansion of rights jurisprudence in the field gender sexuality. However, judicial pronouncements alone cannot bring social changes as social prejudices outlast changes in law and changes brought about by judicial pronouncements, said Supreme Court judge, Justice DY Chandrachud, he was speaking in a session on the subject of “Gender, Sexuality and Human Rights”, organised by the Bar Association of India.
He was of the view that year 2018 was a landmark year for the Supreme Court of India and is recognised for a number of decisions on social justice and an expansion of its rights jurisprudence particularly in the area of gender and sexuality.
“Our court permitted the entry of women into Sabarimala temple which had previously prohibited access to menstruating women from entering the temple. Our courts struck down the law on adultery in India, a codified expression of patriarchy and recognised the dignity and privacy of a woman to make her own sexual choices. Finally, continuing the progress that first began with the recognition of the third gender in 2014, the Supreme Court in 2018 decriminalised homosexuality and ensured the equal protection of Constitutional values extends to gender and sexual minorities.”
On the rights of LGBTQ persons, Chandrachud J. was of the opinion that decriminalisation is only the first step. While, changing the prejudices and discrimination against LGBTQ persons is a much longer and more tedious process, and it will take longer than we expected. The social changes like the above cannot be achieved by law alone and hence, it is important for lawyers to foster partnerships across society so that the same can be achieved with prosperity, he maintained.
Justice Chandrachud further says that morality and notions of the acceptability of the conduct are relatively bigger issues which cannot be changed in a day; but will happen with passage of time. Therefore, we must analyse the passage of time and evolving moral values towards this. He also emphasis that various forms of consensual sexual relations between adults ranging from adultery to sex work are penalised in many jurisdictions. It has been hard to achieve consistency when it comes to legal norms regarding sex and gender relations.
“While most societies regulate and provide protection to marital union and outlaw rape, there are conceptual differences that exist in understanding these terms. Similarly, while some countries provide for specific LGBTQ rights, others outlaw the expression of same-sex intimacy and criminalise non-heteronomous gender expression.”
There is in my view an inherent inconsistency that exists between recognising the right to gender equality in international human rights treaties and domestic Constitutions, he added.
Justice Chandrachud, also throws light on gendered notions of purity, chastity, and rights of women and LGBTQ persons. And he further expanded his views by referring various countries; religions, traditions, and culture are factors which exert an overwhelming influence in the formation and prevalence of gendered notions. Notions demanding women’s purity and chastity lead to egregious violations including female genital mutilation and honour killings, he asserted. In some parts of the world, masculinity is interpreted in a manner justifying sexual violence on women.
“Stereotyped understandings of gender and sex also lead to the pressure to confirm and be considered as a ‘proper man’ or a ‘proper woman’, notions that have devastating consequences for the rights of sexual minorities.”
Thus, the rights of LGBTQ community and consensual sex between same-sex adults continue to be criminalised in various Nation States, where sexual minorities face marginalisation violence and even death. Gender inequalities and taboos surrounding sexuality also drastically affect the right to health of such persons, he said.
Quoting the data by the World Health Organisation, Chandrachud J. said that due to unsafe abortions around 30 women die for every 100,000 in developed nations. In developing nations, this number increases to 220 for 100,000 while in sub-Saharan African this number is 520.
He also said that there are positives in this area with an increasing awareness today that while sexual rights necessarily encompass the right to be free of violence and coercion, they also include the right to explore and pursue pleasure, desire, and fulfilment.
However, despite these signs of progress, challenges remain. The persisting ubiquity of gender and sex-based rights violation mandates an urgent relook of the traditional human rights law paradigm. The current framework is divided across the State as a primary actor and does not always include within its ambit, abuses that are perpetrated by diverse non-State actors like global corporations and the militia.
Justice also laid stress that judge should be sensitive to human experiences. As the law doesn’t simply operate on pre-existing gendered reality but it contributes to the conception of those realities often in a constraining or damaging way. Hence, it becomes important for a judge to understand different perspectives and reflect them in the law as well.
“In my capacity as a judge, I make an effort to develop an understanding of different perspectives and reflect them in the law. I firmly believe that all judges should develop an increased sensitivity to the diverse human experiences which are presented to the court on a daily basis”, Justice Chandrachud urged.
While, a considerable amount of progress has been made in Asia when it comes to gender and sexuality, the experience in various countries have been that social prejudice outlasts changes in law and changes brought about by judicial pronouncements.
“Just as we understand the optimism which we bring to the law as lawyers and judges, we must also be cynical somewhat about the ability of the law by itself to bring about social change.”
He, thus, concluded his address by underling the importance of forging partnerships across society.
“And therefore I think it is important that we foster partnerships across society realising the importance of the work which we do in the law but at the same time conscious that we must be of the limitations.”