Navtej Singh Johar v. Union of India

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Navtej Singh Johar v. Union of India | Judgment | Law on Tips

9. It has to be borne in mind that search for identity as a basic human ideal has reigned the mind of every individual in many a 10 sphere like success, fame, economic prowess, political assertion, celebrity status and social superiority, etc. But search for identity, in order to have apposite space in law, sans stigmas and sans fear has to have the freedom of expression about his/her being which is keenly associated with the constitutional concept of ―identity with dignity‖. When we talk about identity from the constitutional spectrum, it cannot be pigeon-holed singularly to one‘s orientation that may be associated with his/her birth and the feelings he/she develops when he/she grows up. Such a narrow perception may initially sound to subserve the purpose of justice but on a studied scrutiny, it is soon realized that the limited recognition keeps the individual choice at bay. The question that is required to be posed here is whether sexual orientation alone is to be protected or both orientation and choice are to be accepted as long as the exercise of these rights by an individual do not affect another‘s choice or, to put it succinctly, has the consent of the other where dignity of both is maintained and privacy, as a seminal facet of Article 21 , is not dented. At the core of the concept of identity lies self-determination, realization of one‘s own abilities visualizing the opportunities and rejection of external views with a clear conscience that is in accord with constitutional norms and 11 values or principles that are, to put in a capsule, ―constitutionally permissible‖. As long as it is lawful, one is entitled to determine and follow his/her pattern of life. And that is where the distinction between constitutional morality and social morality or ethicality assumes a distinguished podium, a different objective. Non-recognition in the fullest sense and denial of expression of choice by a statutory penal provision and giving of stamp of approval by a two-Judge Bench of this Court to the said penal provision, that is, Section 377 of the Indian Penal Code, in Suresh Kumar Koushal and another v. Naz Foundation and others2 overturning the judgment of the Delhi High Court in Naz Foundation v. Government of NCT of Delhi and others3, is the central issue involved in the present controversy.

149. While testing the constitutional validity of Section 377 IPC, due regard must be given to the elevated right to privacy as has been recently proclaimed in Puttaswamy (supra). We shall not delve in detail upon the concept of the right to privacy as the same has been delineated at length in Puttaswamy (supra). In the case at hand, our focus is limited to dealing with the right to privacy vis-à-vis Section 377 IPC and other facets such as right to choice as part of the freedom of expression and sexual orientation. That apart, within the compartment of privacy, individual autonomy has a significant space. Autonomy is individualistic. It is expressive of self-determination and such self-determination includes sexual orientation and declaration of sexual identity. Such an orientation or choice that reflects an individual‘s autonomy is innate to him/her. It is an inalienable part of 97 his/her identity. The said identity under the constitutional scheme does not accept any interference as long as its expression is not against decency or morality. And the morality that is conceived of under the Constitution is constitutional morality. Under the autonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy wilfully to another individual and their intimacy in privacy is a matter of their choice. Such concept of identity is not only sacred but is also in recognition of the quintessential facet of humanity in a person‘s nature. The autonomy establishes identity and the said identity, in the ultimate eventuate, becomes a part of dignity in an individual. This dignity is special to the man/woman who has a right to enjoy his/her life as per the constitutional norms and should not be allowed to wither and perish like a mushroom. It is a directional shift from conceptual macrocosm to cognizable microcosm. When such culture grows, there is an affirmative move towards a more inclusive and egalitarian society. Non-acceptance of the same would tantamount to denial of human rights to people and one cannot be oblivious of the saying of Nelson Mandela ― ―to deny people their human rights is to challenge their very humanity.‖ 98

