Love after the time of 377

The unanimous verdict of the Supreme Court's five-judge constitutional bench in Navtej Singh Johar & Ors., decriminalising homosexuality and recognising the constitutional rights of LGBTI persons, has led to a massive outpouring of emotion and celebrations across the country and around the world. Reading the four opinions together, it is clear that at the heart of the verdict lies an overwhelming endorsement of the right to personal autonomy and choice. The judges have held that this right includes the right to choose one's partner, the right to sexual autonomy and agency, the right to love, to live one's life with dignity, not confined just to the privacy of the home but attaching to the body of the individual and extending to public spaces.

This expansive reading of personal autonomy-and the centrality of this right to the judges' reasoning-can be seen as an extension of the Supreme Court's own decisions after the 2013 Koushal decision, reinstating Section 377 of the Indian Penal Code (IPC) and re-criminalising homosexuality. This string of cases includes NALSA (2014), recognising citizenship rights of the transgender community; Puttaswamy (2017), upholding the fundamental right to privacy; Shafin Jahan (2018), upholding the right to be in a relationship of one's choice; Shayara Bano (2017), declaring that a law could be struck down as unconstitutional if it is manifestly arbitrary; Common Cause, recognising the right to a dignified death of those who have slipped into a permanent vegetative state; Shakti Vahini (2018), recognising the right to choose a life partner as a facet of individual liberty, where the court has opposed the practice of honour killings as a threat to the constitutional right to individual liberty.

Central to the judges' exposition of the right to personal autonomy is the right to dignity, linked to the right to privacy and the right to exercise choice without fear. What is significant, and connects to the line of cases preceding this judgment, is the court's linking of the right to dignity to the idea of fraternity. According to the judges, just as the state is bound to protect individual rights, it is equally incumbent on society to respect individual rights. Navtej Johar thus opens up further possibilities for a diverse range of situations where personal autonomy and the right to choice of individuals have been curtailed.

The second cluster of arguments that runs through the four concurring opinions in this case is a robust reading of the right to equality, both under Article 14 (the right to equality and equal protection of the law) and Article 15 (prohibition against discrimination based on religion, race, caste, sex, etc.) of the Constitution. The judges hold that the distinction made by Section 377 between 'natural' and 'unnatural' sexual intercourse is arbitrary, unsupported by scientific evidence, and does not withstand legal scrutiny. The court recognises scientific developments, including guidelines of the American Psychiatric Association, the World Health Organization and a 2018 Position Statement by the Indian Psychiatric Society, all of which state that homosexuality is no longer considered to be a mental health disorder, and cannot be altered by any 'treatment'. The court recognises homosexuality to be a natural variation of a range of sexualities found in nature.

The judges abandon a formalistic reading of the 'intelligible differentia' test, overruling an earlier decision in Air India vs Nargesh Meerza (1981), in which the Supreme Court had upheld a discriminatory rule that allowed for disparities in pay and promotion-related policies for men and women in flight cabin crew. The court based its decision on a very narrow interpretation of Article 15, and justified this step through gender stereotypical views of the roles of men and women, perpetuating the notion that the obligation of raising a family was to be borne by women. This bench, in its reading of the equality provisions, recognises that a law that is on the face of it neutral can have a disproportionately discriminatory impact on a section of society. In this specific case, Section 377 does not specifically mention homosexuals, but it has been applied overwhelmingly to target LGBTI persons.

The court not only explicitly rejects the rationale in Nargesh Meerza, but goes a step further holding that the quality provisions in our Constitution must be interpreted to challenge gender stereotypes, a heteronormative bias, binary formulations of human sexuality, and must instead, in Justice D.Y. Chandrachud's words, protect "the fluidities of sexual experience" and "plural ways of life and infinite shades of love and longing".

The judges read Article 15 expansively to read non-discrimination based on sexual orientation into the term 'sex', relying on precedents such as NALSA, as well as a plethora of international case law. In this, they reiterate the logic laid down in Naz Foundation, in which the Delhi High Court had also come to a similar conclusion. Another aspect of the judgment that strongly resonates with Naz Foundation is the judges' reiteration of the role of the courts, and their unequivocal decision that constitutional morality always trumps societal morality
Rejecting the logic in Koushal of the "presumption of constitutionality" (that the Constitution brings into force pre-colonial law unless they are expressly amended), the court says that such a presumption does not come into place in a case like this, where the petitioners have demonstrated a clear violation of fundamental rights.

The court emphasises that the role of the courts is to step in to prevent violations of fundamental rights, when the legislature and executive have failed to do so. The court has held that it is the duty of the court to protect the rights of 'discrete and insular' identities, however 'minuscule' their numbers may be. In doing so, the court recognises that Section 377 was never just about prosecutions, but about the threat of being prosecuted, about blackmail, fear and the perpetuation of a culture of silence and stigmatisation of LGBTI identities.

The judges identify the ideals of plurality, diversity, inclusiveness, equality, fraternity and liberty, among others, as being central to the character and vision of the Indian Constitution. They highlight the transformative nature of the Indian Constitution, as a document that is vibrant, dynamic and committed to social transformation.

In their powerful articulation of constitutional morality, especially through the constitutional value of fraternity, the judges are clear that they are not just speaking about state violations of rights, but also violations by other actors in society. Their judgment is a direct challenge to the values that underpin honour killings, the obstruction of inter-religious and inter-caste marriages, kidnappings, forced marriages, house arrest, and other forms of violence perpetrated by families on their own kith and kin to protect their reputation.

The court envisages this judgment as not just about guaranteeing LGBTI persons their rights, but equally as a vision of the kind of society we live in. Their articulation of constitutional morality and the value of fraternity is as much about what it means for the majority of this country as it means for its minorities
An important aspect of this judgment is its reliance on the doctrine of non-retrogression. As per this doctrine, the State should not take deliberate steps that erode or reverse rights. The court holds that if it were to accept the law laid down in Koushal, it would lead to a retrograde step in the progressive realisation of rights under the Constitution.

The judges have acknowledged the parents and families of LGBTI persons, many of whom have been intervenors in different stages of the legal challenge to Section 377. The court quotes the late Justice Leila Seth, who, in the wake of Koushal, wrote a moving article from the point of view of a mother and a judge, criticising the judgment as inhumane and profoundly cruel.

Justice Indu Malhotra, in her concurring opinion, in an extraordinary statement, states that history owes an apology to LGBTI persons and their families, for the ignominy and ostracism they have suffered through the centuries. The remorse evident in Justice Malhotra's statement sums up the mood of the court, which, in overturning the Supreme Court's 2013 decision in Koushal, has made amends for the grief, pain and rage caused by the callous words of the judges in that case.

Navtej Johar inaugurates a phase of healing and hope, a moment of joy, remembrance and gratitude, of overwhelming relief and reflection, an opportunity to pause and look back at the years of tireless activism, of countless untold stories, of intimate encounters with the law, of joyous team spirit in the face of adversity and of the contributions of people in different capacities from all over the world. This judgment is part of an extraordinary political and emotional journey and a continuing struggle for equal rights. It is a powerful indictment of the hypocrisies of society that drive the extreme violence and brutality faced by those who dare live life on their own terms.

Source: Siddharth Narrain's article in India Today September 15, 2018