Will the SC help usher a new era in India by scrapping section 377?

By doing so, it can reaffirm equality and human dignity as foundational principles

On Jan 8, 2018, the Supreme Court said that a larger bench would revisit and examine the constitutional validity of Section 377 of the Indian Penal Code. Section 377 criminalises sexual activities "against the law of nature". Will the SC reverse its earlier judgment in the case and will it make life easier for the LGBT community in the country? Suhrith Parthasarthy takes a closer look in this Business Standard Special.

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The Supreme Court’s verdict, delivered on 11 December 2013, in Suresh Kumar Koushal v. NAZ Foundation, left the Constitution’s guarantee of fundamental rights in tatters. The court’s ruling, in upholding Section 377 of the Indian Penal Code, which, among other things, effectively criminalises homosexuality, evoked memories of what is commonly seen as the Indian judiciary’s nadir: the 1975 decision in ADM Jabalpur v. Shivkant Shukla, where the court ruled that a person’s right to life and personal liberty could be suspended during a period of state-declared emergency. For members of the LGBT community, though, the decision in Koushal went even further. It denied to them their privacy, their right to live with dignity, and their right to be treated as equals before the law indeterminately, unrestricted by any period of emergency. The court saw the community not as a “miniscule minority,” but virtually derided their sexual preferences as corrupt, as opposed to societal morality, and dismissed with an unkindly disdain any notion that they might, after all, enjoy basic liberties that every other citizen is guaranteed under the Constitution.

Since then various efforts have been made beseeching the Supreme Court to undo the damage wreaked by Koushal. The latest endeavour comes in the form of a petition filed by a group of five gay and lesbian citizens. On 8 January, in hearing this petition, a 3-judge bench of the court delivered a brief order, recognising, rather promisingly, that its decision in Koushal does, in fact, require reconsideration by a larger panel of judges. “The individual autonomy and also individual orientation cannot be atrophied unless the restriction is regarded as reasonable to yield to the morality of the Constitution,” the court wrote. “What is natural to one may not be natural to the other but the said natural orientation and choice cannot be allowed to cross the boundaries of law and as the confines of law cannot tamper or curtail the inherent right embedded in an individual under Article 21 of the Constitution.”

These words are indeed uplifting. But any optimism that we might have of an immediate overruling of Koushal must be tempered with an element of caution. This is because the Supreme Court has a long history of speaking in heady terms, that seemingly place civil liberties on a pedestal, without allowing its language to translate into any declaration of unconstitutionality. For four years now different manners of petitions have been filed seeking a rethink on section 377, but to little avail. First, the court dismissed a string of review petitions, with a simple observation that it saw “no reason to interfere with” its order in Koushal. No doubt, its tune changed in February last year when it referred a batch of curative petitions to a constitution bench of five judges or more, indicating that the decision might well require correction. However, since then, successive chief justices have ignored pleas seeking the establishment of a bench to hear these curative petitions on their merits, allowing, in the process, the rights of an entire community to hang in the balance.

Yet, perhaps, the latest order of reference will, after all, be different, coming as it does on the back of the much-acclaimed 9-judge bench ruling from August 2017 in Justice K.S. Puttaswamy (Retd) v. Union of India. There, not only did the court recognise the existence of a fundamental right to privacy, but, at least, in one of its opinions (delivered by Justice DY Chandrachud on behalf of himself and three others) found Koushal to be plainly wrong. “That “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders” (as observed in the judgment of this Court) is not a sustainable basis to deny the right to privacy,” he wrote. “The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular.” This opinion, critically, finds further support in Justice SK Kaul’s judgment. “I am in agreement,” wrote Justice Kaul, “with the view of Dr. D.Y. Chandrachud, J…that the right of privacy cannot be denied, even if there is a miniscule fraction of the population which is affected.” A person’s sexual orientation, he added, “is undoubtedly an attribute of privacy.” 

From any rational reading of the judgments in Puttuswamy it is evident that one of the core planks of the judgment in Koushal today stands incinerated. When the court ultimately re-hears the challenge to section 377, therefore, it must begin with a different premise: that the law in criminalising activities based on sexual orientation violates the fundamental right to privacy of those belonging to the LGBT community. Now, it is still plausible that those in support of section 377 will argue that the provision is an extension of societal values, and, hence, constitutes a reasonable restriction on any right to privacy. But such arguments can no longer hold good. It is clear from the majority’s judgment in Puttaswamy (once again through a collective reading of the opinions of Justices Chandrachud and Kaul) that matters integral to the autonomy of an individual cannot be subject to majoritarian whimsies. “Privacy enables each individual to take crucial decisions which find expression in the human personality,” wrote Justice Chandrachud. “It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity.” 

Now, it’s time the Supreme Court translated these words into action, into striking down a law that quite clearly impinges on the basic promises that the Constitution makes. The problems in Koushal go deep, they strike at the root of India’s fundamental rights jurisprudence. Its reversal can help usher India to a new era, where equality and human dignity will be reaffirmed as foundational principles. To allow Koushal to stand is to grant the legislature an uninhibited discretion to freeze liberties at will, to differentiate based not on reason but on pure whim.

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Suhrith Parthasarathy is an advocate practising at the Madras High Court. He tweets @suhrith