Harsh Parakh
Introduction
“I am what I am, so take me as I am” said the great German thinker, Johann Wolfgang von Goethe. Similarly, John Stuart Mill stated: – “But society has now fairly got the better of individuality; and the danger which threatens human nature is not the excess but the deficiency of personal impulses and preferences.”
The recent decriminalization of Section 377 of the Indian Penal Code is a step towards realization of individuality and identity. It is not to be doubted that the gender identity is one of the most fundamental aspects of life which refers to a person’s intrinsic sense of being male, female or transgender or transsexual person.[1] Gender identification is an essential component which is required for enjoying civil rights by community. It was only after this recognition that many rights attached to the sexual recognition as “third gender” would be available to the said community more meaningfully viz., the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver’s license, the right to education, employment, health and so on. This further ensured Right to Equality under Article 14, right against discrimination under Article 15 and the right to life under Article 21 of the Indian Constitution.
When the “secular” government fell back on religious texts to “save the moral fabric of our society”, it became crucial to analyze the jurisprudential foundations of Section 377 of the IPC. Not surprisingly, when this law was put to test in Navtej Singh case, the jurisprudential brass behind this law collapsed like a pack of cards.
[1] Radhakrishnan, J., National Legal Services Authority v. Union of India and others (2014) 5 SCC 438
Chapter 1. The Constitution and its Progressive nature
Our democratic Constitution is an organic and breathing document with senses which are much alive to its surroundings. It has been crafted in such a manner that it can adapt to the needs and developments taking place in the society. This was highlighted in the case of Saurabh Chaudri and others v. Union of India and others[1]. The court further made following observations in the case of Ashok Kumar Gupta and another v. State of U.P. and others,[2]: –
“Therefore, it is but the duty of the court to supply vitality, blood and flesh, to balance the competing rights by interpreting the principles, to the language or the words contained in the living and organic Constitution, broadly and literally.”
Our constitution has always fostered and strengthened the spirit of equality and speaks of a society where every person enjoys equal rights which enable him/her to grow and realize his/her potential as an individual. In Ashok Kumar Gupta[3], the Court had observed that common sense has always served in the court’s ceaseless striving as a voice of reason to maintain the blend of change and continuity of order which are sine qua non for stability in the process of change in a parliamentary democracy. The Supreme court of India has time and again reiterated the dynamic and progressive of the Constitution and thus, this cannot be doubted.
[1] Saurabh Chaudri and others v. Union of India and others (2003) 11 SCC 146
[2] Ashok Kumar Gupta and another v. State of U.P. and others (1997) 5 SCC 201
[3] Supra note 4
Chapter 2. Constitutional morality and Section 377
Constitutional morality means a paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and within these forms, yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined, too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of constitution wall not be less sacred in the eyes of his opponents than his own.[1] The society as a whole or even a minuscule part of the society may aspire and prefer different things for themselves. They are perfectly competent to have such a freedom to be different provided that their different tastes and likings remain within their legal framework and neither violates any statute nor results in the abridgement of fundamental rights of any other citizen. The problem as to what behavior the law should regulate has been probed into by many great thinkers. John Stuart Mill argued that the only part of an individual’s behavior over which the society should have control is that which concerns others, but the individual must be sovereign over his own body and mind.[2] The most common jurisprudential justification given for criminalizing homosexuality is that the State can dictate what morality is and has the power to punish acts which are immoral. This always gives rise to a very complex debate regarding extent of control to determine morality be exercised by the State to make it a ground of criminal offence. Professor H.L.A. Hart gave a noteworthy reply to the Law and Morality debate. He argued that the use of the criminal law to enforce popular morality, in particular sexual morality, was inappropriate. Hart attacked a society whose morality is based on retrograde principles and he rejected Lord Devlin’s hypothesis that a universally shared morality is a pre-requisite for society’s existence. Such an assumption would warrant the extravagant claim that all of a society’s morality was “a single seamless web, so that those who deviate from any part are likely or perhaps bound to deviate from the whole.[3] This would then warrant the absurd conclusion that legal enforcement is a compulsory requirement for moral preservation. Hart, thus concluded that when the values of liberty, safety and protection are secured, they permit a society to accommodate individual divergences from a dominant morality and in fact enables it to profit from such deviations by making suitable adjustments for change. The super majoritarian moral belief does not necessarily provide a rational basis for criminalizing conventionally deviant conduct. The rights to privacy and liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. The majority view cannot always be traditionally allowed to use the power of the State to enforce these views on the whole society through operation of the criminal law. The Supreme Court of India very well understood this concept in Navtej Singh case.
