23/01/2015 8:23 AM IST | Updated 15/07/2016 8:24 AM IST

When Right Becomes A Privilege

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MUMBAI, INDIA - MARCH 30: Retired Supreme Court Judge Markandey Katju, Chairman Press Council of India at Mumbai university to deliver lecture on ' Ancient Indian Jurisprudence and Modern Jurisprudence on March 30, 2013 in Mumbai, India. After actor sanjay Dutt Justice Katju has said that he will take up the case for pardon of another convict in the 1993 blasts case Zaibunisa Kazi. (Photo by Kunal Patil/Hindustan Times via Getty Images)

The Supreme Court of India has held 'Right to Life' under Article 21 of the Constitution to mean "the right to live with human dignity" in its decision in the matter of Francis Coralie Mullin v. Administrator, Union Territory of Delhi | (1981) 1 SCC 608.

In the recent past, persons holding high public offices like TMC MP Mr. Tapas Paul and BJP MP Sakshi Maharaj, and likewise the former Supreme Court Judge Mr. Markandey Katju and the Goa Minister Mr. Tawadkar have on separate occasions issued offensive statements which denigrate and deny the personhood of women and the community of lesbian, gay, bisexual and transgender persons (LGBT).

Speech that is incitement to rape women as revenge in electoral politics, advocating compulsory domesticity for women by reminding them of their 'fundamental duties' of wifehood and prescribing a desirable number of (male) children they should bear, explanations as to why Katrina Kaif should be elected the President, undermining the contribution of women who perform important public functions as Members of Parliament and 'lady lawyers' by commenting on their 'beauty' makes a mockery of the dignity of women. Speech which reinforces religious stigma by terming same-sex relationships as unnatural and recommending 'medication to get over same-sex feelings' exposes LGBT persons to public hostility and the unabated threat of violence. Such speech and opinions deride the ideal of Constitutional Morality that a contemporary India commands and perpetuate the myth that biology affixes a pre-determined destiny for persons, encouraging subjugation of women and LGBT persons through violence, relegating them to positions of enslavement as wife and mother, objectification as sexual 'objects' who exist for the sole purpose of providing "some momentary happiness" (in Mr. Katju's words) and the suppression of diverse expression of sexuality and love since same sex couples cannot reproduce and therefore do not comply "with the law of nature". These opinions indicate a society, which is still holding on to regressive, and invidious gender norms, struggling to respond to the progressive realisation of human rights of women and LGBT persons.

It may be convenient for our social and political leaders to forget that the freedom of speech is subject to reasonable restriction under Article 19(2) of the Constitution, and statutory prohibitions under Sections 153A (Prohibition on Hate-Speech) and 509 (Insulting women and violating privacy) of the Indian Penal Code, 1860 as well as Section 66A (communication via Internet which is grossly offensive, endangering, insulting, criminally intimidating and promoting ill-will) of Information Technology Act, 2000. Speech is not absolute in any society, and is particularly restricted in India to protect and promote substantive equality, freedom from discrimination, and the right to live with human dignity for people who are vulnerable to restriction of their freedoms on prohibited grounds of discrimination as sex, gender and sexual orientation, caste, religion and place of birth. The statements issued by such public servants and those holding higher constitutional authorities have lowered the dignity of their offices by failing in upholding express directives in the Constitution of India which enjoin them "to renounce practices derogatory to women" and "to develop the scientific temper, humanism and the spirit of inquiry and reform" under Articles 51A(e) and 51A(h) respectively.

The Indian Supreme Court has already pronounced progressive decisions in recent history which advance the fundamental right to life and liberty of women and LGBT persons. In Suchita Srivastava v. Chandigarh Administration | (2009) 9 SCC 1, the Court affirmatively upheld the exercise of sexual and reproductive rights of a woman to abstain from procreation by holding that "There is no doubt that a woman's right to make reproductive choices is also a dimension of `personal liberty' as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating". Similarly as recently as 2014, the Court in National Legal Services Authority v. Union of India | (2014) 5 SCC 438 has declared affirmatively on the rights to universal enjoyment of human rights, equal-treatment, non-discrimination, privacy and protection from medical abuses for LGBT persons by holding that "Each person's self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom"

Majoritarian impulses such as these (including clarion calls against 'love jihad' and violent diktats of khap panchayats) threaten curtailment of women and the LGBT community's natural rights to make private and autonomous choices for their bodies, as also perpetuating the already omnipresent culture of impunity and systemic violence against women and LGBT persons. Through its complicity of inaction and silence, the State affirms the strength of the howsoever obnoxious but 'privileged' majority and its instruments become apologists of crimes against humanity on grounds of sex, gender and sexual orientation by defending customs such as patriarchy and laws such as Sections 375 (which does not recognise marital rape as an offence) and 377 (criminalises same-sex relations regardless of age and consent) of Indian Penal Code, 1860.

When your body becomes public property, when there is a complicity of silence against offences committed against the marginalised, when such violence gains legitimacy, when there is explicit and implicit reinforcement of traditional gender norms and sex stereotypes, is it not dangerous to assume that everyone is equal before law and enjoys 'right' to life and personal liberty? You have the right to live with dignity only when you are equal but since you are a subaltern you simply do not enjoy the right. An illusion of enjoying rights is more dangerous than the reality of rights becoming privileges.

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