BACKGROUND OF THE CASE:
The constitutional validity of Sec 377 of the Indian Penal Code, 1860 (shortened to IPC) was challenged in the 2009 case of Naz Foundation Vs. Government of NCT, Delhi[1](hereinafter referred to as Naz Foundation) in Delhi High Court. In this judgement, the Court read the word “sex” given in Art. 15 (1) of the Constitution in a broad manner to include sexual orientation as well. This automatically meant that Sec 377 in so far as it prevented the sexual relations within the LGBTQ+ community was unconstitutional. The High Court laid special emphasis that the majority ought not to blacklist the members of the LGBTQ+ community because they were in the minority.Rather, the majority should allow the individual to live with the dignity that is inherent in every human being. The High Court added that in this was case constitutional morality should be the upheld over social morality of the country[2].The High Court held that section 377 was violative of the provisions of Art. 14, 15 and 21 of the Constitution of India with regard to homosexuality. It allowed for consensual intercourse between adults, but all sexual relations between minors was still punishable.
But the situation got reversed by the Suresh Kumar Koushal Vs Naz Foundation[3](hereinafter referred to as Suresh Kumar)case in 2013.According to this case, the intention of Section 377 was to not ostracise an entire section of the population (based on age or orientation), but to try and regulate sexual conduct by deeming certain sexual acts to be unnatural and hence prohibited. This case also held that the section divided people into two categories – that is, sexual intercourse in ordinary course and sexual intercourse in unnatural course, for good reason. This classification cannot be held to be arbitrary and violative of Art. 14. Moreover, this case also added the fact that only 200 people were penalised under this section for the past 150 years due to which this section cannot be declared ultra vires the Constitution of India.
While the aforementioned judgments were the main, there were other cases that are to be mentioned. In instances where men were sexually abusing boys by making them perform both oral and anal sex, such cases were read into section 377 [4] and rigorous punishment of 6 years imprisonment along with a fine was imposed. In another such case, where owing to the fact there was consensual intercourse between a young boy and a man, the rigorous imprisonment was reduced to a period of 6 months [5]. A man and a young girl were punished under section 377 read with section 511, for fellatio[6]. In a case where the father had oral intercourse with a friend of his young daughter, it was held that such an act was against the order of nature, due to which he was imposed a fine of Rs. 1,000[7].
Moreover, with the Puttaswamy[8] judgment, it is now necessary that this section is struck down.
CASE ANALYSIS OF NAVTEJ JOHAR:
2.1. Constitutional Aspects
The primary issue, in this case, is the constitutional validity of Sec. 377 with regard to Art. 14, Art. 15(1), Art. 19(1)(a) and Art. 21. In particular, the issue is whether there can be a criminal provision that violates Art. 19(1)(a) and Art. 21 of the Indian Constitution.
2.1.1. Article 14
In order to prove that Article 14 is violated, Sec. 377 needs to be subjected to the twin test – that is, the classification that exists must be founded on intelligible differentia and that the differential must be subject to a nexus that is sought to be achieved by the provision[9]. The classification is that of the one between the LGBTQ+ community and others. In other words, it is between ‘unnatural sexual intercourse’ and ‘natural sexual intercourse’. The rationale behind this classification is based on the fact that the provision seeks to protect women and children from such ‘unnatural’ intercourse. This nexus is rational, but the protection is already explicitly guaranteed to women under Section 375 and to children under the Protection of Children from Sexual Offences Act. This section, apart from guaranteeing such protection, is also responsible for the one criminalizing almost entirely the lives of the LGBTQ+ community. This section is responsible for more backwardness rather than progressive thinking. Hence, it is clear that this section violates Article 14. When there is any law (within the meaning of Article 13)that is arbitrary, then that law is to have violated the new doctrine of Article 14, that is the ‘Doctrine of Arbitrariness’. The section, had it prevented non-consensual acts between individuals, its nexus would have been very obvious. But this section fails to take in the matter of consent itself – that is, it prevents sexual acts between consensual adults too. This is a measure of arbitrariness and hence violative of Article 14.
