Guest Post: Abortion and Equality – Building Upon the Supreme Court’s Judgment in X v NCT

[This is a guest post by Gauri Pillai.]

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The Supreme Court’s decision in X v NCT Delhi has received much acclaim. At the minimum, it threw open the doors of India’s law on abortion to unmarried women who experience a change in relationship status, doing away with the archaic assumption that sexuality is (and ought to be) confined to the institution of marriage. At the same time, it was an ‘omnibus decision’, touching upon—though not fully resolving—a range of issues, of concern not just to India’s law on abortion but implicating a wider network of intersecting legal frameworks.

Some of these issues are the following: the Court interpreted ‘grave injury to mental health’—a condition for abortion within the Medical Termination of Pregnancy Act 1971 (MTPA)—broadly, going beyond mental illnesses to highlight the severe harm to mental health from being compelled to carry to term any unwanted pregnancy. The Court also identified the ‘chilling effect’ the criminalisation of abortion within the Indian Penal Code 1860 (IPC) places on the interpretation of the MTPA. Further, the Court suggested that rape, under the MTPA, includes marital rape, which is otherwise exempted from the IPC definition of ‘rape’. The Court also took steps towards diluting the requirement to mandatorily report child sexual offences under the Protection of Children from Sexual Offenses Act 2013, in light of its impact on adolescents’ access to abortion. The Court included within its definition of ‘woman’ persons other than cis-gender women who may also require access to safe abortions. Finally, the Court placed positive duties on the State to remove barriers restricting access to abortions. The Court thus took several crucial first steps in reimagining India’s law on abortion, laying the ground for future interventions on these themes. In this blog post, I make a case for where the Court could possibly go next.

The Court anchored its range of holdings, in part, within ‘core constitutional rights’. As the Court made clear, ‘certain constitutional values, such as the right to reproductive autonomy, the right to live a dignified life, the right to equality, and the right to privacy have animated our interpretation of the MTP Act and the MTP Rules’. The Court, then, drew out the constitutional conceptions of ‘decisional autonomy’, ‘privacy’, ‘dignity’ and ‘bodily integrity’, emphasising how these values require that women’s abortion decisions be both respected and facilitated.

Equality is a value that the Court mentioned in its initial framing. However, it receded somewhat in the Court’s later analysis. Of course, equality was front and centre in the Court’s holding that the distinction between married and unmarried women in accessing abortion is unconstitutional because it ‘promotes the stereotype…that only married women indulge in sexual intercourse’. However, do restrictive abortion laws (like the MTPA) raise broader equality concerns? Do they discriminate on ground of sex? These questions have not often been asked—and, as a result, answered—within constitutional accounts of abortion (or reproductive rights more generally) in India. X v NCT Delhi is no exception to this trend.

Here, I make a preliminary attempt to answer these questions. In Part I, I lay out the conception of equality which is capable of supporting a claim of discrimination in relation to abortion. In Part II, I detail how a discrimination law case can be built against India’s law on abortion and the key contributions of a discrimination law lens.

Part One: Conceptions of Equality

Broadly, there exist two competing conceptions of equality. Formal equality is modelled on the Aristotelian maxim to treat likes alike, meaning that dissimilar treatment of dissimilar classes fails to raise concerns of equality. Under a formal equality account, restrictive abortion laws do not discriminate on ground of sex. Pregnancy is seen as automatically rendering women different from men. As a result, treating women differently (by requiring them to carry a pregnancy to term) does not trigger a sex equality violation. Thus, formal equality’s search for sameness and exclusion of difference translates into an automatic rejection of claims of sex discrimination when they involve pregnancy. Moreover, all formal equality offers similar classes is identical treatment. It fails to recognise that sometimes differential treatment—for instance, workplace accommodations for pregnancy—is necessary to achieve equality. As a corollary, a law treating similar classes identically but having a disproportionate adverse impact on members of some groups falls outside the radar of formal equality. Thus, formal equality concerns itself with treatment under the law, or the law’s facial form, rather than its impact.

In contrast, substantive equality abandons sameness-difference as its operating paradigm. This comes from the recognition that formal equality is an impoverished account of equality, especially for members of disadvantaged groups. By dismissing claims of sex discrimination on the ground that the sexes are differently situated in matters of reproduction, formal equality ‘rationalizes differential treatment of the sexes as legitimate and as merely “reflecting” the fact of biological difference’. Under this model, refusing to hire a pregnant woman would thus not amount to sex discrimination because pregnant women are seen as different from men. Formal equality also easily maps onto existing social hierarchies, ‘ratifying rather than challenging them’: ‘the worse the inequality gets, the more disparate its social reality becomes, the less this legal approach can do about it, hence the more [it] operates to institutionalise it’. For instance, consider a rule promoting only full-time employees. The rule would disproportionately exclude women who often work part-time to balance paid work with their childcare responsibilities. Formal equality would, however, uphold the rule because it sees part-time employees as different from full-time employees when it comes to promotions, therein reinforcing existing social inequalities which hold women alone responsible for childcare.

