When the Constitution came out in flaming rainbow colours!

This graphic shows a stylized black and white pencil doodle sketch on paper. It shows the facial side profiles of two gender indeterminate individuals looking closely at each other, their eyes locked in a steady gaze, lips not far apart, noses drawn as inverted sevens touching each other, and a heart symbol placed between their foreheads with the curved part of the heart highlighted as the number three. Both individuals have ear tops shaped with different symbols of sexual orientation and gender identity. In effect, the sketch symbolizes Section 377 of the Indian Penal Code and celebrates its reading down by the Supreme Court on September 6, 2018. Right above the sketch is a line that says “Love knows no gender”. The sketch has been modified with Adobe Photoshop filters in such a way that the right half of the sketch is shaded in grey and the left half in white. The two colours roughly overlap with patches of grey on white and vice versa, and flow into each other diagonally towards the centre of the sketch. The rectangular shape of the sketch has a rainbow coloured outline. This graphic is a throwback to a doodle protest campaign launched by ‘Varta’ webzine on the first anniversary of the apex court’s 11.12.13 verdict on Section 377. The doodles were published in the December 2014 issue of ‘Varta’. Graphic credit: Debjyoti Ghosh

Insight, Sep '18
Debjyoti Ghosh on Section 377 finally being read out of queer lives in India

When India became independent, it inherited several British legacies. They included, among other things, magnificent colonial architecture, expansive railways, and a massive legal system with its own body of laws. With all the provinces and princely states uniting under the identity of one country, this body of laws and legislations helped govern this vast nation.

However, given that re-coding each and every law to suit the mandate of the new Constitution of India was a mammoth, if not an impossible, undertaking, it was always assumed that the laws passed the requirements of constitutionality, unless proved otherwise. Over the last 71 years, numerous laws were declared unconstitutional and invalid. One such law that came under the scanner was Section 377 of the Indian Penal Code of 1860 (read text of Section 377 here).

Inset: Verdict on Section 377, Indian Penal Code: The verdict, in its narrowest reading, decriminalises a whole host of consensual sexual activities between adults in their private domains, irrespective of their sex and gender. This in effect is the same stand as taken by the Delhi High Court on Section 377 in July 2009. However, in actuality, the verdict goes above and beyond. It reinforces the notion of equal civil rights for everyone, while reiterating the role of the judiciary of India as the guardian of Fundamental Rights, especially those of marginalised populations and minorities, and a safeguard against totalitarian and majoritarian politics. The verdict provides a footing for further legal reforms to ensure non-discrimination against queer people in the spheres of education, livelihood, healthcare, property rights, and family and marriage laws.

The Indian Penal Code was drafted as an instrument of control for ‘civilising the natives’ of the British-ruled provinces in India. When India became independent, the penal code was carried forward as a whole, without necessarily sifting through each and every section. This code is not unique to India. Other colonies have had different versions of the code thrust on them, and some of the former colonies still have the statute in place without many significant changes. One of the sections that remained unchanged in many of these jurisdictions is the essence of Section 377 of the Indian Penal Code, albeit in different garbs (see editorial note).

July 10, 2018, will be remembered in Indian queer history as the day the case of Naz Foundation Vs. Government of NCT of Delhi & Others (henceforth Naz) was resurrected from the dead. Section 377 was once again brought to the Honourable Supreme Court of India, this time in front of a five-judge Constitution Bench. Headed by Chief Justice Dipak Misra, the bench also included Justices R. F. Nariman, D. Y. Chandrachud, A. M. Kanwilkar and Indu Malhotra. In what seemed to be an incredibly brief period of hearings, numerous issues were raised by the parties on both sides. By July 17, 2018, the hearings were over and judgment was reserved.

When Delhi High Court ruled on Naz in July 2009, almost eight years after the case was filed in December 2001, it read down Section 377 and decriminalized consensual sexual relationships among adults of any gender. This was a huge victory for the petitioners Naz Foundation (India) Trust, a Delhi-based NGO working with queer communities on sexual health, Voices Against 377, a civil society coalition that joined in as co-petitioners in 2006, and indeed the queer movement itself.

This ruling was challenged in the Supreme Court by Delhi-based astrologer Suresh Kumar Koushal and a number of religious bodies like the All-India Muslim Personal Law Board, Trust Gods Ministry and Krantikari Manuwadi Morcha Party through special leave petitions. At the same time petitions were also filed in support of Naz, among others, by mental health professionals and parents of queer people from across the country in 2010-11. The Supreme Court heard both sides in early 2012 in the case that came to be known as Suresh Kumar Koushal & Another Vs. Naz Foundation & Others (henceforth Koushal). In the end though, in a widely criticized move, the court overturned the Delhi High Court ruling in December 2013 and reinstated Section 377. This verdict earned the infamous moniker of 11/12/13, inspired by the date it was announced.

