The problem faced by the society can only be addressed by the society itself. The members are part of it. It is the collective duty and responsibility of the society to address its problems but it is only those members, who are informed, conscious, empowered and vigilant, who have to shoulder its collective responsibility to address its ills by making the other part of the society aware and informed by constructively and effectively engaging them in the progression of the society.

1. A PERENNIAL DEBATE BETWEEN HUMAN RIGHTS AND EXTENT OF GOVERNANCE
By:
Shri Biswajit Das, Advocate, Supreme Court of India,
Managing Partner, Juris & Juris
biswajit@jurisnjuris.com, Mobile No.- 9911226607
B-4/115, Safdarjung Enclave, New Delhi-110029
For everything there is a price. Even civilization has its own price. When we live in civil society,
we cede some of our volition, choice and autonomy in favor of the State for it to use the same
for the collective benefit of the society under its duty called governance. While governance
gives us an orderly society to live there peacefully, often the said governance compromises
individual citizen’s private and personal rights since there is a thin dividing line between the
space covering ‘human rights’ and the ‘governance’.
One such example, where human rights came in direct conflict with the State interference, is
Section 377 of Indian Penal Code, 1860, a British era legislation foisted on the Indian State
during British governance. This section deals with punishment for unnatural sex with and
involving human. While the said law in the meantime has been done away with by the said
ruler in their own governed territory, India, being a colonial state then, continued to enforce
the said law unabatedly even after its independence.
Section 377 is a State legislation, which covers religious morality and custom as a measure of
governance without factoring human rights covering right to privacy. The moot question is, can
a State has any role in citizen’s personal right and private space under the garb of governance.
If the answer is no, then this Section 377 is undoubtedly against the very tenet of constitutional
guarantees under Article 21 of the Constitution of India. Keeping in view this cardinal principle,
finally the Hon’ble Supreme Court of India in a five judge Constitution Bench vide its judgment
dated 6 September, 2018 rendered in Navtej Singh Johar v Union of India partially held Section
377 ultra vires the Constitution of India. Accordingly, criminality of same sexual orientation has
been done away with. Supreme Court recognized the sexual orientation is an integral part of
right to life of every human being, which cannot be encroached upon by the State due to its
guarantee under Article 21. To sum up how the Hon’ble Supreme Court of India partially
declared Section 377 as ultra vires can be guessed from the following three clear unambiguous
legal position of law;
a. Sexual act between two consenting adults are their inviolable right to life,
b. This right is duly guaranteed by the Constitution as fundamental,
c. Any legislation including a part of Section 377 of Indian Penal Code, 1860 has violated
the aforesaid right and guarantee.
While this judgment decriminalizes the same sexual orientation and preferences of LGBT
community, it is silent on the institution of marriage between and amongst the LGBT
community. The Hon’ble Supreme Court of India neither was tasked nor overreached its
jurisdiction to decide anything beyond the issue of Section 377 covering criminality of unnatural
sex.

2. Once sexual orientation is recognized as an integral part of human right to life covering right to
privacy, it gives the LGBT community to do whatever they want about their sexual orientation
within the perimeter of their privacy, which may cover not only a right to live, enjoy and
consummate including right to marry a person of their choice without any State interference.
While right to live, enjoy and consummate may fall exclusively within the privacy domain, right
to marriage may have consequences surpassing the privacy territory with ultimate effect
coming in conflict with some existing State legislations.
Having won first round battle getting the right to sexual orientation and preferences declared
as an integral part of human rights and right to privacy, the succeeding battles are likely to be
fought either politically or in courts to secure the consequential rights such as right to marriage,
right to property, right to inheritance, right to entitlement, public eligibility, etc.
Post-decriminalization of human same-sex orientation/relation, one more battle needs to be
fought in order to secure complete tranquility for LGBT community. This battle is far bigger,
hugely difficult and more complex. In a multi-cultured, multi-lingual and varied religious belief
and customs makes our society extremely rigid and complex. No single stroke legislative and
regulatory governance to tackle any socio-political-religious-cultural beliefs and practices is
practicable or even warranted. Any attempt to tackle this same-sex orientation/relationship
through legislative means post-decriminalization era will be an extremely bad idea and the
same ought not to be pursued. LGBT problem involving personal choice, being a social problem,
can only be tackled though society. Even the Hon’ble Supreme Court of India did foresee this
problem and thus implored the society to correct itself. Society, being the compendium of its
constituent i.e. the people, cannot be oblivious to the problems of any of its constituent. It is
has evolve, engage and address its own problem constructively, progressively and
compassionately keeping in view the aspirations and the expectations of each one of them
making them aware that it values each one of them. Though there is a tendency to tilt in favor
of the wishes of the majority, this problem ought to be resolved by making them aware that
majority interest as against the individual rights can and ought to co-exist for a just society that
every constituent looks upto. This is possible by spreading the awareness about the concept of
society, civilization, state, human rights, public-private expediency, etc.
While decriminalization of Section 377 is only the first step towards resolving far larger and
complex problem faced by the LGBT community, the other critical steps are yet to be resolved
for securing full freedom of their individual right to life, choice and privacy. Only the state i.e.
police is put at bay through this judgment, but not the mob. Series of violent instances involving
members of the LGBT community have come to the mainstream media in the recent past. This
is perhaps the opportunity for the society to debate and constructively pursue to bring
awareness amongst the members of the society on this issue.
A poor 19 year old girl Miss Sharmila Malla from far-flung village of Odisha was tied in a tree
and brutally thrashed by some members of her own village in the last week. Villagers justified
their acts of adventurism of beating a teen girl in barbaric manner by accusing her of
besmirching the village name by sharing her bed with her lesbian partner. This is a typical
masculine socio-political peculiar conduct often resorted to by people in dominance. Not only

