“To the wisdom of the Court” — India decriminalises homosexuality
18 September 2018
In a landmark judgment on 6 September 2018, the Supreme Court of India decriminalised homosexuality.
The decision in Navtej Johar v Union of India was the culmination of years of tireless campaigning by LGBT rights activists in India. This article seeks to provide an overview of the road to that led to this judgment, alongside some interesting themes emerging from the decision of the Supreme Court.
Background: The Indian Penal Code of 1860
There is a widely-held view that, prior to the colonisation of India, same-sex relationships were not frowned upon. The source of the prohibition on homosexuality is the Indian Penal Code, enacted in the 1860s by the government of the British Raj. It is thought that the ban enacted by the British represented an attempt to ‘civilise’ the Indian population through the imposition of Victorian standards of morality
The provision in question, section 377, simply states:
Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
The Indian Constitution
Following independence in 1947, the Constitution of India became effective in 1950. It created a system in which laws deemed to be incompatible with the Constitution could be struck down by the Supreme Court. In this sense, the Indian Constitution is similar to the US Constitution, and differs from the UK constitutional model.
The 2009 Naz Foundation judgment
After many years of legal wrangling, a challenge to the constitutionality of the provision prohibiting homosexuality reached the Delhi High Court in 2009. In Naz Foundation v Govt. of NCT of Delhi the High Court struck down s.377, finding that it was unconstitutional and essentially decriminalised homosexuality throughout India. Appeals were filed, but no significant legal challenge was successful until 2013.
The 2013 Koushal judgment
However, a two-judge panel of the Supreme Court reconsidered the validity of s.377 in Suresh Kumar Koushal v Naz Foundation. Contrary to the Delhi High Court, it found that s.377 remained valid.
In coming to this conclusion, the Court found that s.377 regulated sexual conduct, irrespective of a person’s gender, gender identity or orientation, and therefore it was not discriminatory. The court also stated that the fact that only a minuscule proportion of the Indian population identified as LGBT was insufficient to invalidate s.377. They also observed that very few people had been prosecuted under s.377 and implied that the desire to protect LGBT rights was driven by a desire to conform to international norms over Indian values.
The NALSA and Puttaswamy judgments
As acknowledged by the Court, two recent judgments paved the way for the decision in Navtej Johar.
The first, decided in 2014, was National Legal Services Authority v Union of India, known as the NALSA case. This landmark ruling formally recognised a third gender (hijra) and declared that those identifying as members of the third gender were fully entitled to all the rights under the Constitution, including the right against discrimination. In particular, the Court noted that the recognition of rights under the Constitution was not dependent on prevailing social mores. The Court also found that, as a historically marginalised group, hijras ought to benefit from affirmative action programmes.
The second was the 2017 decision in K.S. Puttaswamy v Union of India which concerned a challenge to the government’s attempt to collect personal and biometric data to create a national database. The Court overturned previous authority to find that the Constitution guaranteed a right to privacy. It explicitly stated that sexual orientation was part of privacy and expressed disapproval of the decision in Koushal.
The Navtej Johar appeal
At the time Puttaswamy was decided, the appeal in Navtej Johar was pending. Prosecutions under s.377 had become rare, but many LGBT people reported that the provision was used to threaten, harass or intimidate them.
Whilst formally listed as a defendant, the Indian government did not file any arguments in support of section 377. However, a number of interveners, predominantly religious groups, filed arguments supporting the provision. The ruling Bharatiya Janata Party largely remained silent, deferring to ‘the wisdom of the Court.’ But the main opposition Congress party publicly supported repeal of s.377.
The Navtej Johar decision
The decisions in Navtej Johar are lengthy – spanning almost 500 pages in total – but a number of key themes emerge. The following is by no means comprehensive but seeks to pick out arguments that are interesting.
The first theme is transformative constitutionalism. The Court endorsed a view that the Constitution is a living document which ought to be interpreted to reflect the times. Chief Justice Misra went further stating that:
the idea is to steer the country and its institutions in a democratic egalitarian direction where there is increased protection of fundamental rights.
His view was that the Constitution ought to instigate, as well as reflect, change.
Another theme in the judgments of Chief Justice Misra and Judge Chandrachud was constitutional morality. Constitutional morality is a morality based on the values as set out in the Constitution (e.g. equality, justice, liberty), as opposed to the values as accepted by the majority in society. The judges found that it was irrelevant whether the majority of Indian society accepted same-sex relationships because constitutionality morality demanded recognition of LGBT rights. In particular, Chandrachud J stated:
Constitutional morality leans towards making Indian democracy vibrant by infusing a spirit of brotherhood amongst a heterogeneous population, belonging to different classes, races, religions, cultures, castes and sections.
The right to privacy, as defined in Puttaswamy was a key pillar in Chief Justice Misra’s judgment. He also recognised the value of autonomy, sovereignty over one’s own body and dignity. It was also recognised that s.377 had a chilling effect on the ability of LGBT people to exercise other rights, such as freedom of expression and association.
Judge Nariman grappled with the issue of the presumption of constitutionality of pre-constitutional laws. He disagreed with the view, expressed in Koushal, that there is a presumption of constitutionality of pre-constitutional laws. He found that it was irrelevant whether the Indian Parliament had chosen to not repeal s.377 in determining whether that provision was constitutional.
Judges Chandrachud and Malhotra made reference to the constitutional right to health which has been recognised by the Supreme Court a number of times as being part of the right to life. Chandrachud J found that
for people to attain the highest standard of health, they must also have the right to exercise choice in their sexual lives and feel safe in expressing their sexual identity.
He added that right to health is not simply the
right not to be unwell, but rather the right to be well.
He acknowledged the effect of s.377 in discouraging LGBT people to access healthcare, placing them at a higher risk of a range of conditions, including HIV/AIDs as well as the prevalence of poor mental health amongst LGBT people, connected to discrimination.
This reflects the trend in the jurisprudence of a number of countries to take an expansive definition of the right to life to include a set of other social and economic rights, such as rights to housing, food, clean water, healthcare, etc.
It is also important to add that in so far as s.377 criminalises acts of bestiality and non-consensual sexual acts, it was held to be valid.
This judgment represents a huge victory for LGBT people throughout India. However, the attitudes of citizens do not change as swiftly as case-law.
Furthermore, there are many countries in which colonial laws criminalising homosexuality are still in force and are enforced much more strictly. The cruel irony is that many governments criticise attempts to liberalise anti-gay laws as ‘Western interference’ when, in reality, few of these countries had any anti-gay laws until the advent of colonialism.
As wryly observed by Chandrachud J:
Civilisation has been brutal.
For those interested in more detailed analysis, I would highly recommend this blog.
Rajkiran Barhey is a barrister at One Crown Office Row.