The journey after the Koushal decision was tumultuous to say the least. Several review petitions were filed, including one by the central government. Among others, the petitioners included Voices Against 377, filmmaker Shyam Benegal, feminist activist and writer Nivedita Menon, late queer activist Nishit Saran’s mother Minna Saran, and psychiatrist Shekhar Seshadri. The review bench consisted of Justice H. L. Dattu and Justice Sudhansu Jyoti Mukhopadhaya. But these petitions were rejected in January 2014.

The petitioners then filed curative petitions, which were admitted on February 2, 2016. The original petitioners of the Naz case also filed curative petitions, along with several others who filed impleadments. The Supreme Court ordered the setting up of a Constitution Bench to hear the curative petitions. This in itself was a rare development, since curative petitions have had a minuscule rate of success and usually get dismissed early on. However, after that, some new writ petitions were filed challenging the validity of Section 377.

The first to be filed was Navtej Singh Johar & Others Vs. Union of India Ministry of Law and Justice (henceforth Navtej Singh Johar). It was admitted in April 2016. Subsequently, several other petitions were filed in 2016-18 by a diverse set of people, and they were all joined with Navtej Singh Johar. The petitioners included queer activists Akkai Padmashali from Bangalore, Ashok Row Kavi from Mumbai and Arif Jafar from Lucknow (the only one among the petitioners who faced imprisonment under Section 377 for nearly 50 days in 2001). Hotelier Keshav Suri and a group of 20 students and alumni of different Indian Institutes of Technology from across India were also among the petitioners. The Supreme Court initially decided not to hear the curative petitions, but then changed its mind. However, primacy was given to the new writ petitions.

Before the Section 377 case came up for hearing, a ground-breaking decision in Justice K. S. Puttaswamy & Another Vs. Union of India & Others in August 2017 (hereinafter referred to as the Right to Privacy decision), paved the way for the Supreme Court to reconsider the Koushal decision. The Right to Privacy decision upheld the individual’s right to privacy and referred to sexual orientation as being a part of that right. A nine-judge bench ruled on the matter and criticised the Koushal decision, stating that it overlooked the rights of minorities, and that Fundamental Rights are for each and every person. Short of invalidating the Koushal decision, the Supreme Court decried the fundamental aspects of it.

Over the seven days that Section 377 was heard in July this year, various eminent lawyers representing the petitioners brought to light arguments on several universal human rights, such as the right to equality, the right to non-discrimination, the right to work, the right to freedom of speech, expression and assembly, the right to life and liberty and security of person, the right to health, and the right to privacy.

While Anand Grover of Lawyers Collective, one of India’s most prominent legal activists, appeared for Ashok Row Kavi and Arif Jafar, Menaka Guruswamy argued on behalf of the IIT students and alumni and Jayna Kothari represented Akkai Padmashali and her co-petitioners. Another senior advocate Shyam Divan appeared for Voices Against 377, one of the original petitioners. Arvind Datar, Ashok Desai, Chandra Uday Singh, Krishnan Venugopal, Mukul Rohatgi and Saurabh Kirpal appeared for various other petitioners.

Quote: Justice Nariman’s comments on the duty of the court to strike down unconstitutional laws and the object of Fundamental Rights primarily empowering courts to strike out laws that “a majoritarian government, swung by votes, will not repeal” were telling of the general stance of the bench. Justice Malhotra stated that homosexuality was not an aberration of nature, and pointed out the negative pressure the queer communities were under from family and society, causing the communities mental trauma.Several of these rights that are enshrined in many international conventions and covenants are also protected in various forms in the Indian Constitution, primarily in the section of Fundamental Rights. These are guarantees from the State to each and every individual, irrespective of their sex, gender, caste and creed. Yet, due to a law that was a bad vestige of India’s colonial past, countless individuals were put in harm’s way, stigmatised and discriminated against time and time again.

During the hearings, the bench gave us much to be hopeful about. When the Additional Solicitor General, Tushar Mehta, insisted that the hearings were being conducted only to decide the validity of Section 377, Justice Chandrachud pointed out that the ambit of a Constitution Bench goes beyond mere validation or invalidation of a section in law. However, Justice Nariman and Chief Justice Misra pointed out that the question of validity needed to be decided on before going into further details.

Justice Nariman’s comments on the duty of the court to strike down unconstitutional laws and the object of Fundamental Rights primarily empowering courts to strike out laws that “a majoritarian government, swung by votes, will not repeal” were telling of the general stance of the bench. Justice Malhotra stated that homosexuality was not an aberration of nature, and pointed out the negative pressure the queer communities were under from family and society, causing the communities mental trauma. Justice Nariman also pointed out the absurdity of the notion of the ‘order of nature’ to mean only acts that result in procreation.

Importantly, Justice Chandrachud remarked that the right to choose one’s sexual partner was already considered to be intrinsic to the rights enshrined under Article 21 in a previous case – Shafin Jahan Vs. Asokan K. M. & Others, generally referred to as the Hadiya judgment.

