With Navtej Singh [Navtej Singh v. Union of India, Writ Petition (Criminal) No. 76 of 2016, Decided on: September 6, 2018] ruling the Supreme Court brought down the axe heavily and surely on Section 377 of the Indian Penal Code, 1860 shearing off in one fine blow all such undesirable aspects of the provision that did not agree with the constitutional morality, which the apex court put way above the majoritarian social morality that the provision might have been in consonance with in its original form. The unanimous judgment by the Constitution Bench of the Supreme Court in Navtej Singh made it plain in very certain terms that it was not a crime to belong to the LGBT (Lesbian, Gay, Bisexual and Transgender), also called LGBTQ (Lesbian, Gay, Bisexual, Transgender and Queer) community, and that one’s sexual orientation or preference was beyond the pale of criminal law in general and Section 377 in particular.
The ruling drew a standing ovation of sorts from all quarters, national and international, and if Facebook and Twitter are anything to go by, the nation erupted in celebration over what was seen and described as a resounding victory for gay rights in India. The New York Times published an editorial titled ‘A Win for L.G.B.T. Rights in India‘ (September 20, 2018) declaring that “the recent groundbreaking, unanimous decision of the country’s top court to overturn a colonial-era ban on consensual gay sex was a welcome affirmation of human dignity.”
Doubtlessly, consensual gay sex should not have been classified as crime in the first place — and thus the apology for the historical wrong (Indu Malhotra, J, Para 20) — simply because any form of consensual sexual activity in private between two individuals legally capable of consenting to such acts is no concern of the state and thus cannot be regulated, much less criminalized, which is what the Supreme Court has technically recognized, but the apex court seems to have addressed more specifically the smaller issue rather than the bigger issue of which the smaller one is a sub-set thereby curtailing the ambit of the reasoning employed, which explains the theoretical and jurisprudential anomalies that plague an otherwise admirable judgment.
A right and a civil or criminal liability are mutually exclusive because a right to do an act necessarily obliterates all legal liabilities with regard to the act in question. Conversely, civil liability or criminal culpability is by definition the same as not having the right to act in such a manner as might offend the law in question. It follows that a judicial pronouncement declaring that the Fundamental Right to Privacy places it beyond the powers of the state to regulate consensual sexual conduct as long as the parties involved are legally capable of consenting to the act automatically decriminalizes Section 377 insofar as it applies to all consensual, sexual acts performed in private, be it between homosexuals or heterosexuals or bisexuals or any other. Nothing further needs to be said, for the issue pertains not so much to ‘gay rights’ or LGBTQ Rights as it does to the Right to Privacy itself, which has already been declared an implied Fundamental Right by another unanimous judgment by a nine-judge Constitution Bench in Justice K. S. Puttaswamy (Retd.) v. Union Of India, Writ Petition (Civil) No. 220/2015. It is the failure to see the impugned aspects of Section 377 as being in breach of Right to Privacy rather than in violation of ‘gay rights’ that the theoretical and jurisprudential weaknesses of the Navtej Singh judgment stem from.
In Navtej Singh, the Supreme Court examines the constitutional validity of Section 377 essentially from the perspective of gay rights (LGBTQ Rights), and while approaching the impugned provision from the “perspective of rights discourse” (Chandrachud, J, Para 13) cannot be faulted, espousing a severely limiting idea of placing “the entitlement of the LGBT population in a constitutional framework” (Chandrachud, J, Para 13) renders its foundational reasoning weak not because the idea is flawed but only because this is an intrinsically unfit case for the purpose.
Section 377 stood challenged primarily for the violation of Article 14, Article 15, Article 19 and Article 21, Right to Privacy being an implied Fundamental Right under Article 21. How the Supreme Court went about testing the constitutional standing of Section 377 in Navtej Singh demands a careful study and systematic analysis if the real import of the judgment has to be gathered in any meaningful way. The Supreme Court also pressed the concept of constitutional morality into service to question the constitutionality of Section 377, the analysis of which involves navigating complex conceptual gridlocks.
Chief Justice Dipak Misra, writing for himself and Justice A.M. Khanwilkar, asserts that the idea of constitutional morality includes in its fold not just the “core principles of constitutionalism” and “is not confined to the provisions and literal text which a Constitution contains”, but the concept also includes the “virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time adhering to the other principles of constitutionalism.” (Para 111). The Chief Justice further adds that “in the garb of social morality, the members of the LGBT community must not be outlawed or given a step-motherly treatment of malefactor by the society. If this happens or if such a treatment to the LGBT community is allowed to persist, then the constitutional courts, which are under the obligation to protect the fundamental rights, would be failing in the discharge of their duty.” (Para 122).
