(This story was first published on 8 September 2018. It has been reposted from The Quint’s archives to mark the anniversary of the reading down of Section 377 of the IPC.)
On Thursday, 6 September, the Supreme Court of India emphatically overruled its regressive Koushal judgment of 2013, which had upheld Section 377 of the IPC in its entirety, allowing it to be used to punish even consensual same-sex acts.
The new decision in Navtej Singh Johar vs Union of India, however, reads down Section 377 to no longer criminalise any acts between consenting adults. As Justice DY Chandrachud pointed out, however, this case was about much more than just that, given the tragic effects of this provision on the LGBTQ+ community:
"But this case involves much more than merely decriminalising certain conduct which has been proscribed by a colonial law. The case is about an aspiration to realise constitutional rights. It is about a right which every human being has, to live with dignity. It is about enabling these citizens to realise the worth of equal citizenship."Justice DY Chandrachud
In the 493-page-long document, the five-judge bench, comprised of Chief Justice of India Dipak Misra along with Justices DY Chandrachud, Rohinton Nariman, Indu Malhotra and AM Khanwilkar, expanded and elaborated on India’s fundamental rights, affirmed the importance of choice and constitutional morality, and emphasised the transformative nature of our Constitution.
All the judges held that Section 377 violated the fundamental rights of the LGBT+ community, though the four separate (concurring) judgments did so with some unique arguments that reflected the particular approach of the judges who authored them.
The judges expressly held that the LGBT+ community was entitled to equal rights under the Constitution, and recognised the way in which the provision had been used to abuse and traumatise the community, and the need to rectify this discrimination.
Here are the key points from all four opinions:
"I am what I am, so take me as I am."(quoting Goethe)
CJI Dipak Misra wrote on behalf of himself and Justice AM Khanwilkar. This judgment includes a comprehensive set of conclusions at the end that explain why Section 377 should be read down.
The Importance of Self-Determination
The cornerstone of CJI Misra’s opinion is self-determination, ie, choice, which is what allows us to establish our identity. Identity, which includes sexual orientation, is in turn essential to enjoyment of one’s fundamental rights. If one is not allowed to exercise self-determination when it comes to sexual orientation, this is an impediment to the realisation of one’s identity, and so violates the right to privacy and to dignity.
Section 377’s failure to differentiate between consensual and non-consensual acts (unlike Section 375, which defines rape, for instance) means it has no reasonable connection to the objectives of criminal law – to prevent harm. Instead, it allows for discrimination and unequal treatment of the LGBT community, even for actions by consenting adults in a private space, which is “manifestly arbitrary”. As a result, Section 377 violates Article 14 of the Constitution, which says the State shall not deny any person equality before the law or equal protection before the law.
Consensual sexual acts in a private space, whether homosexual or heterosexual, do not harm public decency or morality. Section 377, by punishing consensual acts, is an unreasonable restriction on the right to freedom of speech and expression of the LGBT community under Article 19(1)(a) of the Constitution.
Since the Koushal judgment failed to consider these issues, it stands overruled.
Other Important Principles
- In arriving at these conclusions, CJI Misra emphasised the need for the courts to interpret the Constitution of India as a “living and organic document” which needs to be interpreted by the courts pragmatically and progressively to address inequality and injustice in society and transform society.
- CJI Misra used the concept of constitutional morality to put to bed one of the key arguments in Koushal – that the LGBT community makes up a “minuscule fraction” of the population, and so the potential misuse of Section 377 against them wasn’t grounds to hold it unconstitutional.
- He says instead that the framers of the Constitution could never have intended for courts to step in only when fundamental rights of a large percentage of the population is affected. Therefore, the view taken in Koushal was constitutionally impermissible.
- Another interesting principle recognised by the Chief Justice is that of ‘non-retrogression of rights’: That once society has evolved and constitutional rights have progressed, there cannot be a reversion to a less progressive state – as would be the case if we continued to criminalise homosexual acts, despite all the developments over the years in understanding homosexuality, as well as rights like privacy.
"Fundamental rights do not depend on the outcome of elections."
This judgment includes a comprehensive examination of international legal decisions and principles which point the way towards decriminalising consensual same-sex relations. Justice Nariman then examines how the Indian courts have also taken the same direction with progressive judgments.
Section 377 Violates Fundamental Rights
Some of those progressive judgments have in fact been written by Justice Nariman himself, and he does not shy away from using his own judgments to reach his conclusions.
In last year’s triple talaq judgment, Justice Nariman had confirmed that laws which are “manifestly arbitrary” violate Article 14 of the Constitution. Like CJI Dipak Misra, Justice Nariman also finds Section 377 to be manifestly arbitrary.
His reasoning is slightly different from the Chief Justice’s, however, relying instead on “modern psychiatric studies and legislation which recognises that gay persons and transgenders are not persons suffering from mental disorder and cannot therefore be penalised.” By punishing even consensual same-sex acts, therefore, Section 377 is “capricious and irrational.”
It is also “excessive and disproportionate” since it also punishes consensual heterosexual acts (oral and anal sex) which should be legal as per the law on rape (Section 375).
He also cites his judgment in the Shreya Singhal case (which struck down Section 66A of the IT Act) to say that the “chilling effect” caused by Section 377 violates the right to privacy under Article 19(1)(a) of the Constitution.
Finally, Justice Nariman finds that there is no legitimate rationale for the State to be punishing same-sex couples who cause no harm to others – something which the landmark right to privacy judgment (for which he had written an opinion) had laid down as a requirement.
Justice Nariman also laid down a principle that could play a big role in cases to come, by holding that there is no presumption of constitutionality when it comes to laws that predate the Constitution. Such laws, including unamended provisions of the IPC (like the offence of adultery), were not drafted keeping constitutional requirements in mind, and will be easier to challenge in court than those created by Parliament post-1950.
