This blog is the third in a series that takes a snapshot of where LGBT+ rights are in 2018, as a result of some recent significant decisions across the Americas, Europe and India, and considers the portents for change in light of them. In previous blogs post, we considered the position in the Americas in the EU. Today, we consider the position in India, following the landmark decision from Delhi’s Supreme Court last month.
Section 377 of the Indian Penal Code 1860 criminalises “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal”. An outdated colonial piece of legislation, it has been the target of LGBT+ campaigners for many years. Now, finally, they have achieved major success with a broad and jurisprudential judgment, in Navtej Singh Johar and Others v Union of Indiathat seeks to deliver substantive equality at last. It is worth looking at how they got here.
In December 2013, the Indian Supreme Court took a major regressive step in Suresh Kumar Koushal v Naz Foundation & Others, declaring s.377 to be constitutional insofar as it criminalises consensual sexual acts of adults in private. The Court noted remarkably that the “so-called” rights of LGBT+ people should be put into proportion, that the Indian LGBT+ population was “miniscule”, and that relatively few prosecutions had been brought. At the same time, it considered that the “misuse” of the provision by police was not in itself a reason to challenge the constitutionality of the provision, but it did consider that it might be a reason for the legislature to consider amending the provision.
In 2016, in response to that decision Navtej Singh Johar, along with a group of well-known Indians from different backgrounds and professions, decided to petition the Supreme Court in order to challenge s.377. This was the first time LGBT+ individuals had approached the Indian Supreme Court themselves rather than being represented by public interest petitioners. At that stage, it was unclear whether the Supreme Court would agree to re-hear the issue at all.
But something changed. In August 2017, in Puttaswamy & Ors v Union of India & Ors, the Supreme Court, in a broad judgment as to the scope of privacy rights in India, was highly critical of features of the Koushal judgment. One of the Court’s opinions observed that “sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform.” The opinion further concluded that other features of Koushal were “unsustainable”, although it did not make express findings on the constitutionality of s.377.
The door was opened. Subsequently, on 8 January 2018, the Supreme Court granted permission for petitioners in Navtej Singh Johar and Others v Union of India to review the Court’s conclusions in Koushal, and judgment was handed down in September 2018. The arguments on substantive equality were powerful. Menaka Guruswamy, counsel for the petitioners, asked the bench: “How strongly must we love knowing we are unconvicted felons under Section 377? My Lords, this is love that must be constitutionally recognised, and not just sexual acts.” The foundations, then, were built to support the Court in reaching a unanimous judgment with a wide, inclusive ambit, offering a broad sweep across literature, sexuality, identity, (comparative) constitutional law, and international approaches to same-sex sexual activity..
A key feature of the judgment is the emphasis by the Chief Justice on the concept of choice which leads to the conclusion that s.377 violated the Constitution. The Court read down s.377 such that “carnal intercourse” is stated expressly now not to criminalise consensual same-sex sexual activities.
The Court placed significant emphasis on the constitution as an “organic and breathing document”, articulating its purposive role in transforming mindsets from those based on “medieval egos” to that based on “egalitarian liberalism”. The Court placed significant emphasis on the principle of “constitutional morality”, which takes precedence over the dominant social morality at the time of its formulation or the prevalent social views of the majority at any given time. Chandrachud J. also held, for the first time, that the Indian Constitution prohibited indirect discrimination and intersectional discrimination.
As to the application of constitutional morality, the Court affirmed Puttaswamy, the right to privacy, and its compatibility with s.377 as it has been historically interpreted. However, it went further and recognised that the constitutional protections of “personal liberty” also protect dignity and autonomy, within which sexual orientation squarely falls. Koushal was closely considered and roundly rejected as a judgment that imposed a social value of a (purported) majority, without proper application of the constitutional rights of the individual. The reasoning in Koushal also violated the equal protection clause of the constitution; the difference in treatment permitted by Koushal was unlawful because it was simply arbitrary. A useful analysis of the arguments can be found here.
An intriguing feature of the judgment, which may be useful to campaigners and litigants in other Commonwealth countries, to the extent that it can be built upon, is this passage from Nariman J’s concurring opinion:
“The presumption of constitutionality of a statute is premised on the fact that Parliament understands the needs of the people, and that, as per the separation of powers doctrine, Parliament is aware of its limitations in enacting laws…Where… a pre-constitution law is made by either a foreign legislature or body, none of these parameters obtain. It is therefore clear that no such presumption attaches to a pre-constitutional statute like the Indian Penal Code.”
The social and legal implications of this judgment in India are profound. Moreover, there are perhaps subtle depths to the judgment which open up the potential for real and progressive social change in India, beyond de-criminalisation. Chandachud J’s concurring opinion holds that “members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution.” There is a long path ahead on the road to equal marriage rights, but we see in this judgment a true glimmer of possibility ahead.