“I am what I am, Take me for what I am; Because, My individuality is my autonomy.”
This was the stance taken by Chief Justice Dipak Mishra on 6th September 2018, while striking down a part of S.377, the 157 year old draconian law from the Victorian era as unconstitutional and violating the provisions of part III of the Constitution of India, in the land mark judgement of Navtej Sing Johar v Union of India.
Introduction: What is S.377 of The IPC?
“377. Unnatural offences:Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
Thus, This Section introduced by Lord Macaulay in 1860 as a part of the Indian Penal Code on a plain reading makes clear it that it punishes ‘carnal intercourse against the order of nature’ with either imprisonment of 10 years or life and fine. This section corresponds to the offences of sodomy and bestiality under the English law. As evident from the wordings of this section, consent is immaterial in the case of unnatural offences and the party giving consent would be equally liable as an abettor of the offence. This section is very vague. As per this section homosexuality is an unnatural offence against the order of nature. This has led to many controversies and questions regarding its constitutional validity. In order to determine the constitutional validity of this section and the reasons for its incorporation in the IPC it is important to analyse its historical backdrop.
History of the legislation
The Indian Penal Code was drafted by Lord Macaulay in 1861 during the British Rule over Indian Subcontinent. It has been largely influenced by the colonial rules of British Empire. What was considered crime in Britain is a crime under IPC to a large extent, despite the differences in the countries.
In Britain, Underthe Buggery act 1533, Acts of sodomy was a serious crime punished with death by hanging. This was re-enacted by Queen Elizabeth I in 1563, after which it became the charter for the subsequent criminalisation of sodomy in the British colonies”. Section 377 of Indian Penal Code owes its origin to the Buggery Act. This law, ever since its enactment, has not been amended by Parliament as it is based on Jewish and Christian moral and ethical standards which consider sex on purely functional terms of procreation. Thus, on this basis homosexuality is considered as unnatural and against the order of nature. In this context, it is necessary to understand what is natural and what is unnatural and also, to determine whether homosexuality is against the order of nature or not.
Natural v Unnatural
The Black’s law dictionary defines natural as “A fundamental quality that distinguishes one thing from another; the essence of something. It is something pure or true as distinguished from something artificial or contrived. The basic instincts or impulses of someone or something”. To determine what is natural, there is a functional basis which means that every instrument or organ of the body has only one particular function to perform and using such any organ for any purpose other than its principal or primary function is unnatural. As per this functionality logic, every form of sex other than penile vaginal sex and anything other than procreative sex is unnatural.
Based on this logic, the judiciary has struggled to find a solution to since 1860 to unnatural sex. Initially while the meaning of Section 377 back in 1884 was restricted to anal sex, by 1935 it was wide enough to include aspects like oral sex and thigh sex. Section 377 was not merely about anal sex alone, but applied to homosexuality in general. The lack of a consent-based distinction in the offence has made homosexual sex synonymous to rape and equated homosexuality with sexual perversity.
The principle which holds together these various sex acts prohibited by Section 377 was laid down as early as in 1935 itself. In Khanu v Emperor it was held that “the natural object of carnal intercourse is that there should be the possibility of conception of human beings, which in the case of coitus per os is impossible”. Thus, the courts interpreted the term “carnal intercourse against the order of nature” so broadly that it now includes oral sex, anal sex and even penetration into artificial orifices such as folded palms or thighs. A wide application of section 377 with unclear and vague language has eventually led to arbitrary application against the rule of law and which ultimately led to challenging the constitutional validity of this section.
Section 377 clearly makes homosexuality illegal on the ground that it is against the order of nature and has led to various controversies with regard to the inalienable rights or fundamental rights under part III of the constitution, like right to privacy and right to life.Due to arbitrariness of section 377 and violation of basic fundamental rights of the constitution, the constitutional validity of this section was challenged in the court many times. The issue was settled and put at rest only on September 6th, 2018 and the Supreme Court has finally struck down the draconian law which did not value LGBT community as full citizens of India.
