Author – MANIK TINDWANI, Student at UNIVERSITY FIVE YEAR LAW COLLEGE, UNIVERSITY OF RAJASTHAN.
Origin of Transgender Religious Right
“Culture does not make people. People make culture.” Although the Hon’ble Apex Court has upheld the rights of the members of transgender community but the stereotypical stigma which is attached to them still haunts the Indian society. Every second day we encounter incidents where transgenders are either suppressed or are restrained from progressing forth in their lives. Often people consider such innocent celebrations as “objectionable” or an act of “public intolerance” which impedes the exercise of their fundamental right to religion and right to freedom of speech and expression guaranteed under Article 25 and 19(1)(a) of the Indian Constitution. Hitherto this social menace has not been ousted from the Indian Society. Rebutting this general disposition of the society, this research paper aims at scrutinising the legality of such restraints which are imposed on the transgender persons by the society. This research paper also aims at surfacing the unfettered constitutional rights of the transgenders person concerning public celebration of religious festivals while advancing legal reasoning against the uprising social delinquencies and misdemeanours against them.
INTRODUCTION
In November last year, the Hon’ble Justice D.Y. Chandrachud while expressing his views on ‘Empowerment of Woman’ in the ‘National Legal Awareness Programme, 2021’ (which was organized by National Legal Service Authority in collaboration with National Commission for Women) had commented on the controversy about the Dabur India’s Advertisement on its bleaching product labelled as “Fem Crème” wherein a lesbian couple was shown as celebrating the festival of “karva chauth”. While citing it as an example of the disparity between law and ground reality he stated that the advertisement had to be pulled down on the ground of “public intolerance”. Not only had the advertisement faced an unwarranted backlash from various sections of society on social media platforms but it had also gained attention of various political leaders. Madhya Pradesh Home Minister Mr. Narottam Mishra called the advertisement “objectionable” and issued a warning to Dabur India to withdraw the advertisement in response to which the Company withdrew the advertisement.
ANALYSIS AND INTERPRETATION
1. Contradiction with the Rule of Law
This raises a very crucial legal question that where the Hon’ble Apex Court in its decision in Navtej Singh Johar & Ors. v. Union of India & Ors. extended its support to the LGBTQ + community while upholding their fundamental right to choose their gender identity and life partner then whether their rights to celebrate religious festivals can be considered “objectionable” and an act of “public intolerance”?
In the aforesaid case, the Hon’ble Court while upholding the unconstitutionality of Section 377 of the Indian Penal Code (I.P.C.) appositely held that,
“Such groups are entitled to the protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them.”
Hitherto the phrase “without any stigma being attached to any of them” seems to be nothing more than a dead letter or an ‘unenforceable’ right. A legal analysis of this issue is thus underway since for some experts this assertion seems to be devoid of substantial legal reasoning. This legal issue includes three distinct but conjoint sub-issues which are: firstly, whether transgender persons can publically celebrate any religious festival? ; secondly, whether such celebration is ‘objectionable’; and thirdly, whether such celebration is an act of ‘public intolerance’?
2. Whether transgender persons can publically celebrate any religious festival?
While dealing with the first sub-issue any prudent person will refer to Article 25 of the Indian Constitution which bestows the ‘right to religion’ to ‘all persons’ equally. The phrase ‘all persons’ used in the said provision includes every person within the domestic territory of the country irrespective of their gender identity or their sexual orientation. However, this verity cannot be refuted that the right is not devoid of reasonable restrictions. Any person who causes any ‘harm’ to the ‘public order’, ‘morality’ or ‘health’ is restrained from the exercise of this right. In the instant case, ‘public order’ & ‘morality’ are in question. This brings up another question that whether such a celebration is a threat to public order or morality?
In Navtej Singh Johar Case (supra) Hon’ble Supreme Court scrutinized legitimacy of the limitations imposed on the fundamental right of expression (including the right to choice) of the LGBTQ+ community on the grounds of public order, decency and morality. The division bench comprising of Hon’ble Justice Dipak Misra (former CJI) & Hon’ble Justice A.M. Khanwilkar held that,
“We are of the conscious view that Section 377 IPC takes within its fold private acts of adults including the LGBT community which are not only consensual but are also innocent, as such acts neither cause disturbance to the public order nor are they injurious to public decency or morality. The law is et domus sua cuique est tutissimum refugium – A man’s house is his castle.”
