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“Fundamental Rights not dependent upon outcome of elections”, Highlights of the Section 377 Judgment

Bar & Bench

Meera Emmanuel and Murali Krishnan

In a  historic judgment, the Supreme Court of India has read down Section 377 of the Indian Penal Code (IPC) to decriminalise sex between consenting adults of the LGBT community.

After 158 years of colonial-origin criminalisation, a Constitution Bench comprising Chief Justice of India, Dipak Misra and Justices Rohinton Fali Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra unequivocally held that homosexuality is not a crime.

Here, we take a look at some of the highlights in the four concurring judgments passed by the Bench.

Homosexuality is natural, innate

This could perhaps be the most important aspect of this ruling in terms of its impact on how the society will view LGBT persons.

CJI Dipak Misra in his judgment made it unambiguously clear that homosexuality is as much ingrained, innate and natural as heterosexuality.

The sexual orientation of a person constitutes the core of the person’s identity and to feel sexually attracted towards the same sex is controlled by neurological and biological factors.

“..it has to be appreciated that homosexuality is something that is based on sense of identity. It is the reflection of a sense of emotion and expression of eagerness to establish intimacy. It is just as much ingrained, inherent and innate as heterosexuality. Sexual orientation, as a concept, fundamentally implies a pattern of sexual attraction. It is as natural a phenomenon as other natural biological phenomena. What the science of sexuality has led to is that an individual has the tendency to feel sexually attracted towards the same sex, for the decision is one that is controlled by neurological and biological factors. That is why it is his/her natural orientation which is innate and constitutes the core of his/her being and identity.”

Justice Chandrachud’s observations in the area even prompts him to query,

What is ‘natural’ and what is ‘unnatural’? And who decides the categorization into these two ostensibly distinct and water-tight compartments? Do we allow the state to draw the boundaries between permissible and impermissible intimacies between consenting adults?

The sentiment is also prominent in the judgment rendered by Justice Indu Malhotra. She observes,

A person’s sexual orientation is intrinsic to their being. It is connected with their individuality, and identity… Homosexuality and bisexuality are natural variants of human sexuality.”

Constitutional morality v. Societal morality

One of the most significant discussions in this judgment is regarding the concept of ‘morality’. What is the ambit of this term, what is the extent to which societal perceptions shape morality and what should the Courts apply to determine validity of any act or omission?

This judgment makes it clear that morality is Constitutional morality as opposed to societal morality and it is the Constitutional morality which should guide the Constitutional courts in order to decide whether a particular act, omission or transgression is valid or not.

In this regard CJI Dipak Misra says,

“It needs no special emphasis to state that whenever the constitutional courts come across a situation of transgression or dereliction in the sphere of fundamental rights, which are also the basic human rights of a section, howsoever small part of the society, then it is for the constitutional courts to ensure, with the aid of judicial engagement and creativity, that constitutional morality prevails over social morality.”

Misra J. makes it clear that in the garb of social morality, the members of the LGBT community must not be outlawed or given a step-motherly treatment of malefactor by the society. If that happens or if such a treatment to the LGBT community is allowed to persist, then the Constitutional courts, which are under the obligation to protect the fundamental rights, would be failing in the discharge of their duty. A failure to do so would reduce the citizenry rights to a cipher, Misra J. states.

He concludes by holding that Constitutional courts exist to uphold the Constitution. While testing the Constitutional validity of a provision of law, if a Constitutional court is of the view that the impugned provision falls foul to the precept of Constitutional morality, then the said provision has to be declared as unconstitutional.

Justice Rohinton Nariman has also dealt with the subject in detail pinning the blame of Section 377 on Victorian morality.

Calling it a product of the Victorian era with its attendant puritanical moral values, Nariman J. goes on to state that Victorian morality must give way to Constitutional morality.

“Constitutional morality is the soul of the Constitution, which is to be found in the Preamble of the Constitution, which declares its ideals and aspirations, and is also to be found in Part III of the Constitution, particularly with respect to those provisions which assure the dignity of the individual. The rationale for Section 377, namely Victorian morality, has long gone and there is no reason to continue with as Justice Holmes said in the lines quoted above in this judgment – a law merely for the sake of continuing with the law when the rationale of such law has long since disappeared.”

Relying on S. Khushboo v. Kanniammal and Anr [(2010) 5 SCC 600], Nariman J. states that notions of social morality are inherently subjective and criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy.

Morality and criminality are not co-extensive – sin is not punishable on earth by Courts set up by the State but elsewhere; crime alone is punishable on earth.

To confuse the one with the other is what causes the death knell of Section 377, insofar as it applies to consenting homosexual adults”, Nariman J. held.

Justice Chandrachud’s views on the subject are apparent from the following observation,

Society cannot dictate the expression of sexuality between consenting adults. That is a private affair. Constitutional morality will supersede any culture or tradition…

Justice Chandrachud has also criticised the social hypocrisy in the moral notion underlying Section 377 that sexual intercourse must be relegated primarily to the field of procreation, even going so far as to term it a manifest arbitrariness writ large.