This idea of sex without the function of procreation and conception was used by the judiciary for the last 140 years and homosexuality, which is a person’s choice of sexual inclination was seen as ‘perversion’, ‘despicable specimen of humanity’, ‘abhorrent crime’, ‘result of a perverted mind’ and ‘abhorred by civilized society’, ‘disease of the mind’ than a person’s fundamental right. The judicial interpretation included both acts of consensual sex and sexual assault under the same category of ‘carnal intercourse against the order of nature’. On a plain reading, Section 377 did not prohibit homosexuality or criminalize homosexuals but targeted on the sexual acts and the fact that these sexual acts were always associated with only homosexuals has made homosexuals far more vulnerable under law, arbitrarily in an unjust manner.
Section 377 was used as a tool to misuse state power and harass the third gender i.e. those of a different sexual orientation or gender identity. As stated by Lord Akton, Power tends to corrupt; absolute power corrupt, hence, such enormous power for the state to enforce its idea of morality was arbitrary and brutal against the vulnerable minority of third gender.
Plight of the LGBT Community in India
India has about one million transgender humans who are not yet considered as normal humans due to social stigma of culture and religion. The transgender people or transsexuals are addressed as “Hijras” and live on the fringes of society, in utter poverty, ostracised or harassed due to their gender identity. Most of them strive to make both ends meet through singing and dancing or by means of begging and prostitution.
The Proof of such harassment and exploitation, in public and even in government custody like police stations is evident from the various incidents that keep getting reported on social media and newspapers on a day to day basis.
One example is an incident In August 2004 regarding the double murder at Anand Lok, involving the murder of two gay men in South Delhi where media diverted the attention from the murder to “unsafe lifestyle” of the gay victims. To increase sales and TRP ratings, headlines such as “Gay Murders Tip of Sordid Sleazeberg” became a sensational topic with media forgetting its ethics and violating the basic human rights of the LGBT community.
Another incident is in 2006 where the Lucknow police trapped five gay men by tracking them over the internet and arresting them under Section 377 for unnatural sex. For years, police have used Section 377 to extort, threaten, intimidate and harass LGBT people. Commenting on how law-enforcers have misused their power, Amartya Sen observed that the harm done by such an “an unjust law can be far larger than would be indicated by cases of actual prosecution”.
The next notable incident occurred on 20th October 2008, yet again,where five hijras were taken to the Girinagar police station wherethey were beaten up by the police and charged under section 341 (wrongful restraint) and 384 (extortion) of the Indian Penal Code, falsely. They were produced before the magistrate and sent into judicial custody. Despite the Supreme Court guidelines in DK Basu v state of west Bengal,  they were handled by male police and given no medical treatment for their injuries in police or judicial custody. They were released on bail on 22nd October, 2008. This incident was brought to light by Sangama, a human rights organization working for the rights of the LGBT community for the past ten years.
In police stations, they are not only abused verbally but also physically and are sometimes even forced to give “sexual favours”. This follows with brutal rape or evengang rape when the victim resists. This has led to terrible trauma, helplessness, fear of contracting HIV and STDs, depression and other psychological/emotional complications, with complete loss of faith in the state and administration of justice.
There has been social stigma attached to out casting the LGBT Community mainly because of the role of religion where people have mistaken LGBT persons as sinners. Not only religion, even science has a major role and has deeply impacted our understanding of the concept of homosexuality.
Most people think that the religions in India are against homosexuality. That’s not the case.
The beautiful sculptures outside the temple of Kajuraho depict the life of homosexuals in all grandeur. The prime diety of the Hindus, Lord Shiva in his ardanadeeshwar form is half man and half woman with the feminine part representing goddess Parvati as his Shakti.The most worshipped, Lord Aiyappan, is the son born out of the transgender relation between Lord Shiv and Lord Vishnu, the supreme deities of Hinduism. Even Hindu mythology like Mahabharata has its war hero Arjun as a Hijra or shikandi and the Hindu vedas, the most revered texts of Hinduism, considered third gender persons as blessed with divine power and insights.
In Islam, the opinions of the All India Muslim Personal law Board is worth noting. The All India Muslim Personal Law Board will not contest a move to scrap the colonial-era ban on homosexuality if the Supreme Court decides to do so. They had decided to trust in the courts wisdom by realising the need to repeal this law and take a modern outlook.
