By Adv. Nikita Vaigankar
This case has contributed a lot to the beginning of a new phase in our country as its decision decriminalized all consented sexual acts between adults, including homosexual sex. For this reason, the judgment has been identified as one of the landmark decisions of the Indian judiciary, given on 6th September 2018.
The basic question was to determine the constitutionality of Section 377 of the Indian Penal Code. 1860 (hereinafter referred to as the “IPC”) which criminalized all sexual acts involving homosexual activity. The verdict, in this case, decriminalized section 377 to the extent that it made consensual sexual activity between persons of the same sex a crime. Other aspects of the provision, dealing with unnatural sex with animals and children, and sexual acts without consent such as rape, shall remain in force. However, there was a clear remark from the Hon’ble judges that this verdict is limited to realizing the unconstitutionality of Section 377 and it does not extend to other rights such as rights related to marriage or inheritance.
Prior to this verdict, Section 377 of IPC treated homosexual acts and other activities like anal and oral sex as unnatural offenses. The decision in Navtej Singh Johar declared the said section as unconstitutional in so far as it is concerned with consensual sexual conduct between adults of the same-sex and it declared that involvement in homosexual sex is no longer a criminal offence. Moreover, the Supreme court observed that discriminating on the basis of sexual orientation is a direct violation of fundamental rights.
This verdict made a huge impact on the life of homosexual couples and it paved the way to success for the activists fighting for the LGBT community’s rights. This decision was most awaited for them and on a momentous day, the campaigners of LGBT rights were assembled outside the court premises and cheered the decision of the Supreme court with joy, hugs, and some in tears too.
This decision was praised by open-minded people and even on the international platform, but at the same time, it faced severe criticism from a few religious groups and also by conservative rural communities who strongly opposed the said decision of the court.
The Ride Towards New Dawn
The ride was very tortuous as it aimed to decriminalize 157-year-old colonial law in effect from the time of British rule. In the early 1990s, various human rights groups began to raise their voice against section 377 and demanded that the provision be repealed. Then came the decision on the plea raised by NAZ foundation and the verdict in the case of Suresh Kumar Koushal and another vs NAZ Foundation and others in 2013 upholding the constitutionality of Section 377 stating that ‘sexual intercourse against the order of nature cannot be legalized’. This verdict was criticized widely on the international platform by various world leaders as well as human rights activists.
Soon after the judgment of Suresh Kumar Koushal, Sonia Gandhi, who was the President of the National Congress which was a ruling party at that time, asked Parliament to scrap Section 377. The Central government led by Indian National Congress had filed a petition for review stating that the judgment contains errors and is against the principles of fundamental rights guaranteed by the Indian constitution. On the other hand, the Naz Foundation also filed a review petition in the Supreme court against its judgment of 2013. Consequently, in January 2014, the Supreme court vehemently dismissed the petitions and refused to review the judgment.
Followed by the verdict of 2013, there were huge protests by many well-known film industry personalities along with others who commented against the ruling of the Supreme Court.
Finally, the verdict in the present case was pronounced on the 6th of September, 2018 and the hard work of the activists bore fruits.
Detailed Case Analysis
To begin with, in the present case of Navtej Singh Johar v/s Union of India, a writ petition was filed in the Supreme court by five Petitioners challenging the constitutionality of Section 377 of IPC. The Petitioners included a dancer named Navtej Singh Johar, Journalist Sunil Mehra, Chef Ritu Dalmia, Hoteliers Amar Nath, and Keshav Suri, and Businesswoman Ayesha Kapur. They asserted that the issues in their petition were very much different than that in the petition of the Koushal vs NAZ case. They based their whole argument on the fact that they had all been directly distressed by Section 377 as their fundamental rights are violated. The opposition included the Apostolic Alliance of Churches, Utkal Christian Council, and Trust God Ministries.
Counsel appearing on behalf of the Petitioners stated that the interpretation of Article 21 of the Constitution as advanced in the case of Suresh Kumar was extremely narrow. The rights related to sexual orientation cannot be formulated based on the opinion and acceptance of the majority. On the other hand, a part of Section 377 talking about carnal intercourse with animals was not challenged by the petitioners and the judges also considered it to be beyond any debate.
The striking submissions of the Petitioners included that the sexual orientation of a human being comes naturally and they are the reflections of their choice and are founded on the inclinations of their consent. It is neither a physical nor a mental illness rather, they are expressions and result of a free-thinking process and hence, an individual belonging to the LGBT community cannot be looked upon with stigma. Thus, criminalizing such acts is a direct attack on the right to privacy which is pivotal to Article 21 of the Constitution.