Moving away from sameness-difference, substantive equality no longer asks whether women are similar to or different from men in assessing an equality claim. Instead, substantive equality’s central inquiry is whether the rule or practice in question perpetuates group-based disadvantage, in which case it falls foul of the equality guarantee. As a result, difference—here, pregnancy—no longer operates as a headwind to an equality claim. This crucial shift lays the ground for pregnant women to bring a claim of discrimination against a law which perpetuates their disadvantage. Substantive equality also recognises that identical treatment alone fails to guarantee equality. Treating men and women identically may, in some cases, have the effect of perpetuating women’s disadvantage. If so, substantive equality allows, or even requires, forms of differential treatment to redress disadvantage. Thus, substantive equality concerns itself with the impact of the law rather than its form.

India’s constitutional conception of equality is substantive, as has been acknowledged by the Supreme Court (see here and here). First, it centres disadvantage, rather than sameness-difference. We see this in the specific grounds listed under Articles 15(1) and 16(1)—sex, religion, caste—which have been sites of historical group-based disadvantage, representing ‘past ways in which people have been marginalized and oppressed’. We also see it in the explicit mention of disadvantaged groups under Articles 15(3), 15(4), and 16(4)—women, children, Scheduled Castes and Tribes. Second, it aims to redress these forms of historical disadvantage—eliminate ‘age-long disabilities and sufferings’, and abolish ‘social inequity, the social stigma and the social disabilities in our society’—to achieve ‘real equality’ amongst members of groups. Third, to achieve such ‘real equality’, it both prohibits certain forms of differential treatment—for instance, untouchability or exclusion from the public sphere—and allows other forms differential treatment—for instance, ‘special provisions’ for women. Finally, it understands disadvantage multi-dimensionally, including stigma, denial of participation and socio-economic disadvantage on account of group membership.

In Part II of this blog, I apply this constitutional conception of equality to mount a discrimination law challenge against India’s law on abortion. For now, I consider a claim of sex discrimination, though a claim of intersectional discrimination may also be brought.

Part II: Bringing a Discrimination Law Lens to Abortion

Establishing a Discrimination Claim

From the constitutional core of substantive equality, in assessing if a law is discriminatory, India’s equality and non-discrimination guarantee asks:

[Does] the impugned Rule disproportionately [affect] a particular group? [Does] the law [have] the effect of reinforcing, perpetuating, or exacerbating disadvantage? Such disadvantage could be in the shape of: “[e]conomic exclusion or disadvantage, [s]ocial exclusion…[p]sychological harms…[p]hysical harms…[or] [p]olitical exclusion”, and must be viewed in light of any systemic or historical disadvantages faced by the claimant group.

Restrictions on abortion within the MTPA affect women as a group wholly, or pregnant women as a group disproportionately. They deny women reproductive decision-making by allowing access to abortion only when certain conditions are satisfied within specified time limits. Whether these conditions have been met is assessed by doctors (not women). The MTPA exists as an exception to the criminal prohibition on abortion within the IPC. As a result, doctors interpret the conditions within the MTPA narrowly, fearing the threat of criminal sanction, a factor the Court noted in its judgment.

The cumulative effect of India’s law on abortion is, then, to perpetuate or exacerbate women’s historical disadvantage along the different dimensions. Being denied an abortion often forces women to bring up a child within a patriarchal system where they bear unilateral responsibility for childcare, which is devalued within and outside the home. Due to their childcare responsibilities, women are excluded from the public sphere (say, from employment), or are required to work the ‘double day’, shaping the nature and extent of their participation outside the home. This leads to their economic exclusion, heightening their economic disadvantage. Further, the denial of reproductive decision-making within the MTPA is based on stereotypes about women as mothers and as incompetent decision-makers. The law on abortion, then, entrenches these stereotypes, influencing social perceptions about women as a group. Being denied abortions also harms women physically. As noted by the Court, it requires women to either carry the pregnancy to term—with its onerous physical responsibility—or approach unsafe, backstreet abortion providers. Either way, their physical health is adversely affected, in many cases threatening their life. Unsurprisingly, unsafe abortions are the third largest cause for maternal mortality in India. Denial of abortion, moreover, harms women psychologically. As the Court recognised, ‘any unwanted pregnancy…[has] a deleterious effect on mental health’ of the woman. These effects of the law also have to be viewed in light of women’s systematic, historical disadvantage. As was repeatedly recognised in the Constituent Assembly, ‘the average woman in this country has suffered now for centuries from inequalities heaped upon her by laws, customs and practices of people’. If so, a law like the law on abortion, which perpetuates centuries of inequalities experienced by women, would fall foul of the equality guarantee under a substantive conception of equality.

Contributions of a Discrimination Law Lens

What changes, when a discrimination law lens is introduced to assess a violation of reproductive rights? At the outset, discrimination law immediately locates the individual within the group(s) to which she belongs, identifying that ‘it is the individual’s group membership [which] is the terrain upon which social disabilities operate’. Discrimination law, then, recognises that restricting abortion denies reproductive decision-making to women: a group which has a history of disadvantage emerging from, amongst other things, meanings attached to their reproductive ability. Seen against this history, restricting abortion is not simply an act which severely harms the individual woman’s decisional autonomy, dignity and bodily integrity, as the Court identifies in X v NCT Delhi. Rather it is also an act which forms a part of an abiding historical pattern, often occurring because of group membership. That is, in being denied abortion, the woman is harmed not only as an individual but also as a member of a group, in turn cementing the group’s overall disadvantage.

