Introduction
In general, transformative constitutionalism refers to the use of the law to achieve broad social change by nonviolent means. In his article “Legal Culture and Transformative Constitutionalism,” published in the South African Journal of Human Rights in 1998, American Professor Karl Klare introduced the notion of transformative constitutionalism for the first time. ‘A long-term effort of constitutional enactment, interpretation, and enforcement oriented to reforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction,’ according to Klare.
Constitutionalism refers to sticking to the values defined by a system of government, whereas transformation refers to bringing about change in an organised manner. The study of the South African Constitution and the freedom movement inspired the concept of transformative Constitutionalism. A former chief justice of South Africa traces the core of transformative Constitutionalism to the Preamble of the Interim Constitution of South Africa, which reads: “A historical bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.”[1]
Transformative Constitutionalism is constantly opposed to the Constitution’s rigidity. It is critical to the transformation of society and the protection of the Constitution’s fundamental principles and value system. We all know that we can’t compromise the Constitution’s value system, which is primarily designed to safeguard individual liberty.
Transformative Constitutionalism In India
India is fighting colonialism as well as social problems such as untouchability, caste discrimination, and gender inequality, all of which have been in India from ancient times. The Indian Constitution is a “moral autobiography” based on democratic ideas that offer a fresh future while expressly rejecting colonial history. The goal of constitutional modification is illustrated by the numerous clauses of the Indian Constitution. The people’s ambitions are expressed in the Preamble, which includes the cherished values of liberty, equality, fraternity, and justice. It also forms a state that is secular, democratic, and socialist. The Indian Constitution expresses a progressive community’s goal of equality. It is a living document that guarantees fundamental rights; as a result, everyone is treated equally by the law. Equality before the law and equal protection under the law are guaranteed by Article 14 of the Constitution. The five judges of the constitutional court declared section 377 of the India Penal Code, a colonial ordinance that criminalises homosexuality, illegal in the Navtej Singh Johar case.
All decisions must be able to be substantively supported in terms of the rights and ideals enshrined in the Constitution. Judges can no longer rely on parliament’s approval or technical interpretations of legislation to justify their judgements. Judges have the ultimate responsibility in a transformational Constitution to justify their decisions not just by reference to authority, but also by reference to ideas and values. Acceptance of the politics of law is required for this approach to adjudication.
What Is Corrective Rape?
Corrective rape, also known as curative or homophobic rape, is a hate crime in which one or more people are raped because of their gender identity or sexual orientation. According to the perpetrator, the most prevalent goal of rape is to make the victim heterosexual or impose conformity to gender standards. After well-publicized episodes of corrective rapes of lesbian women like Eudy Simelane (who was also slain in the same attack) and Zoliswa Nkonyana, the term “corrective rape” was coined in South Africa. The term’s popularity has increased awareness and inspired LGBT+ persons throughout the world to share their own tales of being raped as a punishment for or in an attempt to change their sexual orientation or gender identity.
Corrective rape is routinely neglected, despite the fact that certain countries have legislation protecting LGBT+ individuals. Corrective rape is when someone is raped because they do not comply to established expectations about human sexuality or gender roles. The purpose is to punish and reinforce societal norms by punishing perceived deviant behaviour. The crime was first discovered in South Africa, where it is occasionally overseen by members of the woman’s family or the local community.
In an August 2001 interview with Human Rights Watch in Cape Town, South African feminist activist Bernadette Muthien used the term for the first time. The act of corrective rape is considered a hate crime[2]. According to 2000 research, an environment that encourages hate crimes against gay men and lesbians, as well as larger community reactions to hate crimes and police and judicial system responses, all contribute to corrective rape. Some people believe that corrective rape can “cure” those who don’t fit gender stereotypes or aren’t heterosexual. Survivors recall being told that they were being given a lesson, according to ActionAid. Hate crime perpetrators are sometimes motivated by misogyny and chauvinism.
