Abhishek Kumar Srivastava, Chanakya National Law University, Patna
JOSEPH SHINE v. UNION OF INDIA (AIR 2018 SC 4898) (Decided on September 27, 2018)
ABSTRACT
Constitution of India guarantees liberty, autonomy and dignity to its direct and indirect demos. The concept of “transformative constitutionalism” helps in achieving this by taking an antithetical stand against all regimes of arbitrary- sometimes, if not always, unreasonable gender stereotypes. Liberty and dignity are the tenets founded at the very core of individual existence; the same being recognised not just as a fundamental right under article 21 but also in the Rawlsian and Lockean thought process. This judgement cheers the autonomy of woman, which they have been seeking. But at some point, the judgement neglects some of those values which are necessary for continuance of social institutions. The main issue of this case was “whether right to sexual autonomy of individual can be restricted by law, or by the prevalent values of the society.” The judgment frowns upon the unequal conferment of locus and establishes individual autonomy in making certain choices but fails to address the demands of individual integrity. The court in its judgement displays that monochromatic interpretation of institutionalized sanctity. The court has held that the time has come when institutions can no more intrude into individual choices and also that individual sanctity can be preserved only at individual level and no institutional intervention can nor is required for preservation of individual integrity. The authors humbly present a slightly different analysis of the issues of the case quite in line with the spirit of transformative constitutionalism.
Keyword: Transformative constitutionalism, Sexual autonomy, Dignity.