3. their heinous act was deplorable besides being out rightly illegal but also self defeating the very
cause that they seek to espouse. While the alleged lesbian act was confined to their private
perimeter of either their own house or a secluded shed/space, the news of barbarism
undertaken by the villagers for so called cause of protecting the villagers’ pride became the
reason of besmirching it. This is a spectacular self goal by the so called guardians of the society,
which must be understood first. Since Section 377 decriminalized this same-sex act, even these
villagers can’t justify their action through the State. On the contrary, they have committed an
offence of outraging the modesty of a woman under Section 354 of Indian Penal Code, 1860,
peeping into someone’s private space without authority is an act of criminal trespassing under
Section 447 of Indian Penal Code, 1860, committing offence in a group under Section 120B of
Indian Penal Code, 1860, causing severe violence and disturbing the tranquility of the society
under Section 143 of Indian Penal Code, 1860, rioting under Section 147 of Indian Penal Code,
1860, grievous hurt to bodily injury under Section 325 of Indian Penal Code, 1860, attempt to
murder under Section 307, assault or criminal force with intent to dishonor person under
Section 355 of Indian Penal Code, 1860, lecherously looking at a woman under Section 354D of
Indian Penal Code, 1860, contempt of Supreme Court under Article 129 of Constitution of India,
etc.
It has also been reported in the news in recent past that one celebrated athlete, an Olympian
from Odisha Miss Dutee Chand openly confessed to her sexual orientation towards her one
lesbian partner and showed her desire to marry with her partner. Such a news item has its
constructive effect on the society for it helps in bringing these socially stigmatic issues for a
discussion amongst the masses as a medium for awareness. While Dutee Chand did not suffer
the similar fate of Miss Sharmila Malla for obvious reason, but these instances gives an
opportunity to reflect and engage the society in a constructive manner.
The next question is what will happen if Dutee Chand like individuals wishes to take their
personal choice/orientation to the next level i.e. living, marrying, and engaging with their
similar-sex partner?
Staying, marrying and engaging with another individual is a purely personal human right and
choices to which state as no control nor it can ever control the same in a civilized world.
However, it is to be noted that State regulates pubic activities and public space through
legislation and executive instruments/texts. While staying, marrying and engaging with a same-
sex partner is not a problem legally, some of the consequences therefrom do come under some
peripheral regulatory standards such as pensionary, taxing, passport, property, inheritance,
licensing, schooling, compensatory, entitlement, social security schemes, divorce, etc
regulations. Section 498A of Indian Penal Code, 1860 protecting wife from marital atrocity,
Section 4 of Dowry Prohibition Act, 1961 protecting women from dowry demand, Section 13 of
Hindu Marriage Act, 1955 giving grounds of divorce are not gender neutral legislations and thus
are available to a particular class of persons, which may come in the way of LGBT community
marriages.
It is significant to note that though the same-sex marriage does not require a legislative
certificate, a legislation for their registration can address the aforesaid problem narrated above.

4. The present Special Marriage Act, 1954 and Hindu Marriage Act, 1955 do not address the
problems faced by the gay and lesbian marriages post decriminalization of their sexual
orientations which can be addressed either by amendment to these existing legislation or by a
special legislation thereto. An amendment to these existing legislations will be an ideal step
towards this for a separate legislation exclusively confining to the members of this community
can be a counter-productive for having a potential for racial and social discrimination. One
senior member, Shri Shashi Tharoor, of Indian National Congress and the then member of the
Lok Sabha unsuccessfully moved a private Bill in the year 2015 for validity of same-sex
marriage.
CONCLUSION
The problem faced by the society can only be addressed by the society itself. The members are
part of it. It is the collective duty and responsibility of the society to address its problems but it
is only those members, who are informed, conscious, empowered and vigilant, who have to
shoulder its collective responsibility to address its ills by making the other part of the society
aware and informed by constructively and effectively engaging them in the progression of the
society.