Discrimination against LGBT community includes discrimination on the ground of sexual orientation
It was a custom that was followed in our country for a very long time. Section 377 of Indian Penal
Code was infringing the fundamental rights of the individuals as they were discriminated on the basis of their sexual orientation. This law and discrimination were functioning in India since forever until the case of Navtej Singh Johar v. Union of India where a writ petition was filed with the regards to this issue.

The court further explained that right to health includes right to sexual health and healthy sex life is integral to individual’s physical and mental health, regardless of to whom the individual is attracted towards and regardless of their sexual orientation.

Supreme Court of India read down the section and decriminalized section 377. The sect of individuals who were seen as criminals because they loved differently were given a respectful identity by our supreme court and this decision of Supreme Court bought a positive change in the society.

The life of LGBT community became comfortable; they did not have to hide their identity any more.

Such an act of the judiciary is recognized as Judicial Activism. Assertion of judiciary and its power is referred to as judicial activism. The active role of judiciary and their power to go beyond the stereotypes and give decisions is an important role judiciary plays for fulfilling all the objectives of the of constitution which the constitution gets from the ideology of constitutionalism. Here it gets important for us to differentiate between constitution and constitutionalism.

Constitutionalism is a theory of an ideology of complex ideas, attitudes and patterns of behaviour elaborating the principle that the authority of the government derives from and it is limited by a fundamental body of law.

This fundamental body of law is the Constitution. The constitutionalism has many elements; one such element is the independence of the judiciary and under the Independence of Judiciary comes the Judicial Activism. The case of Navtej Singh Johar v Union of India is one such example of judicial activism. There are many more landmark judgments with regards to this role of the judiciary which this article will be dealing in its later part. Further, it is essential to understand how judicial activism was expressly evolved.

It is essential to understand that the Indian Constitution is a vast document and the preamble sets out the goal and objective of the Constitution, one such principle as mentioned in the preamble is liberty which has a vast meaning, one of which includes the independence of the judiciary. The goal of the preamble of the Constitution directly or indirectly even forms the framework of the basic structure of the Constitution, which cannot be amended. It is essential to understand the concept and history of basic structure doctrine as this doctrine itself is an outcome of judicial activism.

The Basic Structure Doctrine even though unwritten has an expansive control over our written constitution because of its distinctiveness from the preamble. The question of the concept of doctrine of basic structure arouse first in the case of Shankari Prasad Singh Deo v. Union of India[1].

The question in the case was whether the constitutional amendments are considered to be law as per the definition of law under article 13 (2). Supreme Court however established that a law made by the parliament under article 368 is a constituent power of the Parliament and not an ordinary legislative power and hence they cannot come under article 13(2). This interpretation was followed till Sajjan Singh v. State of Rajasthan[2].

However in the case of Golak Nath v. State of Punjab[3] court contended that the word “law” in article 13(2) included amendments to the constitution and if the amendment is infringing the fundamental rights or taking away the fundamental rights mentioned guaranteed by Part III of the Constitution, the amendment act itself would be held void and ultra vires.

However, the case of Kesavananda Bharati V. State of Kerela[4] overruled the Golak Nath judgement and also gave the Basic Structure Doctrine a shape. Each judge from the bench gave few principles to shape the principles of basic structure.
 They are as follows
Sikri, C.J. explained that the concept of basic structure included:

• Supremacy of the Constitution
• Republican and democratic form of government
• Secular character of the Constitution
• Separation of powers between the legislature, executive and the judiciary
• Federal character of the Constitution

Shelat, J. and Grover, J. mentioned about

• The mandate to build a welfare state contained in the Directive Principles of State Policy
• Unity and integrity of the nation
• Sovereignty of the country
   

Unegde, J. and Mukherjea, J. identified a separate and shorter list of basic features:

• Sovereignty of India
• Democratic character of the polity
• Unity of the country
• Essential features of the individual freedoms secured to the citizens
• Mandate to build a welfare state* (Socialist)

Jaganmohan Reddy, J. mentioned about

• Sovereign democratic republic
• Justice - social, economic and political
• Liberty of thought, expression, belief, faith and worship
• Equality of status and the opportunity

It can be noted down here that a lot of the principles as mentioned by various judges in the case of Kesavananda Bharati v. State of Kerela are of the same nature as of our Preamble.

So even though the Basic Structure Doctrine is unwritten, and thereby it does not mentioned the word judicial activism but it is essential to understand that after so many questions which had occurred in past with regards to the amendments were solve in the case of Kesavananda Bharti and the supreme court bench not only over ruled the Golak Nath judgement with the aspect of question which was raised in Shankari Prasad but it also stated that basic structure cannot be amended and then set up the guidelines for what shall be the basic frame work of basic structure and this assertiveness is nothing but the court acting actively and thereby an example of how judicial activism works and how it is linked with constitutionalism

Another landmark case in the history of judicial activism is the case of Vishaka v/s State of Rajasthan[5] where the women sexual harassment at work place was acknowledged by the court for the first time. In the following case the court reviewed the petition and the following articles of constitution

• Article 14 (the right to equality)
• Article 15 (the right to non discrimination)
• Article 19(1)(g) (the right to practise one’s profession)
• Article 21 (the right to life)

Therefore, on the basis of facts and in light of these deliberations, the Court outlined guidelines which were to be observed in order to enforce the rights of gender equality and to prevent discrimination for women in the workplace.

These guidelines included the responsibility upon the employer to prevent or deter the commission of acts of sexual harassment and to apply the appropriate settlement and resolutions and a definition of sexual harassment which includes unwelcome sexually determined behaviour (whether directly or by implication) such as:

• Physical contact and advances;
• A demand or request for sexual favours;
• Sexually-coloured remarks
• showing pornography;
• Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.

The government in the following case even bought to our notice that if the international law treaties or declaration are ratified by India and they are consistent with Indian laws, they can be read as an argument in the court of law.

The decision of the court lead to a parliamentary inquiry and in 2012 legislature passed the POSCO Act for the protection of women and children.

The next comes the case of Joseph Shine v. Union of India[6] where the offence of Adultery under Penal code was reviewed by the court, and the court with its assertiveness held that the provision is discriminatory and violative of article 15(1). The court with its judgement had set the mark of equality and had held that women are not the property of men which has also been the motive of feminist movements.

The court has again actively acted in its means of judicial activism in the SaharaBanu v. Union of India[7] case where practice of Triple Talaq was held unconstitutional.

To conclude, it is humbly submitted that these are just few examples from the lot, however with reference to these judgments we can understand how judiciary works and why is the role of judicial activism important.

The court in their capacity has a power to exercise beyond the existing legislature and it can order the legislature into making a law as mentioned before the Vishaka case, the act of sexual harassment was not acknowledged but court lead the foundations of the same and legislative came up with the act. Therefore, it is submitted that judicial activism is one of the most important principle of constitutionalism which is governed by the constitution.

End-Notes:

1. AIR1951 SC458:1952 SCR89.
2. AIR1965 SC845:(1965)1SCR933
3. AIR1967 SC1643:(1967)2SCR762
4. (1973) 4SCC 225: AIR 1973 SC1461
5. 13th August 1995; AIR1997 SC 3011
6. (2019)3 SCC 39.
7. (2017)9SCC 1.