End of an unjust law

The Supreme Court finally decriminalises Section 377 of the IPC, granting the LGBTQI community the right to equality and dignity guaranteed by the Constitution.

THE question before the Supreme Court’s five-judge Constitution Bench was simple: should the 2013 order of a two-judge bench in Suresh Kumar Kaushal vs Naz Foundation be overruled? In that case, the bench had set aside the Delhi High Court’s 2009 judgment decriminalising Section 377 of the Indian Penal Code (IPC), 1860.

Upholding the right to privacy as a fundamental right, a nine-judge bench of the Supreme Court in 2017 rejected the Kaushal judgment for its reasoning, although it postponed its overruling to a different occasion. That occasion offered itself in Navtej Singh Johar vs Union of India, which was decided by a five-judge bench on September 6.

The unanimous judgment of the Constitution Bench turned out to be historic for a number of reasons.

The bench comprising Chief Justice of India (CJI) Dipak Misra and Justices A.M. Khanwilkar, D.Y. Chandrachud, Rohinton Fali Nariman and Indu Malhotra delivered four concurring judgments, each highlighting a unique aspect of the litigation before them. They agreed that Section 377, insofar as it criminalises consensual sex between two adults, is unconstitutional and overruled the Kaushal verdict without any hesitation.

Section 377 made “carnal intercourse against the order of nature” an offence. This provision, understood as prohibiting non-peno vaginal intercourse, reflected the imposition of a particular set of morals by a colonial power in the mid 19th century. Under Article 372(1) of the Constitution, all laws in force before the commencement of the Constitution continue to be in force until altered or repealed. Section 377 and other pre-independence laws were thus saved and allowed to operate in independent India.

But the provision in Section 377, as it was worded, was revolting as it did not distinguish between homosexual and heterosexual acts and included in its ambit all sexual acts that were not aimed at procreation. But the lack of distinction did not unduly bother straight couples, as in practice it was hardly invoked against them. As Justice Nariman explained, if the provision is to be read down so as to exclude heterosexual acts that are consensual in nature, then also it would suffer from the vice of arbitrariness, inequality and discrimination against LGBTQIS (lesbian, gay, bisexual, transgender, queer and intersex couples).

As a result, Justice Chandrachud pointed out, Indian citizens belonging to sexual minorities waited and watched as their fellow citizens were freed from the British yoke while their fundamental freedoms remained restrained under an antiquated and anachronistic law, forcing them to live in hiding, in fear, and as second-class citizens.

Justice Indu Malhotra, in her concurrent judgment, acknowledged: “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.”

Navtej Johar, the lead petitioner in the case before the Constitution Bench, narrated his realistic experience thus:

“While society, friends and family are accepting of my sexuality, I cannot be fully open about my identity and my relationships because I constantly fear arrest and violence by the police…without the existence of this section, the social prejudice and shame that I have faced would have been considerably lessened…the fact that gay people, like me, are recognised only as criminals is deeply upsetting and denies me the dignity and respect that I feel I deserve.”

LARGER ISSUES

While examining the larger issues raised by the petitions challenging the validity of Section 377, the bench wondered whether the object sought to be achieved by it had any relation with its classification of carnal intercourse in the ordinary course and those who do so against the order of nature. Justice Chandrachud held that if the object of the classification itself was illogical, unfair and unjust, the classification too would be unreasonable. It was astonishing that the Kaushal bench had conceded that “no uniform test could be culled out to classify acts as ‘carnal inter-