36. In Lawrence v. Texas, 539 U.S. 558 (2003), by a majority of 6:3, Justice Anthony Kennedy, speaking for the majority, set aside the judgment in Bowers (supra), accepting that the dissenting judgments in that case were correct. In a tilt at the history analysis of the majority judgment in Bowers (supra), the Court found that earlier sodomy laws were not directed at homosexuals at large, but instead sought to prohibit non-procreative sexual activity more generally, and were not enforced against consenting adults acting in private. After citing from Planned Parenthood of Southeastern Pa. v. Casey (“Casey”), 505 U.S. 833 (1992), the majority held – “our obligation is to define the liberty of all, not to mandate our own moral code.” The majority judgment then referred to a Model 24 Penal Code that the American Law Institute took out in 1955, making it clear that it did not provide for criminal penalties for consensual same-sex relationships conducted in private. The judgment then went on to refer to the Wolfenden Committee Report and the Sexual Offences Act,1967 in the United Kingdom and referred to the European Court’s decision in Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981). It then referred to Romer v. Evans (“Romer”), 517 U.S. 620 (1996), where the Court struck down a class-based legislation which deprived homosexuals of State anti-discrimination laws as a violation of the Equal Protection Clause. The majority then found that the 1986 decision of Bowers (supra), had “sustained serious erosion” through their recent decisions in Casey (supra) and Romer (supra), and had, therefore, to be revisited.5 Justice 5The majority’s decision echoes what had happened earlier in what is referred to as the celebrated flag salute case, namely, West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). The U.S. Supreme Court had overruled its recent judgment in Minersville School District v. Gobitis, 310 U.S. 586 (1940). Justice Jackson speaking for the majority of the Court found:-

4 Section 377 exacts conformity backed by the fear of penal reprisal. There is an unbridgeable divide between the moral values on which it is based and the values of the Constitution. What separates them is liberty and dignity. We must, as a society, ask searching questions to the forms and symbols of injustice. Unless we do that, we risk becoming the cause and not just the inheritors of an unjust society. Does the Constitution allow a quiver of fear to become the quilt around the bodies of her citizens, in the intimacies which 6 PART A define their identities? If there is only one answer to this question, as I believe there is, the tragedy and anguish which Section 377 inflicts must be remedied. 5 The Constitution brought about a transfer of political power. But it reflects above all, a vision of a society governed by justice. Individual liberty is its soul. The constitutional vision of justice accommodates differences of culture, ideology and orientation. The stability of its foundation lies in its effort to protect diversity in all its facets: in the beliefs, ideas and ways of living of her citizens. Democratic as it is, our Constitution does not demand conformity. Nor does it contemplate the mainstreaming of culture. It nurtures dissent as the safety valve for societal conflict. Our ability to recognise others who are different is a sign of our own evolution. We miss the symbols of a compassionate and humane society only at our peril. Section 377 provides for rule by the law instead of the rule of law. The rule of law requires a just law which facilitates equality, liberty and dignity in all its facets. Rule by the law provides legitimacy to arbitrary state behaviour. 6 Section 377 has consigned a group of citizens to the margins. It has been destructive of their identities. By imposing the sanctions of the law on consenting adults involved in a sexual relationship, it has lent the authority of 7 PART B the state to perpetuate social stereotypes and encourage discrimination. Gays, lesbians, bisexuals and transgenders have been relegated to the anguish of closeted identities. Sexual orientation has become a target for exploitation, if not blackmail, in a networked and digital age. The impact of Section 377 has travelled far beyond the punishment of an offence. It has been destructive of an identity which is crucial to a dignified existence. 7 It is difficult to right the wrongs of history. But we can certainly set the course for the future. That we can do by saying, as I propose to say in this case, that lesbians, gays, bisexuals and transgenders have a constitutional right to equal citizenship in all its manifestations. Sexual orientation is recognised and protected by the Constitution. Section 377 of the Penal Code is unconstitutional in so far as it penalises a consensual relationship between adults of the same gender. The constitutional values of liberty and dignity can accept nothing less.

