In a landmark judgment on 6th September, 2018, a five judge constitution bench of the Supreme Court of India in Navtej Johar v Union of India decriminalised same-sex relations. In a unanimous verdict, the Supreme Court held that Section 377 of the Indian Penal Code, in so far as it criminalises consensual sexual conduct between adults of the same-sex, is unconstitutional.
The concurring opinion of Justice Chandrachud opens new gateways for understanding and interpreting Article 15 (1) (non-discrimination on grounds of sex) of the Indian Constitution. This concurring opinion engaged with the formalistic interpretation given to Article 15 in earlier cases like Air India v. Nergesh Meerza which allowed the State to claim that the discrimination was based on sex and another ground (‘Sex plus’) and hence outside the ambit of Article 15. For example, a rule that only people over six feet would be employed in the army would be able to stand an attack on its disproportionate impact on women if it was maintained that the discrimination is on the basis of sex and height. Based on different service conditions, the court in Nergesh Meerza held that the sex-based recruitment of air hostesses was not based solely on sex but on other considerations and hence did not attract Article 15. This isolated reading of sex discrimination, which did not consider marital status, age or pregnancy as incidental to sex, or even as analogous grounds, limited not only the ambit of what counted as discrimination based on “sex”, but also the possibility of classifying discrimination as intersectional, i.e. based on multiple intersecting enumerated or analogous grounds. This isolated reading rejects the true operation of discrimination, which intersects varied identities and characteristics, and was brought under scrutiny by Chandrachud J.
Noting that a strong stereotype underlines the Nergesh Meerza judgment, Chandrachud J. emphasises that when ‘A provision challenged as being ultra vires the prohibition of discrimination on the grounds only of sex under Article 15(1), it is to be assessed not by the objects of the state in enacting it, but by the effect that the provision has on affected individuals and on their fundamental rights.’ Even in Koushal, the Court had held that Section 377 IPC only criminalised acts which constituted “carnal intercourse against the order of nature” and not any particular identity or orientation. Chandrachud J. notes that what matters is the effect of law upon the exercise of fundamental rights. (paragraph 34) He further elaborates that the broader social context within which law is embedded needs to be accounted for in order to understand the ‘effect’ of law.
Chandrachud J. emphasises that if any ground of discrimination, whether direct or indirect, is founded on a stereotypical understanding of the role of the sex, it would not be distinguishable from the discrimination which is prohibited by Article 15. Such an interpretation, which was drawn from progressive gender equality judgments like Anuj Garg, emphasises the need to look at the intersectional nature of sex discrimination. He adds to this by strongly emphasising that the argument that such a discrimination is a result of grounds rooted in sex and other considerations and hence outside the ambit of Article 15, can no longer be held to be a position supported by the intersectional understanding of how discrimination operates.
Therefore, according to Chandrachud J. a formalistic and narrow interpretation of Article 15, such as that in Nergesh Meerza, would strip Article 15 off its essential content. In addition, he strongly emphasises that such a narrow interpretation ‘fails to take into account the intersectional nature of sex discrimination, which cannot be said to operate in isolation of other identities, especially from the socio-political and economic context.’
Thus, one can say that the judgement has opened new paths for Article 15 jurisprudence in India. The rigour with which Chandrachud J. questions the isolated reading of sex discrimination, along with the emphasis on “effects of law”, and the emphasis on the need to take into account the intersectional nature of sex discrimination, can prove very helpful in future discussions on Article 15. Arguably, this dialogue opens more possibilities for considering how multi-ground claims which represent intersectional discrimination may become a part of Article 15. And we can hopefully see more discussions on how the phrases “only” and “or any of them”, that appear in Article 15, should be interpreted, and how they relate to intersectionality.