In her essay “Corrective rapes: rape narratives in South Africa,” Bev Orton analyses justificatory narratives that emphasise the violent act as rightful and rational to bring individuals into compliance with societal norms or to punish individuals who go against these norms. In this story, the “victim” freely expressed her or his sexual orientation, which is interpreted as a provocation, as if the “victim” “requested” to be raped and punished. Within the story, the moral roles of “victim” and “aggressor” appear to swap. A non-state actor’s violent conduct against a person becomes a punishment, which is morally justified through these narratives. An assertion that a woman who “chooses” to be homosexual has not been with a real man is also made within a rhetoric of “masculine hegemony” (Orton 2012). As a result, sexual assault is utilised to demonstrate sexual practice’s capacity. It is a type of “heroism” that focuses on moral superiority and the ability to impose moral behaviour. The South African rhetoric is brought to India and applied to local phenomena and people. At the same time, the stories conveyed are used as a universal occurrence rather than as exceptional stories. “Victims” of sexual crimes and murder were classed as “corrective rape” victims, and so these atrocities were covered up to some extent by the justification narrative against the subjects within this discourse. Because they do not act in accordance with hegemonic norms, the “victims” are excluded from the hegemonic social order. While “victims” are classified in the media and social sciences, the individual can become subjectifies to that discourse through justification narratives. At the same time, the violent acts articulated in that language create a mood of dread, which is used to suppress and exclude people. At the same time, the violent acts articulated in that language create a mood of dread, which is used to suppress and exclude people. Straight men used to use the term “corrective rape” to describe rape committed against lesbians in order to “cure” or “correct” their homosexuality.[3]
It’s a form of retaliation for being gay and deviating from standard gender roles. This purpose is generally revealed during the rape through verbal abuse aimed at “teaching a lesson” to the victim and “doing a favour” by showing her how to be a “true woman.” The phrase is increasingly more widely used to describe to the rape of any member of a group who does not comply to gender or sexual orientation norms, with the perpetrator’s purpose being too “correct” the individual.[4] The brutal rape and murder of Eudy Simelane brought attention to corrective rape in other areas of the world. While corrective rape is a growing phenomenon in South Africa, 8 cases are being increasingly reported in various countries, including: Thailand[5], Zimbabwe, Ecuador, Uganda, Jamaica, and India.[6] What is more alarming than the sheer prevalence of this act of violence, however, is the failure of the legal system to provide an adequate remedy to the survivors.
There was no mention of a hate crime when Simelane’s killers were brought to trial.[7] “Is there another word you can use instead of that one?” the judge questioned the prosecutor, not wanting to utter the word “lesbian.”[8] Despite the fact that two of the five men charged with Simelane’s murder were found guilty, the judge stated that Simelane’s sexual orientation had “no role” in the rape or murder. Her assailants laughed during their sentence. It’s easy to imagine that corrective rape occurs exclusively in nations classified as third-world, “less civilised,” war-torn, or rife with violence, or where homosexuality is banned or discrimination against LGBT people is tolerated. This assumption, however, ignores the sexual violence that has occurred and continues to occur in ostensibly civilised countries around the world. South Africa, for example, boasts some of the most progressive human rights safeguards for LGBT persons in the world.[9] Despite this, South Africa has some of the highest rates of gender violence in the world.
According to the LGBTQ Collective’s Crisis Intervention Team in Telangana, the group has documented 15 incidences of ‘corrective rapes’ in the last five years. Vyjayanti Mogli, a member of the Crisis Intervention Team, says, “We are confident there are many more cases, but they go undetected.” She went on to say that the Team had come across such incidents because people were seeking help to evacuate their homes, not because they had been raped. Most victims of corrective rape do not pursue legal action because the abusers are family members. Talking about their brothers or cousins being rapists is traumatic for victims, so they choose to forget about it and ruin relationships with their relatives. Away from gay pride parades, meet-ups, and heated Twitter debates, families in rural India have their own ways of dealing with LGBTQ persons. In some places, covert honour killings are carried out so that a young homosexual man’s only option for survival is to leave to a city in the dark of night, with no money or social support.
Corrective rape ostensibly cures what isn’t broken, but irreversible damage is frequently exacerbated by family members who are not only unsupportive but also believe the assault was justifiable. Lesbians who are still financially dependent on their families are the most vulnerable. Women in their later years are more conscious of their rights and have frequently left their families’ homes. Even in places where one should feel free and at ease, there are many concerns. Some adolescent girls leave home and struggle to make ends meet. Lesbians who live in one-room shacks in informal settlements are more likely to abuse alcohol and drugs. Many people use the same coping mechanism. Dealing with all of this stress on your own can lead to low self-esteem, which is still a significant risk factor for suicide.
Legal Shield To Homosexuals In India
In the landmark case of Navtej Singh Johar v. Union of India, the Supreme Court of India struck down a 157-year-old colonial rule that classified some sexual acts as “unnatural offences” punishable by ten years in prison under Section 377 of the Indian Penal Code, 1860. (2018). “The State has no jurisdiction to govern the private lives of LGBT community members,” stated Justice DY Chandrachud, “and rejecting the right to sexual orientation is the same as denying the right to privacy.” Although public opinion in India’s large cities was in favour of abolishing the ban, religious organisations and traditional rural populations were adamant opponents. The Indian Penal Code, 1860, Section 375 read with Section 376, recognises rape of a woman as an offence punishable by rigorous imprisonment of either description for a term of not less than 10 years, but which may extend to life imprisonment, as well as a fine.
Unfortunately, the Indian penal code does not include ‘corrective rape’ in its definition of rape. This is why it is critical for law-making authorities to call their attention to the unfair advantage being taken by numerous Indian citizens in the form of ‘corrective rape’ to correct the ‘disease’ of homosexuality due to the lack of clarity in current criminal laws. Despite the fact that the Mental Health Care Act of 2017 provides some protection to the LGBTQIA+ community, a new law is needed to completely eliminate this heinous behaviour. The LGBT conversion notion has survived in India thanks to forced marriages and corrective rape. The Madras High Court outlawed the practice of ‘conversion therapy’ in India in a June 2021 judgement, establishing safeguards for LGBTQIA+ people in the country. A lesbian pair was forced to quit their homes after their parents threatened them because of their relationship. The families went to the police station and filed a missing-person complaint, after which the couple went to court to seek protection from their families’ persecution and police interrogation.
