“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.”
– J. Indu Malhotra
Introduction
The Supreme Court in a much-awaited judgment, speaking through a constitutional bench, in the case of Navtej Singh Johar v. Union of India,[i]read down Section 377 of the Indian Penal Code, to the extent it criminalizes consensual sexual conduct between adults of the same sex. The Court overruled previous division bench judgment of Suresh Kumar Koushal v. Naz Foundation,[ii] (hereinafter referred to as Suresh Kumar Koushal Case) which upheld the constitutional validity of S.377.
Background
The instant case was a Writ Petition filed by Navtej Singh Johar and several other petitioners. It was prayed to declare the right to sexuality, sexual autonomy, and right to choice of a sexual partner, to be part of the right to life under Article 21 and S.377 of Indian Penal Code unconstitutional. The matter was listed before a 3-judge bench. However, the bench expressed its opinion that a larger bench deals with the issues raised. Issues raised were regarding the constitutionality of S.377 and the validity of decision given in the case of Suresh Kumar Koushal Case. As a result, a 5-judge Bench was constituted to hear the instant case.[iii]
Retracting De-Minimis Hypothesis
The judgement criticized the de-minimis hypothesis adopted by the Supreme Court in Suresh Kumar case. It held that invasion of a fundamental right shall not be rendered tolerable even when a few are subjected to hostile treatment.
The Court held S.377 to be unconstitutional and violative of Articles 14, 15, and 21 of the Constitution. The Court took recourse to the doctrine of reading down a provision to render S.377 constitutional.
Doctrine of Reading-Down
The doctrine of reading down is a rule of interpretation applied by the courts in order to save a statute or a part thereof from being struck down.[iv]The doctrine is a further elaboration of the principle that in a case where a statute can be interpreted in two possible manners: one rendering it constitutional and the other unconstitutional, the former shall be preferred. The doctrine can be applied in the cases it is possible to gather the intentions of the legislature from the object of the statute, the context in which the provision occurs and the purpose for which it is made. It cannot be applied when the language used in the provision is clear and unambiguous.[v]
In the instant case, the Court observed that S.377 violated Article 14 because the classification adopted does not have a reasonable nexus for the object sought to be achieved i.e., the criminalization of all carnal sexual between adults against the order of the nature. Therefore, recourse can be taken to the process of reading down, to sever the unconstitutional part of a provision, which is not related to the object sought to be achieved, from the otherwise constitutional provision.[vi] The Court, has therefore read down S.377 to exclude consensual sexual intercourse between adults of the same sex or otherwise, to remove the ambiguity of the provision and to bring it in consonance of part III of the Indian Constitution.
Section 377 and Article 14
It was decided in the instant case that S.377 violated article 14 of the Constitution. It created an arbitrary classification without any reasonable basis with the object sought to be achieved. It created two separate classes of heterosexuals and homosexuals based on sexual orientation. This is so because it permitted consensual sexual acts between heterosexuals whilst completely prohibiting consensual sexual acts between homosexuals. Further, it declared it to be against the order of nature. The Court held that the legislation was discriminatory of an intrinsic and core trait of an individual. Hence, it was devoid of any intelligible differentia.
Section 377 and Article 15
The validity of S.377 was also challenged on the grounds of Article 15, which prohibits discrimination on the grounds only of sex, religion, race, caste, and place of birth. The Supreme Court in the case of National Legal Service Authorities v. Union of India[vii] interpreted the term “sex” in a broad manner so as to include the sexual identity of an individual.
Justice Indu Malhotra, relied on the J.S. Verma Committee Report[viii] which recommended the inclusion of sexual orientation in the term “sex”, as used under Article 15. Therefore, in her concurring judgment, she held that S.377 discriminated on the grounds of sexual orientation and is violative of Article 15 of the Constitution.
Section 377 and Right to Privacy
Relying on the judgment of K.S.Puttaswamy v. Union of India,[ix] (hereinafter referred to as Puttaswamy Case) the Court affirmed that sexual orientation is an intrinsic part of the dignity of the individual [x] and S.377 violated this dignity. The Court stipulated that sexual orientation forms an innate part of the identity of members of the LGBTQ community. This also includes the right to make fundamental personal choices, including those relating to intimate sexual conduct. The constitutional protection to safeguard sexual orientation includes the right to select a partner, and right not to be subjected to sexual discrimination because of the exercise of such choices.
The right to privacy also provides protection to an individual against arbitrary state interference in his private space. A reasonable expectation of privacy is attributed to the acts done by two consenting adults within the four walls of their home, and therefore protected under the right to privacy.
Another basis for deciding the unconstitutionality of the impugned provision was the principles of dignity and individual liberty. The Court following the reasoning, which was elaborated in the Puttaswamy case, held that member of the LGBTQ community is entitled to the full range of constitutional rights including the liberties protected by the Constitution. The dignity of an individual finds an important place in the Constitution. The fundamental idea of dignity is regarded as an inseparable facet of human personality.[xi]
Indirect Discrimination
The Court while dealing with the constitutionality of S.377 stated that the impugned provision discriminates indirectly against the members of the LGBTQ community. Indirect discrimination refers to a situation where on the face of it the section has neutral provisions but inherently discriminates against a certain group of the population. While S.377 only prohibits certain carnal acts, which are against the order of nature, but what it really does is create gender stereotypes, which is violative of the individual identity of LGBTQ persons.
Section 377 and Constitutional Morality
The Court’s approach while reading down this Victorian piece of legislation was in consonance with the notion of constitutional morality. Justice Chandrachud in his concurring judgment elaborated upon the principle of constitutional morality, which places emphasis on ideals of justice when dealing with any contradictions between fundamental rights of an individual and the notions of the social acceptance of the same. He further stressed that the fundamental rights of an individual should stand even in the face of popular notions of morality. The Court rejected the test of popular acceptance while dealing with the fundamental rights of an individual, which was the basis of the continuity of section 377.
This view furthers and preserves the welfare of the sexual minorities, which for long has been denied to them due to popular notions of morality. The position of law finds its basis in the Latin maxim Salus Populi Suprema Lex, which means that the welfare of the people should be supreme law of the land.
Conclusion
The reasoning behind the judgment emphasizes on the transformative nature of the Indian Constitution. Indian constitution is a living document and its interpretation should be dynamic and evolve with time.[xii] While declaring S.377 unconstitutional, the Court adopted an evolutionary approach and considered the ill effects of the section in the light of the present times ignoring the Victorian notion regarding homosexuality. This is in conformity with the transformative nature of the Indian Constitution, which is a matter of fact is the ability of the Constitution to adapt and transform with the changing needs of the times.
The Judgment serves to open the doors for further civil rights legislation dealing with same-sex marriages, and other matters within the ambit of personal laws. The judgment is a progressive step in way of remedying the years of discrimination and injustice faced by the sexual minorities, who have been constantly living under the fear of prosecution and social stigma.
[i]Navtej Singh Johar v. Union of India,(2018) 1 SCC 791.
[ii] Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
[iii]Supra note 1.
[iv] C.B. Gautam v. Union of India, (1993) 1 SCC 78.
[v] DTC v. Mazdoor Congress, 1991 Supp (1) SCC 600.
[vi] D.S. Nakara v. Union of India, (1983) 1 SCC 305.
[vii] National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
[viii]Justice J.S. Verma Committee, Report of the Committee on Amendments to Criminal Law, 66 (January 23, 2013).
[ix] KS Puttaswamy v. Union of India, (2017) 10 SCC 1.
[x]Id. at ¶ 298.
[xi]Supra note 1.
[xii] I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1.