On June 7, Justice N. Anand Venkatesh of the Madras High Court wrote a progressive judgment, setting new precedents for all cases that deal with LGBTQIA+ persons’ rights. The judgment is deemed exceptional for several reasons, but one of the many is his attempt to understand the processes he seeks to undo. Justice N. Venkatesh, through his actions, attempts to fully realise what it means to be queer in a heteronormative society.
The judgment, S. Sushma vs Commissioner of Police and others, moved a step further, from approaching minority rights from a philosophical and theoretical perspective to an empirical and humane one.
Vershika Sharma explains how Justice N. Venkatesh made an effort to overcome his biases to understand same-sex relationships. She argues that the same shifts how we see transformative constitutionalism. She argues that this movement is a progression from Navtej Johar judgment in implying the concept of ‘transformative constitutionalism’.
By Vershika Sharma, a gold medalist in LLM from Himachal Pradesh National Law University, Shimla. Vershika is currently working as a faculty manager for Lawctopus Law School; she manages Legal Research and Writing course.
A new era of transformative constitutionalism in India emerged when the Madras High Court Judge underwent Psycho-education to deliver a Judgement ‘from the heart and not from the head’.
What started from Navtej Singh Johar judgment in 2018 progressed in S. Sushma vs Commissioner of Police and others (herewith S.Sushma judgment) this year.
While the Navtej Singh Johar judgment decriminalised Section 377, it went as far as recognising the individual’ right to privacy, dignity and autonomy. But even after its pronouncement, the LGBTQIA+ community continues to undergo ostracisation and torture.
Although the 2018 judgment was aware of this discrepancy even in its making, it could do only enough to address its limitation.
In the S. Sushma case, two consenting adult women in a relationship, S. Sushma and U. Seema Agrawal, approached the court against harassment by the family and police officials. Since the families were against their sexual orientation, the pressure forced them to leave their home town and seek shelter in an NGO in Madurai.
Justice Anand Venkatesh heard the plea and delivered a remarkable judgment. He issued multiple guidelines (both mandatory and directory) for the LGBTQIA community’s safety, prevention of harassment by authorities and destigmatisation in a society. Justice Venkatesh voluntarily underwent psycho-educative sessions with a clinical psychologist to understand the LGBTQIA community better.
However, the set of guidelines towards inclusivity and destigmatisation of the LGBTQ community is not the primary focus of this analysis.
This analysis will understand how the Madras HC judgment moved away from traditional forms of adjudicating by internalising the petitioners’ grievance. This piece will analyse the Madras High Court Judge’s pragmatic approach. This piece will offer an understanding of how this judgment propels transformative constitutionalism in India beyond the legal word.
Constitutionalism Transformative in Practice
There is no single agreed meaning given to ‘transformative constitutionalism’. However, several attempts have been made to conceptualise the term.
Professor Karl Klare, in 1998, conceptualised the term as:
“a long-term project of constitutional enactment, interpretation, and enforcement committed to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction.”
This definition makes judges one of the key figures in transformative constitutionalism. Indeed, the responsibility flows from their duty as custodians of the fundamental freedoms enshrined in the Constitution.
However, the Constitution, particularly in the Indian Constitution, seeks to reform the law and society because of a long-standing history of colonialism, patriarchy, and many forms of discrimination.
Hence, the transformation is sought not merely in constitutional enactments (by way of amendments), interpretations (through progressive interpretations of fundamental liberties) but also by means of transformative enforcement of these enactments and interpretations.
Therefore, it becomes crucial to ask: if the constitutional mandates should be restricted to traditional interpretative actions of the judiciary, which dictate the relationship between the State and the individuals? Or whether it’s time that judges, through actions and pragmatic steps, steer these transformations they seek to achieve?
The recent Madras HC order pertains to a lesbian couple who fled their hometown and approached the court for protection when interrogated by the police in pursuance of a missing person report filed by their parents who opposed their relationship.
Justice. Venkatesh not only accepted his lack of understanding about homosexuality but voluntarily underwent psychoeducational therapy with a professional to better understand the issue.
“Ignorance is no justification for normalising any form of discrimination.”
After the Navtej Johar decision, there is no question about the legality of homosexuality. With the promulgation of the Transgender Persons (Protection of Rights) Act 2019, the legal stance on homosexuality has strengthened.
Despite the issues with the 2019 Act, it legally recognises the third gender as ‘transgender’.
However, as pointed out in the decision, there is a lack of societal acceptance and the necessary sanction from social institutions. For this reason, J. Venkatesh claims,
“It is for this reason that I am convinced that the transformation must occur at a societal level and that when it is accompanied by legislation, there will be a significant shift in society’s attitude by acknowledging same-sex couples.”
The judgment is progressive throughout its understanding, but its significance increases when Justice Vanketesh says, ‘I am the society’. This statement is especially crucial from the societal perspective since here Justice Venkatesh recognised his preconceived notions and equates his morality to that of the Indian society’s.
To undo these prejudices, he underwent not only a psychoeducational session but also conversed with many people from the LGBTQIA+ community.
The transcript of his discussions with the Therapist and Dr Trinetra Haldar Gummaraju, a transwoman, are reproduced in the judgement. The disclosure of his experience affirms his accountability, providing a clearer understanding of the steps that he undertook to understand the idea of the same-sex relationship.
