The article aims to enlighten the readers regarding the position of the law regarding homosexuality as it prevailed before and after 06/09/2018. The archaic law as entailed in the provision of Section 377 of I.P.C. punished voluntary carnal intercourse against the order of nature with any man, woman or animal with life imprisonment or up to 10 years.
Novel Interpretation by the Delhi High Court upholding the rights of the LGBTQ (lesbian, gay, bisexual, transgender, transsexual, queer)
Jurisprudence requires laws to be dynamic as per the changing needs of the society and that change was brought for the first time by the decision of the Honourable Delhi High Court in Naz Foundation v. Govt. of N.C.T. of Delhi, wherein it held that, Section 377 of IPC is unconstitutional so far as it criminalizes consensual sexual acts in private between adults who have attained 18 years of age as being violative of Articles 14, 15 and 21 of the Constitution. As per the said decision Section 377 I.P.C. will continue to hold good for non-consensual penile, non-vaginal sex and penile non-vaginal sex involving minors. The Court also held that it was completely a wrong notion to state that same sex relations would affect public health by rampant spread of AIDS. Privacy allows a person to develop human relations without any sort of interference from any organs of the State. Section 377 is that component of the law that denies a person the right to dignity and criminalizes the core identity of any individual solely on account of sexual orientation which is a gross violation of Article 21. It denies a gay person the right of living as a full person without any inhibitions due to social stigma. The popular morality or public morality cannot be the yardstick to justify or validate actions, as practices such as sati, untouchability etc., which were an accepted norm in the past have now been abolished. Popular morality is completely subjective and to a certain extent maybe referred to as ‘herd mentality’.
The Hon’ble Delhi High Court in the said decision held that the only form of morality that matters is constitutional morality. Criminalization only on the basis of sexual orientation is completely against constitutional morality. An important concept of inclusiveness was dealt with and furthermore, people perceived as ‘deviants’ or ‘different’ by the majority cannot be termed criminal by any law as the said differentiation lacks intelligible differentia. The said decision of the Delhi High Court makes it a landmark one in view of its broadened interpretation by incorporating various excerpts from authors worldwide, international reports etc. The decision was ahead of its time bringing India on the map in view of modernization and liberal interpretation of the law by utilizing the concept of inclusiveness, rationality & principles of natural justice.
Regressive interpretation by the Hon’ble Supreme Court
However, the said decision was overruled by the Hon’ble Supreme in Suresh Kumar Koushal and Anr. v. NAZ Foundation and Ors., which went on to hold that S.377 Indian Penal Code is constitutional. The court in this decision made certain observations viz., “In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.
This view was expressed as early as in 1973 in Jagmohan Singh v. State of U.P. In that case, a Constitutional Bench while considering the legality of the death sentence imposed by the Sessions Judge, Shahjahanpur, which was confirmed by the Allahabad High Court, wherein an argument raised by the counsel for the appellant was that capital punishment has been abolished in the U.S. on the ground of violation of the 8th Amendment. The said argument was not considered by stating that arguments which would be valid in respect of one area of the world may not hold good in respect of another area, in this context. Similarly, even if abolition in some parts of India may not make a material difference, it may be fraught with serious consequences in other parts.” The usage of the term “so-called rights” in the Supreme Court decision has come under extensive criticism keeping in mind that ultimately people from the LGBTQ community are human beings.
Ray of hope
Subsequent to the said decision, the Honourable Supreme Court held that right to privacy is a fundamental right in Justice K S Puttaswamy (Retired) v. Union of India. In the said decision, consensual sexual acts between people belonging to the same sex were discussed. Furthermore, in the said decision it was clarified that the rights of the community cannot be addressed to as so-called rights as held in Suresh Kumar Koushal and Anr. v. NAZ Foundation and Ors., but, in fact they are real rights founded on sound constitutional doctrine. In this decision, the court differentiated and held that even if a small population of this country feels discriminated even then there will be a violation of Article 21 of the Indian Constitution. The previous decision of the Honourable Supreme Court held that for the purpose of protecting a minuscule population of the country the public at large cannot be put to risk. Hon’ble Justice Sanjay Kishan Kaul in the said decision held that “the majority view cannot be the yardstick to uphold or deny the right to life of members of the LGBTQ community”. The said decision in lengths referred to various literature from around the world supporting the rights of the community.