This perspective heightens the extent of constitutional rights violations the Court already identifies. That it is women to whom decisional autonomy, dignity and bodily integrity are being denied magnifies the harm from such denial, making it that much more egregious. On this point, consider Dorothy Roberts’ account of the  prosecution of pregnant women addicted to drugs in the United States, many of whom are black. Roberts powerfully argues:

The harm caused by the prosecution of crack addicted mothers is not simply the incursion of each individual crack addict’s decision-making; it is perpetuation of a degraded image that affects the status of an entire race. The devaluation of a poor black addict’s decision to bear a child is tied to the dominant society’s disregard for the motherhood of all black women. The diminished value placed on black motherhood, in turn, is a badge of racial inferiority worn by all black people.

A discrimination law lens, thus, shines light on the relationship between ‘the dehumanization of the individual and [the] subordination of the group’. The Court’s judgment saw the denial of the abortion decision as dehumanising the individual woman, taking away her ability, as a ‘self-governing’ individual, to make ‘intimate decisions’ on reproduction. However, it did not adequately appreciate that such denial was happening to an individual woman because she was a woman, with such independent acts of denial affecting not just the individual woman but also women as a whole group. The Court did hint at such a perspective, in its observation that reproduction is both ‘biological’ and ‘political’:

it is biological since physical bodies reproduce, and it is political since the decision on whether to reproduce or not is not solely a private matter. This decision is intimately linked to wider political, social, and economic structures. A woman’s role and status in family, and society generally, is often tied to childbearing and ensuring the continuation of successive generations.

Here, we see nascent inflections of a discrimination law lens: that reproduction means (or, rather, has come to mean) something different for women. The next step, then, would be to interrogate the implications of this recognition for the legal regulation of abortion in India: what is truly at stake, from a constitutional perspective, when women are denied an abortion?

Moving on, the discrimination law lens also presents redressing of group-based disadvantage as a site for State action. This has two significant implications in the abortion context. First, the law often considers—as is now the case in India—State interest in protecting the foetus as placing ‘reasonable restrictions’ on women’s right to abortion. It is important to note that the Supreme Court in X v NCT Delhi did not introduce foetal interests as a restriction on abortion. Instead, in several places the Court saw the woman as the ‘ultimate decision-maker’ on abortion. However, it did not address whether this meant that no restrictions could be imposed on abortion (including those in light of foetal interests), leaving the question open for future courts. In fact, a petition challenging the constitutionality of the MTPA for violating foetal right to life has already been filed before the Supreme Court.

In asking if restricting abortion is necessary to protect foetuses, the discrimination law lens highlights that abortions are often necessitated by group-based disadvantage. For instance, in India, the most common factors motivating abortions are inadequate access to contraception and violence against women and girls leading to unwanted pregnancies, and the absence of State or familial support in childcare. These factors represent ways in which women experience disadvantage as women. They do not know about, cannot afford or are unable to insist on the use of temporary contraception. They are raped by strangers and acquaintances (including members of their families). And they bear unilateral responsibilities for childcare. So understood, redressing group-based disadvantage presents an alternate site for State action to reduce the need for abortion and thus protect foetuses. In fact,

there is a wealth of evidence that suggests that a concern for protecting [foetal] life can be more effectively pursued through policies that attack the incidence of unwanted pregnancy (for example, through improving the quality of sex education and contraceptive provision, and making motherhood a more realistic possibility for women struggling to balance childcare alongside other commitments).

If so, State insistence on restricting abortion as the means to protect foetuses is the State resorting to the more convenient option of ‘promoting the welfare of the unborn only when it can use women’s bodies and lives to realise the potential of unborn life’. This, the discrimination law lens would argue, is patently contrary to the constitutional commitment under the ‘equality code’.

Second, in X v NCT Delhi, the Supreme Court clearly recognised that respecting women’s abortion decisions requires the State not only to abstain from interfering in decision-making but also to facilitate decision-making through positive duties. What is less clear is the scope of these positive duties. The Supreme Court listed a few duties: disseminating information about abortion, improving affordability of the procedure, and preventing discriminatory treatment amongst doctors. Each of these duties seeks to redress specific forms of group-based disadvantage: illiteracy amongst women causing lack of awareness about abortions; poor women’s inability to access abortion due to high costs; and the tendency amongst medical professionals to mistreat lower caste women. A discrimination law lens, then, systematises this exercise. It identifies the full spectrum of group-based disadvantage, shaping the abortion decision at different stages: in necessitating abortion, in placing barriers to accessing abortion and in hampering quality of care while availing the abortion procedure. Such identification, in turn, presents sites for State action. Of course, this does not imply that courts ought to simply order such State action, ignoring concerns about institutional incompetence and democratic illegitimacy of courts in adjudicating on the State’s positive duties. A more appropriate course of action would be for courts to initiate a process of deliberation with the State and those affected, within the bounds of a human rights framework, an approach proposed (and adopted) by the Supreme Court recently. In any case, irrespective of how the positive duties are enforced, a discrimination law lens, at the minimum, would influence what the positive duties ought to be.

As the Supreme Court’s decision in X v NCT Delhi opens new constitutional avenues in India’s quest for reproductive justice, it presents an apt moment to pause, and consider, all that can be gained in bringing a discrimination law lens to abortion.