Following World War II, arrests and prosecutions of homosexuals increased. Alan Turing, the renowned mathematician and cryptographer who was responsible for breaking the Nazi Enigma code during World War II, was convicted of ‘gross indecency’ in 1952. In order to avoid a prison sentence, Turing was forced to agree to chemical castration. He was injected with synthetic female hormones. Less than two years after he began the hormone treatment, Turing committed suicide. The Amendment Act (also known as the Labouchere Amendment) remained in English law until 1967. Turing was posthumously pardoned in 2013, and in 2017, the UK introduced the Policing and Crime Bill, also called the “Turing Law,” posthumously pardoning 50,000 homosexual men and providing pardons for the living. In the wake of several court cases in which homosexuality had been featured, the British Parliament in 1954 set up the Wolfenden Committee, headed by 27 H. Montgomery Hyde, John O'Connor, and Merlin Holland, The Trials of Oscar Wilde (2014), at page 201. 18 PART C John Wolfenden, to “consider…the law and practice relating to homosexual offenses and the treatment of persons convicted of such offenses by the courts”, as well as the laws relevant to prostitution and solicitation. The Wolfenden Report of 1957, which was supported by the Church of England,28 proposed that there ‘must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business’ and recommended that homosexual acts between two consenting adults should no longer be a criminal offence.29 19 The success of the report led England and Wales to enact The Sexual Offences Act, 1967, which decriminalized private homosexual sex between two men over the age of twenty-one. Britain continued to introduce and amend laws governing same-sex intercourse to make them more equal, including the lowering of the age of consent for gay/bisexual men to sixteen in 2001.30 In May 2007, in a statement to the UN Human Rights Council, the UK, which imposed criminal prohibitions against same-sex intercourse in its former colonies across the world, committed itself to the cause of worldwide decriminalization of homosexuality.31 Today, India continues to enforce a law 28 Ibid at 25.

26 A litany of our decisions – to refer to them individually would be a parade of the familiar – indicates that to be a reasonable classification under Article 14 of the Constitution, two criteria must be met: (i) the classification must be founded on an intelligible differentia; and (ii) the differentia must have a rational nexus to the objective sought to be achieved by the legislation.53 There must, in other words, be a causal connection between the basis of classification and the object of the statute. If the object of the classification is illogical, unfair and unjust, the classification will be unreasonable.54 27 Equating the content of equality with the reasonableness of a classification on which a law is based advances the cause of legal formalism. The problem with the classification test is that what constitutes a reasonable classification is reduced to a mere formula: the quest for an intelligible differentia and the rational nexus to the object sought to be achieved. In doing so, the test of classification risks elevating form over substance. The danger inherent in legal formalism lies in its inability to lay threadbare the values which guide the process of judging constitutional rights. Legal formalism 53 State of West Bengal v. Anwar Ali Sarkar , AIR (1952) SC 75. 54 Deepak Sibal v. Punjab University , (1989) 2 SCC 145. 29 PART D buries the life-giving forces of the Constitution under a mere mantra. What it ignores is that Article 14 contains a powerful statement of values – of the substance of equality before the law and the equal protection of laws. To reduce it to a formal exercise of classification may miss the true value of equality as a safeguard against arbitrariness in state action. As our constitutional jurisprudence has evolved towards recognizing the substantive content of liberty and equality, the core of Article 14 has emerged out of the shadows of classification. Article 14 has a substantive content on which, together with liberty and dignity, the edifice of the Constitution is built. Simply put, in that avatar, it reflects the quest for ensuring fair treatment of the individual in every aspect of human endeavor and in every facet of human existence.

40 A strong stereotype underlines the judgment. The Court did not recognize that men were not subject to the same standards with respect to marriage. It holds that the burdens of health and family planning rest solely on women. This perpetuates the notion that the obligations of raising family are those solely of the woman. In dealing with the provision for termination of service on the first pregnancy, the Court opined that a substituted provision for termination on the third pregnancy would be in the “larger interest of the health of the Air Hostesses concerned as also for the good upbringing of the children.” Here again, the Court’s view rested on a stereotype. The patronizing attitude towards the role of women compounds the difficulty in accepting the logic of Nergesh Meerza. This approach, in my view, is patently incorrect. 41 A discriminatory act will be tested against constitutional values. A discrimination will not survive constitutional scrutiny when it is grounded in and perpetuates stereotypes about a class constituted by the grounds prohibited in Article 15(1). If any ground of discrimination, whether direct or indirect is founded on a stereotypical understanding of the role of the sex, it would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex. If certain characteristics grounded in stereotypes, are to be associated with entire classes of people constituted as groups by any of the grounds prohibited in Article 15(1) , that cannot establish 51 PART E a permissible reason to discriminate. Such a discrimination will be in violation of the constitutional guarantee against discrimination in Article 15(1). That such a discrimination is a result of grounds rooted in sex and other considerations, can no longer be held to be a position supported by the intersectional understanding of how discrimination operates. This infuses Article 15 with true rigour to give it a complete constitutional dimension in prohibiting discrimination.

