SC invoked indirect discrimination in law to read down Section 377 in 2018

This was the first time that indirect discrimination was read into the equality jurisprudence by the Supreme Court. A five-judge Constitution bench had read down Section 377 of IPC to the extent that it criminalised “carnal intercourse against the order of nature”.

“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,” Justice Chandrachud had said.

The same principle will once again be invoked by petitioners challenging personal laws that only recognise marriage between a man and a woman.

Incidentally, Justice Chandrachud is the only judge among the five-judges who delivered the 2018 verdict who is still in office. He will also head the bench on same-sex marriage.

In his ruling, Justice Chandrachud had also expanded the impact of decriminalisation of homosexuality to not just securing privacy in personal spaces but also freely navigating public spaces. “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 wrote.

In his separate opinion, Justice Chandrachud had also referred to the US Supreme Court ruling recognising same-sex marriage. By a 5-4 majority, the US Supreme Court had, in 2003, ruled that the fundamental right to marry is guaranteed to same-sex couples by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the US Constitution.

Justice Chandrachud had quoted Justice Kennedy in the ruling: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.… It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfilment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”