The Court termed private acts of the LGBTQ+ community as ‘innocent’ and devoid of potential to cause any disturbance to public order unless such acts are not ‘indecent’ and until these are performed in private space. A fortiori, mere celebration of religious festivals by lesbians cannot be termed as ‘indecent’ since it is also an innocent act and is not intended to cause any harm to public order or morality.
Since the recognition of the rights of the LGBTQ+ community, numerous precedents have concomitantly sketched a thick line of demarcation between ‘public morality’ and ‘constitutional morality’. In Navtej Singh Johar Case (supra) the Hon’ble bench held that,
“The conception of constitutional morality is different from that of public morality or societal morality. Under a regime of public morality, the conduct of society is determined by popular perceptions existent in society. The continuance of certain symbols, labels, names or body shapes determine the notions, sentiments and mental attitudes of the people towards individuals and issues by the text and spirit of constitution. It requires that the rights of an individual ought not to be prejudiced by popular notions of society. It assumes that citizens would respect the vision of the framers of the Constitution and would conduct themselves in a way which furthers that vision. Constitutional morality reflects that the ideal of justice is an overriding factor in the struggle for existence over any other notion of social acceptance.”
Furthermore, in the case of Manoj Narula v. Union of India the Hon’ble Court explained the principle of constitutional morality as follows,
“The principle of constitutional morality means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law.”
In the case of Government of NCT of Delhi v. Union of India the Constitution Bench while determining the constitutive elements of constitutional morality held that constitutional morality is founded on a “constitutional culture” which requires the “existence of sentiments and dedication for realizing a social transformation which the Indian Constitution seeks to attain”. It was further held that constitutional morality acts as a check against the “tyranny of the majority” and as a “threshold against an upsurge in mob rule.”
Furthermore, in the case of Justice KS Puttaswamy (Retd.) & Ant. v. Union of India & Ors. Hon’ble Apex Court reiterated the views of Hon’ble Justice Aharon Barak (former Chief Justice of Israel) on ‘rule of law’, who had cogently elucidated that,
“The rule of law is not merely public order, the rule of law is social justice based on public order. The law exists to ensure proper social life. Social life, however, is not a goal in itself but a means to allow the individual to live in dignity and develop himself. The human beings and human rights underlie the substantive perception of the rule of law, with a proper balance among the different rights and between human rights and the proper needs of the society.”
It is explicit from the above-quoted judgments that ‘constitutional morality’ overweighs ‘public morality’. No matter what the society thinks, the “rule of law” prevails. Celebration of religious festivals is an unstinted fundamental right guaranteed to all the members of the LGTBTQ+ community under Part III of the Indian Constitution itself no matter what perceptions society has made about them. Therefore, transgender people have every right to celebrate any religious festival publically provided that it is not performed in an ‘indecent’ manner and is devoid of potential to distort public order or morality in any manner whatsoever.
Whether such celebration is ‘objectionable’?
The word ‘objectionable’ may be interpreted in two ways in this case: ‘religious objection’ and ‘legal objection’. While scrutinizing religious objection it is important to analyze that whether the respective religion permits such celebration or explicitly restrains such celebration, whereas while scrutinizing the legal objection, the “rule of law” is to be considered.
Legal objection on such celebration stands no chance after the Apex Court upheld the rights of transgender people except for if such celebration is performed in an ‘indecent’ manner or has the potential to distort public order or morality as is already asserted in the previous segment.
Coming to the religious objection it is crucial to analyze the history, purpose & importance of the religious practice being performed. The act of celebrating a ‘ritual’ cannot per se be termed as ‘objectionable’ until it is ‘indecent’ or is a potential threat to public order.
Whether such celebration is an act of ‘public intolerance’?
Article 19(1)(a) of the Indian Constitution confers the right to freedom of speech and expression to every citizen of this Country. Everyone is free to make their opinion and share their views on an issue. The same goes with people’s perception of gender discrimination. Some people support such celebrations as an initiative to aware people on the rights of the LGBTQ+ community but some people resent such celebrations considering it ‘religious defamation’ and ‘public mischief’ which are punishable under Section 295A and Section 505 of I.P.C. respectively.