[1] Dr. B.R. Ambedkar (4th November 1948). Constitutional Assembly Debates, Vol. VII
[2] Banerjee, Sudipta and Prerna Gandhi (2002). The Pink Triangle: A Relook at the Criminalization of Homosexual Conduct, Criminal Law Journal, p. 261.
[3] Ashworth, Andrew (1999). Principles of Criminal Law, Oxford University Press.
Chapter 3. Order of Nature
Section 377 of the I.P.C. makes any carnal intercourse against the order of nature[1] an offence and subjects its perpetrator to imprisonment for life or for a term up to 10 years. A plain reading of Section 377 reveals that carnal intercourse against the order of nature coupled with penetration is the gist of the offence. To be more precise, provisions of Section 377 came into play when a person accused of ‘unnatural offence’ (i) had carnal intercourse with man, woman or animal; (ii) such an intercourse was against the order of nature; and (iii) such an act was done voluntarily by the person accused of the offence. However, the terms ‘carnal intercourse against the order of nature with any man, woman or animal’ and ‘penetration’, are not defined in the Penal Code and had a very wide amplitude which also included prohibition and penalty for sexual conduct between persons of same sex and voluntary ‘unnatural’ sexual relation (anal, oral or inter-femoral). Section 377, thus, inter alia, prohibited a consensual homosexual act between two adults even if it is done in private. It treated such a carnal intercourse ‘unnatural’. This was condemned by Gays, lesbians and their activists as it illegally curtailed their privacy and sexual ‘choice’ and ‘autonomy.’ These acts could not be specified as acts against the order of nature. The function of the criminal law is to preserve public order and decency, protect citizens from what is offensive or injurious and to provide sufficient safeguards against exploitation and corruption of others and ‘not’ intervene in the private lives of citizens, or to seek to enforce any particular pattern of behavior further than it is required. Consensual homosexual act between consenting adults in private did not fit into theoretical as well as operational paradigm of criminal law as it was neither ‘offensive or injurious’ to others nor does it involve ‘exploitation and corruption’ of a ‘specially vulnerable’, ‘weak’ or ‘inexperienced’ individual. A consensual homosexual act in private harms no one. This is a matter of individual’s freedom of choice and action in matters of private morality.
[1] Roots of s. 377, IPC, were biblical and based on the principle that sexual activity is for procreation only.
Chapter 4. Homosexuality and Fundamental Rights
The Constitution of India not only guarantees a set of fundamental rights[1] but also accords them constitutional supremacy. In fact, clause (2) of article 13 of the Constitution mandates the ‘state’ not to ‘make any law’ contravening any of these rights or else would be rendered unconstitutional and void.[2] A close look at the fundamental rights guaranteed under the Constitution, in the backdrop of their hitherto judicially recognized contours, it is inferred that the so-called sexual autonomy or choice can be perceived as one of the contours of the fundamental right to life and personal liberty guaranteed under Article 21 of the Constitution. Article 21 consists of three facets, i.e., ‘life’, ‘personal liberty’ and ‘procedure established by law’. The expression ‘Right to life’ means something more than mere animal existence. It includes in itself the ‘right to live with human dignity and all that goes with it.’ The expression ‘personnel liberty’ brings into its fold all the varieties of rights that go to make up the personal liberties of a man.[3] While the phrase ‘procedure established by law’ contemplated under article 21, for depriving a person of his right to life or personal liberty must be ‘right, just and fair’ and ‘not fanciful or oppressive’.[4] It must not be ‘capricious, arbitrary, unfair or unreasonable’.