‘Atypical’ Love: The Supreme Court’s Decision in Deepika Singh vs CAT

[This is a guest post by Karan Gupta.]

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In a recent judgment delivered in Deepika Singh v. Central Administrative Tribunal and Ors., the Supreme Court of India granted relief to a woman, who had been denied maternity leave on the ground that she had previously availed child-care leave for her two non-biological children. Although it is a short judgment, the underlying premises and the observations recorded have far-reaching implications for the socio-legal understanding of parental-care as well as the traditional understanding of the ‘family unit’.

I argue that the line of enquiry adopted by the Court was informed by the target beneficiary of the provisions (women) and the manner in which gender-ascribed parental-care roles exclude women from the job market. The Court relied on these ascribed roles for the limited purpose of assessing whether twin-benefits of maternity leave and child-care leave may be extended. At the same time, the Court was cautious to avoid the trap of essentialising women with child-care responsibilities [I]. I assess how the Court’s expansion of the traditional parent-child paradigm as extending beyond biological children has implications for the traditional socio-legal understating of the ‘family’ as being a fixed and unchanging unit comprised solely of a married cis-heterosexual man (father/husband) and a cis-heterosexual woman (mother/wife), and children born to them. I explore the broader contributions of this to Indian jurisprudence [II]. I conclude that the Court recognised not just the myriad ways in which individuals assume parental responsibility, but also the myriad ways in which individuals forge familial ties. In doing so, the Court has invited a re-imagination which offers a significant contribution to broadening the ambit of a “right to love” from being restricted to the right to form intimate relationships with a limited set of individuals, to mean the right to form intimate relationships with anyone.

Facts

The case concerned a challenge to the denial of maternity leave to a woman (‘appellant’) for her first biological child. Under Rule 43(1) of the Central Services (Leave Rules) 1972 (‘1972 Rules’), a female government employee “with less than two surviving children” may apply for maternity leave for a period of 180 days. Under Rule 43-C, a female government employee with minor children may apply for child-care leave for a maximum period of two years to take “care of up to two children”. The Post Graduate Institute of Medical Education and Research (‘Institute’) denied the appellant’s maternity leave application on the ground that she had entered into the register and availed child-care leave for two children of her spouse from his previous marriage. Consequently, her first biological child, deemed by the Institute to be her third child, disentitled her to maternity leave under Rule 43(1), as she failed to meet the statutory condition of having fewer than two surviving children.

The court of the first instance (Central Administrative Tribunal) and the appellate court (High Court of Judicature) dismissed her challenge on similar grounds. The core question before the Supreme Court, centered around Rule 43(1), was whether a woman who availed child-care leave for two non-biological children was disentitled from availing maternity leave for a biological child.

Holding

The Court held that maternity leave and child-care leave constituted distinct entitlements, with the latter being available at any time (for instance, during the child’s education or sickness) and not just at the time of birth. The Court further held that merely because the appellant undertook child-care responsibilities “in ways that may not find a place in the popular imagination”, she was not disentitled from availing maternity leave. The Court concluded that “the fact that the appellant’s spouse had two biological children from his first marriage would not impinge upon the entitlement of the appellant to avail maternity leave for her sole biological child.” Thus, even though the Institute had permitted the appellant to register two non-biological children and avail child-care leave, she would be entitled to maternity leave under Rule 43(1) for her first biological child.

It is how the Court reached this conclusion that is worth unpacking in some detail.

Analysis

Framing the line of enquiry under a (beneficial) delegated legislation

Note that the 1972 Rules are silent on whether the word ‘children’ in Rules 43(1) and 43-C means biological children only. A focus on defining the word could have resulted in an anomalous situation. If the Court had concluded that ‘children’ in Rule 43(1) meant only biological children, the appellant would have been granted relief, but a strong argument could then be made to deny the grant of child-care leave under Rule 43-C for non-biological children (as both provisions use the word ‘children’). On the other hand, if the Court had concluded (as the Respondents argued) that the word ‘children’ in Rule 43(1) included non-biological children, the appellant would have been denied maternity leave on the ground that her first biological child is a deemed third child.

Could an alternate line of enquiry be framed which may avoid this anomalous situation? The Court shifted focus away from the ambit of the word ‘children’ to the target beneficiary of the two provisions – women. This involved an exercise in determining the objective with which the 1972 Rules were framed.

The Court examined similar provisions (under the Maternity Benefit Act 1961) and held that the objective of these provisions is to ensure that childbirth or child-care responsibilities do not disentitle an individual from being paid their wages during a period of leave for childbirth or child-care. In their logic, the 1972 Rules “entrench and enhance” the general non-discrimination principle of Article 15 of the Constitution and flow from the enabling provision in Article 15(3) to enact beneficial provisions for advancing the interests of women. Having reached this conclusion, the Court’s enquiry was further informed by the effect of gender-ascribed parental roles in preventing women from accessing the economic marketplace.

The Court opined that that in cis-heterosexual families (such as the present case), women often undertake a disproportionate share of child-care. The Court relied on statistics which found that women spend 577% more time on unpaid work than men (presumed to account for disproportionate child-care responsibilities), and held that “women continue to bear the primary responsibility for child-care”. Consequently, the 1972 Rules align with Constitutional postulate under Article 15 and cognate legislation and constitute socially beneficial delegated legislation.