The expression ‘constitutional morality’ as used by the Supreme Court in the judgment stands for the constitutional values with regard to which the apex court adverts to the idea of ‘fraternity’ as mentioned in the Preamble, wherein one also finds the expression “democratic republic” right at the start. Constitutional morality could certainly override ‘social morality’ if Section 377 did draw a line between the heterosexuals and others, but it does not, which means the provision in letter and spirit does not offend Article 14. So, the concept of constitutional morality does not kick in as far as Article 14 goes.
Section 377 is doubtlessly rooted in morality, for it bars immoral sexual conduct, and there can certainly be sharp disagreements over morality, but from the perspective of constitutional morality as embedded in the Indian Constitution, the mechanism contemplated for the enactment of laws based purely or largely on moral considerations is ‘democratic’ and the agency for the purpose is the Legislature because constitutional democracy in India operates through electoral representation. Therefore, constitutional morality demands that all moral questions and considerations are left to the wisdom of the elected representative in their capacity as legislators. How can it be argued that one finds ‘democratic republic’ exactly where one finds ‘fraternity’ in the same part of the constitution, which is also the part that best reflects constitutional morality, and yet the latter is more in line with the constitutional morality than the former? How can it be argued that pursuing one constitutional ideal at the cost of another ideal of the same constitutional standing is consistent with constitutional morality?
Conceptually speaking, social morality stands well endorsed by the Indian Constitution, which is clearly evidenced in provisions such as Article 19 (2), Article 19 (4) and Article 26, which enable the state to impose reasonable restrictions on Fundamental Rights on the grounds of morality, and the referent of ‘morality’ could only be ‘social morality’ and not ‘constitutional morality’ or ‘constitutional values’ because in the latter case the Constitution could make the Fundamental Right concerned subject to a specific provision or part of the Constitution.
Therefore, the Constitution unambiguously recognizes the right of the society to subject its members to laws rooted in morality enacted through the constitutionally prescribed democratic process. In that respect Section 377 is not found lacking, especially when the Legislature despite having amended the preceding sections and despite the 172nd Law Commission Report (2000) — also referred to in the Navtej Singh (R.F. Nariman, J, Para 20) — recommending the deletion of Section 377 elected to leave the provision untouched indicating a legislative — and by extension, democratic — approval, which is in consonance with constitutional morality at least at the conceptual level. Since constitutional morality is inclusive of social morality and does not preclude it, the invocation of constitutional morality does not lend the conceptual force required to empty Section 377 of its underlying moral foundation even if it is possible to disagree with the specific moral ideas sanctioned by the provision.
Article 14 demands that people similarly circumstanced must be treated alike, and in case of a challenge the state is obligated to show that the law under question categorizes people on the basis of an “intelligible differentia” that has a “nexus with the object” of the impugned legal provision. The onus is on the challenger to dispel the presumption of constitutionality in favour of the provision and to prove that the provision does indeed draw lines based on a constitutionally invalid classification.
Section 377 stipulates: “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 provision starts with “whoever” and makes no distinction between heterosexual and homosexual people in imposing a penal prohibition on certain acts. Whether or not any of the acts prohibited by the provision deserve to be criminalized is a different question. And whether or not the state has the legislative competence under the constitution to criminalize any of the acts criminalized by Section 377 is also a separate question.
The attention of the Supreme Court was drawn towards the neutrality of the provision with regard to sexual orientation (Misra, CJI, and Khanwilkar, J, Para 54), and the position was also taken note of and made the basis for the judgment by the Supreme Court in Suresh Kumar Koushal and another v. Naz Foundation and others, (2014) 1 SCC 1, which was unanimously overruled in Navtej Singh. The Supreme Court in Navtej Singh laid emphasis on and gave primacy to the effect of the provision rather than the letter of the law, and in the opinion of the apex court the provision has the effect of discriminating against people belonging to the LGBTQ community and had to be read down primarily for that reason.