The right to privacy, i.e., the ‘right to be let alone’, according to the Supreme Court, ‘is implicit in the right to life and personal liberty guaranteed under article 21 of the Constitution and it has also acquire the status of fundamental right even though it is not expressly enumerated in Part III of the Constitution.[5] The Supreme Court had reiterated its stand clearly that it does not have any ‘hesitation in holding that right to privacy is a part of the right to life and personal liberty enshrined under article 21 of the Constitution. Thus it is unconstitutional to interfere in the realm of privacy of adult consensual homosexuals as ‘sexual freedom and preference’ is an integral part of their right to privacy and can never be invaded. Sexual orientation is an essential attribute of privacy and discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. The individual has sovereignty over his/her body and can surrender his/her autonomy willfully to another individual and their intimacy in privacy is a matter of their choice. There is no doubt that an individual also has a right to a union under Article 21 which not only means union of marriage but as a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional. Thus, The LGBTQ community has a right to companionship and the sexual relation between two consenting adult of same sex cannot be termed as an act ‘against the order of nature.’ Kaul, J., while concurring with the view of Chandrachud, J. in the Puttaswamy[6] case observed that the right to privacy cannot be denied even if there is a minute fraction of the population which is affected. First the apex court in Puttaswamy[7] held that sexual orientation is also a facet of a person’s privacy and that the right to privacy is a fundamental right under the Constitution of India and then plastered the view in Navtej Singh Johar case wherein the court decriminalized Section 377 as it stood against the principle of right to privacy which ultimately affected an individual’s Right to life. The court, thus, declared that Section 377 of the IPC which criminalizes consensual acts of adults in private as violative of Article 14, 15 and 21 of the Constitution overruling the landmark case of Suresh Kumar Koushal v. Naz Foundation[8] which previously criminalizes the consensual sexual acts of consenting adults under Section 377 IPC as acts against the order of nature.
[1] Part III (art. 12-51) guarantees a cluster of fundamental rights grouped in various heads. They are: (i) Right to Equality; (ii) Right to Freedoms; (iii) Right against Exploitation; (iv) Right to Freedom of Religion; (v) Cultural and Educational Rights; and (vi) Right to Constitutional remedies.
[2] Article 13, The Constitution of India.
[3] Kharak Singh v. State of U.P., AIR 1963 SC 1295.
[4] Maneka Gandhi v. Union of India, AIR 1978 597.
[5] Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. (2017) 10 SCC 1.
[6] Supra.
[7] Supra.
[8] Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1.
Conclusion
Traditionally, criminal law, inter alia, has showed deep concerns for sexual mores and values. The existence of a set of sexual crimes, such as incest, sodomy, bestiality, obscenity and pornography, in a majority of penal laws in vogue is indeed a testimony of the interplay of criminal law and morality and of the fact that prevailing sexual mores and values play a significant role in decriminalization of sexual morality. Therefore, determination of ‘order of nature’ undergoes changes with the advent of time. The interpretation must be static owing to the dynamic mindset imbibed in our constitution.
As said, Better late than never, History still owes an apology to the members of the LGBTQ community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The mis-application of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discriminate under Article 15, and the Fundamental right to live a life of dignity and privacy guaranteed by Article 21. The decision in Navtej Singh Johar[1] and the decriminalization of the Section 377 is the new dawn towards the constitutional morality guarding individual’s right to life and equality. It’s true that the society will take time to adapt or accept but on a brighter side, there has been a new beginning.
After all, Rome was not built in a day.
[1] Supra