Decriminalisation of Section 377: The Navtej Judgment and Why Its References Matter? History of Homosexuality in India (Part III/III)

GLA University - B.Com | LLB | B.A.
GLA University | B.Com | LLB | B.A.

The decriminalisation of Section 377 is made of many moments of courage and activism that came before it. And the Navtej judgment captures those moments by citing the literature and judgments which supported same-sex love and LGBTQIA+ activism. This piece is an inquiry into the judgment and its composition.

Deepanshi Mehrotra writes how certain texts impacted the Navtej judgment and how the judgment is creating an impact today. This article is the third in a three-part series on ‘homosexuality’ in India, its history from the past and in the making.

The first article in the series highlighted instances in ancient and medieval Indian history, thereby proving the prevalence and, to some extent, acceptance of homosexuality in India. The second article dealt with the British idea of homosexuality and how the colonial worldview criminalised ‘eunuchs and same-sex in India.

decriminalisation of section 377

By Deepanshi Mehrotra, a law graduate from Symbiosis Law School in Pune, Maharashtra. Deepanshi is currently freelancing. Deepanshi is a member of the Lawctopus Writers Club.

Introduction

Section 377 of the Indian Penal Code, drafted during the British era, criminalised ‘carnal intercourse against the order of nature with any man, woman or animal’. As discussed in previous articles in this series, for a long time, the police, the judiciary and society interpreted ‘homosexuality’ as one such conduct, thereby prohibiting it. The same resulted in denying sexual autonomy and the right to privacy to many in India.

However, after multiple judicial discussions and judgments, the Supreme Court reconsidered the matter after filing a curative petition. And on September 6, 2018, a five-judge bench of the Supreme Court decriminalised homosexuality by reading down Section 377.

The Supreme Court unanimously held that S. 377 was unconstitutional so far as it concerned consensual sex between adults of the same sex.

In the 2018 judgment, Navtej Singh Johar v. Union of India, Justice Indu Malhotra apologised to the queer community on behalf of ‘history’, and rightly so. While the previous pieces spoke about what was wrong with India’s colonial history, this part will highlight how these wrongs were undone in the text of Navtej judgment.

Since the Navtej Judgment has become a part of the broader gender discourse for projecting inclusivity through the Constitution, it’s all the more important to reference and highlight materials that made the Navtej judgment unique and transformative.

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This article will concentrate on the sources and references that the Supreme Court of India cited while pronouncing the landmark judgment. The Court deemed sexual autonomy and orientation responsible for bringing a legal change for the queer community in India.

The Supreme Court considered and discussed various literary, academic, scientific and legal references. Understanding the significance of these references made in Navtej is essential as they constitute a part of our present and defy the colonial and post-colonial understanding of ‘homosexuality’.

The piece begins by detailing the literature that the court referred to in pronouncing the judgment. Following that, the article will focus on the judgments that came before the Navtej Judgment and informed it. Finally, it will conclude how the 2018 judgment on decriminalising Section 377 is already bringing a positive change, at least within judicial decision making.

Literature Referenced for the Decriminalisation of Section 377

Judgments tend to portray the interconnection between law and literature. Thus, the choice of authors and the literary work attaches a deep meaning to the assessment.

The ruling in Navtej was unique in its method of utilising literature to shape its delivery. Judges, in this case, have used multiple pieces of literature to highlight the significance of their decisions.

The judgment begins with Goethe, ‘I am what I am, so take me as I am’, and somewhere in the middle drops Shakespeare’s, ‘What’s in a name?’

Some authors featured in the Navtej judgment include Johann Wolfgang Von Goethe, Arthur Schopenhauer, Shakespeare, Leonard Cohen, John Stuart Mill, and Oscar Wilde.

When discussing love and its fears, Justice Nariman cited Alfred Douglas’s poem Two Loves, written by him for his lover Oscar Wilde, ‘The love that dare not speak its name’.

The literature was unique to the queer community and the Court’s intent, which wanted to recognise an ostracised community.

Former Chief Justice Mishra referenced Michele Finck’s observation regarding the role of human dignity in gay rights adjudication and legislation to equate their citizenship rights to that of a heterosexual individual (para 125, Navtej Judgment).

In the 2018 judgment, Justice Chandrachud also quoted multiple literary references. He referred to Same-Sex Love in India: A Literary History by Ruth Vanita and Saleem Kidwai. This book is a significant piece of literature, referenced in multiple judgments concerning understanding the history of homosexuality in India.

He began his part of the judgment by referring to the words of Justice Leila Seth to signify love and the cruelty of Section 377. He also used the lines from Cohen’s Democracy to highlight the colonial mindset that upholds the provision.

Through the lens of Vikram Seth’s poem Through Love’s Great Power, he also emphasised Article 14 and its violation by Section 377.