2.1.2. Article 15(1)
D.Y.Chandrachud, J.provides the light in which Art. 15 is to be interpreted. According to him, any act is violative of Art. 15 only when the discrimination is based on any of the grounds as specified in Art. 15(1). But this violation is restricted to only the grounds that are specified in the Article, over which it is considered to be a violation of Art.14. To substantiate, there grounds mentioned in Art. 15(1), are “religion, race, caste, sex, place of birth” only. In the event of any discrimination arising out of any of the grounds or a combination of any of the grounds mentioned here, then only Art. 15(1) is attracted. On the other hand, in case there is discrimination on any of the grounds mentioned, along with some other ground(s), then Art. 15(1) is not attracted. The word ‘sex’ given in Article 15(1) seeks to include not only the gender identity of an individual but also the sexual identity[10].D.Y.Chandrachud, J.mentioned it to be the correct stance due to which Section 377 was held to have been violative of Article 15(1), on grounds of discrimination against the LGBTQ+ community.
2.1.3. Article 19(1)(a)
Article 19(1)(a) seeks to protect the Fundamental Right of Freedom of Speech and Expression. This right is not absolute in nature and is subject to reasonable restrictions given under Article 19(2). Decency and morality are held to be a few of the reasonable restrictions, with the assumption of a rational and logical limit[11]. The following case raises the question of whether public order and morality can be named as reasonable restriction as per Art. 19(2). People are so terrified of society’s harassment and ostracism that they choose not to express themselves to the extent of living a lie. When the very existence has been made a lie, one can only say that Article 19 is violated for those individuals. The case held that an unreasonable restriction (because of public morality, which is deemed to be an indication of the imposition of majoritarianism) was imposed upon the LGBTQ+individual’s freedom of expression as well as the freedom to choose a partner.
2.1.4. Article 21
Article 21 while talking about personal liberty also contains various implicit rights such as right to individual dignity, right to choose and right to privacy. The right to life and personal liberty cannot be interpreted without the right to dignity. Dignity, life, and personal liberty are interwoven concepts all of which are guaranteed under Article 21. In fact, the right to live with dignity has been recognized in theUDHR[12]. Section 377 has deprived the LGBTQ+ community of their dignity. Moreover, Section 377 infringes on the individual’s right to privacy as well as held in the Puttuswamy case[13]. This is because the right to choose and the expression of such choices are twin rights read into Article 21, which the community is being deprived of. Article 21 guarantees another implicit right – that is, the right to health and healthcare. The LGBTQ+ community is not granted this aforesaid right. This community suffers from various mental illnesses such as depression and suicidal tendencies. The members of this community are unable to seek the appropriate healthcare due to the stigma attached to the same.D.Y. Chandrachud, J adds to the concept of right to health care, by saying that apart from the Constitution of India guaranteeing the same, India is a party to many international agreements, through which this right is recognized. Some of the treaties and covenants that India is a signatory to is ICESCR[14](where Art. 12 is about the same) and UDHR[15]. When physical and mental health [16]of Indians seems quite farfetched for many, there is definitely no sexual health [17]guaranteed to the members of the LGBTQ+ community[18]. Sec. 377 has placed a damper on the right to health for the members of the LGBTQ+ community. Owing to the aforementioned rights being affected, it is established that Sec. 377 violates Art. 21.
2.1.5. Yogyakarta Principles
Another perspective that has been brought to fore is that of the Yogyakarta Principles[19].In the judgement that is authored by RF Nariman, J, the relevant rights and how Section 377 violates the same was explained. They are as follows:
These principles have definedwhat a sexual orientationis,and have specifically mentioned that sexual orientation need not be limited to any gender (the opposite, the same or all). The first principle of the Yogyakarta explicitly states that all human beings regardless of their gender and sexual identity are to be given an equal right to enjoy their human rights, which the State ought to promote. The second principle states that there should be equality and not discrimination among people based on either their gender or their sexual identity. The existence of Sec. 377 has put a damper on this. If the LGBTQ+ community people are still persecuted for their identity then the equality as guaranteed by these principles, is not protected. In fact, it is explicitly stated that in the event of any existence of penal provision that prohibit consensual sexual activity between such individuals, that provision ought to be repealed. The third principle states that no one ought to be forced to go through any medical procedure or forced to supress their identity as a legal necessity for affecting their change. The relevance of this statement is that legally speaking, one cannot bring about a law in the Parliament affecting the same.The LGBTQ+ community has been explicitly guaranteed right to life and right to privacy as the fourth and fifth principles,respectively. There are instructions given to the State as well as to how to promote as well as control the same.Ironically, the nineteenth right specified is with regard to right of freedom of speech and expression for the LGBTQ+ community. This principle states that the community must be allowed to express their identity however they might like, (for example, through clothing, bodily characteristics, choice of name, etc.) freely. Art. 14, Art. 15(1), Art 19(1)(a) and Art. 21 are clearly reflected in these principles.
