Aditi Singh | Army Institute of Law, Mohali | 2nd September 2020
Introduction
Gender identity is one of the most fundamental aspects of life which refers to a person’s intrinsic sense of being male, female or transgender or transsexual person. Sexual orientation refers to an individual’s enduring physical, romantic and/or emotional attraction to another person. Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom[1].
The focus on individuality and freedom is finely articulated by the legal and moral philosopher Joseph Raz, who stated, “The ideal of personal autonomy is the vision of people controlling, to some degree, their own destiny, fashioning it through successive decisions throughout their lives.”[2]
Much of the Indian Constitution, too, can be viewed as a means to achieve the goal of restoring to an individual “a control over his own life and destiny”. Decades after the Indian Constitution was put in place, we still struggle to guarantee these ideals to individuals. The ‘constitutional idea of India’ still remains a distant dream for many, whether they are the untouchables, persecuted for millennia; the disabled; “menial” workers; or the subaltern, who live traumatised existences even now[3].
The degree of unjustness rested in India’s judicial atmosphere and mindset specifically with S. 377 in place, until January 2018 — when the Supreme Court agreed to hear a petition to revisit the 2013, Naz Foundation judgement.
Prior to this judgement the Supreme Court upheld the right to privacy as a fundamental right under the Constitution in the landmark case of Justice K.S. Puttaswamy (Retd). & Anr. v. Union of India & Anr.,[4] (herein ‘Puttaswamy case’) wherein the court stated that “the protection of sexual orientation lies at the core of the fundamental rights and that the rights of the LGBT population are real and founded on constitutional doctrine”. This judgement was believed to imply the unconstitutionality of section 377 before the landmark judgement of 2018.
Ultimately, amidst huge public coverage and massive support for the cause, the Court on 6th September 2018, ruled unanimously in the case of Navtej Singh Johar v. Union of India[5] holding Section 377 as unconstitutional insofar as it criminalises consensual sexual conduct between adults of the same sex overturning the 2013 ruling of Suresh Kumar Koushal v. Naz Foundation[6] (herein ‘Koushal’) which upheld the validity of the said law.
On the other hand, other portions of the section regarding — sexual intercourse with minors, non-consensual sexual acts and bestiality — remain in force. This verdict has lead to a sense of inclusiveness among the members.
This brutal legislation was, introduced in 1861 during the British regime — a 16th century law, called the Buggery Act. Originally, the section defined — 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 or with a death penalty, and shall also be liable to fine[7]. The explanation further provided for penetration to be sufficient to constitute the carnal intercourse necessary to the offence described in this section[8].
Developments
The bone of contention in regards to S. 377 was first raised in 2001 with an NGO (Naz Foundation and AIDS Bedhbhav Virodhi Andolan) approaching the Delhi High Court instituting the original law suit to decriminalize homosexuality. Decisively, on July 2, 2009, a landmark judgement was made by Delhi High Court, which read down S. 377 as violative of Articles 21, 14 and 15 of the Indian Constitution[9]. Metaphorically, the judgements effect on Indian society and popular consciousness could well be described seismic, sparking off celebrations, protests, conversations, and indignation in equal measures about the morality and acceptability of homosexual behaviour[10].
In essence this judgement, although decriminalised homosexuality for the first time, its ruling didn’t necessarily stamp homosexuality with social legitimacy. The judgement, basically, reaffirms the problematic legal labelling of it as an act ‘against the order of nature’[11].
Despite the progressive judgement, further on, the Supreme Court on December 11, 2013 in the Koushal case[12]overturned the preceding 2009 Delhi HC’s decision and upheld the validity of S. 377 mentioning it for the Parliament to take action upon the case instead of any court.
Finally, in the Puttaswamy case[13], adjudged on 24th August, 2017, lead to the holding of privacy as a fundamental right by the Supreme Court and S. 377 as ‘unsustainable’ and additionally opined as, ‘the right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21’ although there was still no outright declaration of its unconstitutionality.
Navtej Singh Johar v. Union of India
In 2018, a total of five people including dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Puri filed a petition to an apex court asking to re-look the judgment passed in the case of Naz Foundation which was heard by a three-member SC bench[14]. A five-member SC bench then heard the case comprising of—CJI Dipak Misra, and Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.
The petitioners invoked the right to sexual privacy, dignity, right against discrimination and freedom of expression to argue against the constitutionality of Section 377. After hearing a four day plea, the bench pronounced its verdict on 6 September 2018. Announcing the verdict, the court reversed the Koushal[15] judgement—of restoring S. 377—by stating that using a section of the IPC to victimize homosexuals was unconstitutional, and henceforth, a criminal act.
Justice Malhotra, additionally stated that, “History owes the members of this community redressal for past persecution and ignorance of the majority.”
The wording of the judgement includes such phrasing that according to it the LGBTQ members can now enjoy their personal space without getting penalized or reprimanded for it but a lot is still in a veil. They even now can’t get married or adopt a child together, or in order to be a legal guardian of a child—have to live apart. The members still have to suffer discrimination on the ground of ambiguity in the right of inheritance and other multiple fronts like family planning, life insurance policies, tax planning, etc. wherein several statues call into question their identity in the first place.