So far as ‘intelligible differentia’ goes, Section 377 declares ‘carnal intercourse against the order of nature’ a crime, which simply means that all sexual acts involving genitals other than penile-vaginal penetrative intercourse are barred and punishable. In this regard the Supreme Court quotes with approval a portion of an article criticizing the Koushal judgment, which says:
“Alternatively, “ordinary sex” is penal-vaginal, and every other kind of sex is “against the ordinary course of nature”. Again, no evidence to back that claim up apart from the say-so of the judge.” (Chandrachud, J, Para 28)
In the very next paragraph Justice Chandrachud writes, ” Section 377 becomes a blanket offence that covers supposedly all types of nonprocreative ‘natural’ sexual activity without any consideration given to the notions of consent and harm.” (Para 29). Clearly, Justice Chandrachud understands just as well as anybody familiar with the law laid down by Section 377 as to what the expression “against the ordinary course of nature” stands for and no ‘evidence’ needs to be brought to the table to cast light on the meaning of the expression, for its import is quite clear. So, the differentia is ‘intelligible’ though one might argue against the relevance of the distinction it makes, which is where the requirement of “nexus with the object” comes in. In this regard the Supreme Court says:
“A perusal of Section 377 IPC reveals that it classifies and penalizes persons who indulge in carnal intercourse with the object to protect women and children from being subjected to carnal intercourse.” (Misra, CJI, and Khanwilkar, J, Para 237).
Such a view doesn’t stand to reason because it ignores the fact that Section 377 also criminalizes sexual intercourse with animals in the same breath, and that certainly could not be “to protect women and children”. Therefore, the object of the Section could only be to proscribe what might have been viewed as “immoral or depraved sexual conduct” by the legislators of that era, and the legislators of the present day can disagree with the legislators of the past over whether or not “intercourse against the order of nature” is an “immoral or depraved sexual” act, but that’s outside the purview of the examination under Article 14 because given the implicit objective, the differentia does have a nexus with the object, which is to punish immoral sexual acts. Thus, the requirements of valid classification demanded by Article 14 stand satisfied.
That the provision is discriminatory in effect is also not a particularly strong argument because it is not unusual that a particular law hits a certain group a lot more severely than others. That by itself is no discrimination, for such an effect is both possible and permissible, and that is the case with Section 377. In a number of matrimonial disputes, wives pressed Section 377 against the husbands even if they had consented to the act because consent was immaterial under the provision. So, heterosexuals and homosexuals both were affected except that the latter were probably affected more severely than the former. If beggary is completely banned, those who can do nothing but beg owing to debilitating physical disability would be far more severely affected as compared to those who can work. Would the law be declared discriminatory for that reason alone? Certainly not. Therefore, Section 377 is technically not in breach of Article 14.
Article 15 is a specific incident of Article 14 and for that reason operates within the larger ambit of Right to Equality guaranteed under Article 14, which implies that where Article 15 is violated Article 14 is also violated by implication, but if Article 14 is not violated, Article 15 is not violated either because it would be near impossible to hold that a particular provision offends Right to Equality on particular grounds under Article 15 without violating Right to Equality in general as guaranteed under Article 14. However, what offends Article 14 may not offend necessarily Article 15. And Section 377 does not violate Article 14, as argued above.
Supreme Court interpreted ‘sex’ under Article 15 to include sexual orientation, which goes against the spirit of the provision because Article 15 bars discrimination based on identity rooted in “religion, race, caste, sex, place of birth or any of them,” and while sexual identity falls within the purview of Article 15, sexual orientation does not because it is not a part of one’s overt identity but is a private matter beyond the concern of any individual or state, which is why Right to Privacy covers sexual orientation. Almost every application form seeks to know whether the applicant is a male or female or other, but none asks one to disclose one’s sexual orientation, and if there is such an application form, it might well be in breach of Right to Privacy because one cannot be compelled to disclose one’s sexual orientation. The NALSA ruling [National Legal Services Authority v. Union of India, (2014) 5 SCC 438], which the Supreme Court repeatedly cites and refers to in Navtej Singh, is about sexual identity of the transgender persons, which is part of their social identity just like one’s being a male or a female is, and for that reason it is a concern of Article 15 whereas sexual orientation is not because it does not inform one’s social identity. The Supreme Court seems to have ignored that distinction.
Since one’s sexual orientation is irrelevant for one’s personal and social identity, any discrimination based on sexual orientation would necessarily fall afoul of Article 14, for a discrimination based on an irrelevant ground would be patently arbitrary and unreasonable. However, Article 15 would still not be attracted case without affecting the constitutional invalidity of such the offending provision because it is possible to say that a provision violates Right to Equality under Article 14 without violating it on the specific grounds barred by Article 15.