2.2. Philosophical Aspects
There are threemajor philosophical concepts or doctrines that are specifically mentioned in the judgement that is authored by Dipak Misra, CJI and AM Khanwilkar, J, which are – transformative constitutionalism, constitutional morality, and relating to the dignity of any individual.
2.2.1. Transformative Constitutionalism
Transformative Constitutionalism involves changing the Indian society so that the ideals as enshrined in the Preamble of the Constitution are embracedin the form of justice, liberty, equality, and fraternity. Our Constitution in particular can be heralded as one of the best examples of transformation, for there have been various amendments to the Constitution to catch up with the ever-changing times. Various judgements in other jurisdictions have aptly described the importance of transformative constitutionalism. This concept has to be given recognition and importance now, for the society has changed tremendously in the last one hundred and fifty-eight years (since IPC was enacted in 1860). The NALSA[20] judgement has played a vital role in bringing forth changes in the lives of the transgenders. But the society still harbours negative thoughts regarding the members of the LGBTQ+ community. Taking inspiration from the afore mentioned case, one can say that it is possible to change the perception of the society through this judgement as well. Both these instances are examples of how transformative constitutionalism plays a part in changing the society – by making sure that fundamental rights are available to all the people.
2.2.2. Constitutional Morality
Constitutional morality stems from the Constitution and is another reflection of the ideals as purported by the Constitution of India (in the Preamble). Each person is different and the society as a whole is granted freedom to be so in this regard. But sometimes, the majority in the society has a perspective that certain aspects must be in a certain manner, and in case of differences, the society as a whole ostracises the individual/people who is/are different. One such ‘difference’ that is not tolerated is the LGBTQ+ community. This is against Art. 14, as enshrined in the Constitution. The morality of the Constitution guarantees that discrimination of any sort by the majority ought to be stopped. Constitutional morality should prevail over public morality just to ensure justice as well as all other ideals that the Constitution stands for [21]. Moreover, any provision that falls short of upholding constitutional morality would be declared unconstitutional, as is the case with Sec. 377.
2.2.3. Dignity
Another philosophical principle applied in this case is that of the concept of dignity. This is guaranteed through Art. 21 of the Indian Constitution, to the extent that human life is lost without dignity. But dignity is something so much more profound that most of the times it is not possible to attach an apt definition to the same. What is now considered to be the Magna Charta of the world, the UDHR has its first article giving prime importance to dignity. Michele Finck,in his book, has given an astute interpretation of how the dignity of the LGBTQ+ community is compromised. He says that when one ascribes dignity to a homosexual individual, then the person’s perspective changes from ‘disgust’ to ‘humanity’ [22]. This is a true statement that reflects the fact as to how much the community as such is deprived of. When there is a criminal provision that violates the dignity of an LGBTQ+ individual, the law is merely letters, without the spirit. All of this is applicable for the LGBTQ+ community members in our country.
2.2.4. Indirect Discrimination
D.Y. Chandrachud, J. brings out an important concept of ‘indirect discrimination’. This is defined by a directive of the European Parliament [23], as a provision that brings about a disadvantage for members belonging to a particular sex, unless there is a legitimate reason for such a provision, such as affirmative action. In the case of Sec. 377, there is no legitimate reason and the members of the LGBTQ+ face a disadvantage with this section. Clearly, the members of this community face indirect discrimination too.
2.3. AUTHOR’S INTERPRETATION
This judgement is a fresh breath of air for the LGBTQ+ community. They are finally legally allowed to be themselves. To think that the entire community was not allowed to be themselves in terms of their sexuality and hence repress the same for so many years now is incomprehensible. They had to face the trauma of being ‘in the closet’ for an exceedingly long time, for they knew that upon coming out they would be bullied and ostracised. They knew the cruelty of the society, especially when someone does something that is against the morals of the said society. The cruelty of the society is not onlyreflected in the mental trauma. There is a physical aspect to it, which would be tantamount to severe abuse. The society’s reaction might have even led to several suicides. Some people were violated sexually because of the fact that they came out regarding their sexual preferences due to the effect of one penal provision – Sec. 377.