Mainstream as they may be, Justice Chandrachud has emphasised that such notions cannot demand conformity in a democracy.

Democratic as it is, our Constitution does not demand conformity. Nor does it contemplate the mainstreaming of culture. It nurtures dissent as the safety valve for societal conflict. Our ability to recognise others who are different is a sign of our own evolution. We miss the symbols of a compassionate and humane society only at our peril.”

Mental Healthcare Act and the intent of Parliament

Justice Rohinton Nariman’s judgment has adverted to the Mental Healthcare Act which dispels notions that homosexuality is a mental illness. This, Justice Nariman states, is reflective of the Constitutional values as reflected by the Supreme Court’s judgments.

The definition of mental illness under Section 2(s) of the Act throws to the wind all earlier misconceptions of mental illness including the fact that same-sex couples who indulge in anal sex are persons with mental illness. Nariman J. states.

“The present definition of mental illness in the 2017 Parliamentary statute makes it clear that homosexuality is not considered to be a mental illness. This is a major advance in our law which has been recognized by the Parliament itself.”

It is also buttressed by Section 3 of the Act.

“It is thus clear that Parliament has unequivocally declared that the earlier stigma attached to same-sex couples, as persons who are regarded as mentally ill, has gone for good. This is another very important step forward taken by the legislature itself which has undermined one of the basic underpinnings of the judgment in Suresh Kumar Koushal.”

How far should the State be interested in a citizen’s sexuality?

On this aspect, Justice Chandrachud is unequivocal in holding that the State has no legitimate interest to interfere in matters concerning a citizen’s sexual orientation.

Sexuality cannot be construed as something that the State has the prerogative to legitimize only in the form of rigid, marital procreational sex … Intimacy between consenting adults of the same-sex is beyond the legitimate interests of the state.

He observes that sexual orientation is a fluid concept, the determination of which is a part of one’s decisional autonomy.

An individual’s sexuality cannot be put into boxes or compartmentalized; it should rather be viewed as fluid, granting the individual the freedom to ascertain her own desires and proclivities. The self- determination of sexual orientation is an exercise of autonomy.

He also goes on to emphasise that such matters of sexual autonomy would not be confined to private spheres alone.

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.”

Justice Indu Malhotra’s approval for these views is evident in the following, among other, observations.

A subjective notion of public or societal morality which discriminates against LGBT persons, and subjects them to criminal sanction, simply on the basis of an innate characteristic runs counter to the concept of Constitutional morality, and cannot form the basis of a legitimate State interest.

Discrimination founded upon the stereotypical role of sex violates Article 15

Discrimination on the ground of sexual orientation under Section 377 is also a violation of Article 15 which prohibits discrimination on the ground of sex.

The rationale underlying this conclusion is that Section 377 is founded upon stereotypical gender roles, which is against the mandate of Article 15. Justice Chandrachud explains this aspect as follows,

Statutes like Section 377 give people ammunition to say ‘this is what a man is’ by giving them a law which says ‘this is what a man is not.’ Thus, laws that affect non-heterosexuals rest upon a normative stereotype…

Endorsing this stance, Justice Indu Malhotra observes,

Sex as it occurs in Article 15, is not merely restricted to the biological attributes of an individual, but also includes their ‘sexual identity and character’.”

Fundamental Rights do not depend upon the outcome of elections

Perhaps the most interesting passage in this judgment can be found in para 81 of Justice Rohinton Nariman’s opinion. This came in response to the argument of the intervenors that changes in society, if any, can be reflected by amending laws by the elected representatives of the people.

Responding to the same, Nariman J. has stated that the very purpose of the fundamental rights chapter in the Constitution of India is to withdraw the subject of liberty and dignity of the individual and place such subject beyond the reach of majoritarian governments so that constitutional morality can be applied by this Court to give effect to the rights, among others, of ‘discrete and insular’ minorities.

One such minority has knocked on the doors of this Court as this Court is the custodian of the fundamental rights of citizens, he says before stating,

“These fundamental rights do not depend upon the outcome of elections. And, 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 in India.”

A similar observation is made by Justice Indu Malhotra, as she attacks the correctness of the judgment in Suresh Kaushal’s case, point by point. Challenging the Court’s excuse that it could not interfere in a legislative sphere to read down Section 377, she observes,

The conclusion in Suresh Kumar Koushal’s case to await legislative amendments to this provision may not be necessary. Once it is brought to the notice of the Court of any violation of the Fundamental Rights of a citizen, or a group of citizens the Court will not remain a mute spectator, and wait for a majoritarian government to bring about such a change.

No presumption of Constitutionality with respect to pre-constitutional laws

This is another significant aspect of Justice Nariman’s ruling. He has held that there is no presumption of Constitutionality when it comes to pre-constitutional statutes like Indian Penal Code.

The presumption of constitutionality of a statute is premised 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-constitutional law is made by either a foreign legislature or body, none of these parameters obtain. Therefore, no such presumption attaches to a pre-constitutional statute like the Indian Penal Code, holds Nariman J. before applying the same to Section 377 to strike it down.

