End of an unjust law

The Supreme Court finally decriminalises Section 377 of the IPC, granting the LGBTQI community the right to equality and dignity guaranteed by the Constitution.

Published : Sep 12, 2018 12:30 IST

Members of the  LGBT community celebrate the  Supreme Court verdict, in Bengaluru on September 6.

Members of the LGBT community celebrate the Supreme Court verdict, in Bengaluru on September 6.

THE question before the Supreme Court’s five-judge Constitution Bench was simple: should the 2013 order of a two-judge bench in Suresh Kumar Kaushal vs Naz Foundation be overruled? In that case, the bench had set aside the Delhi High Court’s 2009 judgment decriminalising Section 377 of the Indian Penal Code (IPC), 1860.

Upholding the right to privacy as a fundamental right, a nine-judge bench of the Supreme Court in 2017 rejected the Kaushal judgment for its reasoning, although it postponed its overruling to a different occasion. That occasion offered itself in Navtej Singh Johar vs Union of India , which was decided by a five-judge bench on September 6.

The unanimous judgment of the Constitution Bench turned out to be historic for a number of reasons.

The bench comprising Chief Justice of India (CJI) Dipak Misra and Justices A.M. Khanwilkar, D.Y. Chandrachud, Rohinton Fali Nariman and Indu Malhotra delivered four concurring judgments, each highlighting a unique aspect of the litigation before them. They agreed that Section 377, insofar as it criminalises consensual sex between two adults, is unconstitutional and overruled the Kaushal verdict without any hesitation.

Section 377 made “carnal intercourse against the order of nature” an offence. This provision, understood as prohibiting non-peno vaginal intercourse, reflected the imposition of a particular set of morals by a colonial power in the mid 19th century. Under Article 372(1) of the Constitution, all laws in force before the commencement of the Constitution continue to be in force until altered or repealed. Section 377 and other pre-Independence laws were thus saved and allowed to operate in independent India.

But the provision in Section 377, as it was worded, was revolting as it did not distinguish between homosexual and heterosexual acts and included in its ambit all sexual acts that were not aimed at procreation. But the lack of distinction did not unduly bother straight couples, as in practice it was hardly invoked against them. As Justice Nariman explained, if the provision is to be read down so as to exclude heterosexual acts that are consensual in nature, then also it would suffer from the vice of arbitrariness, inequality and discrimination against LGBTQIs (lesbian, gay, bisexual, transgender, queer and intersex couples).

As a result, Justice Chandrachud pointed out, Indian citizens belonging to sexual minorities waited and watched as their fellow citizens were freed from the British yoke while their fundamental freedoms remained restrained under an antiquated and anachronistic law, forcing them to live in hiding, in fear, and as second-class citizens.

Justice Indu Malhotra, in her concurrent judgment, acknowledged: “History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality.”

Navtej Johar, the lead petitioner in the case before the Constitution Bench, narrated his realistic experience thus:

“While society, friends and family are accepting of my sexuality, I cannot be fully open about my identity and my relationships because I constantly fear arrest and violence by the police…Without the existence of this section, the social prejudice and shame that I have faced would have been considerably lessened…the fact that gay people, like me, are recognised only as criminals is deeply upsetting and denies me the dignity and respect that I feel I deserve.”

Larger Issues

While examining the larger issues raised by the petitions challenging the validity of Section 377, the bench wondered whether the object sought to be achieved by it had any relation with its classification of carnal intercourse in the ordinary course and those who do so against the order of nature. Justice Chandrachud held that if the object of the classification itself was illogical, unfair and unjust, the classification too would be unreasonable. It was astonishing that the Kaushal bench had conceded that “no uniform test could be culled out to classify acts as ‘carnal intercourse against the order of nature’”, thus shaking the foundations of its own judgment.

“Homosexuality has been documented in almost 1,500 species, who unfortunately are not blessed with rational capabilities (and the propensity to nurture same sex thoughts) as are found in mankind,” Justice Chandrachud observed, citing a scholarly article. He said: “No species has been found in which homosexual behaviour has not been shown to exist, with the exception of species that never have sex at all, such as sea urchins and aphids.”