In Christianity, pope Francis had send out his message that the parents of LGBT children should treat them with kindness and compassion thereby conveying that it is not against Christianity, nor is it a sin and in turn that the expression of ones sexuality is not an illness.
The next is the role of science and medicine which led to a false notion that unnatural sex is more susceptible to deadly diseases like HIV and AIDS. This was due to the popular misconception that homosexuals spread HIV and AIDS in the course of unclean sexual relation. This was the result of PATIENT ZERO THEORY, in which it was stated that HIV is caused by homosexuals becausea part of a cluster of homosexual men who travelled frequently, were extremely sexually active, and died of AIDS at a very early stage in the epidemic.The idea of Patient Zero was an interesting concept for the media to use the LGBT community as a scapegoat by focusing solely on the man and his sexuality, rather than the virus itself, the media birthed a defamatory point of view on gay life, that gay sexuality was unclean and promiscuous and thus punishable by AIDS.
“The media was all too eager to cast blame on a single person, rather than reflect on the stigma they were creating and the lack of political will to actually do something about the disease,” says Kelsey Louie, CEO of Gay Men’s Health Crisis. “The stigma created in the past is still strong today and prevents many from talking about HIV to educate themselves, getting tested for HIV for fear of being labelled, and even seeking treatment if they are positive. The Patient Zero storyline also fostered the belief that HIV was a gay disease, when we now know that anyone can be impacted by HIV, regardless of your sexual orientation.”
It has been 35 years since this theory was formulated and now even after it is debunked by showing that AIDS and HIV virus can occur due to multiple reasons other than homosexuality, yet, homosexuals are still stereotyped as the primary transmitters of the disease and this Stigma affects the world community as a whole with more damage than the virus itself.
Cases under Section 377
The courts, in India have dealt with a variety of case laws since times immemorial in which they have applied the Section, explained its ingredients and examined its scope. In the case of Nowshiriwan Irani v Emperor, the Court held that there was no offence was not committed or any attempt made to commit the offence could be interpreted since there had been no penetration. In Mirro v Emperor, the judge stated, referring to the accused:“It seems clear to us that he is not only a desperate character but is a man of depraved morality.”
In Lohana Vasantlal Devchand v State the aspect of whether the act of placing one’s organ inside the mouth of another could be termed as carnal intercourse. The courts reached this conclusion after examining the definition of sodomy in English law and comparing it to Section 377 of the Indian penal Code. This case had established thatthe concept of oral intercourse is a form of carnal intercourse which is punishable under law.
In State Government Of Nct Of Delhi v Sunil, where two men committed rape and sodomised a four year old girl led to her death; based on medical evidence it was proved that the accused had indulged in anal intercourse with the girl, were convicted under Section 377of the code.In State of Kerala v Kudumkara Govindam and Anr the court upheld the ruling of Khanu’s case and held thigh sex punishable under this section. Similarly in Fazal Rab Choudary v State of Bihar, the court held that S.377 was synonymous to sexual perversity.
In the case of Raju v State of Haryana, where the 20 year old appellant was found guilty of committing sodomy, the court once again addressed this as perversity. In Amit v State of UP, the accused committed unnatural sex with a minor girl and was imposed death penalty for the offence of murder. The Supreme Court converted the death sentence of the accused into imprisonment for life on the ground that accused was a young person and may reform over a period of years.
In the case of Ou v The State of Maharashtra, the accused tried to penetrate inside a 14 months old child which did not happen as thechild cried out in pain which was heard by outsiders who prevented further harm. The court also stated that “the extremely tender age of the child makes the acts of the accused even more deplorable calling for stringent punishment”.
NAZ Foundation Case
On 7th of July2001, the police raided a park in Lucknow based on an FIR by a person who had alleged to have been sexually assaulted. This raid led to the arrest of a social worker from the Bharosa Trust, a NGO working with the MSM community and the police also raided the offices of Bharosa and Naz Foundation. Apart from search and seizure of materials, the police also arrested nine people. The media took turn to sensationalize the news with terms like “sex racket”.