In addition to raising their voice against discrimination, the Petitioners demanded the protection of the rights of this community as the impact of their sexual orientation is to be realized in all spheres of their lives. It is very important to assure that they are not discriminated against by society and surrounding people, either openly or insidiously.
It was urged by the learned counsel that section 377 of IPC was the result of the mindset of the colonial era wherein sexual activities were considered primarily for procreation but since the times have changed and it is the need of the hour to get rid of such laws harming the individual’s dignity and forcing them to live in a constant state of fear and alienation, deprives them of their basic fundamental rights.
The Petitioners also submitted that if prima facie, it is shown to the court that the fundamental rights of any individual are violated, the presumption of constitutionality of any law cannot be retained. In the case of harassment and alienation of the LGBT community, it is evidently shown that the constitutionality of Section 377 was at stake. Due to the presence of this section, the LGBT community feared getting prosecuted if they reveal their sexual identity and therefore, they abstained from approaching the protectors of law and relied only upon their supporters like NGOs, parents, teachers, counselors, etc. to raise their voice against any harassment faced by them. If this section is retained it would violate various fundamental rights of the LGBT community like the right to privacy, right to dignity, right to equality, right to liberty as well as the right to freedom of expression. The section bars them from expressing their sexual identity and orientation and therefore, if the protection they are seeking is not granted to them, the identity of an individual will lose its significance and their existence would be reduced to mere survival.
Moreover, the petitioners contended that Section 377 of IPC is itself vague in nature as there is no definition or explanation mentioned about carnal intercourse against the order of nature in the section nor in the whole of IPC or any other law.
The petitioners pleaded before the court that being the final arbiter of the constitutional rights, the court shall not go with the flow of the majority views if the majority is against the rights of the LGBT community. The Court, in such types of cases, has to give more weightage to Constitutional morality rather than social morality as, the Constitution is supreme, and its values are the essence of the law of the land.
On the other hand, the Respondents relied heavily on the judgment laid down in the case of Suresh Koushal and raised the contentions that any unnatural thing cannot be allowed on the pretext of protection of the right to privacy as it would directly signify its abuse. Further, the acts involved under Section 377 of IPC are abusive acts that may harm the private organs of a partner, and hence, there is no question of personal liberty when it comes to abusing others. Such acts can be termed as immoral, derogatory, or undignified acts under the Constitution.
Another contention raised by the Respondents was that even though, the section dates back to the colonial era but still since ancient India till the year 2018, it aims to protect the very essence of public morality and is still legally, medically, and constitutionally relevant. To illustrate this, the opponents cited the observation of W. Friedmann from ‘Law in a Changing Society in which it is stated that any conduct which is prohibited by criminal sanctions and a large part of the society considers it to be worthy of condemnation, then it should be realized that it is deeply influenced by the values governing the society.’
Another contention of the Respondents stretched to the point that declaring Section 377 unconstitutional would harm the structure of the family, and the institution of marriage will lose its essence. Moreover, rampant homosexual activities for financial gains would corrupt the minds of our country’s youth and urge them to be involved in this trade.
With respect to the issue of the violation of fundamental rights, the Respondents contended that since the fundamental rights are not absolute, nothing is unreasonable in section 377 of IPC and while deciding the ambit and scope of constitutional morality, Article 25 of the Constitution may be given due consideration.
The Respondents argued in detail about the concept of consent which may have been obtained by putting a person in fear of death or hurt or due to intoxication or inability of understanding the nature and consequences of the acts. Hence, they stated that if the prayers of the Petitioners are allowed, it would ultimately lead to abuse of the right of privacy and violation of public morality.
Observation and Findings
“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognize that homosexuality is a completely natural condition, part of a range of human sexuality”.
Hon’ble Justice Indu Malhotra
The court rightly observed that an act to criminalize the sexual acts between consenting adults is irrational, arbitrary, and violates the fundamental rights as guaranteed by our Constitution. The court held that ‘the choice of whom to choose as one’s partner, the ability to find fulfillment in sexual intimacies, and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation.
The hon’ble court also observed that in a society that undergoes a rapid change in its social and economic spheres and is dynamic in nature, static and rigid interpretation of the Constitution by the court would stagnate the spirit of the Constitution and would harm its real transformative nature making it turn into a dead letter.
