After the Privacy judgment of 2017, and the Common Cause (Euthanasia-Living Will), Hadiya and Shakti Vahini (fundamental right to choose a life partner) decisions of 2018, the Supreme Court has taken yet another step to widen the ambit of individual autonomy and decisional privacy by decriminalising homosexuality. Individuals have sovereignty over their bodies, and their intimacy in privacy is a matter of their choice with which state or society should have no concern, the court has ruled. In overruling Suresh Koushal (2014), the court has again privileged constitutional morality over social or majoritarian morality.
How the judgment operates on the ground remains to be seen, however. The court’s orders on triple divorce and lynching have not had visible impact.
Chief Justice of India Dipak Misra and Justice A M Khanwilkar
Writing for himself and Justice Khanwilkar, the Chief Justice has raised the individual’s identity to the pedestal of divinity — sans identity, the name is only a denotative term, and the sustenance of identity is the filament of life. The destruction of individual identity would tantamount to the crushing of dignity, which encapsulates privacy, choice, freedom of speech and other expressions. Attitudes and mentalities have to change to accept distinct identities of individuals, who must be respected for who they are, and not compelled to become who they are not, the CJI said.
Rejecting the distinction between ‘natural’ and ‘unnatural’ sexual relations, the CJI said that “what nature gives is natural”, and “the natural identity of an individual should be treated to be absolutely essential to his being”. Sexual attraction for the same sex is controlled by neurological and biological factors; an individual’s natural orientation is innate and lies at the core of her/his being and identity.
The judiciary, CJI Misra has said in the 166-page judgment, has a role in making the Constitution a “living document” through dynamic and purposive interpretations. The Constitution must transform society for the better — at the heart of “transformative constitutionalism” lies a pledge, promise and thirst to change Indian society so as to embrace the ideals of justice, liberty, equality and fraternity.
“Constitutional morality”, the CJI has said, is not confined to the literal text of the Constitution, rather, it must seek to usher in a pluralistic and inclusive society. “It is the responsibility of all three organs of the State to curb any propensity or proclivity of popular sentiment or majoritarianism… Any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy… would violate constitutional morality. Freedom of choice cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on the mercurial stance of majoritarian perception.”
In rejecting as perverse the contention in Suresh Koushal that the LGBTQI community forms only a tiny part of the population, the CJI has added a new test of constitutional morality in the examination of the constitutionality of laws enacted by Parliament. The Constitution is not for just the majority, the fundamental rights are guaranteed to “any person” and “any citizen”, and the sustenance of these rights does not require majoritarian sanction, the CJI said.
“Homosexuality is neither mental illness nor moral depravity,” CJI Misra said in clear terms. Nor does one choose to be homosexual — the science of sexuality says an individual has little or no control over whom she/he is attracted to. Research shows sexual orientation is decided very early, possibly even before birth, and that homosexuality is found in about 10% of the population, a figure that is largely constant across cultures. Indeed, homosexuality should be treated as consensual activity that is reflective of consensual choice, the CJI said. One’s choice is all important, is the central argument of the CJI.
Section 377 criminalises carnal intercourse even between heterosexuals, and is legally unsustainable for the simple reason that Section 375 IPC clearly stipulates that carnal intercourse between a man and a woman with the wilful and informed consent of the woman does not amount to rape, and is not punishable. In the triple talaq judgment (2017), the SC relied on the test of ‘manifest arbitrariness’ — the fact that Section 377 fails to make a distinction between consensual and non-consensual sexual acts between competent adults makes it violative of the right to equality that includes the right against arbitrariness.
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“Equality is the edifice on which the entire non-discrimination jurisprudence rests. Respect for individual choice is the very essence of liberty under law and, thus, criminalising carnal intercourse under Section 377 IPC is irrational, indefensible and manifestly arbitrary,” the CJI said. The order partially struck down Article 377 on the ground that consensual sexual acts between adults in a private space are neither harmful nor contagious to society. The unnatural sex with animals remains valid.
