In a landmark judgment delivered today, the Supreme Court of India decriminalized same-sex relations, and affirmed that the LGBT+ community was entitled to equal rights under the Indian Constitution. The case – Navtej Johar v Union of India – involved a constitutional challenge to Section 377 of the Indian Penal Code (1860), which criminalized “carnal intercourse against the order of nature”, and was regularly used to harass, blackmail, and persecute homosexual and transgender individuals. In 2009, the High Court of Delhi had “read down” this section to decriminalize consensual same-sex relations between adults, in private (Naz Foundation v NCT of Delhi). Surprisingly, this decision was reversed in 2013 by a two-judge bench of the Supreme Court (Koushal v Naz), and homosexuality had been “recriminalised.” However, in 2017, while affirming that there existed a constitutional right to privacy, a nine-judge bench of the Supreme Court also commented that Koushal had been wrongly decided. This set the stage for a fresh hearing on the constitutional challenge to Section 377, which was finally decided today.
The judgment of the five-judge bench was unanimous. Four judges – the Chief Justice, Nariman J., Chandrachud J., and Malhotra J., wrote separate and concurring opinions. Each of the judges held that Section 377 violated Articles 14 (equal protection of laws), 15 (non-discrimination), 19(1)(a) (freedom of speech) and 21 (right to life and personal liberty) of the Indian Constitution.
The Chief Justice’s judgment focused upon the idea of choice. Criminalising individuals in the exercise of fundamental personal choices, he held, was “manifestly arbitrary”, and therefore failed the test of Article 14. He also grounded constitutional dignity – a facet of Article 21 – within the idea of choice, and on that basis, was able to hold that Section 377 violated the right to life and personal liberty as well. An interesting aspect of this opinion is that the Chief Justice invoked two opposing views on same-sex relations – the “intrinsic” or “immutable” personal characteristic view, and the “fundamental personal choice” view; however, instead of choosing between them, he held that they were complementary, and that both deserved constitutional protection.
Justice Nariman also held that Section 377 was manifestly arbitrary. He did so on the basis that Parliament itself, through the Mental Healthcare Act of 2017, had recognised that homosexuality was not a mental disorder. This was supported by science. Consequently, the distinction between “natural” and “unnatural” sex was unsupported in fact, and could not be justified on any rational view of the matter. Justice Nariman also took the interesting view that because Section 377 was part of the colonial penal code, it did not enjoy a presumption of constitutionality.
The concurring opinions of Justices Chandrachud and Malhotra are particularly interesting from the perspective of equality and non-discrimination. Justice Chandrachud embarked on a detailed exploration of the meaning of the constitutional guarantee of non-discrimination “on grounds of sex” (Article 15(1)). He held that what mattered was not legal form, but the effect that a law had on the lives of people – an inquiry that required sensitivity to social context. Prohibiting homosexuality stemmed from the same stereotypes about gender roles that were also responsible for sex discrimination. Consequently, a law that, in effect, impacted sexual minorities, and that was based on gender stereotypes, violated Article 15(1)’s prohibition upon sex discrimination. During the course of his judgment, Chandrachud J. also held that the Indian Constitution prohibited indirect discrimination and intersectional discrimination – the first time that the Supreme Court has explicitly accepted that proposition. And lastly, Justice Malhotra’s opinion was notable for her observation that if a law disadvantaged individuals on the basis of “an intrinsic and core trait” of an individual, it would ipso facto fail the test of equality. In other words, even though the law might have an intelligible classification, and a rational nexus with some State goal, the very purpose of the law was ruled out by the Constitution.
The four judgments were bound together by the common threads of constitutional morality and transformative constitutionalism. “Constitutional morality” was first used by the Delhi High Court in its 2009 judgment, in describing the constitutional ethos of inclusiveness and pluralism. Nine years later, the Supreme Court resurrected this vision of constitutionalism, noting that the ultimate yardstick for testing a law was not popular morality, but constitutional morality. As a transformative document, the Indian Constitution’s “morality” was one of tolerance for different forms of life and diverse ways of living. Any law that deprived a community of equal moral membership of the polity, therefore, could never be constitutional.
In Navtej Johar v Union of India, the Indian Supreme Court has atoned for its 2013 judgment, and opened a gateway to further developments in Indian equality and non-discrimination law.
(Disclaimer: The author was one of the lawyers representing Voices against 377, a coalition of organizations challenging S. 377 before the Court. A longer version of this piece is available here).