Justice Indu Malhotra referred to an article by K.K. Gulia and H. N. Mallick titled ‘Homosexuality: A Dilemma in Discourse’ to underline the essence of homosexuality as a sexual orientation.

Cases Referenced and Their Contribution to the Navtej Judgment

The 2009 Delhi High Court Judgment, Naz Foundation v. NCT of Delhi and Others, was a landmark step towards securing sexual autonomy of the queer community. But it took almost eight years before the Indian judiciary recognised queer love.

It all started when the Naz Foundation, an NGO that worked for HIV, filed a petition against Section 377, arguing that the same violated the fundamental right to health, privacy equality and freedom of expression. Apart from the legal action, the Naz Foundation and few others also mobilised the queer community, building ground-level LGBTQIA+ activism.

The filing by the Naz Foundation was a crucial and visible legal step towards the decriminalisation of Section 377. Accordingly, the petition prayed the Supreme Court to exclude acts of consensual private sex from the purview of S. 377.

The government challenged the petition stating that the petitioner had no locus standi to dispute the law—an argument which the High Court eventually accepted and dismissed the petition in 2004. The Court also dismissed a review petition against the order.

Following the initial blow, the Naz Foundation filed an appeal in the Supreme Court, which remanded the case back to the High Court in 2006, directing them to hear the matter on its merits.

The High Court bench comprising the then Chief Justice of the High Court Justice A.P. Shah and Justice Muralidhar delivered a 105-page judgment expanding the ambit of constitutional rights and empowering the queer community.

The bench read down S. 377, removing homosexuality from its ambit and declaring it violative of Articles 14 (Equality), 15 (non-discrimination), and 21(dignity and health) of the Constitution of India.

Contributions Made by the Naz Judgment 

Naz was important for Navtej, and the 2018 bench recognised it in its verdict.

In the Naz judgment, the Court addressed the rights to privacy, equality, non-discrimination, dignity and health from gender. It successfully deviated from a clinical definition of ‘homosexuality’ to an inclusive one. And then, even in the 2018 judgment, this new perspective seeped through.

The Naz judgment gave ‘homosexuality’ a new meaning.  More than illegalised bodies, it now meant same-sex love and companionship.

Former Chief AP Shah, in para 130 of the Naz Judgment, said:

“If there is one constitutional tenet, that can be said to be [the] underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that [the] Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations.”

It thus acknowledged the emergence of new social identities.

Another significant contribution of Naz was the re-interpretation of Article 15 of the Constitution. The Court stated that sexual orientation is analogous to sex within the purview of Article 15, thus concluding that the Constitution prohibits discrimination based on sexual orientation [para 104, Naz Judgment].

The Naz Foundation Judgment highlighted the importance of constitutional morality over and above popular morality. And the Supreme Court in Navtej echoed this (Para 145, Navtej Judgment).

Therefore, regardless of archaic social notions, the Court in Naz judgment tended towards the Constitution, enshrining rights and liberties without discrimination. But this lasted only a short while.

Undoing the Suresh Koushal Judgment

The Delhi High Court decision received severe backlash from various groups, including religious groups. Inevitably, an appeal was filed against the judgment in the Supreme Court of India.

The period between said appeal and the decision of the Court was marked with uncertainty and doubt. Consequently, the Court primarily delved upon discussions surrounding the interpretation of the provision.

Eventually, the decision of the Supreme Court in Suresh Kumar Koushal v. Naz Foundation pulled the queer community and LGBTQIA+ rights a step back. The Koushal judgment reversed the Delhi High Court Judgment.

They discarded the jurisprudential principles that the High Court had developed. Instead, the Court stated that S. 377 did not discriminate against a specific group but only criminalises certain acts.

The bench further noted that the LGBT community constitutes a ‘minuscule’ fraction of the population, thus inadvertently stating that the judiciary cannot interfere in cases of rights violation of a minuscule population.

Unlike Naz judgment, the Court, in this judgment, was guided by social and majoritarian morality. And the Navtej judgment recognised it.

Another Notable Mention: The NALSA Judgment

The Supreme Court, in Navtej, relied heavily upon National Legal Services Authority v. Union of India and Others (NALSA judgment) to highlight the eminence of identity. NALSA was a landmark judgment that recognised the identity of transgender people as a third gender.

The Supreme Court judgment in NALSA stated that gender identity is an intrinsic part of an individual’s personality, and denying the same would violate one’s dignity.

Contributions

The most significant contribution of the NALSA judgment was understanding the struggles of individuals who do not align with societal heterosexual norms.

It further differentiated between gender and sex, highlighting that gender identity referred to ‘an individual’s self-identification as a man, woman, transgender or other identified category’.

Further, the Court expanded the ambit of ‘sex’ within Articles 15 and 16 of the Constitution to include gender identity.

