What Article 377 Says About India
Republished from Livemint
The Supreme Court of India’s decriminalization of homosexuality is a humanistic triumph. It is a redemption of judicial logic. It is, perhaps most importantly, as fine a clarifying moment as any in India’s constitutional history about the relationship between Indian citizens, their elected representatives and the judiciary.
The unanimous verdict in Navtej Singh Johar and Ors. vs. Union of India is founded on a simple principle. As Chief Justice of India Dipak Misra put it in his ruling, writing for himself and Justice A.M. Khanwilkar, “The natural identity of an individual should be treated to be absolutely essential to his being.” This is so obvious that it should not need saying. This identity is protected in various ways by Article 14 of the Constitution, granting equality before the law, Article 15, which prohibits discrimination on grounds of religion, race, caste, sex or place of birth, and Article 21, which guarantees protection of life and personal liberty.
The legal history of the issue is strewn with counter arguments, ranging from homosexuality not being a part of an individual’s natural identity to the LGBTQ community being a vector for the HIV virus and thus a danger to society. None of them manage to clear even the low bar of a sniff test. They are distractions. The support for Section 377 has always stemmed from the dangerous idea and sentiment of public morality.
The landmark 2009 Delhi high court case, Naz Foundation vs. Government of NCT of Delhi and Ors, makes this clear. The government argued that as the LGBTQ community comprised a small minority of the Indian population, the rights of the rest of the population could not be compromised. Casting LGBTQ rights as violative of the rights of the heterosexual population is cockamamie logic. The bench of the then Chief Justice of Delhi high court, A.P. Shah, and Justice S. Muralidhar pointed out the real issue in a fine verdict: “Moral indignation, howsoever strong, is not a valid basis for overriding individuals’ fundamental rights of dignity and privacy. In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.”
Constitutional morality and the public morality of the Raj that informs Section 377 have the same roots. The Indian Constitution draws heavily from western constitutions, products of the Judeo-Christian tradition, as Justice D.Y. Chandrachud points out in his judgment. From Augustine of Hippo to Thomas Aquinas, early theologians built the foundations of Western law with the morality of their religious tradition. The condemnation of homosexuality started with this tradition, crossed over into ecclesiastical law and finally into secular law. Modern fundamental rights followed the same trajectory to a point. Slavery had no place in Augustine’s city of God and Aquinas held individuals to possess inalienable natural rights. The Enlightenment and rationalism, however, refined and expanded this strand of thought. The moralities diverged. The arguments of the utilitarians that followed, such as Jeremy Bentham and J.S. Mill, still serve as strong defences of LGBTQ rights.
In Chandrachud’s words, “There is an unbridgeable divide between the moral values on which it (Section 377) is based and the values of the Constitution. What separates them is liberty and dignity.” It is Parliament’s job to watch that divide. In practice, it doesn’t work out that way. Lawmakers traffic in electoral logic, not the constitutional variety. If 2009 could be laid at the Congress’s door, the Bharatiya Janata Party owns 2015: It voted against the introduction of a private member’s Bill by Shashi Tharoor to decriminalize homosexuality. Its declining to contest the current case is a half-step at best, for which both Chandrachud and Justice R.F. Nariman have chided it in their judgments. The credit for pushing it to do that much at least goes to the LGBTQ community and its supporters who have waged a long, brave campaign.
When Parliament fails its job, the judiciary must step up. It has often been accused of overreach in recent decades. The accusation has merit in some contexts. Protecting constitutional morality when Parliament and the executive fail do so, however, is its rightful function. In such situations, a judiciary that defers to the political branches of government—Cass R. Sunstein has classified such judges as “soldiers” who argue for a judicial philosophy of following the orders of those they serve, the people via the legislature and executive—has failed. In his famous dissent in the wartime case of Liversidge vs. Anderson, Lord Atkin criticized such judges for being “more executive-minded than the executive”. India has had its fair share of such judges, from a supine Supreme Court during Indira Gandhi’s Emergency to the two-judge Supreme Court bench that overturned the 2009 verdict, citing the majoritarian logic that the Delhi government had used in the earlier case.
The framers of the Indian Constitution were great men, and wise, for the most part. But they were not infallible. Neither is their Constitution. It requires a likewise flawed judiciary to interpret it in a way that is in keeping with its basic principles but evolves its understanding. The Supreme Court has done so here. In the process, it has corrected a grave injustice against the LGBTQ community and shown what the proper balance between the government and the governed can be.