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.

FrontLine - - COVER STORY - BY V. VENKATESAN

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-

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