An important question is apposite here – does this reliance on gender-ascribed parental roles unwittingly essentialise women with child-care? The Court avoided consciously falling into this trap. The Court noted that women are “pressed” to undertake a disproportionate share because of “gendered roles assigned to women and societal expectations”. Compelled by these social circumstances, they often find themselves excluded from the economic marketplace. The Court was careful in recognizing that child-care includes maternity leave, paternity leave and child-care leave. These observations are significant. The Court referred to gender-ascribed parental roles which operate in society to prejudice and stereotype women (de facto) to frame the nature of the 1972 rules as a beneficial delegated legislation. At the same time however, the Court carefully rejected an essentialisiation through an underlying reasoning that the idea of women as caretakers is not ‘natural’ but ascribed.

The recognition of de facto inequality or unfavorable treatment and employing it in extending a benefit to those at its receiving end itself promises broad implications beyond a case on maternity leave. Recall here that it is a common defense against indirect discrimination claims generally that as long as the law applies equally to all people (de jure equality), it is irrelevant how the same may perpetuate inequality in effect on the ground (de facto inequality). In this understanding, any interpretation of the law or action operates independently of the social current and on-ground realities. However, a fundamental problem with this acontextual interpretation is that it overlooks that the legal order, in fundamentally seeking to govern social relations, must be informed by social realities. For instance, it is odd to fix an arbitrary minimum wage without a complete understanding of present-day wages, the purchasing power of those wages, and the minimum standard of living required for a fulfilling life. There is a strong argument then social currents and power structures must be recognised and inform the interpretation of the law.

Here, the Court undertook two distinct steps – first, it recorded a finding on the objective of the 1972 Rules by focusing on women as the target beneficiaries and second, crucially, it recognised and relied on de facto inequality caused by gender-ascribed parental roles to inform its understanding of the 1972 Rules and conclude that it is a socially-beneficial delegated legislation. In the process, it affirmed that the law and its interpretation must be alive to social realities, including de facto inequality which operates in society. Further, it is possible to inform our understanding and the interpretation of the law by recognising de facto inequality, without essentialising/crystallising those identities (see Seigal’s excellent work on how a rejection of de facto inequality in informing law and policy has complicated the affirmative action debate of the SCOTUS).

Adopting the reasoning above enabled the Court to frame the core enquiry in the adjudication – whether an individual could be extended a twin-benefit (child care-leave and maternity leave) under a beneficial delegated legislation. This was a viable alternative to focusing on the ambit of ‘children’ and consequently adopting one of the two alternate paths which would frustrate one benefit. This sets the stage for the judgment to assume further significance in inviting a re-imagination of parental care and the understanding of ‘family’.

The Forms of Parental Care and Familial Love

In the traditional parent-child paradigm, parental care is assumed to be restricted to biological children. The Court recognised that this understanding ignores the myriad ways in which individuals come to assume parental-care responsibilities – either by choice or circumstance. Guardians and caretakers of children, who often occupy the roles of ‘mother’ and ‘father’, may “change with remarriage, adoption, or fostering.” Thus, individuals often assume parental-care responsibilities towards non-biological children as well.

For instance, in the present case, the appellant had transcended the traditional parent-child paradigm and assumed the role of a parent by caring for two children who were born to her husband from his previous marriage. Similarly, an individual may adopt a child and consequently assume the role of a parent. In both cases, the individual transcends the traditional parent-child paradigm and assumes parental responsibility for non-biological children. By reading the terms ‘guardian’ and ‘caretaker’ on one hand and ‘parent’ on the other as non-exclusive terms, the Court was alive to social realities and questioned the foundation of restricting the understanding of parental-care to only biological children. To the Court (and rightly so), parental-care manifests in numerous ways which extends beyond biological children. On the face of it, these observations are significant in recognising that individuals manifest their love towards both biological and non-biological children and step into the shoes of a parent.

What implications does this have for the conception of the ‘family’?

The traditional parent-child paradigm often informs and is informed by an understanding of the family as a fixed and unchanging unit comprising a married heterosexual man (husband/father) and a heterosexual woman (wife/mother), and children born to them. In this understanding, the family unit exists for the procreation and care of children and by extension, a family unit is definitionally a marital union between a man and a woman. In society and in law then, any other union is not considered a family, and individuals in such unions who assume child-care would be guardians at best, but not parents. This understanding of the family, coupled with the traditional parent-child paradigm, excludes from the popular understanding of a family and parental responsibility any non-conforming structures which may comprise loving partners (including queer relationships) and child-care responsibility (including non-biological children).  

However, as the Court broadened the traditional parent-child paradigm to include parent-care outside marriage (i.e., through remarriage, adoption, or fostering), this opened one door to interrogate and reject the assumption of the family as a fixed and unchanging unit comprising a union between a man and woman. Addressing this understanding of the family, the Court held:

“…This assumption ignores…the fact that many families do not conform to this expectation to begin with. Familial relationships may take the form of domestic, unmarried partnerships or queer relationships. A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the “mother” and the “father”) of children may change with remarriage, adoption, or fostering. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation.” [Emphasis added]

The above observations are significant. The Court recognised that unmarried partnerships or queer relationships, though outside popular imagination, are manifestations of a family and are equally deserving not only of protection under the law (say in the negative sense of non-discrimination), but also the benefit of the law (say in the extension of social benefits and entitlements). To the Court, the family is not a fixed and unchanging unit, but is fluid in being a manifestation of the many ways in which we express love.