Neither M nor N can be held criminally or civilly liable for such actions or be prohibited, impeded, restricted or prevented from implementing or using the intervention.” Persons who engage in anal or oral intercourse face significant sexual health risks due to the operation of Section 377. Prevalence rates of HIV are high, particularly among men who have sex with men. Discrimination, stigma and a lack of knowledge on the part of many healthcare providers means that these individuals often cannot and do not access the health care they need. In order to promote sexual health and reduce HIV transmission among LGBT individuals, it is imperative that the availability, effectiveness, and quality of health services to the LGBT community be significantly improved. Under our constitutional scheme, no minority group must suffer deprivation of a constitutional right because they do not adhere to the majoritarian way of life. By the application of Section 377 of the Indian Penal Code, MSM and transgender persons are excluded from access to healthcare due to the 107 PART G societal stigma attached to their sexual identity. Being particularly vulnerable to contraction of HIV, this deprivation can only be described as cruel and debilitating. The indignity suffered by the sexual minority cannot, by any means, stand the test of constitutional validity. G.2 Mental health 93 The treatment of homosexuality as a disorder has serious consequences on the mental health and well-being of LGBT persons. The mental health of citizens “growing up in a culture that devalues and silences same-sex desire” is severely impacted.224 Global psychiatric expert Dinesh Bhugra has emphasised that radical solutions are needed to combat the high levels of mental illness among the LGBT population stating there is a “clear correlation between political and social environments” and how persecutory laws against LGBT individuals are leading to greater levels of depression, anxiety, self-harm, and suicide. Even in Britain, gay people are at greater risk of a range of mental health problems, and, it is believed, are more likely to take their own lives.

16.3. RIGHT TO HEALTH The right to health, and access to healthcare are also crucial facets of the right to life guaranteed under Article 21 of the Constitution.46 LGBT persons being a sexual minority have been subjected to societal prejudice, discrimination and 46 Common Cause (A Registered Society) v. Union of India & Anr. , (2018) 5 SCC 1, at paragraph 304; C.E.S.C. Limited & Ors. v. Subhash Chandra Bose & Ors. , (1992) 1 SCC 441, at paragraph 32; Union of India v. Mool Chand Khairati Ram Trust , (2018) SCC OnLine SC 675, at paragraph 66; and, Centre for Public Interest Litigation v. Union of India & Ors. , (2013) 16 SCC 279, at paragraph 25 36 violence on account of their sexual orientation. Since Section 377 criminalises “carnal intercourse against the order of nature” it compels LGBT persons to lead closeted lives. As a consequence, LGBT persons are seriously disadvantaged and prejudiced when it comes to access to health-care facilities. This results in serious health issues, including depression and suicidal tendencies amongst members of this community.47 LGBT persons, and more specifically the MSM, and transgender persons are at a higher risk of contracting HIV as they lack safe spaces to engage in safe-sex practices. They are inhibited from seeking medical help for testing, treatment and supportive care on account of the threat of being ‘exposed’ and the resultant prosecution.48 Higher rates of prevalence of HIV-AIDS in MSM, who are in turn married to other people of the opposite sex, coupled with the difficulty in detection and 47 M.V. Lee Badgett, The Economic Cost of Stigma and the Exclusion of LGBT People: A Case Study of India, World Bank Group (2014) available at http://documents.worldbank.org/curated/en/527261468035379692/The-economic- cost-of-stigma-and-the-exclusion-of-LGBT-people-a-case-study-of-India (Last accessed on August 11, 2018) 48 Govindasamy Agoramoorthy and Minna J Hsu, India’s homosexual discrimination and health consequences, 41(4) Rev Saude Publica (2007), at pp. 567-660 available at http://www.scielo.br/pdf/rsp/v41n4/6380.pdf 37 treatment, makes them highly susceptible to contraction and further transmission of the virus.

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