Justice R F Nariman
In his concise, sound judgment — 96 pages out of the total 493 — Justice Nariman talked about history of punishing homosexuality in England. The chief draftsman of the IPC, Lord Macaulay, himself recognised a lesser sentence for the crime of “unnatural lust”, if performed with consent. Justice Nariman also recalled that the 42nd Law Commission Report (1972) did not recommend the amendment or deletion of Section 377; Justice Jeevan Reddy, in the 172nd Report (2000), did, however, recommend its deletion.
Justice Nariman described the privacy judgment as an important nail in the coffin of 377, and quoted the Indian Psychiatric Society’s view that “homosexuality is not a psychiatric disorder”, and that same-sex sexuality is a normal variant of human sexuality, much like heterosexuality and bisexuality. Also, there is no scientific evidence that sexual orientation can be altered by treatment. Justice Nariman relied on Latin maxim cessante ratione legis, cessat ipsa lex — when the reason for a law ceases, the law itself ceases — to strike down Section 377. The rationale for the section, Victorian morality, had long passed, he said.
“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,” he said. Modern psychiatric studies have concluded that penalising consensual gay sex is manifestly arbitrary and thus unconstitutional. India’s new mental illness law does not consider homosexuality to be a mental illness, Justice Nariman said.
He also held the punishment of life imprisonment as excessive and disproportionate. In an unprecedented ruling he refused to extend the benefit of presumption of constitutionality of a statute to a pre-constitution law like 377 that was not enacted by the popular legislature. Also, since Parliament did not act on the recommendation of the Law Commission, this in itself can be a reason to strike down 377, he said. These new constitutional principles will have a huge impact on other cases.
Justice Dr D Y Chandrachud
Justice Chandrachud’s 181-page order is the longest of the four judgments. Section 377 does not merely criminalise an act, it criminalises a specific set of identities, and leads to the “perpetuation of a culture of silence and stigmatization”, he said. This case, he said, is about the aspiration to realise constitutional rights. It is about a right that every human being has — to live with dignity. It is about enabling these citizens to realise the worth of equal citizenship.
Section 377, Justice Chandrachud said, does not bring out the difference between ‘ordinary intercourse’ and ‘intercourse against the order of nature’. What is ‘natural’ and what is ‘unnatural’, he asked. And who decides the categorisation into these two ostensibly watertight compartments? Do we allow the state to draw the boundaries between permissible and impermissible intimacies between consenting adults? Section 377, he said, criminalises behaviour that does not conform to the heterosexual expectations of society. In doing so it perpetuates a symbiotic relationship between anti-homosexual legislation and traditional gender roles.
Homosexuality has been documented in almost 1,500 species who, Justice Chandrachud said, “unfortunately are not blessed with rational capabilities (and the propensity to ‘nurture’ same sex thoughts) as are found in mankind”. He rejected the logic of Suresh Koushal, saying there is no cogent reason to support the idea that statistically uncommon behaviour is abnormal, and must be deemed ethically or morally wrong. And even behaviour that may be considered wrong or unnatural cannot be criminalised without sufficient justification.
Justice Chandrachud expanded the prohibited grounds of discrimination under Article 15 to include ‘sexual orientation’. 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’, said the judge. In order to ensure to sexual and gender minorities the fulfilment of their fundamental rights, it is imperative to “confront the closet” and, as a necessary consequence, confront “compulsory heterosexuality”, Justice Chandrachud said. And confronting the closet would entail “reclaiming markers of all desires, identities and acts which challenge it”.
Rejecting the public-private distinction for the exercise of LGBTQI choices, Justice Chandrachud, in a bold observation, said 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. If one accepts the proposition that public places are heteronormative, and same-sex sexual acts partially closeted, relegating ‘homosexual’ acts to the private sphere would in effect reiterate the “ambient heterosexism of the public space”. “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 said.
Justice Indu Malhotra
In her first opinion as a member of a Constitution Bench, Justice Malhotra said that sexual orientation is an innate attribute of one’s identity and cannot be altered. She observed that the term “sex” as prohibited ground in Article 15, is not merely restricted to the biological attributes of an individual, but also includes their “sexual identity and character”.
In a powerful statement of apology jurisprudence, she said that “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”.