Constitutional Morality Trumps Majoritarianism
Perhaps the most powerful paragraphs of Justice Nariman’s judgment are those where he rejects the argument in the Koushal decision that it is Parliament (which represents the will of the people), not the courts, that should be striking off or reading down Section 377. This is an argument which was raised by those who opposed legalisation of gay sex in the current proceedings as well.
According to Justice Nariman, the entire point of having fundamental rights in the Constitution is ensure that liberty and dignity of an individual cannot be toyed with by majoritarian governments. The Supreme Court is supposed to be guided by constitutional morality to protect the rights of even ‘discrete and insular’ minorities – such as the LGBT community.
"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... Constitutional morality always trumps any imposition of a particular view of social morality by shifting and different majoritarian regimes."Justice Rohinton Nariman
Declaration on Discrimination, Dissemination and Sensitisation
But perhaps the truly revolutionary aspect of Justice Nariman’s judgment was an explicit declaration by him that the LGBT community is “entitled to be treated in society as human beings without any stigma attached to any of them.” Members of the LGBTQ+ community face a great deal of discrimination when it comes to housing, employment, etc – while this won’t go away overnight, having this explicit declaration will provide them with a form of redressal.
What’s more, Justice Nariman also holds that the government has to take all measures to ensure the judgment is widely publicised through the media at regular intervals, including on TV, radio, print and online. The Centre also has to initiate programs to reduce and eliminate the stigma associated with the LGBT community, and give government officers (particularly the police) sensitisation and awareness training about the community to protect them from abuse.
"A hundred and fifty eight years is too long a period for the LGBT community to suffer the indignities of denial. That it has taken sixty eight years even after the advent of the Constitution is a sobering reminder of the unfinished task which lies ahead. It is also a time to invoke the transformative power of the Constitution."
Justice Chandrachud’s judgment is the longest of the four, covering all the issues raised by the other judges in comprehensive detail. However, it sets itself apart in its desire to find ways to change the institutional reasons why there is discrimination against the LGBTQ+ community.
Indirect Discrimination on the Basis of Sex
The truly distinct aspect of Justice Chandrachud’s judgment is his formulation of why Section 377 violates the right against discrimination, which is protected under Article 15(1) of the Constitution. According to lawyer and legal scholar Gautam Bhatia, his judgment “represents the most advanced interpretation of Article 15(1) and non-discrimination that has come out of the Supreme Court thus far.”
Essentially, the argument says that when deciding whether or not a particular law discriminates against a particular class of individuals (like the LGBT community), we should not just look at the words or stated objectives of the law, but the effect the law has.
This is important since on the face of it, Section 377 doesn’t only apply to the LGBT community, but to heterosexual individuals as well. Further, sexual orientation is not one of the grounds listed in Article 15(1) on the basis of which discrimination is prohibited – something which was noted in the Koushal judgment when upholding Section 377.
Justice Chandrachud, however, draws up a radical connection between sexual orientation and “sex” which is a ground on which discrimination is prohibited.
- The origin of a law like Section 377 arises from stereotypes about gender roles and the distinctions between men and women under these. Deviations from the heterosexual norms are frowned upon, and so a law is brought in to regulate them.
- Section 377 is “facially neutral” but the provision has a disproportionate effect on the LGBT community, since it criminalises all same-sex acts, as against a certain percentage of heterosexual acts. This is indirect discrimination on the basis of sexual orientation.
- This discrimination then affects the ability of the LGBT community to engage in public life, get employment, and so leads to a violation of the “substantive equality” guaranteed by the Constitution. This behaviour isn’t sanctioned under Section 377, but it is nonetheless facilitated by it.
- Because the discrimination arises out of gender roles, and also perpetuates stereotypes of gender roles and gender inequality, one cannot separate discrimination based on sexual orientation from discrimination based on sex.
He quotes the the examples provided by petitioners in the case (including the IIT alumni who submitted stories of the severe mental agony they have gone through), as well as the number of arrests made under Section 377 in recent years (1,279 in 2014 and 1,491 in 2015) to drive home the point that Section 377 has become a method of persecution.
This broader framework of persecution for failing to fit within gender stereotypes also violates the right to freedom of expression, because it intrudes on the sexual privacy of the LGBT community forcing them to remain ‘in the closet’. According to Justice Chandrachud, the Constitution “protects the fluidities of sexual experience”, noting how sexual agency has been recently upheld in the Hadiya case, for instance.
For Section 377 to obstruct all of this for the LGBT community, even because of its effect rather than its contents, means it denies them the benefit of a full and equal citizenship.
Justice Indu Malhotra’s judgment broadly subscribes to the same views as the other judges. Two things stand out from her judgment, which is the shortest of the four opinions.
In the penultimate paragraph of her judgment, read out in the courtroom as well, Justice Malhotra summed up the consequences of Section 377 have been on the LGBT community, that deserves to be reproduced in full:
"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. The mis-application of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’."
What Will Happen to Pending Cases?
Justice Malhotra was the only judge to address what would happen to ongoing cases where people have been accused of offences under Section 377. She clarified that the ruling would apply to any pending cases (whether at trial, appellate or revisional stage), which means wherever any of these cases involves consensual adults, the prosecution can be quashed.
However, in a contrast to what she said about history owing an apology to the LGBT community, she said that it could not be used to reopen cases where prosecutions had concluded, ruling out the possibility of something similar to the UK’s ‘Alan Turing Law’ in 2017, which retrospectively acquitted all those who had been acquitted under their old laws which had criminalised same-sex acts.