The arrested persons were remanded to judicial custody where they were physically tortured and also their offices were sealed by the government. They were charged under Sections 377 (unnatural offences), 292 (sale of obscene books, etc.), 120b (criminal conspiracy) and 109 (abetment) of the IPC; under Section 60 of the Copyright Act; and Section 3 and 4 of the Indecent Representation of Women Act with their bail applications rejected twice. It was only on 16-17 August that all four accused were granted bail, and that too only after the public prosecutor had proven that there was no link between the NGOs and the incident in the park on the 7th of July. Even medical examination was done of all the accused and it was clear that no evidence to charge them under Section 377 was found.
This incident created a situation of alarm in the entire nation about how Section 377 was being used as a means of discrimination. To address this became the need of the hour considering the injustice faced by the minority community of LGBT for over two decades. Thus, NAZ foundation filed a petition under the Delhi High court for striking down this unconstitutional law as a violation of right to privacy. The petition also requested for private consensual sex between adults to be decriminalised. The petitioned challenged the legislative intent of this colonial law as arbitrary and discriminatory on the grounds of sexual orientation and hence outdated.
In the writ petition by Naz Foundation, as a Public Interest Litigation to challenge the constitutional validity of Section 377 of the Indian Penal Code, 1860 (IPC), was challenged on the ground that Section 377 IPC, when it deals with consensual sex with adults in private infringes the fundamental rights guaranteed under Articles 14, 15, 19 and 21 of the Constitution of India. The petitioners submitted that Section 377 IPC should apply only to non-consensual and non- vaginal sex involving minors.
The writ petition was dismissed by the Delhi High court Court on the ground that there was no cause of action in favour of the petitioner and that a petition cannot be entertained to examine the constitutionality of a legislation. On appeal the Supreme Court, in Suresh Kumar Koushal and another v NAZ Foundation and others, set aside thisorder of the lower court on the ground that this is a matter which requires consideration and is not of a nature to be dismissed on such a flimsy ground and thus, the matter was remitted to the Delhi High Court for a new decision.
- Whether Section 377 is violative of Article 14
Article 14 of the Constitution of India. Article 14 of the Constitution of India provides for equality before the law or equal protection within the territory of India.
It was submitted that Section 377’s legislative intent of penalizing ‘unnatural sexual acts’ has no rational nexus to the classification created between procreative and non- procreative sexual acts, and is thus violative of Article 14 of the Constitution of India. Section 377’s legislative objective is based upon misunderstandings and stereotypes that is outdated and has no historical or logical rationale due to which it is arbitrary and unreasonable. The Court made it explicit that- “where an Act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14.”
According to Union of India, the object of Section 377 IPC was to protect the vulnerable category of women and children and prevent the spread of epidemics like HIV/AIDS and enforce social morality.
It is clear from a plain reading of Section 377 IPC and the judgements that followed that it was not enacted to protect children against child sexual abuse or fill the lacuna in a rape law under S.375. It was a way to enforce a fake morality from the Victorian era where carnal sex was considered a sin based on illogical myths and beliefs.The claim of legislative intention to protect women and children was just for theory purpose and not practically effective.
The claim of the second objective of the legislationwas that Section 377 IPC helps to maintain public health by criminalising homosexual behaviour which is the main reason for spread of epidemics. Section 377 IPC was held as preventive measure for protection against HIV and AIDS. But, with patient zero theory debunked, this claim also did not stand valid.
Lastly, it was held that the state does not have the right to intrude into the privacy of the life of its citizens or provide regulations for their conduct on the basis of a purely subjective aspect of morality. The criminalisation of sexual relations in private between adults with full consentshows no idea of harm which makes the objective of the legislation arbitrary and unreasonable.
As stated in Menaka Gandhi v Union of India, the state’s interest ‘must be legitimate and relevant’ for the legislation to be non-arbitrary and must be proportionate towards achieving the state interest. If the objective is irrational, unjust and unfair, necessarily classification will have to be held as unreasonable.Thus, the classification must be based on intelligible differentia and must have a reasonable and logical nexus to the object to be attained. The nature of Section 377 IPC has no other purpose other than to criminalise conduct which does not confirm to moral or religious views of a section of society despite it being no fault of the individual as expression of sexual orientation is not an illness or a crime. This discrimination on the 7-8% of minority population of the LGBT community severely affects their rights and interests and dignity in such a way that few are put to peril to satisfy the fake interests and morality of the majority.