Keeping in mind the various references to the Right to Privacy and Hadiya judgments, activists and laypersons at all levels were cautiously optimistic that, at the very least, Section 377 would not remain in its entirety. Even then, when the judgment was announced in favour of reading down Section 377 just before midday on September 6, 2018, it was a mix of tremendous relief and jubilation all at once. This was a watershed moment for India in not just queer activism but the celebration of human rights!

In a 493-page judgment, with four concurring opinions, Chief Justice Misra laid down the reasons why Section 377 was unconstitutional. Delving into Goethe, he quoted the famous line, “I am what I am, so take me as I am” and used Schopenhauer and Mill to support his opinion on the value of being a unique individual, stating that the “[d]enial of self-expression is inviting death”.

In the conclusions drawn by the Chief Justice, the idea of self-determination was referred to as “constitutionally permissible”. The fact that Koushal overruled Naz on the basis that the law affected only a fraction of the population was considered to be “constitutionally impermissible”. Courts have a duty to protect people against unequal treatment and injustice, and they have an important role to ameliorate the wrongs that have affected particular classes of persons or groups. He went on to say that the Indian Constitution was a transformative constitution, that is, it ought to be interpreted in the spirit of the words, rather than limiting it to the literal meaning. This transformative constitutionalism was what helped in guiding away from discrimination.

Quote: In a 493-page judgment, with four concurring opinions, Chief Justice Dipak Misra laid down the reasons why Section 377 was unconstitutional. Delving into Goethe, he quoted the famous line, “I am what I am, so take me as I am” and used Schopenhauer and Mill to support his opinion on the value of being a unique individual, stating that the “[d]enial of self-expression is inviting death”.The Chief Justice further expounded on the concept of constitutional morality that required the organs of the State to look after the needs of even the smallest group of people, especially when majoritarian social morality threatened to override their rights. He stated that any discrimination based on one’s sexual orientation, something that was inherent in a human being, was a “violation of [the] fundamental right of the freedom of expression”.

Importantly, the judgment speaks of the “doctrine of progressive realisation of rights as such rights evolve with the evolution of society”. The corollary of this, according to this judgment is the doctrine of non-retrogression, that is, there can be no going back once a right has been acknowledged and granted – and Koushal was a retrogressive decision. While this is the norm when it comes to human rights in general, in this era of majoritarian politics, such a stance on Fundamental Rights being reiterated is pivotal to make sure that no one in the present or the future can undo it. In light of all this (and more), Section 377 has been read down to decriminalise consensual sexual behaviour between people of any gender as long as they are adults.

The Chief Justice’s order was joined by Justice A. M. Khanwilkar, followed by concurring judgments by Justices R. F. Nariman, D. Y. Chandrachud and Indu Malhotra, each of them espousing the narratives of inclusion and transformative constitutionalism. Perhaps the most poignant aspect of the decisions was Justice Malhotra stating in hers that history owes an apology to queer people and their families. This is not just important as a statement, but may well be a doorway of reconciliation for the future.

The Constitution of India is not supposed to protect just its heterosexual, heteronormative citizens but all its citizens without discrimination. Several million people were waiting with bated breath for the day they would be able to exercise their Fundamental Rights as full citizens without being criminalised on the basis of their sexuality. The Supreme Court of India provided much-needed respite as well as legal empowerment for the entire queer community of India and has given a thinly veiled warning to those who propagate and support majoritarian politics.

The battle is won, but the war is not over yet. The guarantee for our rights is so far on paper. It is up to us now to stand up for them – to make sure we exercise what we fought for so long, and to extend the moral strength derived from this milestone to fight back other discriminatory laws and assaults on our right to breathe with dignity.

For a detailed note on different versions of Section 377 prevalent in the former British colonies, see Mapping Queer Margins: A Sampling of the Situation around LGBTQI Rights in Different Corners of the World by Debjyoti Ghosh in A Theological Reader on Human Sexuality and Gender Diversities: Envisioning Inclusivity, National Council of Churches in India, 2017 – Editor.

About the graphic: This doodle by the author is a throwback to a campaign launched by Varta on the first anniversary of the apex court’s 11.12.13 verdict on Section 377. Click here to see Doodle Your Protest! published in December 2014 in Varta. In the graphic here, a pencil sketch on paper by Debjyoti Ghosh has been modified with Adobe Photoshop filters.

Author Photo

Debjyoti Ghosh

Debjyoti Ghosh is a human rights lawyer from Kolkata, India. After practicing general law for a brief period, he went whole-hog into human rights and started working in the NGO sector in eastern India. He has worked on issues of HIV/AIDS, women, children and sexual minorities. Currently, he is Assistant Professor in Comparative Law, Asian University for Women, Chittagong. His SJD/PhD dissertation focussed on transgender rights in India, Brazil and South Africa and his primary interest areas are constitutionalism, LGBTQI rights and minority rights.

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