Justice Chandrachud explained: “The order of nature that Section 377 speaks of is not just about non-procreative sex, but is about forms of intimacy which the social order finds disturbing.” This includes various forms of transgression such as inter-caste and inter-community relationships, which are sought to be curbed by society.

What links LGBT individuals to couples who love across caste and community lines was the fact that both were exercising their right to love at enormous personal risk and in the process disrupting existing lines of social authority, he added. No wonder, right to love is not just a separate battle for LGBTs, but recognised by the Supreme Court as a battle for all.

He said: “Laws that criminalise same-sex intercourse create social barriers to accessing health care and curb the effective prevention and treatment of HIV/AIDS.” He held that it was incumbent upon the state to ensure full protection to all persons, including the specific needs of sexual minorities, and that the law should take affirmative steps to achieve equal protection to all its citizens, irrespective of their sexual orientation.

In 1996, South Africa became the first country to constitutionally prohibit discrimination on the basis of sexual orientation. Ten countries, including the United Kingdom, Bolivia, Ecuador, Fiji and Malta, prohibit discrimination on the grounds of sexual orientation. According to the International LGBTI Association, 124 countries no longer penalised homosexuality. The number has risen to 125 with the September 6 judgment.

‘Decriminalisation a first step’

Justice Chandrachud said: “Decriminalisation is a first step. The constitutional principles on which it is based have application to broader range of entitlements.”

Justice Indu Malhotra said: “Sexual orientation is an innate attribute of one’s identity and cannot be altered. Sexual orientation is not a matter of choice. It manifests in early adolescence. Homosexuality is a natural variant of human sexuality.” She said that the natural or innate sexual orientation of a person cannot be a ground for discrimination, and where a law discriminates on the basis of such a trait, it cannot form a reasonable classification based on an intelligible differentia.

She asked how Section 377 could punish acts of penetration irrespective of consent in same-sex couples if the same is exempted from punishment in the case of rape under Section 375 of the IPC. “This creates a dichotomy in law,” she said.

She also rejected the conclusion in the Kaushal case that one should await legislative amendments to Section 377 rather than seek the court’s intervention to decriminalise homosexuality. “Once any violation of the fundamental rights of a citizen or a group of citizens is brought to the notice of the court, the court will not remain a mute spectator and wait for a majoritarian government to bring about such a change,” she held.

CJI’s judgment

Chief Justice Dipak Misra, on behalf of himself and Justice Khanwilkar, held that sexual orientation was an integral and innate facet of every individual’s identity. LGBTs comprised 7 to 8 per cent of the total population of India, and therefore, sexual minorities need protection more than the heterosexuals so as to enable them to achieve their full potential and live freely without fear in such a manner that they are not discriminated against by society or by the state in multifarious ways in matters such as employment, choice of partner, testamentary rights, insurability, medical treatment in hospitals and other similar rights arising from live-in relationships, he held.

Sexual orientation is also an essential attribute of privacy. Sexual orientation and the right to privacy of an individual were extremely important, for without the enjoyment of these basic and fundamental rights, individual identity could lose significance, he said.

Sexual orientation, being a facet of individual identity, was protected under the right to dignity. Right to life and liberty, envisaged under Article 21, was meaningless unless it encompassed individual dignity. The right to dignity includes the right to carry such functions and activities as would constitute the meaningful expression of the human self, the CJI explained. The freedom of expression includes one’s right to express one’s self-identified gender, which can be expressed through words, action, behaviour or any other form, the CJI added.

Section 377 also violates the rights of LGBT persons under Article 19(1)(c) and denies them the right to form associations. Such persons were hesitant to register companies to provide benefits to sexual minorities fearing state action and social stigma. Further, a conviction under Section 377 renders such persons ineligible for appointment as a director of a company, the CJI elaborated.