Section 377, however, punishes acts and not one’s sexual identity or orientation. A homosexual could go to a police station and admit to his or her sexual orientation, and the police could still not charge the person with an offence because the prosecution would be required to prove specific incidents of violation, for each instance of violation is a separate offence. It’s exactly like a thief cannot be punished for ‘being’ a thief, but only for each instance of theft. Section 377 clearly does not penalize one for one’s sexual status or orientation or identity. Therefore, Section 377 clears the test of both Article 14 and Article 15 swimmingly.
The challenge to Section 377 under Article 19 (1) (a) is even weaker because Section 377 has nothing to do with “the freedom to express” one’s “sexual identity and orientation,” for Section 377 does not bar the expression of any kind at all. One cannot be prosecuted for holding hands or hugging in public or saying that one is a homosexual or that another person of the same gender is one’s sexual partner. However, indecent acts or sexually overt acts in “expression” of sexual desire in public amounts to public indecency and is impermissible, but that is not the domain of Section 377.
As for one’s openly sharing the details of one’s homosexual sexual experience goes, the expression can only be punished under the laws pertaining to indecent speech and only in the case where the expression is considered obscene or lascivious, but the law in that regard has nothing to with the nature of the act described — homosexual or otherwise. However, Section 377 is not a provision pertaining to indecent or obscene speech and thus has no direct application. The “chilling effect” referred to by the petitioners in Navtej Singh is there because Section 377 criminalizes certain acts. Therefore, the challenge lies elsewhere and not under Article 19, for even the heterosexual sexual acts cannot be the subject matter of indecent or obscene speech because one cannot assert the right to speak obscenely of sexual acts one can indulge in privately, heterosexual or homosexual. Section 377, thus, does not impinge upon any rights guaranteed under Article 19.
SECTION 375 & SECTION 377
Supreme Court sees a legally lethal inconsistency between Section 375 as it stands after the 2013 amendment and Section 377 because “if consensual carnal intercourse between a heterosexual couple does not amount to rape, it definitely should not be labelled and designated as unnatural offence under Section 377 IPC.” (Misra, CJI, and Khanwilkar, J, Para 221). That does not follow because definitions of crimes in criminal law are for the purpose of stipulating what kind of conduct would warrant which penalty. Even if two acts are very similar, one may be crime while the other may not be. One could always ask that if preparation to commit murder is not an offence, how is preparation to commit dacoity one, when the former is a far more serious offence than the latter? Well, that’s because the law stipulate thus. In Navtej Singh itself the Supreme Court says, “Crime is crime because it is called a crime,” and goes on to cite with approval Henry Hart, who wrote, “a crime is anything which is called a crime, and a criminal penalty is simply the penalty provided for doing anything which has been given that name.” (Chandrachud, J, Para 127).
Notably, there is no minimum penalty for Section 377 but an offence of the description under Section 375 is punishable under Section 376 with a minimum prison term of seven years, the maximum penalty for both offences being life imprisonment. Clearly, in the opinion of the Legislature, rape is a more serious offence than sex “against the order of nature.”
Therefore, if an act is not ‘rape’, it does not mean it cannot be a different crime punishable differently. Furthermore, a charge of rape under Section 375 can be countered with a defense of consent whereas Section 377 does not allow consent as a defense. The provisions are on different footing and are independent of each other, which makes the analogy between the two drawn by the Supreme Court rather rickety and contrary to the settled principles of criminal jurisprudence.
Right to Life and Personal Liberty guaranteed by Article 21 includes Right to Privacy as affirmed resoundingly by the Supreme Court in a unanimous judgment by a nine-judge Constitution Bench in Puttaswamy. However, so long as what Section 377 pronounces as ‘crime’ remains a crime, Right to Privacy cannot come to its rescue because one cannot have the right to commit a crime in privacy. However, it can be forcefully argued that the state has no business regulating consensual sexual acts between two adults, for no compelling state purpose is served by regulating individual sexual conduct as long as a legally valid consent holds.
