2018 landmark year for Supreme Court of India but judgments alone cannot change social attitude, DY Chandrachud J.

2018 was a landmark year for the Supreme Court of India for its expansion of rights jurisprudence in the field of gender and sexuality. However, judicial pronouncements along 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.

Justice Chandrachud was chairing a session on “Gender, Sexuality and Human Rights” at the 1^st LAWASIA Human Rights Conference organised by Bar Association of India, at New Delhi.

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, he said.

“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.”

Regarding the rights of LGBTQ persons, Chandrachud J. opined that decriminalisation is only the first step. Changing the prejudices and discrimination against LGBTQ persons is a much longer and more tedious process, he said.

Social changes like the above cannot be achieved by law alone and hence, it is important for lawyers to foster partnerships across society.

Below are the snippets from the address of Justice DY Chandrachud.

Morality and notions of acceptable conduct are relative and change with time

The judge said that notions of acceptable conduct are influenced by the passage of time and evolving moral values.

“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.”

He noted 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.

“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.”

Consequently, issues of gender, sexuality and human rights and their intersectionality continue to form part of the global rights discourse today, he said.

On gendered notions of purity, chastity, and rights of women and LGBTQ persons

Justice Chandrachud noted that in various countries, religion, tradition, 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.

In some parts of the world, masculinity is interpreted in a manner justifying sexual violence on women.

“Stereotyped understandings of gender and sex also leads 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 fulfillment.

“Most significantly, new thinking on sexual rights is driving innovation which has seen the emergence of inclusive holistic strategies that bring in women, men, and Transgender population.”

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.

Judges should be sensitive to human experiences

The law does not 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.

“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”, Chandrachud J. urged.

2018 a landmark year for Supreme Court

Chandrachud J. then proceeded to reminisce about the past year and its significance for the Supreme Court of India.

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, he said.

“Our court permitted the entry of women into Sabarimala temple which had previously prohibited access to menstruating women from entering the temple.

Our court 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 that the equal protection of Constitutional values extends to gender and sexual minorities.”

Chandrachud J also noted that twenty Asian States have taken the first crucial step of decriminalising consensual same-sex relationships and acknowledging that sexual orientation is an intrinsic element of liberty, dignity, privacy, autonomy, and equality.

India’s decision to decriminalise homosexuality has inspired similar movements for repeal in countries like Singapore, Malaysia, Myanmar which have their own Section 377 as a result of their colonial history.

Social changes cannot be brought by law alone

He, however, reminded that decriminalisation of homosexuality is only the first step and that entrenchment of the Constitutional rights of the LGBTQ persons is only the foundation.

Changing societal values and prejudices against LGBTQ persons is a much longer and more tedious process, he opined.

He referred to the Nepal Constitution which expressly recognises queer rights in its Constitution and became only the tenth country in the world to do so. Despite the same, many members of LGBTQ community still face social discrimination in Nepal and same-sex marriages are yet to be legalised.

“It serves as an acute reminder that social change must form a part of the solution and is imperative to achieving true equality.”

Likewise, the Constitutional Court of Taiwan held, in 2017, that the law must provide for same-sex marriage on the grounds of freedom of marriage. It became the first Asian nation to take this step.

As with Nepal, the limitations of law were highlighted soon after. Following the court order, voters, in an informal referendum held in November 2018, rejected a proposal to bring legislation legalising same-sex marriage.

The Taiwan Government, thereafter, declared its intent to draft a new law legalising same-sex marriage but potentially through the introduction of a separate law and not an amendment to the existing Civil Code. This has led to fears that a separate law will relegate the LGBTQ community to second class citizens.

“The Taiwanese referendum once again serves as an example of how progressive judgments often have little impact in changing social attitude”, said Chandrachud J.

 Need to foster partnerships across the society

While a considerable amount of progress has been made in Asia when it comes to gender and sexuality, the experience in various countries has 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.”