What is ‘natural’ sex and what is ‘unnatural’ sex? And who decides the categorisation into these two ostensibly distinct and watertight compartments? Does the state have the power to draw the boundaries between permissible and impermissible intimacies between consenting adults? These were the pertinent questions that the apex court raised in its judgment on Section 377. In fact, Justice Chandrachud deserves maximum credit for this progressive verdict. It was his powerful judgment in the Puttaswamy case (2017) in which he opined that sexual orientation is an essential component of rights guaranteed under the Constitution that laid the foundation for the latest judgment.
It is a misconception that the judgment will help just the LGBT community. It is a small victory for them and they have a huge task ahead in fighting discrimination and ensuring recognition of their choices in civil laws. The verdict will in much greater measure help each individual due to its emphasis on individualism.
Indeed all citizens must celebrate the judgment as what it does for the sexual minorities is mere decriminalisation of their sexuality, but to all of us it guarantees autonomy, dignity, choice and freedom from state control. It nowhere takes away my heterosexual choices but merely recognises the sexual preferences of others. In striking down the archaic Section 377 of the IPC, the court termed it irrational, indefensible and manifestly arbitrary that does not merely criminalise an act, but in fact criminalises a specific set of identities. The court accepted that the concept of normal sexuality is fundamentally a social and cultural construct.
In a country where the individual is always considered subservient to the group and duties are considered more important than rights, the apex court has surprisingly elevated individual identity to divinity. CJI Dipak Misra boldly declared that “denial of self-expression is inviting death”. He went on to say that “one defines oneself. That is the glorious form of individuality”.
In the controversial judgment on the SC/ST (Prevention of Atrocities) Act on March 20, the top court had invoked idea of ‘fraternity’ in the Preamble of our Constitution in diluting stringent provisions of the special law. In this judgment, the CJI said that Section 377 is an anathema to the concept of fraternity. The judges accepted the fact that homosexuality may not be even an issue of the individual’s choice as the science of sexuality does tell us that an individual exerts little or no control over who he/she gets attracted to.
Both the American and Indian Psychiatric Societies have also said that homosexuality is not a psychiatric disorder. Even the new Mental Healthcare Act, 2017, does not treat homosexuality as a mental illness. The court concluded that as per modern psychiatric studies, penalising consensual gay sex is manifestly arbitrary and thus unconstitutional.
Justice Nariman’s powerful judgment added new dimensions to the constitutional interpretation that will have far-reaching impact in enlarging powers of the court in examining the constitutionality of laws. As of now, the court can strike down a law as unconstitutional if Parliament did not have the power to enact a law on that subject, i.e. if the subject is in ‘state list’ or if the said law in contrary to fundamental rights. With this judgment now, constitutionality of laws will also be tested on the touchstone of ‘constitutional morality’ and ‘transformative constitutionalism’. Both are fluid concepts but will operate as significant checks on legislative powers.
In an unprecedented ruling, Justice Nariman even refused to extend the benefit of presumption of constitutionality to a pre-Constitution law like Section 377. As per the SC’s own judgments every law is presumed to be constitutional. Justice Nariman observed that this presumption is premised on the fact that Parliament understands the needs of the people and is aware of the constitutional scheme of distribution and separation of powers.
Where, however, a pre-Constitution law is made by a foreign legislature or body, none of these parameters obtain. So it is clear that no such presumption attaches to a pre-Constitutional statute like the IPC. This observation will have a huge impact on all pre-Constitution laws. Moreover, he said that since Parliament did not act on the Law Commission’s recommendation, this in itself can be a reason to strike down Section 377. One is not sure how the apex court can make the Law Commission’s recommendations binding on the government. This new test to examine the constitutionality of laws in effect would impinge on the supremacy of Parliament.
The judgment has also widened the ambit of the non-discrimination clause in Article 15(1) of the Constitution. ‘Sex’ in Article 15 now includes sexual identity and sexual orientation. Any discrimination on the basis of sexual orientation would entail a violation of the fundamental right of right to equality as well as freedom of expression. Thus here again, the court’s power to examine the constitutionality of law has been significantly though justifiably widened.
Justice Chandrachud explicitly rejected the doctrine of legitimate state interest in retaining Section 377 when he observed that criminalisation of consensual carnal intercourse hardly serves any legitimate public purpose or state interest. Without mincing words, the SC said: “Sexuality cannot be construed as something that the state has the prerogative to legitimise only in the form of rigid, marital procreational sex.” The court rightly said Section 377 has a detrimental impact on the right to health of those who are susceptible to contracting HIV—men who have sex with men.
Though the verdict noted they were found to be 19 times more susceptible to be infected with HIV than other men, it did not consider it alarming to justify the use of penal sanctions as the court had to harmonise adult choices with health concerns. Let the nation follow the CJI’s advice in moving from darkness to light, from bigotry to tolerance and from the winter of mere survival to the spring of life.