Constitutional Morality and Societal Morality - Safeguarding Minority Rights*

As we strive for progress and inclusivity, it is disheartening to witness the ongoing demonization, criminalization, and mistreatment of the LGBT communities. These individuals, whose sexual orientations and gender identities diverge from societal norms, deserve respect, acceptance, and the same rights as any other human being. It is imperative that nations, governments, and individuals shift their perspectives and adopt a humane approach towards the LGBT communities, recognizing their fundamental rights and promoting equality for all.

In recent years, the Supreme Court of India has played a pivotal role in advancing the cause of LGBT rights, setting an inspiring example for nations worldwide. Two landmark cases, Puttaswamy v Union of India (2017) and Navtej Singh v Union of India (2018) have witnessed the Court adopting a constitutional approach to recognize and protect the rights of the LGBT communities.

In Puttaswamy v Union of India, the Supreme Court of India delivered one of the most enlightened decisions on human rights that also embraced LGBT rights. In 2017, a five-judge bench of the Indian Supreme Court delivered a judgement recognizing the right to privacy as a fundamental right protected by the Indian Constitution. 

The court held that the right to privacy is intrinsic to the right to life and personal liberty guaranteed under Article 21 of the Indian Constitution. The right to life is one of the fundamental liberties guaranteed by Article 5 of Malaysia’s Federal Constitution.

The Indian Supreme Court recognized privacy as an attribute of human dignity and emphasized its role in safeguarding personal intimacies. The court recognized that privacy is not merely a right, but an essential aspect of an individual's identity, autonomy, and dignity. The right to privacy safeguarded personal intimacies such as marriage, procreation, family, sexual orientation, and death. It emphasized that these areas of individual choice and personal autonomy are entitled to constitutional protection against unwarranted intrusion by the state or other entities. The court's judgment reinforced the significance of privacy in preserving the integrity and autonomy of individuals in these intimate aspects of their lives.

Against that background, the court declared that sexual orientation is an inherent aspect of an individual's identity and privacy. Individuals have a fundamental right to privacy in their sexual orientation and intimate relationships. 

The judgment emphasised the principles of equality and non-discrimination and held that discrimination on the basis of sexual orientation is a violation of constitutional rights. It recognized and affirmed the need for a more inclusive society that respects and protects the rights of LGBT individuals and promotes equality.

The court struck down the criminalization of consensual same-sex relationships, declaring it as violative of privacy rights. The Malaysian Penal Code still criminalises same-sex relationships on the grounds that it is unnatural.

Almost contemporaneously with the decision in Puttaswami, the same court in Navtej Singh v Union of India, unanimously held that Section 377 of the Indian Penal Code, 1860, which criminalised ‘carnal intercourse against the order of nature’, was unconstitutional in so far as it criminalised consensual sexual conduct between adults of the same sex. 

The Court reasoned that discrimination on the basis of sexual orientation was violative of the right to equality, that criminalizing consensual sex between adults in private violated the right to privacy, and that sexual orientation forms an inherent part of self-identity and denying the same would be breaching the right to life. The court dismissed the notion that fundamental rights can be denied on the ground that they only affect a minuscule section of the population.

Importantly, the court in the latter case made a distinction between constitutional morality and societal morality. Chief Justice Misra (on behalf of himself and J. Khanwilkar) relied on the principles of transformative constitutionalism and progressive realization of rights to hold that the constitution must guide the society’s transformation from an archaic to a pragmatic society where fundamental rights are fiercely guarded. He further stated, “constitutional morality would prevail over social morality” to ensure that the human rights of LGBT individuals are protected, regardless of whether such rights have the approval of a majoritarian government.

Decisions of the Indian courts are not binding on Malaysian Courts. Our courts are not bound to follow those decisions. However, Indian decisions, especially of the Indian Supreme Court have a persuasive influence in our judicial decision-making process. The reasoning applied in an Indian decision, especially one on an identical or similar statutory or constitutional provision as that found in our laws, is likely to be followed by our judges. 

The right to life is part of the Fundamental Rights encapsulated in Article 5 of the Federal Constitution. Malaysian Courts have regarded the right to privacy as part of that right following previous Indian decisions. The Puttaswamy decision expands on the meaning of privacy as safeguarding personal intimacies such as marriage, procreation, family, sexual orientation, and even death. It is a profound decision that defines and protects our individual humanity. Human dignity is based on the intimacies listed by the Puttaswamy court. The decision will be highly persuasive in our courts except for one reason, which is the conflicting attitudes prevailing in our state and federal laws on personal intimacies, particularly sexual orientation.

But, if we are a nation living by the Rule of Law, the law in Malaysia on LBGT rights may already have been changed with our courts accepting the right to privacy as a constitutional right.

* This article was published by Aliran on 16 May 2023