Section 377: What two recent SC judgments tell us about court's altered view on sexuality and privacy in India
if Section 377 would have to survive the test of constitutionality, it would have to be found non-discriminatory on the grounds of sexual orientation.
The Supreme Court has agreed to take another look at its 2013 judgment in Suresh Kumar Kaushal versus Naz Foundation. The judgment in Kaushal's case reversed a 2009 decision by the Delhi High Court which had read down Section 377 of India's Penal Code. The judgment of the court in Kaushal's case turned the clock back on a trend in progressive jurisprudence that has become a hallmark of India's top court and many view the possibility of the court taking a relook at the case as a rather positive step.
Section 377 of the Penal Code criminalises consensual sexual relations between adult men in India and has been used by the police and Indian government to harass and intimidate India's LGBT community. Since Kaushal's case, the Supreme Court has dealt with the issue of gender rights in two key cases. These two cases have taken a more progressive approach towards gender rights and the rights of LGBT community. Though they did not directly touch upon the issue of Section 377 as Section 377 was not the issue before the court.
The first case worth examining is National Legal Services Authority versus Union of India (2014) 5 SCC 438, a decision by the Supreme Court which recognised the right of transgender people. The court deals with the aspect of sexual orientation in the case in many parts though not directly addressing the issue of Section 377:
At Paragraph 20 the Court holds:
"Sexual orientation refers to an individual’s enduring physical, romantic and/or emotional attraction to another person. Sexual orientation includes transgender and gender-variant people with heavy sexual orientation and their sexual orientation may or may not change during or after gender transmission, which also includes homo-sexuals, bysexuals, heterosexuals, asexual etc. Gender identity and sexual orientation, as already indicated, are different concepts. Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom and no one shall be forced to undergo medical procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity."
And further at Paragraph 77 the Court holds:
"We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community."
Though while this case was with particular reference to the transgender community, the board definition of sexual orientation here and the conclusion of the case will affect the final determination on the constitutionality of 377. In particular the fact that this case turned on Article 14 (The right to equality) and Article 21 (the right life).
The second case that needs to be examined is Justice KS Puttaswamy (RETD) versus Union of India and Ors WP (C) 494/2012 also popularly known as the Right to Privacy case. While this case did not directly address the rights of LGBT people, it did take a stand on the right to privacy and in doing so touched on the rights of LGBT people and ended up discussing Kaushal's case.
At Paragraph 126 of the Majority Opinion the Court held that:
"Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the Fundamental Rights guaranteed by Articles 14, 15 and 21 of the Constitution"
And followed it up with this gem at Paragraph 127:
"The view in Koushal (case) that the high court had erroneously relied upon international precedents 'in its anxiety to protect the so-called rights of LGBT persons' is similarly, in our view, unsustainable. The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be 'so-called rights'. The expression 'so-called' seems to suggest the exercise of a liberty in the garb of a right which is illusory. This is an inappropriate construction of the privacy-based claims of the LGBT population. Their rights are not 'so-called' but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination." [Emphasis Supplied]
The court though stopped short of expressing a final view on the correctness of Kaushal's case as it was at that time pending for review before another bench of the Court. No doubt these two cases would have had an impact in the Court deciding to examine Kaushal once more.
The critical thing though is the Right to Privacy case was a determination by a nine-judge bench of the Supreme Court and it has read the sexual orientation into the right to privacy. Further it has said that discrimination on the grounds of sexual orientation is a violation of Article 14 and 21 of the Constitution.
This would mean, in a purely academic sense, if Section 377 would have to survive the test of constitutionality, it would have to be found non-discriminatory on the grounds of sexual orientation. Such a finding seems as fanciful as it seems unlikely. LGBT persons and their supporters in India have a lot to be hopeful for. If the Supreme Court applies its own recent jurisprudence, hopefully this is the last we see of this woeful provision of India's penal code.
Though, Parliament can still at any time step in and pass a law fixing the issue. But the hopes of India's minorities have often fallen on deaf years in the past. One wonders if Parliament is still willing to listen.
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