Once it is ruled that criminalizing consensual sexual acts in private between adults legally capable of consenting to such acts is a breach of Right to Privacy under Article 21 and thus beyond the legislative competence of the Legislature, Section 377 stands read down insofar as such sexual acts as are consequently validated are concerned. This is a recognition of the individual Right to Privacy within the framework of Right to Personal Liberty under Article 21, and all individuals without exception — including homosexuals, transgender people and others — are subject to the same individual liberty alike. This is not a right guaranteed to LGBTQ community, but a universal individual right even if the LGBTQ community was hit the hardest.
Vatsayana’s Kamasutra, an ancient Indian work on sexual behaviour among humans, believed to have been composed between 400 BCE and 200 CE, does not talk of homosexuals or homosexuality, but does dwell upon sexual intercourse with transsexuals (eunuchs) and oral sex in Chapter 9 and anal sex in Chapter 6 in substantial detail, and calls anal sex ‘unusual’ but not ‘unnatural’. So, the practices are well documented, which lends support to the fact that alternative sexual congress as opposed to penile-vaginal intercourse has been in practice between heterosexual couples as well since the ancient times.
In fact, there is no such thing as a ‘gay or homosexual sexual act,’ for, as indicated above, oral sex and anal sex are merely sexual acts and not necessarily ‘gay or homosexual sexual’ acts, for heterosexual couples, too, practice them. Since Section 377 criminalized sexual acts of certain kinds and not the orientation itself, what gets decriminalized by virtue of the reading down of the provision by the Supreme Court has to be the acts only, even if it makes the lives of the members of the LGBTQ community easier.
However, the Supreme Court makes the colossal mistake of treating the reading down of Section 377 as a recognition of the sexual rights of the LGBTQ community, which is not the case, it being an individual right that is recognized. Furthermore, LGBTQ community is not a community in any real sense, but is a group born of the discrimination based on sexual orientation and sexual identity that the Supreme Court has come down heavily against in NALSA and Navtej Singh. Recognizing ‘their’ rights is calling them ‘them’ instead of ‘us’, which flies in the face of the ideals of inclusiveness and fraternity that the apex court advocates and espouses so passionately. What needs to be recognized and understood is that ‘they’ are not ‘different’; that ‘they’ are like everybody else; that ‘they’ are ‘normal’; and that ‘they’ are not ‘they’ but ‘us’. In the interest of the constitutionally endorsed fraternity and assimilation, the boundaries need to be dissolved and not reaffirmed and reinforced, which the Supreme Court ends up doing despite a well-intentioned judgment in Navtej Singh. It is just the logical consequence of ignoring the intricate interplay of the jurisprudential underpinnings of Section 377 and Right to Privacy as an inalienable aspect of Right to Life and Personal Liberty under Article 21.
Unfortunately, in Navtej Singh the Supreme Court stands for the rights of the LGBTQ community with such zeal that Justice Nariman and Justice Chandrachud in conclusion of their separate opinions did not specifically bar the application of Section 377 to the sexual acts between heterosexual partners. Justice Nariman stopped at saying, “We further declare that Section 377 insofar as it criminalises homosexual sex and transgender sex between consenting adults is unconstitutional,” (Para 97) and Justice Chandrachud declared, “Section 377 of the Penal Code, in so far as it criminalises consensual sexual conduct between adults of the same sex, is unconstitutional,” [Para 156 (i)], and further said, “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. [Para 156 (i)].
So, what the members of LGBT community can do with impunity, the plain heterosexual people can do only at the risk of criminal prosecution? Do we now have a discrimination against heterosexual people? No, not quite so. Chief Justice Misra, writing for himself and Justice A.M. Khanwilkar, categorically declared that “Section 377 IPC, so far as it penalizes any consensual sexual relationship between two adults… cannot be regarded as constitutional.” [Misra, CJI, Para 253 (xvii)]. Justice Malhorta in a separate opinion declares that “insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution.” [Para 21 (i)].
Now, that raises a different question altogether. Is Navtej Singh a unanimous judgment with regard to Section 377 as applicable to the LGBTQ community and a 3-2 majority judgment with regard to the rest? Hopefully not, but either way it makes no practical difference.
All things considered, Navtej Singh is a laudable judgment in spirit and goes a long way in protecting the rights of the sexual minorities, but is littered with gaping pitfalls in terms of reasoning, which could be easily avoided without compromising the effect of the ruling one bit, had the issue been viewed more expansively rather than through the limiting prism of gay rights.
Originally published as Cover Story in Lawyers Update [October 2018, Vol XXIV, Part 10].