An important fact that is to be noted is that the section has not been completely struckdown. The section still prohibits bestiality. It has also decriminalised the sexual relations between the consenting adults of the LGBTQ+ community. As the word used is ‘adults,’ it is clear that this section is still applicable of all types of sexual intercourse between minors.
This decision is the first step that is taken towards bringing the status of the LGBTQ+ community member to an equal status with that of a non-LGBTQ+ member. It has allowed for the LGBTQ+ community members to choose a sexual partner of their choice. Through this decision, the discrimination that is faced by these people is called out. This judgement is expected to bring about changes to these people in terms of education, employment, policies in these institutions etc. Tourists are also people who should be considered, for this judgement now means that when same sex couples arrive in India for tourism, they cannot be rejected a visa on the said ground.
Though this judgement has many positive consequences, there still are aspects that have to be addressed such as marriage, divorce, adoption, guardianship, succession, etc. According to the respondents, the declaration of the unconstitutionality of Sec. 377 would result in the collapse of the entire institution of marriage. The Hon’ble Justices have relied on various judgements of various other jurisdictions thathas legalised marriagesamongst the LGBTQ+ community members.The effect has not been detrimental to the institution of marriage, due to which a safe assumption can be taken for the same in our country. The judgement fleetingly talks about gay marriage. In its fleeting essence, it hints at the philosophy of the institution of marriage. It fails to address the other aspects of family law.
Another aspect that the judgement has not addressed is that of rape laws or sexual crimes against this community. If consenting sexual relations between members of the LGBTQ+ community is now valid, then the rape laws should be amended to suit this major change. The law should change to accommodate the fact that the rapist is not a man and the victim is not a woman.
Conclusion:
The case of Navtej Johar has decriminalized Sec. 377 as far as sexual intercourse between consenting adults of the LGBTQ+ community is considered. This case allowed for the identities of various people of the LGBTQ+ community to be backed by law across the country. This section reflected the narrow and biased opinion of the drafters of the Indian Penal Code, 1860 – Lord Thomas Babington Macaulay. In fact, the current British Prime Minister is said to have spoken out against the outdated law that criminalizes the actions of the LGBTQ+ community. She apologized for the existence of the ancient statute during colonization, which victimized an entire community. Some of the colonized countries continue to have such a law in place, while some have gone ahead by allowing the LGBTQ+ members marriage rights, adoption rights, etc. This judgment is the start of a new beginning – one that is absolutely necessary, not only for the members of the LGBTQ+ community but also for constitutional morality.
[1] 111 DRJ 1 (2009)
[2] Manoj Narulav. Union of India, (2014) 9 SCC 1. See also, Supra note 1
[3](2014) 1 SCC 1
[4]Childline India Foundation and another v. Allan John Walters and Others, (2011) 6 SCC 261.
[5] Fazal Rab Choudhary v. State of Bihar, (1982) 3 SCC 9.
[6] Lohana Vasantlal Devchand v. State, AIR 1968 Guj 258.
[7] Calvin Francis v. State of Orissa, 1992 1 OLR 316.
[8]KS Puttaswamy and Another v. Union of India and others, (2017) 10 SCC 1.
[9] State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75.
[10]National Legal Services Authority v. Union of India and Ors., (2014) 5 SCC 438. (Shortened to NALSA)
[11]S. Khushboo v. Kanniammal and Anr., (2010) 5 SCC 600.
[12]Universal Declaration of Human Rights, 1948
[13]Supra note 8
[14] International Covenant on Economic, Social and Cultural Rights, 1966
[15] Supra note 16
[16] As per the definition of health, in the Preamble to the World Health Organisation Constitution, 1948
[17] World, Health Organisation, ‘Gender and Human Rights: Defining Sexual Health’, 2002
[18]Dipika Jain and Kimberly Rhoten, “The Heteronormative State and the Right to Health in India”, NUJS Law Review, Vol. 6, (2013)
[19] Yogyakarta Principles on the Application of Law in Relation to Issues of Sexual Orientation and Gender Identity
[20] Supra note 8
[21] Government of NCT of Delhi v. Union of India and Ors., 2018 (8) SCALE 72.
[22] The Role of Human Dignity in Gay Rights Adjudication and Legislation: A Comparative Perspective, Michele Finck, International Journal of Constitutional Law, Volume 14, Jan 2016, 26 – 53
[23] Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006
Author: APARNA VENKATARAMAN, Student of B.Com. LLB (Hons)
University: Tamil Nadu National Law University, Tiruchirappalli, Tamil Nadu