B. Whether Section 377 is in violation of Article 15
Article 15 of Constitution of India deals with Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. India is also a signatory of the ICCPR. International Covenant on Civil and Political Rights (ICCPR) purports right to equality and states vigorously that, ‘the law shall prohibit any discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social region, property, birth or other status’.
In Toonen v Australia, The Human Rights Committee, held that‘sex’ is to includes ‘sexual orientation’ and declared certain provisions of the Tasmanian Criminal Code which criminalisedhomosexual sex as violation of the ICCPR.
Therefore, sexual orientation is similar to sex andany discrimination on the basis of sexual orientation is thus, not permitted under Article 15. Article 15(2) prohibits discrimination of one citizen from another even in the case of access to public spaces and opportunities. Therefore, discrimination on the ground of sexual orientation is not permitted even on the horizontal application of the right enshrined under Article 15 of the constitution.
C. Whether it violates Article 21
Article 21 of the Constitution of India provides that, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
Blackmun, J. in his dissenting opinion in Bowers, Attorney General of Georgia v Hardwick, quoted that the ‘right to be let alone’ should be not seen simply as a right to occupy a private space free from government interference, but as a right to get on with your life, your personality and make fundamental decisions about your intimate relations without penalisation. This aspect of privacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which one gives expression to one’s sexuality is at the core of this area of private intimacy. If, in expressing one’s sexuality, one acts consensually and without harming the other, invasion of that precinct will be a breach of privacy.
In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21. Section 377 IPC denies a person’s right to life with dignity and criminalises the person on account of his or her sexuality and thus violates Article 21 of the Constitution which stands for the fact that life is not mere animal existence but to live with dignity.Thus, Section 377 IPC violates a homosexual person’s a right to live and develop in his or her full personhood which is implicit in the right to life under Article 21 of the Constitution.
Ratio Decidendi of the case:
Section 377, by criminalising consensual sexual acts between adults in private penalises the minority by targeting the homosexuals to satisfy the interests of the majority who consider it to be against the order of nature. Therefore, it is arbitrary and unreasonable under Article 14.
The expression ‘sex’ in the Article 15 is not limited to ‘gender’ but includes ‘sexual orientation’ also and, thus equality on the basis of sexual orientation is also implied in the fundamental right against discrimination under article 15 of the constitution.
Thus, the Delhi High Court struck down the provision of Section 377 that criminalises consensual sex between homosexual individuals, and it also effectively opened up public space for the LGBT community to carry out a democratic struggle against the oppression they faced because of their sexuality and also created an opportunity to live with dignity. The Court, however upheld that even though there have been violations under article 14 and 15 but, right to life under Article 21 includes the right to health, and concluded that Section 377 is an impediment to public health because it hinders HIV-prevention efforts despite the debunking of patient zero theory. The Court did not strike down Section 377 fully. The section was declared unconstitutional insofar it criminalises consensual sexual acts of adults in private. The judgement has kept intact the provision insofar as it applies to non-consensual non-vaginal intercourse and intercourse with minors. The court stated that the judgement would hold until parliament chose to amend the law. Thus, While in Justice K.S. Puttaswamy v Union of India, the Supreme Court declared right to privacy as a fundamental right under the Indian Constitution, In Koushal, the constitutionality of Section 377 of the Indian Penal Code that criminalised “carnal intercourse against the order of nature” was upheld, and finally in 2009 Delhi High Court in Naz Foundation case, the section was considered violating articles 14 and 15 of the constitution and not article 21 on grounds of public health.
Positive and Negative Changes after NAZ Foundation Case
This decision by the court to decriminalize homosexuality saw several changes. The harassment and blackmail of LGBT people by utilising their fear of prosecution for their sexual orientation and gender identity was reduced. However, sex workers were still trapped, harassed, detained and penalized using other laws. The decision in the Naz foundation case had also enabled LGBT and HIV/AIDS community to continue their work without fear of torture by authorities. Individuals were able to participate in Pride marches and demonstrations just like any other citizen of India.