The judgment laid the foundation for incorporating gender identity within the purview of human rights and constitutional rights of life, liberty and dignity. This understanding led the Court in Navtej to recognise not only sexual orientation but also choice as an intrinsic aspect of an individual’s constitutional rights.

Nevertheless, it is confusing to decipher the Supreme Court NALSA judgment in the backdrop of the Naz judgment. NALSA was delivered immediately after the Koushal judgment. However, where the former recognised the constitutional rights of transgender people in the country and the significance of applicability of Articles 14, 15, 19, and 21 to them, similar rights were denied by the Court to the gay, lesbian, and bisexual communities in the latter judgment.

How Privacy Entered the Navtej Judgment?

Justice K.S. Puttaswamy v. Union of India played a significant role in deciding the decriminalisation of Section 377.

Retired High Court Judge Puttaswamy challenged the government’s Aadhar scheme and the process of making it mandatory to access government services and benefits on the grounds of violation of the right to privacy.

A constitutional bench comprising nine judges of the Supreme Court recognised the Right to Privacy as a fundamental right within the ambit of Article 21 of the Constitution.

How Did it Contribute?

This decision laid the foundation for the Court to recognise sexual orientation as a part of individual autonomy under the right to privacy. The Puttaswamy judgment also raised the issue of sexual orientation. And in response to it, Justice Chandrachud had stated:

“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.”

In the presence of the Puttuswamy judgment, it was almost impossible for Navtej to overlook the former’s importance as it laid the legal ground for the eventual decriminalisation of Section 377.

In the  Navtej judgment, the Court realised that interfering with an individual’s private affairs would violate the right to privacy. Based on this realisation, the Navtej judgment recognised that the right to union is intrinsic to Article 21 of the Constitution, and ‘union’ does not merely refer to marriage but also ‘companionship,’ which is physical, mental, sexual, and emotional.

The Court accepted that S. 377 violated this right to seek consensual companionship provided under Article 21 of the Constitution.

Primarily relying on the above-stated judgments in Navtej, the Supreme Court eventually overturned its earlier decision in Suresh Kumar Koushal. While undoing the Koushal ruling, the Court stated that fundamental rights could not be denied even if only a minuscule population is affected by the violations.

What changed from Naz Foundation judgment to Navtej judgment was the perception of the Court and their understanding of Section 377.

In the Naz decision, Supreme Court refused to acknowledge the effect of the provision on a ‘community’ and examined only the definition of ‘sexual acts’ per the section.

On the other hand, the Supreme Court in Navtej took the rights perspective, recognising the effects of S. 377 on a community, regardless of how minuscule it might be.

Further, the Supreme Court also relied upon its decisions in Shafin Jahan v. Asokan K.M. and Shakti Vahini v. Union of India. The Court in the Navtej Johar decision reaffirmed that an individual has the right to ‘choose a life partner of his/her choice’, [para 107, para 108], and the same is significant to individual liberty.

The Court went a step ahead to address the issue of social standardisation, asserting that ‘individual orientation is naturally natural’ [para 109, Navtej Judgment].

The Court also referenced Fazal Rab Choudhary v. State of Bihar, where the judiciary reduced the sentence of convictions under S. 377, considering the aspect of consent.

The Navtej judgment also referred to Shayara Bano v. Union of India and Others. It asserted that S. 377 failed to distinguish between consensual and non-consensual sexual activity, thereby arbitrarily subjecting the LGBTQIA+ community to discrimination and harassment. Thus, apart from everything else, Section 377 also violated Article 14 of the Constitution and needed to be partially struck down.

Other Significant References

The Court referenced the American Psychological Association (APA), which opined that attraction to the same sex is natural and homosexuality is a psychiatric disorder.

Moreover, the Court also relied upon the Position Statement on Homosexuality issued by the Indian Psychiatric Society, stating in explicit terms that ‘homosexuality is not a disease’.

The Court referenced the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, of which India is a signatory. They prohibit discrimination based on sexual orientation and gender identity.

Thus, the Court concluded that S. 377 does not align with India’s international obligations and necessitates removal.

Justice Mishra also referred to the APA and the Yogyakarta Principles to understand the definition and meaning of ‘sexual orientation.’

Justice Nariman, in his judgment, emphasised the 2017 Mental Healthcare Act, which recognises that homosexuality is not a disease.

Referencing the legislation was vital as it clearly outlined that the distinction between natural and unnatural per Section 377 is violative of Article 14 of the Constitution. Moreover, it is a Parliamentary sanction and offered contradiction to the parliament’s position on decriminalising Section 377.

Justice Mishra made a notable reference to Michael Kirby, former Judge of the High Court of Australia. He gives an informative and instructive definition of LGBT, enumerating varied aspects relating to sexual orientation and defining the variations within the community [para 139].