This expanded understanding of the ‘family’ is significant for two reasons:         

First, in India, the beneficiaries of marriage legislation (and by extension divorce and maintenance legislation) are cis-heterosexual individuals, and the beneficiaries of adoption legislation are married couples or single individuals. Whilst some benefits have been extended to unmarried partnerships, this is largely confined to cis-heterosexual partnerships. Presently, as same sex marriage has no legal basis, queer relationships are denied legal recognition of marital ties as well as the right to adoption. For instance, under the Adoption Regulations, 2017, framed by Central Adoption Resource Authority, despite some ambiguity, only married couples having at least two years of stable marital relationship are eligible for adoption. Thus, while there is no direct prohibition to same-sex couples adopting children, the lack of a legal recognition of same-sex marriage means that adoptions by same-sex couples are indirectly barred. Keep in mind that this bars not only individuals who enter atypical familial relationships from adopting/or fostering but also children from receiving love and care from such individuals.

Recall here my observations above that the Court’s recognition of de facto inequality and unfavorable treatment has broad implications beyond this case. Pending and future cases which either challenge the exclusion of certain forms of companionship or parent-care from legal recognition can bring to fore and rely on how the lack of legal recognition furthers de facto inequality and unfavourable treatment. In backdrop of multiple petitions pending before the Delhi High Court seeking the recognition of same-sex marriage and the opposing stand of the Union Government that ‘spouse’ means only a husband and wife, the observations on de facto inequality invite an interpretation which extends the protection under and benefit of the law, rather than denies the same. Further, the marked observations on unmarried partnerships and queer relationships as a manifestation of family assume significance in setting the basis for a precedent-backed argument for legal recognition.

Second, these observations contribute to the rising stream in Indian jurisprudence which broadens the understanding of a “right to love” from being restricted to the right to form intimate relationships with a limited set of individuals, to mean the right to form intimate relationships with anyone. Recall here that in decriminalising consensual sexual relations between same-sex individuals and also recognising the right to love as extending beyond sexual acts, the Supreme Court in Navtej Johar had opined that the battle against:

“…the limits imposed by structures such as gender, caste, class, religion and community makes the right to love not just a separate battle for LGBT individuals, but a battle for all.”

The Court also held that:

“…decriminalisation is a first step. The constitutional principles on which it is based have application to a broader range of entitlements.” [Emphasis added]

This steady stream has seen other recent inflows from different quarters. In 2019, the Madras High Court upheld a marriage between a cisgendered man and a transgender woman, thus legitimising the validity of marriage across different genders. In Shafin Jahan v Ashokan, the Supreme Court opined that:

“The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith.” [Emphasis added]

This stream hints that the time is ripe to interrogate the socio-legal barriers which reduce the right to love to demarcated and pre-defined patterns of companionship. In Deepika Singh, not only did the Court recognise manifestations of love which cut across the traditional parent-child paradigm and the traditional understanding of the ‘family’, it also concluded that equal benefit of the law (here maternity leave) may not be denied on such basis. This advocates for a step further than the mere removal of legal barriers and extends to the benefits provided under law.

It appears that the Court did not record a definitive finding on the meaning of ‘children’ in the Rules 43(1) and 43-C. It appears to have avoided the anomalous situation noted above by expanding the traditional parent-child paradigm to include child-care for non-biological children whilst also opining that the Institute’s decision to grant child-care leave for the appellant’s non-biological children may be a matter on which the Institute took a compassionate view at the relevant time. Informed however by its understanding that the 1972 Rules facilitate the continuation of women in the workplace and that an interpretation which extends the twin-benefits of child-care leave and maternity leave should be adopted, the Court held that appellant should not be denied maternity leave merely because she entered into a parent-child relationship or undertook child-care responsibilities “in ways that may not find a place in the popular imagination”.

Conclusion

At first glance, the extension of the maternity leave benefit to the appellant appears to be a work-around explicit statutory text making maternity leave conditional to having fewer than two surviving children. However, as I have argued above, it is in the underlying premises and the reasoning adopted by the Court in reaching its conclusion, that the judgment assumes significance. By recognising gender-ascribed parental stereotypes and extending a twin benefit under the 1972 Rules on its basis, the Court advanced gender justice and also invited a more inclusive reimagination of the family. In recognising the numerous ways in which individuals manifest love towards children (remarriage, adoption, and fostering), and the atypical ways in which individuals manifest love towards one another (unmarried partnerships or queer relationships), the Court recognised not just the myriad ways in which individuals assume parental responsibility, but also the myriad ways in which individuals forge familial ties. In doing so, Deepika Singh marks a significant contribution to broadening the ambit of a right to love from being restricted to the right to form intimate relationships with a limited set of individuals to mean the right to form intimate relationships with anyone.

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Disclosure: the author is a former judicial-law-clerk of the judgment-author.

The Constitutional Challenge to the Transgender Act

On 5th December, the Transgender Persons (Protection of Rights) Act came into force. As is well-known, the Act – that had been in the pipeline for four years – was passed over sustained protests and objections by the trans and intersex community. Among other things, critiques of the Trans Bill (as it then was) focused upon its inadequate definitions, its reification of the gender binary, its failure to recognise different forms of sexual identity, the denial of the right to self-determination, its non-recognition of chosen families, the absence of affirmative action provisions, and so on.

