Section 377 has become untenable in the light of Supreme Court’s   historic privacy judgment


By Ajit Prakash Shah and Vrinda Bhandari

In its historic judgment in ‘Justice Puttaswamy vs Union of India’, the Supreme Court held that privacy is a fundamental right. In doing so, it also removed the basis for its decision in ‘Koushal’, which had upheld the constitutionality of Section 377 of the Indian Penal Code (IPC).

Justice Chandrachud, speaking on behalf of four judges, termed the court’s views on the “so-called rights” of the LGBTQI community in Koushal “unsustainable”, and clarified that 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”. Justice Kaul, in his separate opinion, concurred with Justice Chandrachud’s views, thus forming the majority opinion of the court on this count.

However, since the challenge to Section 377 is currently pending consideration before a larger bench, the court stopped short of declaring it unconstitutional. The court’s observations in Puttaswamy give us an opportunity to revisit the issues surrounding the continued criminalisation of consensual sexual acts of adults in private, through the retention of Section 377 on the statute book.

Illustration: Ajit Ninan

The existence of Section 377 raises fundamental questions. Why should someone’s dignity and privacy be undermined by their sexual preference? Why should someone’s fundamental life choices be conditioned by other people’s prejudice, ignorance and stigmatisation? Why should public health be compromised by an archaic and pedantic notion of public morality? And finally, why should a sizeable population of Indians (or even a “miniscule minority”) be deemed criminals in the eyes of the law, simply for being themselves?

At the outset though, it is important to understand why privacy is particularly important to the LGBTQI community. First, privacy has come to be viewed as central to one’s identity, dignity, sense of self and autonomy. In this view privacy is a pre-requisite for self-development or, as Cohen puts it, a shorthand for “breathing space”. Section 377 denies a person the right to full personhood, by going against the constitutional values of dignity, fraternity and inclusiveness.

Second, an integral part of such individual/ decisional autonomy is the ability to make one’s own choices, develop and determine one’s personality and identity, and have intimacy and meaningful inter-personal relations. At its root, thus, it is the freedom to express one’s identity without fear.

Third, the existence of the law, regardless of its exercise, causes a chilling effect on the true expression of one’s identity. It encourages anti-gay violence and facilitates harassment, blackmail and exploitation by the police and larger society. As noted by the Supreme Court sexual orientation is an essential component of identity, whose fulfilment is hindered when there is a loss of privacy and dignity.

Finally, the loss of privacy can lead to discrimination and denial of opportunities, leaving many amongst the LGBTQI community on the margins of society. The Supreme Court was cognisant of this in its judgment in NALSA, concerning transgender persons, where it observed “non-recognition of Hijras/ transgender persons denies them equal protection of law … thereby leaving them extremely vulnerable to harassment, violence and sexual assault.”

A modern democracy rests on the twin principles of majority rule and the need to protect fundamental rights of all citizens. Fundamental rights are inalienable and transcend challenge or limitation. These rights identify subjects, withdraw them from political controversy, place them beyond the reach of majorities, and establish them as legal principles to be applied by courts equally for everyone.

This was recognised by the court in Puttaswamy (the plurality opinion and separate concurrences), holding that privacy is an inalienable right that inheres in every person, which is reflected in the Fundamental Rights Chapter of the Constitution, rather than guaranteed by it. In this context, it is important to appreciate that just as homosexuality is not a ‘western import’, IPC was neither Indian, nor a gift from God. IPC was drafted by the British, based on prevailing Victorian notions of morality which were imported to India, and continue to remain here long after they have been discarded by the British.

The second aspect of a constitutional democracy relates to the counter-majoritarian role played by the judiciary, which has to ensure that a majoritarian government does not override minority rights. While law may be the product of representative majoritarian moral beliefs, constitutional guarantees (and constitutional morality) will lose significance if they are given majoritarian interpretations.

There are many groups, or “discrete and insular minorities” who remain excluded from the everyday exchanges and compromises of democratic politics, which tend to prioritise political expediency over protection of rights. In 2016, the Lok Sabha voted against Shashi Tharoor’s bill to decriminalise homosexuality. In this background, Justice Kennedy’s majority opinion in the US Supreme Court gay marriage ruling in Obergefell vs Hodges bears reiteration: “The nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.”

The Supreme Court in Puttaswamy has laid the ground for overruling Koushal. It is now up to the same court to recognise the validity of same-sex love. But that will not be enough. The Parliament must also act and pass a comprehensive anti-discrimination law, to protect such minority and disadvantaged groups. Only then will we move a step closer to achieving the constitutional goal of equality.

Ajit Prakash Shah is former Chief Justice of Delhi high court, Vrinda Bhandari is an advocate