Rainbow of Hope: The implications of the privacy judgment on Section 377

Rainbow of Hope: The implications of the privacy judgment on Section 377

Satvik Varma

Among the downpour of rights that the recent Constitution Bench decision of the Supreme Court of India has reaffirmed for the citizens, what stands out, like a rainbow, are the clear observations regarding the rights of same-sex partners.

Despite being a nine-judge bench, in keeping with judicial propriety, the Supreme Court stated that since the challenge to Section 377 of the Indian Penal Code is pending consideration before another bench, its constitutional validity will be decided in those proceedings.

But the writing on the wall is clear! Of the six different, yet unanimous decisions, three discuss the issue regarding an individual’s sexual orientation being an important aspect of privacy, which is a form of dignity and a sub-set of liberty. The law has been laid down, it’s binding on smaller benches and now it’s just a matter of time before VIBGYOR flags are freely unfurled.

At the outset, one should note that besides the Curative Petition (Naz Foundation Trust v. Suresh Kumar Koushal & Anr) pending before the Supreme Court, a separate Writ Petition, Navtej Singh Johar & Ors v. Union of India is also pending. This latter petition questions the Constitutionality of the draconian Section 377, which criminalises consensual sexual acts amongst consenting same-sex partners. This is the first and only case filed by the true representatives of the LGBT community.

Despite being highly accomplished, Navtej Johar and the other celebrities in their petition acknowledge their reluctance to approach Court out of the fear of persecution and prosecution. The privacy judgment gives them more than just hope. It opens the door to their freedom to be who they really are. It should also give them courage to no longer have to hide and instead begin to truly cherish the dignity of their existence.

As a legal practitioner, it’s fascinating to read the scholarly opinion authored by Justice Dr. DY Chandrachud for himself and three other Judges. He notes,

“the Constitution has evolved and must continuously evolve to meet the aspirations and challenges of the present and the future.”

Justice Rohinton Nariman, in his usual eloquence, cites another verdict which notes

“the Constitution has not only to be read in the light of contemporary circumstances and values, it has to be read in such a way that the circumstances and values of the present generation are given expression in its provisions.” 

Applying this constitutional jurisprudence, the judgment details that,

“privacy, in its simplest sense, allows each human being to be left alone in a core which is inviolable. Yet the autonomy of the individual is conditioned by her relationships with the rest of society. Those relationships may and do often pose questions to autonomy and free choice. The overarching presence of state and non state entities regulates aspects of social existence which bear upon the freedom of the individual.”

The ruling goes on to state,

 “privacy is a concomitant of the right of the individual to exercise control over his or her personality. It finds an origin in the notion that there are certain rights which are natural to or inherent in a human being. Natural rights are inalienable because they are inseparable from the human personality. The human element in life is impossible to conceive without the existence of natural rights.”

The right to sexual freedom/orientation, personal relationships, cohabitation, procreation and individual autonomy are amongst those inalienable natural rights.

Conspicuously, the rights of the LGBT community have been detailed under the heading titled “Discordant Notes.” Justice Chandrachud holds as flawed and unsustainable the constitutional basis of the verdict of the division bench in the Koushal Case. The privacy judgment notes,

“even if a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders, it is not a sustainable basis to deny the right to privacy. The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion.”

The judgment goes on to state,

“discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self- worth of the individual.”

Taking exception to the rights of the LGBT community previously having been termed as “so-called rights”, Justice Chandrachud notes,

“the expression “so-called” seems to suggest the exercise of a liberty in the garb of a right which is illusory. This is an inappropriate construction of the privacy based claims of the LGBT population. Their rights are not “so-called” but are real rights founded on sound constitutional doctrine.

They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination.”

Concurring with the above, Justice SK Kaul very eruditely also finds fault with the verdict of the Division Bench in the Koushal case and states,

“the majoritarian concept does not apply to Constitutional rights and the Courts are often called up on to take what may be categorized as a non- majoritarian view, in the check and balance of power envisaged under the Constitution of India. Ones sexual orientation is undoubtedly an attribute of privacy.”

Notably, the LGBT petitioners in their Writ Petition argued that Section 377 violates their rights of dignity, autonomy, health, privacy, association and had also challenged the criminalization of sexual minorities, as being violative of their fundamental rights. They have also asserted a right of bodily integrity and self determination and at many levels the verdict of the Constitution Bench will give them a huge sigh of relief.

To draw a parallel, when the Supreme Court of the United States legitimised gay marriages across all States, Justice Anthony Kennedy, speaking for the majority noted,

“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 fulfillment 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.”

While legitimizing marriage amongst same-sex partners in India may still be some time away, for now, the Constitution of India also grants to all its citizens the right to equality. In fact as noted in the privacy judgment,

“equality demands that the sexual orientation of each individual in society must be protected on an even platform. 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 of the Constitution.”

In conclusion, to describe the Constitution Bench verdict as just a landmark decision really doesn’t do it justice. The verdict encompasses many extra-ordinary achievements. It also shows the strength of our judiciary in acknowledging that errors of the past can and will be corrected. The verdict reinforces our belief regarding the supremacy of the rule of law and it is comforting that the law continues to protect individual rights and liberties against unreasonable State action.

It’s reassuring for citizens that the Apex Court agrees that the State should not tell individuals what they should eat or how they should dress or whom they should be associated with either in their personal, social or political life. It is a vindication for the ordinary people that the highest Court of our land seeks to actively protect the minorities from the dangers of discrimination either on account of their views, gender or religious practices.

Our Supreme Court has truly lived up to its official seal which bears the words “Yato Dharma Tato Jaya.” Literally translated it means: where there is dharma there is victory. Dharma, according to Indian scriptures, is righteousness, encompassing truth and equality. While celebrating this victory, let us also celebrate the freedom and independence of our judiciary. Hopefully, this is just one among many victories for the Sovereign, Socialist, Secular, Democratic, Republic that is our great nation!

Satvik Varma is a corporate commercial lawyer in New Delhi. A graduate of Harvard Law School, he’s worked on Wall Street and is enrolled in India and New York. Twitter: @satvikvarma Email: satvik@indlawchambers.com

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