Unsurprisingly, therefore, the Act has swiftly been challenged before the Supreme Court, by Assam’s first trans judge (Swati Bidhan Baruah). This post briefly examines the principal grounds of challenge. These can broadly be categorised into (a) the self-determination challenge (Article 21); (b) the equality challenge (Article 14); (c) the non-discrimination challenge (Article 14); (d) the affirmative action challenge (Article 16); and (e) the positive obligations challenge (Article 21).

The Self-Determination Challenge

Section 4 of the Act guarantees to transgender persons the “right to be recognised as such, in accordance with the provisions of this Act.” Section 5, however, stipulates that such recognition will be contingent upon application to a District Magistrate, “in such form and manner, and accompanied with such documents, as may be prescribed.” Section 6 requires the Magistrate to issue a “certificate of identity” following “such procedure … as may be prescribed.” It is only upon such recognition that the transgender person shall have the right to their “self-perceived gender identity” (Section 4(2)).

The petition challenges Sections 4 to 6 on the basis that making self-identification “subject to certification by the State” is unconstitutional. It relies primarily upon two judgments of the Supreme Court: NALSA v Union of India and Puttaswamy (I) v Union of India. In NALSA, the Supreme Court held that the right to gender identity was protected under Articles 19 and 21 of the Constitution. Puttaswamy held that the right to privacy protected the freedom to take intimate decisions regarding personhood and autonomy, decisions that brooked minimum interference from the State. The petition argues that certification process violates both rulings. It also violates the the proportionality standard laid down in Puttasawamy, by being neither suitable, nor necessary, for giving effect to the principle of self-identification.

Now of course, the State may argue in response that if it is to come out with schemes and policies to support the transgender community, some form of State-sanctioned ID is indispensable, as that will be the basis on which beneficiaries will be identified. In order to counter this argument on its own terms, the self-determination challenge may need to be supplemented with an excessive delegation challenge: Sections 4 to 6 make no mention of whether the Magistrate has any discretion to reject an application to be recognised as a trans person – and if so – what the scope of that discretion is. In compliance with NALSA and Puttaswamy, it would follow that the Magistrate has no substantive discretion in this regard, and the only documentation that can be required – at the highest – is a self-attested affidavit (anything more onerous would violate the principle of self-determination and self-identification). However, the Act is silent on that, leaving any such determination to rules “as may be prescribed” (see Section 22). As the matter concerns the fundamental rights of the transgender community, this clearly is an issue that cannot be “delegated” to the rule-making power of the executive.

The petition also challenges Section 7 of the Act, which provides that once a certificate of identity has been issued, and the transgender person wants to then change their gender, that is permissible only on submission of a certificate by the Chief Medical Officer of the institution where the applicant has undergone surgery. Here, again, the application must be made to the District Magistrate, who will then issue a “revised” certificate. As the petition correctly points out, this introduces a certification requirement specifically upon gender-affirming surgeries.

The Equality Challenge

Sections 4 to 7 are also challenged on the touchstone of equality. The first – straightforward – argument is that the Act imposes burdens upon transgender individuals (certification) that it does not upon non-trans individuals. While being straightforward, the argument is nonetheless a very important one, because it challenges the long-held assumption underlying our legal institutions, namely, that being cisgender is the “norm”, while being transgender is the “exception” (which, therefore, requires something additional to “prove”, such as a certification requirement). The assumptions, of course, run much deeper than merely in our legal institutions: the social norm of “assigning” a gender at birth is based on the assumption that there exists a “natural” gender that one is born into, and a transgender person is someone whose gender identity does not “match” that assignation (see, e.g., Section 2(k) of the Act, which defines “transgender person.”

As Albie Sachs pointed out once, however, the purpose of a Constitution is to transform “misfortunes to be endured” into “injustices to be remedied”. In recent judgments such as Johar, the Supreme Court has also engaged with how our unthinking affirmation of sedimented norms has the effect of entrenching and perpetuating existing patterns of discrimination. And if we take seriously NALSA‘s affirmation that gender identity is a fundamental choice protected by Articles 19 and 21, it is clear that at least as far as the Constitution goes, cis- and trans-identities are to be treated on an equal footing.

Now of course, the State may once again argue that Sections 4 to 6 are not about identity, but merely about setting out a form of identification that can then be utilised to determine beneficiaries for welfare schemes. Such an argument, however, is belied by the wording of Section 4(2), which states clearly that it is only after recognition under the provisions of the Act, that a transgender person shall have the right to their “self-perceived identity”. In other words, therefore, the Act makes identity conditional upon identification, instead of the other way round (which is what was prescribed in NALSA). It should therefore be evident that the scheme of Sections 4 through 7 is constitutionally flawed.

The Non-Discrimination Challenge

Section 3 of the Act sets out the non-discrimination provisions; it prohibits discrimination against transgender individuals in various domains, such as provision of services, education, healthcare, housing etc. Strangely, however, the Act provides no penalty – or remedy – for breach of these provisions. As the Petition correctly points out, a right without a remedy is meaningless – and, indeed, is not a right at all. This argument is buttressed by the fact that two of the crucial “horizontal rights” provisions in the Constitution itself – Articles 17 (“untouchability”) and Article 23 (“forced labour”) specifically envisage that laws will be implemented to make breaches punishable. Thus, the Constitution understands that where you impose obligations upon private individuals to behave in certain (non-discriminatory) ways against other private individuals, there must exist an enforcement mechanism to make those obligations meaningful.