Speaking about sexual orientation, the court stated that every human being has certain basic biological characteristics and acquires or develops some facets under certain circumstances. These are either the inherent orientation or the one which is developed over time due to the choices made by an individual for the want of deriving satisfaction. Sexual orientation is a natural phenomenon which fundamentally implies a pattern of sexual attraction. It is a pure science in which the brain and genitals of a person function and react. Attraction towards the same sex is the result of neurological and biological factors and therefore, each individual’s sexual orientation is the core part of their identity and existence. To compel any person having a certain orientation would mean that a body part of that person is forced to perform an act which it was never formed to carry out.
Regarding the most argued concept of constitutional morality, the Supreme court made a remark that constitutional morality is not merely limited to the literal text of the constitution, rather it holds within itself a capacity to cover all the aspects of an ever-changing society, keeping in mind the core principles of the constitution. It was realized that even a single citizen can aspire to be something different or choose a unique trait because every citizen has perfect freedom to be different if they are competent to do so and if their acts do not violate anyone else’s freedom or rights because, in a society where everyone forms a part of the social engineering process, individual choice and freedom is not at all exception.
This judgment is identified as one of the most valuable judgments in displaying the role of the judiciary in protecting every citizen’s right, freedom of choice and human dignity. The judges quoted the saying of a very famous German thinker and poet named Johan Wolfgang von Goethe: “I am what I am. So take me as I am. No one can escape from their individuality”.
The judges said that the natural identity of an individual is obtained from nature itself and thus, that part of the personality of that individual needs to be accepted by all and looked upon with dignity. Non-acceptance of such traits by imposing punishment is an obsolete idea which destroys the identity of a person.
The hon’ble judges interpreted section 377 by noting that the said section uses the phrase ‘carnal intercourse against the order of nature’. The order of nature is not a static phenomenon and cannot be determined specifically.
Social morality also varies according to changing timse. What is natural to one may not be natural to another, but because of the majority opinion, the law cannot curtail inherent rights entrenched in an individual through various components of the right to life under Article 21 of the Constitution because the Test of Popular Acceptance is never a valid test to determine or disregard the rights guaranteed by the Constitution. The Constitutional framers never intended to protect the rights of the majority. If it were the case, then Part III of our constitution would have inculcated qualifying words like ‘majority citizens’ instead of ‘any citizen’ whose rights they actually intended to protect.
Hence, a community of people who pursue their freedom of choice should not lead their life in a state of fear unless their acts are within the parameters of the law. The judges considered that the primary pre-condition in any sexual activity between the two adults is their free consent.
In their advisory remarks, the court said that our society needs to change its attitude and mentality and should learn to accept the distinct identity of persons and respect them for who they are rather than compelling them to become who they are not.
Thus, after analysing Section 377, it was concluded that as far as the provision penalises any consensual sexual activity between two adults, it cannot be regarded as constitutional. However, if anyone engages in any kind of sexual activity with an animal, the said aspect of section 377 is constitutional and it shall remain a penal offence.
This decision drew the attention of highly notable personalities and institutions. Activists felt like it was another freedom struggle they had won as they were finally able to witness the discriminatory provision being thrown out. Many celebrities and famous personalities also reacted to this achievement and flooded social media with their posts and tweets. Film Director Karan Johar tweeted and mentioned the said judgment as a ‘historical one giving back the country its oxygen’.
However, some expressed their view that they were disappointed with the verdict and went to the extent of saying that it could give rise to an increase in the number of HIV cases. While Subramaniam Swamy, a Rajya Sabha member of the BJP, attacked the decision of the court and questioned the court if it will legalize sexual intercourse with animals in the name of personal liberty. An interesting thing to note is that our Hon’ble Prime Minister, Narendra Modi, has spoken relatively less about this issue, when asked, as compared to other socio-political issues in the country and on several occasions, he refused to comment on the same.
Meanwhile, at the international level, the UN welcomed and applauded the decision of the Supreme court saying that ‘sexual orientation and gender expression form an integral part of an individual’s identity the world over’. Amnesty International also strongly welcomed the decision of the court identifying it to be a milestone and a new era for millions of people in India.
Our Constitution is dynamic in nature, and not rigid. Therefore, its horizons must expand according to the changing time. In this manner, it will foster and strengthen equality and assist us to obtain a vision of equal rights for each and every citizen of the country. The judiciary, on the other hand, being a protector of the law, needs to keep in mind the necessities of the needy and minor sections of society, and adopt a progressive approach to address the realities of modern life faced by them by eliminating discriminatory practices rampant in nooks and corners of the society.
However, as citizens of the country, we need to think and act upon our duty to protect the rights of minorities and do justice to the literature of the Constitution because even after decriminalizing homosexual relationships, sexual minorities are looked upon with stigma in our society and are ill-treated due to which many of them fail to express their orientation and are forced to live the life which they are not born to live.