By creating a taint of criminality, Section 377 deprived the LGBTs of their right to reputation, which is a facet of the right to life and liberty of a citizen under Article 21. Section 377 made them apprehensive of speaking openly about their sexual orientation and made them vulnerable to extortion, blackmail and denial of state machinery either for protection or for enjoyment of other rights and amenities, and on certain occasions the other concomitant rights were affected, the CJI reasoned. The core of the judgment is in its distinction between constitutional morality and social morality: the former is in consonance with the constitutional rights of citizens, howsoever small the segment may be. The idea of number, in this context, is meaningless; like zero on the left side of any number, the CJI suggested. Research suggests that homosexual orientation is in place early in the life cycle, possibly even before birth. It is found in about 10 per cent of the population, a figure that is constant across cultures.

Biologically, the difference between a gay man and a straight man is something like the difference between a left-handed person and a right-handed person, the CJI suggested, quoting Leonard Sax, an American psychologist and a practising family physician.

Constitutional morality

The observation made in the Kaushal case that LGBTs constitute a minuscule part of the population was perverse for the very reason that such an approach would be violative of the equality principle enshrined in Article 14 of the Constitution, the CJI held.

The fact that the percentage of such people was low did not limit the court from protecting their fundamental rights. Constitution framers could never have intended that the protection of fundamental rights was only for the majority population. He reasoned that constitutional courts were under an obligation to protect the fundamental rights of every single citizen without waiting for a catastrophic situation when the fundamental rights of the majority of citizens got violated. These observations have profound significance for the future.

The CJI even endorsed public display of affection between two consenting adults thus: “Any display of affection amongst the members of the LGBT community towards their partners in the public so long as it does not amount to indecency or has the potentiality to disturb public order cannot be bogged down by majority perception. Section 377 amounts to unreasonable restriction as it makes carnal intercourse between consenting adults within their castle a criminal offence which is manifestly not only overbroad and vague but also has a chilling effect on an individual’s freedom of choice.”

His conclusion is remarkable for capturing the essence of India’s diversity: “Different hues and colours together make the painting of humanity beautiful and this beauty is the essence of humanity. We need to respect the strength of our diversity so as to sustain our unity as a cohesive unit of free citizens by fostering tolerance and respect for each other’s rights.”

Justice Nariman dwelt on the subject of a majority government’s proclivity to play havoc with the fundamental rights of the minority thus:

“The very purpose of fundamental rights chapter in the Constitution is to withdraw the subject of liberty and dignity of the individual and place such subject beyond the reach of majoritarian governments so that constitutional morality can be applied by the Supreme Court to give effect to the rights, among others, of ‘discrete and insular’ minorities. One such minority has knocked on the door of the Supreme Court as this court is the custodian of the fundamental rights of citizens. These fundamental rights do not depend on the outcome of elections. And, it is not left to majoritarian governments to prescribe what shall be orthodox in matters concerning social morality. The fundamental rights chapter is like the north star in the universe of constitutionalism in India. Constitutional morality always trumps any imposition of a particular view of social morality by shifting and different majoritarian regimes.”

The object sought to be achieved by the provision, namely to enforce Victorian mores upon the citizens of India, would be out of tune with the constitutional events that had since taken place, rendering the said object discriminatory when it sought to single out same-sex couples and transgenders for punishment, Justice Nariman held.

Presumption of constitutionality

Justice Nariman’s remarkable contribution is to the doctrine of presumption of constitutionality of a statute. According to him, the presumption is premised on the fact that Parliament understands the needs of the people and that, as per the separation of powers doctrine, Parliament is aware of its limitations in enacting laws—it can only enact laws that do not fall within List II of Schedule VII of the Constitution, and cannot transgress the fundamental rights of the citizens and other constitutional provisions in doing so. Parliament is, therefore, deemed to be aware of these constitutional limitations.

However, where a pre-Constitution law is made by a foreign legislature or body, none of these parameters obtains. It was, therefore, clear that no such presumption attached to a pre-constitutional statute such as the IPC, he said.

The Law Commission, in its 172nd report, had recommended the deletion of Section 377, and this was cited as a reason for not invalidating Section 377 in the Kaushal case. Disagreeing with this view, Justice Nariman said: “All that the court has to see is whether constitutional provisions have been transgressed and, if so, as a natural corollary, the death knell of the challenged provision must follow.”

The Centre should give wide publicity to the judgment and initiate programmes to reduce and eliminate the stigma attached with such persons, Justice Nariman observed.

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