In S. Sushma v. Commissioner of Police (2021), the High Court ordered that conversion therapy and “any attempts to medically cure or change the sexual orientation of LGBTIQA+ people to heterosexual, or the gender identity of transgender people to cisgender” be prohibited in order to protect the couple’s Right to Dignity, Life, Privacy, and Freedom of Choice, which is guaranteed by the Indian Constitution. In addition, the Court recommended that particular criteria be developed to protect the privacy and constitutional rights of LGBTQIA+ people.
To be honest, there are no laws prohibiting corrective rape. We have precedents and a faith in the legal system to protect human rights and constitutional ideals. Legislators should wake up from their slumber as corrective rape continues to spread over the country like forest fires. The media has long been a vital tool for bringing to light stories that go unnoticed but are nevertheless dangerous. The film Satyavati, directed by Deepthi Tadanki from Hyderabad, is about corrective rape. The film is based on a series of “shocking real-life episodes” that had place in Bangalore. “I came across two terrible cases of corrective rape while researching for my film: one in which a gay girl was raped by her cousin in order to be ‘cured’ of her homosexuality, and another in which family members forced a gay child to have sex with his mother in order to convert him straight.” “I tried to contact these victims, but they refused to talk to me,” Deepthi explained. The film features a lesbian couple and their straight buddy. “When the straight girl’s family visits her, they are suspicious that she is involved in an ‘abnormal’ relationship with one of the lesbian females. As a result, they intend to perform a ‘corrective rape’ on both their daughter and the gay girl,” says the 27-year-old Guntur native, who founded the film through crowd-sourcing.
While relatives and family members should be supporting their lesbian children, they are frequently involved in corrective rape. Young women are routinely beaten up by males who are attempting to propose in Eswatini, South Africa, where the LGBTI+ minority is violently stigmatised and criminalised. She may be assaulted in public by a man and receive no assistance from others. Worse yet, corrective rape is on the rise. In just four months in 2018, at least five women were raped by a relative to ‘correct’ their sexual orientation. These horrific human rights atrocities are being documented by Rock of Hope ‘REActors,’ data collectors who log occurrences of human rights breaches within the LGBTI+ and sex worker communities. This international case was brought to light in this article because rape, which has been immortalised by the phrase ‘corrective,’ occurs all over the world, indicating where we are headed even in the twenty-first century.
Conclusion
Each state must take the appropriate steps to ensure that persons who do not conform to gender and sexual orientation standards have control over their health, safety, and security. Providing an example is one such step. One possible solution is to enact and execute comprehensive criminal laws. Ensuring that victims receive the justice they deserve State legislatures, on the other hand, should not grow complacent when it comes to adopting hate crime laws. However, instead of responding to corrective rape, they should work to prevent sexual assault in the first place. In all of its forms Lesbians, asexual women, transgender men, and other nonconforming people shouldn’t have to wait for social awareness. Before they are entitled to legal protection, they must catch up. Our culture’s strong anti-homosexual stance is well-known. For LGBT individuals, discrimination, marginalisation, name-calling, violence, and sexual assault are all widespread. Being raped by family members for the sake of ‘correction,’ on the other hand, defies any logic of decency and compassion. Although more Indian adolescents are accepting homosexuality and queer identities than ever before, acceptance of their sexuality and the freedom to freely express their gender choices remains a daily battle for LGBTQ persons in their families, homes, and schools. To make a good difference, we must improve our attitudes toward homosexuality, which are often eclipsed by our preference for heterosexuality. In the process of eradicating this crime, the importance of strict legislation, effective enforcement mechanisms, and court collaboration cannot be overstated.
[1] Constitution of the Republic of South Africa, Act 200 of 1993.
[2] https://www.jstor.org/stable/1344178
[3] Roderick Brown, Corrective Rape in South Africa: A Continuing Plight Despite an International Human Rights Response, 18 ANN. SURVEY OF INT’L. & COMP. L. 45, 45–46 (2012).
[4] Brown, supra note 4, at 46
[5] Mieses, supra note 1, at 2.
[6] Jessamyn Bowling et al., Perceived Health Concerns Among Sexual Minority Women in Mumbai, India: An Exploratory Qualitative Study, 18 CULTURE, HEALTH, & SEXUALITY 826, 826 (2016).
[7] Victoria A. Brownworth, Op-ed: The Other Ex-Gay ‘Therapy’, ADVOCATE (July 10, 2013, 6:15 AM), https://www.advocate.com/commentary/2013/07/10/op-ed-other-ex-gaytherapy?page=full [https://perma.cc/3C2Y-MTH6].
[8] Id.
[9] Brown, supra note 4, at 45.
This article has been written by Simran Andrade, 1st year LLB student from University of Petroleum And Energy Studies (UPES)
