By Faizan Mustafa
Sep 11, 2018
The Supreme Court, in a landmark judgment, has overruled its two-judge Bench decision in Suresh Kaushal (2013) and legalised homosexuality. Ms Justice Indu Malhotra even went to the extent of seeking an apology for the non-recognition of the rights of sexual minorities. The judges have widened the ambit of the rights of the miniscule minority. It will have an impact on the choices of religious minorities in following their religious traditions and divine texts. The 'choice' cannot be the monopoly of one set of minorities. The judgment's recognition of individual autonomy, choice and privacy will have an impact on the much-awaited Aadhaar judgment.
The judges have partially struck down Section 377 and criticised the imposition of Victorian morality by the colonial government. The court noted that the English law's conception of anal and oral intercourse was firmly rooted in Judeo-Christian morality. In fact, ancient India did not look down upon such sexual choices. We all are aware of Shikhandi of the Mahabharata and the explicit paintings in Ajanta, Ellora and other temples, though the RSS considers such relationships against nature. The RSS, in its response to the judgment, has rejected same-sex marriage as against Indian traditions and cultures. Muslim and Christian clergy are on the same page with the RSS on this issue.
CJI Mishra has taken an individual's identity to a high pedestal of divinity and said that the core of the concept of identity lies in self-determination. An individual, in exercise of his choice, may feel that he/she should be left alone but no one should impose solitude on him/her. The CJI held that attitudes and mentality have to change to accept the distinct identity of individuals and respect them for 'who they are' rather than compelling them to become 'who they are not'.
In a bold statement, Mr Justice Mishra asked us to bid adieu to the perceptions, stereotypes and prejudices deeply ingrained in the societal mindset so as to usher in inclusivity in all spheres. He rejected the classification between natural and unnatural sexual relations. What nature gives is natural. That is called nature within. What the science of sexuality today tells us is that an individual has the tendency to feel sexually attracted towards the same sex, for the decision is one that is controlled by his/her neurological and biological factors. That is why it is his/her natural orientation which is innate and constitutes the core of his/her being and identity.
A constitution must transform the society for the better and this objective is the fundamental pillar of what he termed as 'transformative constitutionalism' that has at its kernel a pledge, promise and thirst to transform the Indian society so as to embrace therein, the ideals of justice, liberty, equality and fraternity.
Next, he said that constitutional morality is not confined to the provisions and literal text which a constitution contains. Rather, it embraces within itself virtues of a wide magnitude, such as that of ushering a pluralistic and inclusive society.
The court said that freedom of choice cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on the mercurial stance of majoritarian perception as the Constitution is not supposed to protect just the majority. The CJI said the Fundamental Rights chapter gives rights to 'any person' or 'any citizen'. It nowhere uses 'majority persons' or ‘majority citizens'. Sustenance of Fundamental Rights, the CJI rightly said, does not require majoritarian sanction. This observation will have an impact on the beef laws of 25 states. We can no more seek prohibition of beef just because the majority community has reverence for the cow. Right to food is the question of one's choice.
In explicit terms, the CJI admitted that 'homosexuality is neither mental illness nor moral depravity'. Nor is homosexuality a matter of individual choice. Sexual orientation is one of the many biological phenomena which is natural and inherent in an individual and is controlled by neurological and biological factors.
The court said that as Section 377 criminalises carnal intercourse even between heterosexuals, it is legally unsustainable. Section 377 was also held unconstitutional under freedom of speech as any display of affection amongst the members of the LGBT community towards their partners in the public so long as it does not amount to indecency or it has the potentiality to disturb public order.
The CJI also struck down 377 on the ground that consensual sexual acts between adults in private space are neither harmful nor contagious to society.
Mr Justice Nariman referred to the history of punishing homosexuality in England and referred to the Buggery Act of 1553. He said that between1804 and 1861, as many as 404 persons were sentenced to death for sodomy and similar other offences and 56 executed. He also held the punishment of life imprisonment as clearly excessive and disproportionate. The proposed three years' imprisonment for the harmless Triple Divorce can now be seen excessive.
Mr Justice Chandrachud expressed his displeasure on the Modi government not taking a categorical position on 377. He quoted the National Crime Records Bureau Report to state that 1,279 persons in 2014 and 1,491 in 2015 were arrested under Section 377. He also gave details of the petitioners. Of the 20 petitioners, 16 are gay, two bisexual women and one is a bisexual man. One among the petitioners is a transwoman. The effect of Section 377, thus, is not merely to criminalise an act, but to criminalise a specific set of identities. Though apparently neutral, the effect of the provision is basically to efface specific identities.
The court struck down 377 as it does not bring out the difference between 'ordinary intercourse' and 'intercourse against the order of nature.' Mr Justice Chandrachud, in his characteristic style, raised a few pertinent questions — What is 'natural' and what is 'unnatural'? And who decides the categorisation into these two ostensibly distinct and watertight compartments? Do we allow the state to draw the boundaries between permissible and impermissible intimacies between consenting adults? In his view, Section 377 criminalises behaviour that does not conform to the heterosexual expectations of society. In doing so, it really perpetuates a symbiotic relationship between anti-homosexual legislation and traditional gender roles. He went on to say that the indeterminacy and vagueness of the terms 'carnal intercourse' and 'order of nature' renders Section 377 constitutionally infirm as it violates the equality Clause in Article 14.
Mr Justice Chandrachud quoted Bruce Bagemih who had found that "no species has been found in which homosexual behaviour has not been shown to exist, with the exception of species that never have sex at all, such as sea urchins and aphis."
The court expanded the prohibited grounds of discrimination under Article 15 to include sexual orientation. It will give greater powers to courts to examine the constitutionality of various laws. Court judgments cannot remove social prejudices. Let us see how this decision works on the ground and how the court develops 'consent' jurisprudence in same-sex relationships.
Faizan Mustafa is VC, NALSAR University of Law, Hyderabad