Naz Foundation judgment is a very important judgment in the Indian context, because it seeks to decrease the taboos and secrecy surrounding the LGBT group. This is important because, as is true for most if India, just by assuming that the LGBT community does not exist in India(which is incidentally what most of Indians think today) is not good. So, it was necessary for the state to do something about this, it is so because of the basic fact that, these people are members of the Indian state and it is the duty of the state to ensure these peoples rights.
In my view this could be done only by the Judiciary. It is so because, as India is a democratic country, so the popular government will never go against the 'morals' of the people and do something like pushing for legalizing LGBT behavior. This is true in my opinion, for all true democracies of this world, and hence the courts should be looked upon as harbingers of social reform as well. And hence the judiciary had the duty to push for something like this because it strives for justice and equality.
Now, coming to the question of Naz Foundation and morality, there can be two kinds of morality that one is talking about. The first one is critical morality, which defines the set of morality which is right per se. The second is conventional morality, which defines the set of morality which is right because the society thinks it to be right. In my view this judgment is in congruence with critical morality but is in opposition to the conventional morality standards. This is based on the following arguments,
Firstly, by critical morality, we mean something which is moral because it is moral per se. Now, in my humble opinion the question of sexuality is a personal matter and the state or the society should have no say regarding that as it is against the ethos of critical morality. It is so because of the state or the society enforces its view in personal matters, then it is treading upon the person's liberty and hence it is against critical morality. The assumption being that, protection of personal liberty is a part of the set of critical morality, an assumption which is reasonable in my opinion.
Secondly, regarding conventional morality, the correctness of my statement is obvious from the fact of the amount of societal taboo attached to the LGBT community. Hence, we can state that that the judgment is against conventional morality.
Thus, we see the morality axis of the Naz judgement. But, it is important to note that, the court side-stepped the whole question of morality, by stating that it is only 'constitutional morality', that they take into consideration. Though it was a very smart step on the part of the judges, but in my humble opinion it prohibits the scope of the courts in future cases of social reform. It is so because, if the court restricts its mandate to just 'constitutional morality', then it might have to go by the dictates of the government. This is so because, 'constitutional morality' can be changed by the government by the power of amendment, and if the government is so opposed to a judgement related to social values, then it can change the Constitution to suit its needs, and as the courts will only accept arguments regarding 'constitutional morality', so it will be in a sense dictated by the government and hence will become a 'popular court'. Now, it is problematic because, when this is seen in the light of the argument that courts are the harbingers of social reform amongst the three different branches, we see that the courts are restricting their own powers and hence state sponsored social reform will become even rare.
To conclude, I would like to state that it though the judgment is a great step forward, but the reasoning of this judgment should be changed, so as to accommodate the concept of 'critical morality'. I would like to add, that this would reinforce the status of the courts as the harbingers of social reform as 'critical morality' is a set which can never be fully defined and hence the courts can define it on case to case basis and lead us to a more just and equitable society.
In my view this could be done only by the Judiciary. It is so because, as India is a democratic country, so the popular government will never go against the 'morals' of the people and do something like pushing for legalizing LGBT behavior. This is true in my opinion, for all true democracies of this world, and hence the courts should be looked upon as harbingers of social reform as well. And hence the judiciary had the duty to push for something like this because it strives for justice and equality.
Now, coming to the question of Naz Foundation and morality, there can be two kinds of morality that one is talking about. The first one is critical morality, which defines the set of morality which is right per se. The second is conventional morality, which defines the set of morality which is right because the society thinks it to be right. In my view this judgment is in congruence with critical morality but is in opposition to the conventional morality standards. This is based on the following arguments,
Firstly, by critical morality, we mean something which is moral because it is moral per se. Now, in my humble opinion the question of sexuality is a personal matter and the state or the society should have no say regarding that as it is against the ethos of critical morality. It is so because of the state or the society enforces its view in personal matters, then it is treading upon the person's liberty and hence it is against critical morality. The assumption being that, protection of personal liberty is a part of the set of critical morality, an assumption which is reasonable in my opinion.
Secondly, regarding conventional morality, the correctness of my statement is obvious from the fact of the amount of societal taboo attached to the LGBT community. Hence, we can state that that the judgment is against conventional morality.
Thus, we see the morality axis of the Naz judgement. But, it is important to note that, the court side-stepped the whole question of morality, by stating that it is only 'constitutional morality', that they take into consideration. Though it was a very smart step on the part of the judges, but in my humble opinion it prohibits the scope of the courts in future cases of social reform. It is so because, if the court restricts its mandate to just 'constitutional morality', then it might have to go by the dictates of the government. This is so because, 'constitutional morality' can be changed by the government by the power of amendment, and if the government is so opposed to a judgement related to social values, then it can change the Constitution to suit its needs, and as the courts will only accept arguments regarding 'constitutional morality', so it will be in a sense dictated by the government and hence will become a 'popular court'. Now, it is problematic because, when this is seen in the light of the argument that courts are the harbingers of social reform amongst the three different branches, we see that the courts are restricting their own powers and hence state sponsored social reform will become even rare.
To conclude, I would like to state that it though the judgment is a great step forward, but the reasoning of this judgment should be changed, so as to accommodate the concept of 'critical morality'. I would like to add, that this would reinforce the status of the courts as the harbingers of social reform as 'critical morality' is a set which can never be fully defined and hence the courts can define it on case to case basis and lead us to a more just and equitable society.