For attributing criminal liability under Section 295A it is quintessential to establish that the person had committed an act with the intention “to outrage religious feelings of any class by insulting its religion or religious beliefs”. Where the act is done innocently without any such intention, such act is not amenable to the said provision.
Also, Section 505(1) states that, “whoever makes, publishes, or circulates any statement, rumour or report which incites any person to commit an offense against the State, Public Tranquillity or spreads hatred among communities on the grounds of cast, community, race, religion etc. shall be punished for causing public mischief”. In the case of Patricia Mukhim v. State of Meghalaya & Ors. and Bilal Ahmed Kaloo v. State of A.P., Hon’ble Supreme Court held that mens rea is an essential ingredient to constitute an offense under Section 505. Thus, mere celebration of a religious ritual which is performed innocently and without any intent to cause such mischief is not per se enough to attract criminally liability under the aforesaid provision unless it is ‘indecent’ and so grave as is likely to distort public tranquillity.
CONCLUSION AND SUGGESTIONS
Hon’ble Justice D.Y. Chandrachud has aptly remarked that “Our Constitution is a transformative document that sought to remedy the structural inequalities rooted in a patriarchy”. Our constitution was encoded in a manner which ensures that no person gets discriminated on the ground of their gender identity but till date the social evil of stereotypical gender discrimination has not been culled out of our society. Although the rights of the members of LGBTQ+ community are duly recognized by law still the ground reality portrays a failure of the people of the State in revamping their perceptions about transgender persons. The recent ‘fem crème’ controversy is the perfect epitome. Also, the Transgender Persons (Protection of Rights) Act, 2019 is silent on the rights of transgenders to celebrate religious festivals. An act becomes controversial when it is violative of the ‘rule of law’ but not otherwise. Popular notions, stereotypes, and perceptions of society are of secondary value in deciding the controversial nature of a thing when it is legitimate as per the lex loci. It is obvious that the company withdrew its campaign in fear of losing its existing and potential customers but behavior of the people against the advertisement symbolizes narrow-mindedness of various sections of Indian Society.
The stigma attached to gender identity still prevails. It is the narrow-mindedness of various sections of the Indian society that such fruitful initiatives (like ‘fem crème’ karva chauth campaign) are often veiled. Unawareness of the people regarding the rights and liberties of the LGBTQ+ community is the major reason for this setback. It is high time when an awareness program is awaited in light of this issue so that such initiatives are not pulled down in near future.
Reference
[1] CHIMAMANDA NGOZI ADICHIE, WE SHOULD ALL BE FEMINISTS (Fourth Estate, 2014)
[2] MEHAL JAIN, ‘Karva Chauth’ Ad Had To Be Withdrawn Due To Public Intolerance: Justice DY Chandrachud’, LIVE LAW (November 1, 2021) https://www.livelaw.in/top-stories/justice-dy-chandrachud-supreme-court-karva-chauth-dabur-public-intolerance-184765.
[4] Navtej Singh Johar & Ors. v. Union of India & Ors., (2018) 10 SCC 1, at ¶ 88, 97.
[5] INDIA CONST., art. 25 cl. (1).
[6] Navtej Singh Johar & Ors. v. Union of India & Ors., (2018) 10 SCC 1, ¶ 245.
[7] Manoj Narula v. Union of India, (2014) 9 SCC 1, ¶ 75.
[8] Govt. of NCT Delhi v. Union of India, 2018 (8) SCC 501, ¶ 7; Navtej Singh Johar & Ors. v. Union of India & Ors., (2018) 10 SCC 1, ¶ 142.
[9] Id.
[10] Justice K.S. Puttaswamy & Another v. Union of India & Ors., (2017) 10 SCC 1, ¶ 72.
[11] MEHAL JAIN, “Awareness About The Rights Of Women Can Be Truly Meaningful If That Awareness Is Created Amongst The Younger Generation Of Men In Our Society”: Justice Chandrachud, LIVE LAW (October 31, 2021) https://www.livelaw.in/amp/top-stories/justice-dy-chandrachud-empowerment-of-women-legal-awareness-nalsa-ncw-intersectionality-sexual-division-of-labour-184737.