At the same time, there was worry of negative repercussions also as a favourable judgment will not end the phobia and its devastating effects on the lives of LGBT community. The organized and social backlash against LGBT people as their issues and identities are made more public, prominent and fierce in mainstream media and has potentially increased family and community surveillance and violence on the LGBT community. There was now an urgent need for safe houses, particularly for young lesbians, bisexual women, and non-gender conforming men and women.
The privacy judgment in Koushal’s case was living on borrowed time until when a Constitutional Bench of the Supreme Court, overruled Koushal’s caseand upheld the Delhi High Court judgment in Naz Foundation, clearly and unambiguously. All the confusions and contradictions of s.377 was put to rest and it was held that the LGBT community, just like any other Indian citizen was entitled to protection under articles 14, 15, 19 and 21, i.e. the inalienable or fundamental rights guaranteed by the Constitution.
This case is a mix of four concurring judgments with the outcome that Section 377 violated Article 14 (equal protection of laws), 15(1) (non-discrimination on grounds of sex), 19(1) (a) (freedom of expression) and 21 (right to life and personal liberty) of the constitution.
Concept of Choice by Chief Justice Dipak Mishra and Justice Khanwilkar
The Chief Justice Dipak Mishra wrote for himself and Justice Khanwilkar. The core aspect of his judgement relates to the idea of choice. The judges observed that, “When we talk about identity from the constitutional spectrum, it cannot be pigeon-holed singularly to one‘s orientation that may be associated with his/her birth and the feelings he/she develops when he/she grows up. Such a narrow perception may initially sound to sub serve the purpose of justice but on a studied scrutiny, it is soon realized that the limited recognition keeps the individual choice at bay.”
“Natural orientation” and “choice” are seen as complimenting concepts throughout the judgment  and a holistic reading of the judgment gives a clear idea that the concept of choice equally important in the exercise of constitutional rights as the “naturalness” of sexual orientation. It can also be seen that while defining the various aspects sexual orientation, the judges refer to both the concepts of “inherent orientation” and “demonstration of choice.”
It is on this basis of choice that the Chief Justice rejected Koushal’s argument in which Section 377 only criminalises “acts” and not “persons”, and it does not violate constitutionally guaranteed rights: “Individuality of a person and the acceptance of identity invite advertence to some necessary concepts which eventually recognize the constitutional status of an individual that resultantly brushes aside the ―act‖ and respects the dignity and choice of the individual.”
The aspect dignity under article 21 was also read in the light of the aspect of choice:Dignity while expressive of choice is averse to creation of any dent. When biological expression, be it an orientation or optional expression of choice, is faced with impediment, albeit through any imposition of law, the individual‘s natural and constitutional right is dented.
The concept of “choice” became an important basis of the Judges finding that Section 377 violates the article 21 of the Constitution. It not only disrespects individual choice, but also affects right to live with dignity as guaranteed under article 21 and is hence, irrational and arbitrary and ends up violating Article 14 also. The section was held to be violating the expressive rights under Article 19(1) (a), and the right to privacy under Article 21 which too is defined in terms of “intimacy in privacy as a matter of choice”.
Justice Nariman’s Concept of Equality and Presumption of Constitutionality
Justice Nariman was of the opinion that Section 377 violates right to dignity under article 21, and that it is “manifestly arbitrary”.For his second conclusion he referred the 2017 Mental Healthcare Act, which expressly prohibits discrimination on grounds of sexual orientation and along with and scientific evidence, he concluded that the natural/unnatural distinction of Section 377 has no rational basis, and thus, violates Article 14. For article 14, there has to be classification based on intelligible differentia with a reasonable nexus to the object of the legislation as stated by the honourable court in Menaka Gandhi’s case.
Nariman J.’s opinion, was that pre-constitutional laws do not enjoy any presumption of constitutionality as they were framed during the colonial era to supress the Indian freedom struggle. “The presumption of constitutionality of a statute is 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 which do not fall within List II of Schedule VII of the Constitution of India, and cannot transgress the fundamental rights of the citizens and other constitutional provisions in doing so. Parliament is therefore deemed to be aware of the aforesaid constitutional limitations. Where, however, a pre-constitution law is made by either a foreign legislature or body, none of these parameters obtain. It is therefore clear that no such presumption attaches to a pre-constitutional statute like the Indian Penal Code.”