The Supreme Court, however, did not pass any decision as and with regards to constitutionality of S.377 IPC at that given point of time keeping in view that the matter regarding constitutionality was pending before a larger bench.
S. 377 IPC held Unconstitutional
The Honourable Supreme Court on 06/09/2018 in Navtej Singh Johar & Ors. v. Union Of India, Thr. Secretary, Ministry Of Law And Justice held that Section 377 IPC criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution. The said judgment starts with an interesting quote from the great German thinker, Johann Wolfgang von Goethe, which needs a special mention which reads as, “I am what I am, so take me as I am”.
The said decision of the Hon’ble Supreme Court referred to the fallacy in the Judgment of Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. by holding that, the offence of “carnal intercourse against the order of nature” has not been defined in Section 377 and due to the vague interpretation which is too wide & open-ended, it would encompass within its realm, even sexual acts of consenting adults in private. Consensual relationships between adults cannot be classified along with offences of bestiality, sodomy and non-consensual relationships. Sexual orientation is immutable, since it is an innate feature of one’s identity, and cannot be changed at will or through therapy, medicine which is a myth. The choice of LGBTQ persons to enter into intimate sexual relations with persons of the same sex is an exercise of their personal choice, and an expression of their autonomy and self-determination and the said choice cannot amount to an offense! Thus, the Hon’ble Supreme Court by this landmark decision created history in the world by holding S.377 as unconstitutional in so far as consensual sexual acts between adults. The said decision came at a time when many courts & legislatures in countries around the world are yet to formulate such broadly interpreted laws.
Civil Rights of the LGBTQ
In Navtej Singh Johar & Ors. v. Union of India, the (Union of India) however, in the said case contended that in the event Section 377, IPC so far as ‘consensual acts of adults in private’ were declared unconstitutional, other ancillary issues or rights which were not referred for adjudication may not be dealt with otherwise, the Union of India expressed its wish to file a detailed affidavit in reply, as for consideration of other issues and rights would have far-reaching and wide ramifications under various other laws and will also have consequences which are neither contemplated in the reference. An Applicant, through an allowed Intervening Application, argued that the decriminalization of Section 377 IPC will open a floodgate of social issues which the legislative domain is not capable of accommodating as same-sex marriages would become social experiments with unpredictable outcomes.
Justice Sikri, in his concurring opinion in the said decision, dwelling upon the rights of transgenders, laid down that gender identification is an essential component which is required for enjoying civil rights by the community. It is only with this recognition can many rights attached to the sexual recognition as “third gender” be made available to the said community in a more meaning manner viz., the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver’s license, the right to education, employment, health and so on. Emphasising on the aspect of human rights, he shed light on the case of National Legal Services Authority v. Union of India, which held:
“there seems to be no reason why a transgender must be denied of basic human rights which includes right to life and liberty with dignity, right to privacy and freedom of expression, right to education and empowerment, right against violence, right against exploitation and right against discrimination. The Constitution has fulfilled its duty of providing rights to transgenders. Now it is time for us to recognise this and to extend and interpret the Constitution in such a manner to ensure a dignified life for transgender people. All this can be achieved if the beginning is made with the recognition of TG as third gender”
The Apex Court also observed that Same Sex Marriage, in Re, a decision given by the Supreme Court of Canada, which, while giving an expansive interpretation to marriage, including same-sex unions within its encompass, it held:
“The ‘frozen concepts’ reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”
The Supreme Court also took note of Sunil Babu Pant v. Nepal Government, which held that “looking at the issue of same-sex marriage, we hold that it is an inherent right of an adult to have marital relation with another adult with his/her free consent and according to her/his will.” Thereafter, a plea filed by Tushar Nayyar had sought reliefs such as the grant of civil rights to the members of LGBTQ community were dismissed. His Petition raised host of issues including the issue of “non-recognition of same-sex marriages” under the Special Marriages Act, 1954 and denial of adoption and surrogacy rights to the members of the LGBTQ community members. The said plea was filed since these civil rights were not addressed in the Navtej Singh’s judgment. The Order of the Supreme Court dismissing the petition stated “We are not inclined to entertain this petition after the decision of this Court in Navtej Singh Johar v Union of India decided on September 6, 2018. The dismissal of the above-mentioned plea lead to the filing of a review petition seeking review of the above order. On July 11, a three-judge bench headed by Justice NV Ramana, in an in-chamber decision, dismissed the review plea filed by Tushar Nayyar. “This review petition has been filed against order dated October 29, 2018 whereby the Writ Petition (of Nayyar) was dismissed. We have considered the review petition on merits. In our opinion, no case for review of order dated October, 29, 2018 is made out. Consequently, the review petition is dismissed on merits,” the bench, which also comprised Justices S Abdul Nazeer and Deepak Gupta said.
