Brazil, India and South Africa: Transformative Constitutions and the Role of LGBTQ Struggles

After the formation of BRICS; in June 2003, a trilateral partnership was established between India, Brazil and South Africa, also commonly referred as IBSA. Such formation was established primarily for the purpose of policy coordination. These countries are predominately known for the rule of democracy and subsequently formation of democratic government in the states. On the other hand, they also share common troubles, as:

  1. Poverty.
  2. Discrimination.
  3. Inequality.
  4. Equal access to education, health and housing programmes.

In this sense, they had common challenges in order of implementing constitutional promises, and to keep pace with international treaties, such as UDHR (1948), ICESCR (1966), ICCPR (1966) and other treaties to which they were party. There has been an enormous difficulty to implement those rights which were promised by law, for historical, political, economic and institutional reasons.[1]

From the view point of legislative power, procedures can be laid down, making it subject to the Constitution yet which is a power much more transformative in nature, as they do not have any identifiable parameter for its practice. Perhaps, that is the true character of Constituent power — it does not need to confirm to any structure, norms or expectations. It is revolutionary and all-encompassing in its use. It has been since long that answers to fundamental questions of constitutional transformations, political sovereignty and essential features of the Constitution cannot be found in an empty space.

The Constitution does not merely provide the apparatus for governance, but it is also futuristic in envisioning what social and economic transformation India would undergo. In this sense, the vision of the drafters was very similar to what the new South African Constitution is imagined to be — a transformative constitution. The Constitution aimed at not only achieving political independence from colonial rule but also resolved to establish a new social order based on social, economic and political justice. Social revolution was put at the top of the national agenda by the Constituent Assembly and DPSPs, it was thought, would make explicit the “socialist” as well as the social revolutionary content of the Constitution.[2]

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The power of amending the Constitution is a species of the law making power, which is the genus.[3] It is perhaps in keeping with the spirit of transformation that there is no single stable understanding of transformative constitutionalism.[4]

According to Sarbani Sen, Indian constitutional tradition to be best represented through the ‘Ackermanian distinction’ between normal democratic discourses and those that involve ‘leader-citizen engagement’ in a debate involving higher law principles. Such cases of higher lawmaking, even though happening within an institutionalized constitutional structure, can lead to transformative constitutional achievements.[5]

In South Africa, the case of National Coalition for Gay and Lesbian Equality v. Ministry for Justice, South Africa[6] recognized the equality provisions with the provisions guaranteeing dignity to effect a progressive jurisprudence on LGBT. Similarly, after 1985, when Brazil was slowly transitioning towards democracy; has applied the part of transformative Constitution, borne of its history and the ashes of military rule, to the affronts suffered by LGBT persons.

Prior to the recent judgment in India, the people of South Africa and Brazil were already enjoying the same protection under the law as non-LGBT people. In both countries, such people are allowed to get legally married. A lot of groups and organizations are dedicated there to making sure that these rights are protected for the people.

With reference to India, earlier in the case of Naz Foundation v. NCR Delhi[7]the gay rights were recognized under the ambit of equality, but later it was overruled in Suresh Kumar Koushalv. Govt of NCT of Delhi[8]whereby the Hon’ble Supreme Court of India upheld constitutional validity of the law which criminalized homosexual acts was, as a failure to apply the norms of equality, privacy and dignity to LGBT persons. However, recently the position has been changed whereby Indian Supreme Court recognized the LGBT rights and stated Section 377 of IPC to be irrational, indefensible and arbitrary. The Court was of the view that equality demands that the sexual orientation of each individual in the society must be protected on an even platform, for the right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.[9] Simultaneously, Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.[10]

Also read Gender Neutral Criminal Laws– Is India Ready?

[1]BAXI, Upendra. 2013. Preliminary notes on transformative constitutionalism. In: PRETORIA UNIVERSITY LAW PRESS. Transformative constitutionalism: Comparing the apex courts of Brazil, India and South Africa. Pretoria. p. 19-47. Available at: Last accessed in: Oct 24, 2018.

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[2] G. Austin: Working a Democratic Constitution: The Indian Experience (Oxford University Press, New Delhi, 1999); Constituent Assembly Debates Official Report, 19-11-1948, Vol. VII, Book 2 (Lok Sabha Secretariat, New Delhi, 1999).

[3]I.R Coelho v. State of Tamil Nadu, (2007) 2 SCC 1 : AIR 2007 SC 861. Para 121.

[4]Soobramoney v.Minister of Health, KwaZulu-Natal, 1998 1 SA 765 (CC), 1997 12 BCLR 1696 (CC) par 8.

[5]Sarbani Sen, The Constitution of India — PopularsOvereignty and Democratic Transformations, 25 (2007).

[6]1999 (1) SA 6 (CC), 1998 (12) BCLR 1517 (CC).

[7] 160 DLT 277 (2009).

[8](2014) 1 SCC 1.

[9]Navtej Singh Johar v. Union of India, 2018 SCC OnLine SC 1350. (Decided on 06.09.2018)

[10] Ibid.

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