An action such as this can perpetuate a definite shift in society.
Although constitutional and legal affirmations are imperative to propel the LGBTQIA+ community’s rights. But without societal acceptance and legislative sanctions, they would remain toothless measures, unable to make any real change.
In State Of Kerala & Anr vs N. M. Thomas & Ors, it was held that the purpose of having a Constitution is to transform society for the better. And this objective is the fundamental pillar of transformative constitutionalism.
The Navtej Singh Johar judgment stressed the importance of transformative constitutionalism. Justice Deepak Misra and D.Y. Chandrachud pointed to the scope of the Indian Constitution in bringing about change in society. Justice Deepak Misra explained:
“the concept of transformative constitutionalism has at its kernel a pledge, promise and thirst to transform the Indian society so as to embrace therein, in letter and spirit, the ideals of justice, liberty, equality and fraternity as set out in the Preamble to our Constitution.”
The purpose of transformative constitutionalism has been aptly described in Road Accident Fund and another v. Mdeyide. In the case, the Constitutional Court of South Africa, speaking in the context of the transformative role of the Constitution of South Africa, had observed:
“Our Constitution has often been described as transformative. One of the most important purposes of this transformation is to ensure that, by the realisation of fundamental socio-economic rights, people disadvantaged by their deprived social and economic circumstances become more capable of enjoying a life of dignity, freedom and equality that lies at the heart of our constitutional democracy.”
The Navtej Singh Johar judgement recognised that ‘equality’ is not restricted to recognising individual dignity but extends as far as giving equal opportunities that advance and develop human potential, protecting every individual’s social, economic and legal interests. And therefore, the process of transformative constitutionalism is dedicated to this purpose.
To this effect, the judgment reiterates that the idea is to steer the country and its institutions in a democratic, egalitarian direction where there is increased protection of fundamental rights and other freedoms. And this is how transformative constitutionalism paves the way for a just and inclusive society.
In Navtej Singh Johar judgment, the court recognised the role of the Union, State government, citizen activist and Mental health professionals. J. Chandrachud said,
“Constitutional morality requires that all the citizens need to have a closer look at, understand and imbibe the broad values of the Constitution, which are based on liberty, equality and fraternity. Constitutional morality is thus the guiding spirit to achieve the transformation which above all, the Constitution seeks to achieve”.
But the present judgment goes as far as giving specific and narrow directions. Therefore the present judgment outshines its scope because of the Judge’s actions, and a progressive set of directions.
These directions include awareness and training for police and government officials to ensure they respect LGBTQIA+ rights, revocation of the licence of medical practitioners who claim to ‘cure’ homosexuality, gender-neutral restrooms in schools and colleges, separate housing for LGBTQIA+ in prisons etc.
These give an entirely refreshing meaning to transformative constitutionalism. One that is not merely ordering but also making a workable framework for an administrative and social change. This judgment is therefore pushing for,
“constitutional enforcement committed to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction.”
This is the kind of judicial enforcement that can transform society and fulfil the promise of transformative constitutionalism in true spirit.
What started with the Naz Foundation and NALSA judgment build the momentum for the decriminalisation of Section 377 in the Navtej Singh Johar judgment. While the Navtej Singh Johar judgment recognised this movement of transition and the transforming character of the Constitution, the order by J. Venkatesh in the present case actualised it further.
Yes, there will be apprehensions about the future. Yes, perhaps just one HC Judge may not have the potential to change the entire society. However, the continuous mandamus, build through this judgment against the state authorities, pushing them to take prompt actions, does not leave scope for error.
At least not in this case, and hopefully sets a good example for the upcoming cases of similar nature to imbibe the spirit of the constitution in the truest of sense. The directions issued in this case not only serve as a mandate in this case, but they will serve as a precedent for future cases.
However, more than the formal procedural aspects, the effort J. Venkatesh had put in his personal capacity would also leave a mark on the upcoming decisions. And perhaps, force the society (the majority) to understand and normalise the identities and preferences other than cis-genders and heterosexuals.
Only then, the hopes for transformative constitutionalism, as highlighted in Navtej sing Johar and as reiterated by J. Venkatesh in his recent decision, will be truly achieved.
 S Sushma v. Commissioner of Police, W.P.No.7284 of 2021, Order dated 7th June, 2021
 Id, para 10.
 Justice SM Mbenenge, “Transformative Constitutionalism: A Judicial Perspective from the Eastern Cape” available at http://www.saflii.org/za/journals/SPECJU/2018/13.pdf last visited on June 18, 2021.
 Klare “Legal Culture and Transformative Constitutionalism” 1998 SAJHR 146-188 at 150.
 Supra note 1, para 4-5.
 Supra note 2.
 Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.
 S. 2(k) Transgender Persons (Protection of Rights) Act, 2019.
 Supra note 1, para 17.
 Id, page 32.
 Id, paras 7 & 8.
 State of Kerala and Anr. v. N.M. Thomas and Ors., AIR 1976 SC 490.
 Supra note 8.
 Road Accident Fund and another v. Mdeyide 2008 (1) SA 535 (CC)
 Supra note 8.
 Supra note 2.
 Id, para 43.
 Supra note 5.