Why Section 377 Verdict Should Be India’s Collective Heartbeat
It is well established that judges speak only through their judgments. I read a piece on Friday which criticised our Supreme Court for being verbose unlike their UK counterpart. I disagree, since every single word in the judgment titled Navtej Singh Johar v. Union of India & Ors is relevant and warranted.
It is important to appreciate that justices of the Supreme Court, while writing judgments and especially those declaring penal provisions of longstanding statutes as unconstitutional, are speaking truth to power – more so when the Union of India chooses to be ambivalent about its stand in court.
Imposing a Duty Upon a Popular Govt of the Day
The Chief Justice of India and the other judges speaking for the Constitution Bench have re-emphasised the role of the Supreme Court as a counter-majoritarian institution while declaring Section 377 of the Indian Penal Code as unconstitutional –to the extent that it applied to consensual same sex relations.
Throughout his commentary he emphasises upon the difference between constitutional morality and social morality – and that the rights of individuals cannot be subverted by the latter – so long as there is rule of law in India.
While emphasising on notions of inclusiveness, dignity and non-discrimination as bulwarks of the Indian Constitution, CJI Dipak Misra holds that “social morality has to succumb to the concept of constitutional morality”.
CJI Misra imposes – even upon a popular government – a duty to protect constitutional values which may not be acceptable to the majority. The astute observation that “any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the society would violate the principle of constitutional morality” is timeless.
His observations are being made with a clear eye to the future, where he also speaks of the notions of “transformative constitutionalism” and refers to the Constitution as “... almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy.”
Likewise, Justice Chandrachud in his concurring opinion has observed that our Constitution does not demand conformity nor does it contemplate the mainstreaming of culture.
For instance, criminalising an individual’s eating habits may not pass the constitutional muster after this judgment. Likewise, arrest of political activists holding contrarian views may equally fall foul of the provisions of the Constitution.
Justice Nariman also calls out the de-minimis approach in constitutional matters as unsustainable. He observes that “the fact that only a minuscule fraction of the country’s population constitutes lesbians and gays or transgenders, and that in the last 150 years less than 200 persons have been prosecuted for committing the offence under Section 377, is neither here nor there. When it is found that privacy interests come in and the State has no compelling reason to continue an existing law which penalises same-sex couples who cause no harm to others... it is clear that Articles 14, 15, 19 and 21 have all been transgressed...”
Standing Up to Bigotry & Prejudice
Justice Nariman is conscious not only of the vertical application of laws by the State upon the LGBTQ+ community but also the horizontal relations between individuals.
Therefore, his declaration “that such groups are entitled to the protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them” – is a direction not just to the State, but to the people at large to treat vulnerable groups with dignity and without any stigma.
The evolution of the Supreme Court is also evident in its clear rejection of the populist view taken by the same Court in Koushal some years back. The error committed in the earlier judgment has been called out, wherein the Court had then held that Section 377 IPC does not criminalise a particular people or identity or orientation and only identifies certain acts which, when committed, would constitute an offence.
The conceptual leap taken by the Supreme Court from Koushal to Johar is that Section 377 does not simply criminalise “conduct” – rather it criminalises identities of entire groups of people.
An Acknowledgment of LGBTQ+ Community – For Who They Are
The court has made a huge transformative leap itself, not just jurisprudentially but psychologically – moving away from the popular view – in acknowledging that homosexuality is not just located in the genitals, but is also a matter of the mind and heart.
That human beings are psycho-sexual beings and therefore, unlike Koushal, where the Court viewed non-peno-vaginal sexual intercourse as an offensive conduct alone irrespective of who commits it, today the Supreme Court has correctly identified the problem in terms of the effect of the provision on fundamental rights of sexual minorities, and formulated the issue as a right to choose one’s sexual partner – which is a matter of dignity, equality, privacy and autonomy. It is not just that the Court disagreed with its view in Koushal.
Similarly, In his chapter, titled “Confronting the Closet”, Justice Chandrachud very perceptively breaks the false dichotomy between conduct and identity and notes thus:
“While facially Section 377 only criminalizes certain “acts”, and not relationships, it alters the prism through which a member of the LGBTQ is viewed. Conduct and identity are conflated. The impact of criminalising non-conforming sexual relations is that individuals who fall outside the spectrum of heteronormative sexual identity are perceived as criminals.”
Justice Chandrachud, consistent with his view in Puttaswamy, of the nature of the right to privacy, not being limited to a spatial right, but a right based on the autonomy and dignity of an individual, has clearly held that the right to sexual privacy, founded on the right to autonomy of a free individual, must break free of the majoritarian heteromornative sexual identity. He observes that “privacy creates “tiers of ‘reputable’ and ‘disreputable’ sex”, only granting protection to acts behind closed doors. Thus, it is imperative that the protection granted for consensual acts in private must also be available in situations where sexual minorities are vulnerable in public spaces on account of their sexuality and appearance.
The Court has sent a loud and clear message that same sex relations are not meant for the closet, irrespective of what large sections of people might believe, and that people who indulge in same-sex relations are equal citizens who cannot be relegated to behind closed doors.
Not only the Individual – Society’s Burden to Carry
Justice Indu Malhotra has also unequivocally underpinned the counter-majoritarian role of the Court by holding that a subjective notion of public or societal morality which discriminates against LGBT persons, and subjects them to criminal sanction runs counter to the concept of Constitutional morality, and cannot form the basis of a legitimate State interest.
Accordingly, Justice R F Nariman has gone a step further and cast an obligation on the Union of India to ensure the elimination of stigma associated with homosexuality by giving wide publicity to this judgment and also to give periodic sensitisation to police officials and other officers of the Union of India and States towards the issues discussed in the judgment. It is equally the duty of the entire citizenry to discuss various aspects of the judgment and take the message of the Court forward because this is only the first step in rooting out deep-seated prejudice of hundreds of years held by a vast majority of the population even today.
(Zoheb Hossain is a Delhi-based advocate. He tweets at @ZohebHossain. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)