Further delegitimizing the provision is Justice Chandrachud’s observation that Section 377 was originally inserted with little thought or discussion.

So abominable did Macaulay consider these offences that he banished the thought of providing a rationale for their being made culpable. The prospect of a public discussion was revolting.

In fact, Justice Chandrachud commences his judgment with a harsh indictment of the repressive regime that was allowed to continue well beyond its time.

The lethargy of law is manifest againA charter of morality made their relationships hateful. The criminal law became a willing instrument of repression. To engage in ‘carnal intercourse’ against ‘the order of nature’ risked being tucked away for ten years in a jail. The offence would be investigated by searching the most intimate of spaces to find tell-tale signs of intercourse. Civilisation has been brutal.

Transformative Constitutionalism and Doctrine of progressive realization of rights

Chief Justice Dipak Misra has dealt with these principles in detail in his judgment.

Misra J. begins by stating that for understanding the need of having a Constitutional democracy and for solving the million dollar question as to why we adopted the Constitution, we perhaps need to understand the concept of Transformative Constitutionalism with some degree of definiteness.

The ultimate goal of our Constitution is to make right the upheaval which existed in the Indian society before the adopting ofthe Constitution. Explaining Transformative Constitutionalism further, he states,

The Court in State of Kerala and another v. N.M.Thomas and others observed that the Indian Constitution is a great social document, almost evolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy and its provisions can be comprehended only by a spacious, social science approach, not by pedantic, traditional legalism. The whole idea of having a Constitution is to guide the nation towards a resplendent future. Therefore, the purpose of having a Constitution isto transform the society for the better and this objective is the fundamental pillar of transformative constitutionalism.”

Thus, the concept of Transformative Constitutionalism is the ability of the Constitution to adapt and transform with the changing needs of the times.

The Constitution would become a stale and dead testament without dynamic, vibrant and pragmatic interpretation. Constitutional provisions have to be construed and developed in such a manner that their real intent and existence percolates to all segments of the society. That is the raison d’etre for the Constitution.

Justice Chandrachud has also capitalised on this transformative potential of the Indian Constitution to justify his conclusions.

… this case involves much more than merely decriminalising certain conduct which has been proscribed by a colonial law. The case is about an aspiration to realise constitutional rights…Above all, our decision will speak to the transformative power of the Constitution … to assure the values of a just, humane and compassionate existence to all her citizens.

Misra J. also elucidates on progressive realisation of rights.

“This doctrine invariably reminds us about the living and dynamic nature of a Constitution. Edmund Burke, delineating upon the progressive and the perpetual growing nature of a Constitution, had said that a Constitution is ever-growing and it is perpetually continuous as it embodies the spirit of a nation. It is enriched at the present by the past experiences and influences and makes the future richer than the present.”

The doctrine of progressive realization of rights, as a natural corollary, gives birth to the doctrine of non-retrogression. As per this doctrine, there must not be any regression of rights. In a progressive and an ever-improving society, there is no place for retreat. The society has to march ahead.

The doctrine of non-retrogression sets forth that the State should not take measures or steps that deliberately lead to retrogression on the enjoyment of rights either under the Constitution or otherwise.

“The aforesaid two doctrines lead us to the irresistible conclusion that if we were to accept the law enunciated in Suresh Koushal’s case, it would definitely tantamount to a retrograde step in the direction of the progressive interpretation of the Constitution and denial of progressive realization of rights. It is because Suresh Koushal’s view gets wrongly embedded with the minuscule facet and assumes criminality on the bedrock being guided by a sense of social morality.”

Section 377, IPC: Facially neutral, actually destructive

Justice Chandrachud has commented extensively on the destructive effects suffered by the LGBT community on account of Section 377. He observes,

The impact of Section 377 has travelled far beyond the punishment of an offence. It has been destructive of an identity which is crucial to a dignified existence.

Though facially neutral, the effect of the provision is to efface specific identities. These identities are the soul of the LGBT community.

Parallels were also drawn between the fear-inherent existence lead by LGBT persons and those who continue to be harassed for challenging caste and community barriers.

What links LGBT individuals to couples who love across caste and community lines is the fact that both are exercising their right to love at enormous personal risk and in the process disrupting existing lines of social authority.”

While this is the case, Justice Indu Malhotra also questioned the Supreme Court’s refusal to intervene in the Suresh Koushal case on the ground that LGBT persons only comprised a miniscule fraction of the country’s population.

The mere fact that the LGBT persons constitute a ‘miniscule fraction’ of the country’s population cannot be a ground to deprive them of their Fundamental Rights guaranteed by Part III of the Constitution…

Under the Constitutional scheme, while the majority is entitled to govern; the minorities like all other citizens are protected by the solemn guarantees of rights and freedoms under Part III.”

History owes an apology

Before parting with the case, Justice Indu Malhotra also expressed words of remorse for the prolonged suffering endured by LGBT persons on account of Section 377.

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.

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 recognise that homosexuality is a completely natural condition, part of a range of human sexuality.

The misapplication of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons.’”

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