An attempt to avail Civil Rights again
A Writ Petition has been filed by Nikesh Pushkaran and Sonu MS before the Hon’ble Kerala High Court seeking to legalise same-sex marriages as non-recognition is discriminatory and amounts to a violation of the articles of the Constitution. The Writ Petition argues that due to certain provisions of the 1954 Special Marriage Act, the District Administration refused to register the marriage, and accordingly, the court should strike down the said provisions. The petitioners argued that, “the decisions of the apex court in NALSA and Navtej Singh Johar would be meaningless and incomplete unless the sexual minorities are afforded equal access to the institution of marriage and by enabling them to profess love in the way they deem fit”.
Experiences of the members of the community
It is eyebrow raising that, when few members of the LGBTQ community came out of the closet, they were taken for psychiatric help and it is saddening that the doctors even prescribed medication for the same. In a known situation, a parent upon knowing that their son was homosexual, admitted him in a mental asylum and saw to it that shock treatment was administered which completely ruined the life of that boy! Many people from the LGBTQ community face a lot of discrimination, bullying, et cetera for their demeanour and behaviour. Many a time in schools and colleges the discrimination and bullying take the form of physical abuse which is totally unacceptable. Families have abandoned members from the LGBTQ community when they came out of the closet. On the bright side, there are few families who have accepted their children when they came out of the closet and have supported them through their emotional turmoils. Professional colleges despite being a place for higher learning, students of such colleges often resort to bullying people from the community in hostels and such kind of behaviour forces members from the community to take drastic steps and few others end in depression. Life of a member of this community even today is grim filled with social stigma, lack of parental support, lack of equal rights et cetera
In conclusion, the author would like to state that a member from the community is ultimately human, a creation of nature like anybody and has the right to live a full life including the right to not being judged for who he or she is, the right to make love, the right to marry, right to property and the right to adopt. Despite various seminars, talk shows et cetera Indians have not yet been able to accept the people from this community and change is the need of the hour! The Indian cinema in the recent times has changed tremendously by making movies on the subject for the purpose of enlightening the Indian population. The Hon’ble Supreme Court had the opportunity of dealing with civil rights in the Navetaj Singh’s decision itself, however, the said aspect was not looked into by the court. The decision passed, though is a commendable one; is encountered with a lot of criticism as the court did not pass any judgment on the civil rights of the LGBTQ community.
Upholding the rights of the community requires to be done in toto and the decisions passed are nothing but an act of empty gesture as the full right to live with dignity despite being adverted to in many portions of the decisions cited above have not been upheld despite a passage of 2 years. In a traditional country like India where the institution of marriage is revered a relationship between the members of the community cannot see its natural course due to lack of compatible laws on the issue. Ironically, s.5 Hindu Marriage Act, refers to marriage between any two Hindus which in isolation can be loosely interpreted to included marriages for the members of the community. Thus, the Indian Legislature, State Legislatures should step in and pass laws providing civil rights to members of the community in order to give a true sense of application of the decisions aforementioned which is the need of the hour and allow the community members to live a decent life without discrimination.
Preferred Citation: Gecil Thomas, Manav.,”SEXUAL ORIENTATION IN THE LENSES OF JUSTICE”, The Law Culture (2020).