By Faizan Mustafa
Sep 11, 2018
The Supreme Court, in a landmark judgment,
has overruled its two-judge Bench decision in Suresh Kaushal (2013) and
legalised homosexuality. Ms Justice Indu Malhotra even went to the extent of
seeking an apology for the non-recognition of the rights of sexual minorities.
The judges have widened the ambit of the rights of the miniscule minority. It
will have an impact on the choices of religious minorities in following their
religious traditions and divine texts. The 'choice' cannot be the monopoly of
one set of minorities. The judgment's recognition of individual autonomy,
choice and privacy will have an impact on the much-awaited Aadhaar judgment.
The judges have partially struck down
Section 377 and criticised the imposition of Victorian morality by the colonial
government. The court noted that the English law's conception of anal and oral
intercourse was firmly rooted in Judeo-Christian morality. In fact, ancient
India did not look down upon such sexual choices. We all are aware of Shikhandi
of the Mahabharata and the explicit paintings in Ajanta, Ellora and other
temples, though the RSS considers such relationships against nature. The RSS,
in its response to the judgment, has rejected same-sex marriage as against
Indian traditions and cultures. Muslim and Christian clergy are on the same
page with the RSS on this issue.
CJI Mishra has taken an individual's
identity to a high pedestal of divinity and said that the core of the concept
of identity lies in self-determination. An individual, in exercise of his
choice, may feel that he/she should be left alone but no one should impose
solitude on him/her. The CJI held that attitudes and mentality have to change to
accept the distinct identity of individuals and respect them for 'who they are'
rather than compelling them to become 'who they are not'.
In a bold statement, Mr Justice Mishra
asked us to bid adieu to the perceptions, stereotypes and prejudices deeply ingrained
in the societal mindset so as to usher in inclusivity in all spheres. He
rejected the classification between natural and unnatural sexual relations.
What nature gives is natural. That is called nature within. What the science of
sexuality today tells us is that an individual has the tendency to feel
sexually attracted towards the same sex, for the decision is one that is
controlled by his/her neurological and biological factors. That is why it is
his/her natural orientation which is innate and constitutes the core of his/her
being and identity.
A constitution must transform the society
for the better and this objective is the fundamental pillar of what he termed
as 'transformative constitutionalism' that has at its kernel a pledge, promise
and thirst to transform the Indian society so as to embrace therein, the ideals
of justice, liberty, equality and fraternity.
Next, he said that constitutional morality
is not confined to the provisions and literal text which a constitution
contains. Rather, it embraces within itself virtues of a wide magnitude, such
as that of ushering a pluralistic and inclusive society.
The court said that freedom of choice
cannot be scuttled or abridged on the threat of criminal prosecution and made
paraplegic on the mercurial stance of majoritarian perception as the
Constitution is not supposed to protect just the majority. The CJI said the
Fundamental Rights chapter gives rights to 'any person' or 'any citizen'. It
nowhere uses 'majority persons' or ‘majority citizens'. Sustenance of
Fundamental Rights, the CJI rightly said, does not require majoritarian
sanction. This observation will have an impact on the beef laws of 25 states.
We can no more seek prohibition of beef just because the majority community has
reverence for the cow. Right to food is the question of one's choice.
In explicit terms, the CJI admitted that
'homosexuality is neither mental illness nor moral depravity'. Nor is
homosexuality a matter of individual choice. Sexual orientation is one of the
many biological phenomena which is natural and inherent in an individual and is
controlled by neurological and biological factors.
The court said that as Section 377
criminalises carnal intercourse even between heterosexuals, it is legally
unsustainable. Section 377 was also held unconstitutional under freedom of
speech as any display of affection amongst the members of the LGBT community
towards their partners in the public so long as it does not amount to indecency
or it has the potentiality to disturb public order.
The CJI also struck down 377 on the ground
that consensual sexual acts between adults in private space are neither harmful
nor contagious to society.
Mr Justice Nariman referred to the history
of punishing homosexuality in England and referred to the Buggery Act of 1553.
He said that between1804 and 1861, as many as 404 persons were sentenced to
death for sodomy and similar other offences and 56 executed. He also held the
punishment of life imprisonment as clearly excessive and disproportionate. The
proposed three years' imprisonment for the harmless Triple Divorce can now be
Mr Justice Chandrachud expressed his
displeasure on the Modi government not taking a categorical position on 377. He
quoted the National Crime Records Bureau Report to state that 1,279 persons in
2014 and 1,491 in 2015 were arrested under Section 377. He also gave details of
the petitioners. Of the 20 petitioners, 16 are gay, two bisexual women and one
is a bisexual man. One among the petitioners is a transwoman. The effect of
Section 377, thus, is not merely to criminalise an act, but to criminalise a
specific set of identities. Though apparently neutral, the effect of the
provision is basically to efface specific identities.
The court struck down 377 as it does not
bring out the difference between 'ordinary intercourse' and 'intercourse
against the order of nature.' Mr Justice Chandrachud, in his characteristic
style, raised a few pertinent questions — What is 'natural' and what is
'unnatural'? And who decides the categorisation into these two ostensibly
distinct and watertight compartments? Do we allow the state to draw the
boundaries between permissible and impermissible intimacies between consenting
adults? In his view, Section 377 criminalises behaviour that does not conform
to the heterosexual expectations of society. In doing so, it really perpetuates
a symbiotic relationship between anti-homosexual legislation and traditional
gender roles. He went on to say that the indeterminacy and vagueness of the
terms 'carnal intercourse' and 'order of nature' renders Section 377
constitutionally infirm as it violates the equality Clause in Article 14.
Mr Justice Chandrachud quoted Bruce Bagemih
who had found that "no species has been found in which homosexual
behaviour has not been shown to exist, with the exception of species that never
have sex at all, such as sea urchins and aphis."
The court expanded the prohibited grounds
of discrimination under Article 15 to include sexual orientation. It will give
greater powers to courts to examine the constitutionality of various laws.
Court judgments cannot remove social prejudices. Let us see how this decision
works on the ground and how the court develops 'consent' jurisprudence in
Faizan Mustafa is VC, NALSAR University of Law, Hyderabad