Justice Indu Malhotra referred to the Report of J. S. Verma Committee, constituted to recommend modifications in the Criminal Law to ensure quicker trials and enhanced punishments for committing sexual assault against women.

In addition, the Committee recommended including ‘sexual orientation’ within the ambit of ‘sex’ under Article 15 of the Constitution. She stated that such inclusion is essential to ensure the prohibition of discrimination against the LGBTQIA+ community.

Impact of Navtej Judgment and Decriminalisation of Section 377

The judgment of the Supreme Court in Navtej Singh Johar v. Union of India was a significant legal step towards granting equal rights and status to the LGBTQIA+ community and unlocked the gateway for them to claim further rights.

The judgment conceptualised three unprecedented concepts – transformative constitutionalism, constitutional morality, and the Right to Privacy.

The Court stated in explicit terms that the Constitution has the authority and the obligation to bring reformation in society for the better. The Court acknowledged that the Constitution cannot adhere to the ideals of the majority and should aspire for transformation.

Former Chief Justice Mishra said that the Constitution should enable an inclusive and pluralistic society.

Supreme Court decision in Navtej is a highly transformative one with a profound impact on the concerned people’s lives.

Before Navtej, there were multiple cases and stories of harassment of members of the LGBTQIA+ community. Same-sex couples were separated and arrested under S. 377. However, this mechanism changed with the implementation of Puttaswamy and Navtej judgments.

Since its pronouncement, the Navtej johar decision has become a significant moment for visibilising the queer community. While it still challenges social morality, it creates a breathing space by safeguarding individuals rights.

The order passed by Justice Anand Venkatesh of Madras High Court is also a landmark judgment furthering the principles established by the Supreme Court in Navtej. For the first time in Indian judicial history, a judge considered himself as ‘society’. Not only that, the Judge sought education on the matter to give a concrete and thoughtful order.

Read more on the recent Madras High Court judgment, here

Navtej firmly establishes that sexual choices are a part of the right to dignity and protects the choice of who one can love or be intimate with under the right to privacy. Moreover, it establishes an understanding among the law, the judiciary, and the queer community.

However, there is still a long way to go since there is only so much the judiciary can do. The legislature needs to step in and formulate legislation or modify the existing ones to empower the LGBTQIA+ community in India.

References

Danish Sheikh, The Road to Decriminalisation: Litigating India’s Anti-Sodomy Law, YALE HUMAN RIGHTS AND DEVELOPMENT LAW JOURNAL, Vol. 16 Iss. 1 (2013), https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1117&context=yhrdlj.

Justice Leila Seth, A Mother and a Judge Speak Out on Section 377, THE TIMES OF INDIA (January 26, 2014), https://timesofindia.indiatimes.com/home/sunday-times/deep-focus/a-mother-and-a-judge-speaks-out-on-section-377/articleshow/29383723.cms.

K.K. Gulia and H.N. Mallick, Homosexuality: A Dilemma in Discourse, 54 Indian Journal of Physiology and Pharmacology (2010), pp. 5, 6 and 8.

Rashmi Patel, Being LGBT in India: Some Home Truths, MINT (August 27, 2016), https://www.livemint.com/Sundayapp/sAYrieZdZKEybKzhP8FDbP/Being-LGBT-in-India-Some-home-truths.html.

Shreya Agarwal, Delhi High Court Issues Notice On Plea Seeking Recognition To Same-Sex Marriages In Citizenship Act, Special Marriage Act & Foreign Marriage Act, LIVE LAW (July 6, 2021), https://www.livelaw.in/amp/news-updates/delhi-high-court-issues-notice-on-plea-seeking-recognition-to-same-sex-marriages-176938.

THE YOGYAKARTA PRINCIPLES: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (March 2007), https://translaw.clpr.org.in/wp-content/uploads/2018/08/Yogyakarta-Principles.pdf.

Cases:

Navtej Singh Johar v. Union of India, AIR 2018 SC 4321 (India).

Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277 (India).

Suresh Kumar Koshal and Another v. Naz Foundation and Others, Civil Appeal No. 10972 OF 2013 (India).

National Legal Services Authority v. Union of India and Others, AIR 2014 SC 1863 (India).

Justice K. S. Puttaswamy (Retd.) and Another v. Union of India and Others, (2017) 10 SCC 1 (India).

Shafin Jahan v. Asokan K.M., AIR 2018 SC 1933 (India).

Shakti Vahini v. Union of India, 2018 SCC Online SC 275 (India).

Fazal Rab Choudhary v. State of Bihar, (1982) 3 SCC 9 (India).

Shayara Bano v. Union of India and others, (2017) 9 SCC 1 (India).

Sushma and Seema v. Commissioner of Greater Chennai Police and Others, W.P.No.7284 of 2021 (India).

 

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