Rights over wrong

With Section 377 verdict, SC emphasises dynamic nature of Constitution, its counter-majoritarian role

Written by Arundhati Katju | Updated: September 8, 2018 6:56:20 am

The court has, finally, struck down Section 377 because it violates Articles 14, 15, 19, and 21 of the Constitution.

The Constitution Bench judgment in Navtej Singh Johar and Others v Union of India is a watershed moment in Indian constitutional jurisprudence. While the judgment has extended the cloak of constitutional protection to LGBT citizens, it has relevance to all minorities and indeed to all individuals. The judgment articulates a vision of constitutional supremacy that will guide Indian democracy well into the future. It protects LGBT citizens under the right to equality, along with privacy and dignity.

Chief Justice Dipak Misra and Justice AM Khanwilkar’s judgment puts the individual, and, as they poetically call it, the “overarching ideals of individual autonomy and liberty”, at the heart of the constitutional scheme. In the Chief Justice’s words, “Destruction of individual identity would tantamount to crushing of intrinsic dignity that cumulatively encapsulates the values of privacy, choice, and freedom of speech and other expressions.” In Johar’s vision, individual identity is constitutionally protected. It is this focus on the individual that leads Johar to overturn Suresh Kumar Koushal vs Naz Foundation (2013).

The court has emphatically held that fundamental rights do not hinge on the number of people who claim them. Koushal’s reasoning that Section 377 should not be struck down because LGBT people constitute a “minuscule minority” has been put to rest in Johar. The Constitution doesn’t just protect minorities, the individual is the basic unit of the constitutional scheme. The court has thus reiterated its commitment to its counter-majoritarian role.

Further, the court has emphasised the dynamic nature of constitutional interpretation and indeed of the Constitution itself. Constitutional courts breathe life into the Constitution through their dynamic and purposive interpretation of the constitutional text. This dynamic interpretation ensures that the Constitution endures across generations. But, as the judgment notes, dynamic interpretation is also essential to enable transformative constitutionalism. Citing NM Thomas, Chief Justice Misra recalls that the Indian Constitution is a “great social document, Supreme Court calls the Constitution of India a great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy”. The very purpose of constitutionalism is to transform society. Dynamic constitutional interpretation allows for the progressive realisation of rights as societies evolve.

Johar also builds on the Supreme Court’s right to choice jurisprudence. Starting with Common Cause v Union of India, the court held that choice was constitutionally protected under Article 21 of the Constitution. The right to choice was extended to the choice of partner under Hadiya’s case and the khap panchayat’s judgment. Now, with Johar, the Supreme Court has extended the right to choice to LGBT persons.

The court has, finally, struck down Section 377 because it violates Articles 14, 15, 19, and 21 of the Constitution. Performing its classic function of judicial review, the court has struck down Section 377 as being violative of Articles 14 and 15. Justice Nariman has rightly begun Johar’s equality analysis with the landmark judgment, Anuj Garg v Hotel Association of India, where Justice SB Sinha emphasised the need for dynamic constitutional interpretation in cases concerning gender equality. Justices Misra and Khanwilkar found that Section 377 has no constitutionally valid object inasmuch as non-consensual acts criminalised under Section 377 have already been made penal offences under Section 375 IPC. They have also found Section 377 IPC to be arbitrary because it criminalises sexual acts between adults who are competent to give their consent, and puts undue limitations on their liberty.

Crucially, Justices DY Chandrachud and Indu Malhotra, in their concurring opinions, have also found that Section 377 violates Article 15’s prohibition against sex discrimination, specifically noting that “sex” under Article 15 includes “sexual orientation”. Justice Chandrachud has also relied on Anuj Garg to reiterate that Article 15 rejects discrimination based on sex-based stereotypes. Reading these opinions together, the Constitution’s entire equality code has been extended to LGBT persons. This is a groundbreaking jurisprudential development. In Justice Chandrachud’s words, the Johar case “is about an aspiration to realise constitutional rights… Article 14 contains a powerful statement of values — of the substance of equality before the law and the equal protection of laws.” The court’s emphasis on equality helps LGBT citizens realise these rights in full.

Justice Malhotra has also noted that relationships between same-sex couples have been accorded protection across the world. Chief Justice Misra has protected the LGBT community’s “right to companionship” under Article 21 of the Constitution, in a passage worth quoting in its entirety: “There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage, though marriage is a union. As a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional. The LGBT community is seeking realisation of its basic right to companionship, so long as such a companionship is consensual, free from the vice of deceit, force, coercion and does not result in violation of the fundamental rights of others.”

Finally, the Johar judgment has also highlighted the need for rape law reform to protect male survivors of sexual violence. The judgment has struck down Section 377 to the extent that it relates to sexual relations between consenting adults. The law needs to provide for cases where men are the victims of sexual assault. But should this be done under Section 377, with its Victorian understanding of sexual relations? After the 2013 rape law amendments, we now recognise that sexual assault is not limited to penile-vaginal intercourse. The Protection of Children from Sexual Offences Act, 2012 protects child sexual assault victims, regardless of their gender. However, there is no law to protect adult male victims of sexual assault, whether they are cis- or transgender. Parliament needs to fill these lacunae in the law.

The writer represented Navtej Singh Johar and other petitioners before the Supreme Court