Justice Nariman was not successful in explaining that the Parliament’s failure to repeal a pre-constitutional law indicates an implied acceptance.
Justice Chandrachud Concept of Equality and Indirect Discrimination
According to Justice Chandrachud, Section 377 violates Article 15(1) (non-discrimination on grounds of sex), Articles 15 (non-discrimination) and 14 (equality before law). In his judgement he stated that,“Equating the content of equality with the reasonableness of a classification on which a law is based advances the cause of legal formalism. The problem with the classification test is that what constitutes a reasonable classification is reduced to a mere formula: the quest for an intelligible differentia and the rational nexus to the object sought to be achieved. In doing so, the test of classification risks elevating form over substance. The danger inherent in legal formalism lies in its inability to lay threadbare the values which guide the process of judging constitutional rights”. This is an important part of the judgement which shows that the, “classification test” to judge equality violations is still followed stringently by the courts.
According to Chandrachud J, “Article 14 has a substantive content on which, together with liberty and dignity, the edifice of the Constitution is built. Simply put, in that avatar, it reflects the quest for ensuring fair treatment of the individual in every aspect of human endeavour and in every facet of human existence.”The heart or the main part of his judgement is where he states that,: “ Indian courts have historically interpreted the statement “The State shall not discriminate on grounds … only of sex” in a highly formalistic manner, and have upheld laws that – in their language – use more than one or a differently worded ground (for example, in Koushal, the Court held that because Section 377 only criminalised “carnal intercourse against the order of nature”, there was no question of discriminating against identities). This, however, is flawed: what matters is the effect of law upon the exercise of fundamental rights.”
“The effect of law must be understood by taking into account the broader social context within which law is embedded. It must therefore take into account “the intersectional nature of sex discrimination, which cannot be said to operate in isolation of other identities, especially from the socio-political and economic context.”
He concluded his opinions from progressive gender equality judgments and held that, “A provision challenged as being ultra vires the prohibition of discrimination on the grounds only of sex under Article 15(1) is to be assessed not by the objects of the state in enacting it, but by the effect that the provision has on affected individuals and on their fundamental rights. Any ground of discrimination, direct or indirect, which is founded on a particular understanding of the role of the sex, would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex.” This judgement is extremely valuable in Indian history as for the first time the courts have recognised direct and indirect discrimination. LGBT individuals were subject to a shadow of criminality. The harassments and tortures they underwent for over two decades because of draconian laws had thrown justice to the winds. The constitution does not accept the putting into peril of an individual to confirm to society standards and beliefs of morality and gender roles. It rather purports the development of an individual to his full potential under right to life.
It is in this manner that Chandrachud J. draws together the indirectly discriminatory character of the facially neutral S. 377, the effects test, the prohibition of “sex” discrimination under Article 15(1) in a case about “sexual orientation”, and the importance of social context to the enquiry. Thus, While, Article 15(1) prohibits sex discrimination, discrimination on grounds of sex is based on society’s notions and beliefs about the role of each gender. These stereotyped about roles make any deviation criminalised, which is gross injustice. Thus, though the wordings of Section 377 may be neutral, it has led to indirect discrimination on the grounds of sexual orientation for the LGBT community and thus is a violation of Article 15(1) of the Constitution.
Article 19(1) (a) guarantees freedom of expression, s.377 was criminalising sexual orientation has pushed the LGBT community into a life of secrecy due to fear of prosecution, in case of sexual expression. Like his opinion in Puttaswamy’s case, Chandrachud J. stated that “the right to sexual privacy, founded on the right to autonomy of a free individual, must capture the right of persons of the community to navigate public places on their own terms, free from state interference.”He highlights the right to privacy and autonomy under article 19, right to intimacy under article 21 and the right to health including the aspect of mental health as the mental pressure, frustration, agony and depression faced by this community cannot be overlooked. S.377, thus, has been inconsistent with part III and had to be struck down according to him also.