Furthermore, the rights of lesbian, gay, bisexual, and transgender population cannot be construed to be “so-called rights”. This is an inappropriate construction of the privacy based claims of the LGBT population. Their rights aren’t “so-called” but are real rights founded on sound constitutional doctrine[16]. The court observed in the present case, while dismissing the erroneous assertions of the Koushal[17] case.
Certain other aspects to be noted in the judgement, is the emphasis on the phraseology “carnal intercourse against the order of nature”. The court observed that Social morality changes from age to age—the law copes with life and accordingly changes take place. The individual autonomy and also individual orientation cannot be atrophied unless the restriction is regarded as reasonable to yield to the morality of the Constitution. Furthermore, it was conspicuously argued that, “what is natural to one may not be natural to the other but the said natural orientation and choice cannot be allowed to cross the boundaries of law and as the confines of law cannot tamper and curtail the inherent right embedded in an individual under A. 21 of the Constitution” besides a section of people who exercise their choice should never remain in a state of fear. Law must have the acceptability of the constitutional parameters[18].
Furthermore, certain sections of our society have been living in shackles of exclusion and the SC recognized this step to be one of the first in the direction of a better life, equality, rights, facilities and more for the LGBTQ+ community in India. Moreover, pointing out the aforementioned stigma,” CJI Misra stated, “We have to vanquish prejudice and embrace inclusion and ensure equal rights. Prejudices are deeply ingrained in society. Majoritarian views and popular views cannot dictate constitutional rights. The LGBT community possess human rights like all other sections of society. Equality is essence of constitution. S. 377 is arbitrary.”[19]
In addition to directing the Union of India to properly broadcast the fact that homosexuality is not a criminal offence and create public awareness to eliminate the stigma, the Supreme Court suggested that the Indian police force should be given be training to better understand the LGBTQ+ community[20].
Status around the Globe
A summary of changes took place to laws criminalizing homosexuality around the world, since the repeal of S. 377 in India[21].
Angola decriminalized homosexuality on January 23rd, 2019. The passage, which banned same-sex relations—vices against nature, provision in its penal codes—was removed by the Parliament. Bhutan’s lower house of parliament voted to decriminalize homosexuality by an overwhelming majority, on July 7th, 2019, by amending their penal code—deleting sections 213 and 214. The High Court of Justice in Trinidad and Tobago ruled on April 12th, 2018, that the country’s anti-buggery and serious indecency laws are unconstitutional.
Countries like Dominica, Botswana, Barbados, Saint Vincent and the Grenadines also introduced certain changes in their legal system for progressive steps and to incorporate changes in the direction of better LGBTQ+ rights and equalities.
Conclusion
The struggle against social and legal discrimination of the LGBTQ+ community has been long and arduous. The initial objective of decriminalising private and consensual same-sex acts has been achieved in most countries either by legislations of by courts overturning such laws, though countries, largely in Africa and West Asia still retain such laws[22].
Despite India being a part of the former with the landmark Navtej Singh Johar judgement, the fact remains that there’s a long way to go from decriminalization of a private, consensual, sexual relationship. This, extremely valued and cherished judgement, seems to be the first step in the right direction of equality, life and freedoms enshrined under the Constitution for people regardless of their gender identity and sexual orientation. There is enormous hope for more legislations and support to come in place for the guarantee of further provisions and protection of rights of the LGBT community.
[1] National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
[2] Joseph Raz, The Morality of Freedom (Clarendon Press, 1986) 360.
[3] Upendra Baxi, “Dignity in and with Naz”, in Law Like Love: Queer Perspectives on Law (Arvind Narrain & Alok Gupta Ed., 2011) 231.
[4] (2017) 10 SCC 1.
[5] (2018) 1 SCC 791.
[6] (2014) 1 SCC 1.
[7] Indian Penal Code, 1860 § 377 (repealed in parts).
[8] Ibid, Explanation to the Section.
[9] Naz Foundation v. Government of NCT , (2009) 160 DLT 277.
[10] Shamnad Basheer, Sroyon Mukherjee & Karthy Nair, Section 377 and the ‘order of nature’: Nurturing ‘Indeterminacy’ in the law?, 2 NUJS L Rev. 433, 434 (2009).
[11] Ibid.
[12] Supra, note 6.
[13] Supra, note 4.
[14] Associate Aashi Agarwal, Decriminalization of Section 377: Reality or Facade?, Lawyered (Oct. 10, 2019), https://www.lawyered.in/legal-disrupt/articles/decriminalization-section-377-reality-or-facade/.
[15] Supra, note 6.
[16] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
[17] Supra, note 6.
[18] (2018) 1 SCC 791.
[19] Riddhi Chakraborty, Section 377 Decriminalized: Here’s Everything you need to know, Rolling Stone India (Sept. 9, 2018, 4: 45 PM), https://rollingstoneindia.com/377-decriminalized/.
[20] Ibid.
[21] Bex Montz, The Fight to decriminalize Homosexuality since the repeal of Section 377, Outright Action International (Aug. 1, 2019, 3: 37 PM), https://outrightinternational.org/content/fight-decriminalize-homosexuality-repeal-section-377.
[22] Nayantara Ravichandran, Legal Recognition of Same-Sex Relationships in India, 5 JILS 95, 95-96 (2013-14).
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