Postcolonial Proportionality: Johar, Transformative Constitutionalism and Same Sex Rights in India

Abstract

At its inception, the Indian Constitution was envisioned as a transformative document, in two senses: anti-colonial and cosmopolitan. It gave birth to a radically new constitutional order, that conferred citizenship and political power on the previously disenfranchised living under the yoke of British imperial rule, created democratically elected legislatures and accountable executives, and conferred fundamental rights on citizens that reconfigured their relationship with public power, under which they had been hitherto treated as colonial subjects. But the Indian Constitution was also a cosmopolitan constitution in its fidelity to the universal principles of liberty, equality and fraternity. These universal values mandated and framed a vast project of social, economic and political transformation.

The Supreme Court of India has yet to articulate an overarching theory of transformative constitutionalism, in either its anti-colonial or cosmopolitan senses. In this essay, I take up this task, by wrestling with the landmark decision in Johar, where the Supreme Court unanimously struck down Section 377 of the Indian Penal Code, which criminalized same sex relations. The idea of transformative constitutionalism figured centrally in the various opinions, and the closely related concept of constitutional morality, given real legal teeth for the first time by the Supreme Court. So did another piece of the global template of rights-protection – proportionality, which is relatively new to Indian constitutional jurisprudence.

The unifying thread between transformative constitutionalism and proportionality in Johar is that the purposes underlying Section 377 were constitutionally impermissible. The dual mission of the transformative constitutional project defined the scope of admissible reasons for proportionality analysis. Section 377 was unconstitutional on the cosmopolitan ground that mere social morality was an insufficient reason to limit the right to engage in harmless, constitutionally protected activity, the basis on which courts around the world have struck down parallel provisions. The colonial-era origins of Section 377 also figured prominently in the submissions and various opinions, as an additional reason why it was unconstitutional. I argue that Section 377 was also unconstitutional for the anti-colonial reason that it was an element of the Imperial constitutional order in British India in the period after the Indian Mutiny in 1857 of indirect colonial rule.