Justice Indu Malhotra’s True Vision of Equality
Justice Malhotra in her judgement clearly mentioned about how article 377 has Articles 14, 15, 19(1) (a) and 21 of the constitution. She stated that “S.377 creates an artificial dichotomy. The natural or innate sexual orientation of a person cannot be a ground for discrimination. Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia.” 
Malhotra J. stated that “where a legislation is discriminatory on the basis of an “intrinsic or core trait”, it ipso facto violates Article 14 and cannot be accepted as reasonable classification. The concept of equality under Article 14 rules out certain kinds of classifications at the threshold. In her view, legislation based on an “intrinsic or core trait” fails that threshold inquiry. I would put it slightly differently: legislation based on a core trait (related to personal autonomy), a trait that has been a historical or present site of systemic discrimination, is ruled out under Article 14. I believe that the language of “intrinsic” or “immutable” characteristics is a dangerous road to go down.” This reasoning has paved way for a transformative potential of Article 14 and 15(1).
- Indu Malhotra’s view was accepted by the Chief justice who stated 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. Devotion and fidelity to constitutional morality must not be equated with the popular sentiment prevalent at a particular point of time.”
Justice Nariman also held that Section 377 was the by-product of the Victorian era and what was relevant was not the Victorian morality of the colonial era but constitutional morality guaranteed by the supreme law of the land. Constitutional morality is the soul of the Constitution and is found in Part III especially with respect to right to life and individual’s dignity and the Preamble which declares its ideals and aspirations.
The aspect of “constitutional morality” was first introduced in Naz Foundation and in this case of Navtej Singh Johar, the vision of constitutional morality was the core reason decriminalisation of homosexual sex relations. “When equality is viewed through the lens of constitutional morality it is defined by the values of pluralism and inclusiveness different forms of life and different ways of being are guaranteed equal treatment, equal concern, and equal respect under the transformative Indian Constitution.”
This judgement redeemed the judiciary to its glory and has restored truth and faith in the judiciary as protector of people’s rights by recognising the LGBT community and their rights. Right to Equality, Right against discrimination, Right to privacy, Right to freedom of speech and expression and Right to mental health was recognised for the LGBT community to live their life in equal footing with every other citizen in India and the gross injustice to this community is undone by making the country into an inclusive society The judgement aimed at a “social revolution”, to eradicate deep inequalities and discrimination with its roots in the colonial past. As Chief Justice Dipak Misra stated, “the ultimate goal of our magnificent constitution is to make right the upheaval which existed in the Indian society before the adopting of the Constitution.”Transformative constitutionalism aims at transforming the society from the perils of accumulated past, albeit intensified by colonial experience.
Though this judgement is a perfect example of the transformative constitutionalism in India, there is also criticisms that the disappearance of Section 377 will not make a significant difference in the daily lives of vernacular economically disempowered youth, or non-heteronormative women who face forced marriages, forced confinement, and forced separation from homosexual partners. Such issues have their in roots the backward and orthodox thoughts without logical backing which leads to denial of autonomy and dignity in case of sexual expression. This judgement has however made it hard to repressive laws of morality to flourish and has recognized LGBT community as full citizens.
Though the legal battle is won, institutionalization aspect is not complete without internalization and hence awareness should be developed among the members of the society who are bound by nothing but age old traditions and blind faith. The right to choose a life partner is a fundamental right as per Shakti Vahini v Union of India, but this is only in theory as far as a country like India is concerned as the society in its diverse culture and traditions is still bound by personal laws, faith and morality than science and constitutional morality. The change can be bought in practical only by internalization which can be bought about by awareness form the grass root level.
WP (Crl.) No. 76/2016, order dated 12-07-2018
Naz Foundation v. Govt. of NCT, 2010 CrLJ 94.
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WP (Crl.) No. 76/2016, order dated 12-07-2018
 Paragraph 9
 Paragraphs 109 and 148
 Paragraph 140
 Paragraph 81
 Paragraph 82
 Justice Nariman in Navtej Singh Johar’s case
 J.Chandrachud in Navtej Singh Johar’s case
 Paragraph 78
 J.Indu Malhotra in Navtej Singh Johar’s case
 Paragraph 95
 WRIT PETITION (CIVIL) NO. 231 OF 2010