A second set of challenges flows from Section 18 of the Act, which prescribes punishment of upto two years imprisonment for a series of offences against transgender individuals, such as forced labour, denial of access to public spaces, abuse, and so on. As the petition points out, similar offences in other contexts (such as bonded labour in general, or rape) have much more severe penalties, in order to achieve deterrence. As the transgender community is already particularly vulnerable to these forms of coercion and violence, it is outrightly discriminatory to make the punishment lighter under this Act. The petition also impugns this Section on grounds of vagueness and arbitrariness.

The Affirmative Action Challenge

In NALSA, the Supreme Court made it clear that the transgender community was to be treated as a “socially and educationally backward class”, for the purpose of availing of reservation schemes under Articles 15 and 16 of the Constitution. Predictably, the government never acted on this, and under the Act, there is no mention of affirmative action.

Does the Act, therefore, breach Articles 15 and 16? The petition argues that it does, as reservation is a “facet of equality.” In other words – to explain further – once it is established that the transgender community is not on an equal footing with others, there exists a right to affirmative action under Articles 15 and 16, as the very meaning of substantive equality will be defeated by maintaining an unequal status quo.

Such an argument would flow naturally from the judgment of the Supreme Court in N.M. Thomas, where it was indeed held that reservations are a “facet” of equality (and not exceptions to it). In other words, reservations under Article 16(4) are specific manifestations of the right to equality of opportunity under Article 16(1). Continuing with this logic, reservations – then – are not simply something the government may do, but indeed, is obligated to do after identifying relevant sections of society that stand in need of them (the “power plus duty” reading of Article 16, that we have discussed before on this blog). And in NALSA, the Court did a part of the government’s job by identifying the transgender community as a beneficiary class; bringing them under Article 16, then, is a necessary consequence.

While I agree with this argument as a matter of constitutional logic, it is also important to note that the pitch has been muddied somewhat in recent years, and the promise of N.M. Thomas has never entirely been fulfilled. The Court has refused to affirmatively hold that Article 16 imposes both a power and a duty upon the government, and the government itself filed clarification petitions on this point after NALSA. It is quite likely, therefore, that the government will resist the demand for affirmative action, and the Court will have to issue a ruling on whether NALSA was correct on this point (I believe it was).

The Positive Obligations Challenge

The final set of grounds hold that the beneficial provisions of the Act are insufficient to realise the fundamental rights of the transgender community. Section 15, for example, speaks of an insurance scheme, which – the petition argues – is insufficient to guarantee the right to health. This argument will test the limits to which the Court is prepared to go when it comes to enforcing positive obligations upon the government; to what extent will the Court be willing to substitute its judgment for the government’s on which measures are adequate to address positive obligations such as the right to health?

One way of framing the issue might be that had no legislation existed, and a challenge had been filed, then the Court could well have reprised its judgment in Vishaka, and laid down guidelines to fill in the legislative vacuum. While I retain my skepticism about what the Court did in Vishaka, one principle that flows from that judgment is that even in the case of positive obligations, there exist clear and judicially manageable standards, often drawn from principles of international law. Therefore, if there is an Act, the Court can certainly examine whether its implementational measures adequately provide for the effective fulfilment of a positive right (such as the right to health), or whether they fall short; and if they fall demonstrably short, to fashion an appropriate remedy.

Conclusion 

Swati Bidhan Baruah’s petition raises a series of crucial constitutional questions about the Transgender Act. As I have shown above, while some of the challenges are straightforward, others are more subtle and nuanced – and will require the Court, in particular, to engage with some of the more progressive stands of its jurisprudence in recent years. Such an engagement, however, also presents an opportunity – an opportunity to cement and even build upon that progressive jurisprudence, in the domain of social rights.

Notes from a Foreign Field: “The Time has Come” – the Botswana High Court and the decriminalisation of homosexuality

“Sodomy laws … deserve archival mummification, or better still, a museum peg, shelf or cabinet for archival display.” – Letsweletse Motshidiemang v Attorney General, High Court of Botswana, para 209

Two weeks ago, the High Court of Kenya handed down a disappointing judgment upholding the constitutional validity of the Kenyan sodomy law. Yesterday, however, confronted with almost identical legal provisions, the High Court of Botswana went the other way, decriminalising same-sex relations on the touchstone of the constitutional rights to privacy, liberty, equality, and dignity. The judgment in Letsweletse Motshidiemang v Attorney General makes for fascinating reading. This is because of its austere – but clear – reasoning, but also because it marks the fall of yet another progeny of what began life as Section 377 of the Indian Penal Code, and then proliferated through the British colonies: the prohibition of “carnal intercourse/knowledge against the order of nature.”

As I mentioned in my analysis of the Kenyan High Court’s judgment, the constitutional arguments against the sodomy law are familiar ones, whetted by years of litigation in constitutional courts across the world. What is striking, however, is the diametrically opposite view that the Botswana High Court took from its Kenyan counterpart, in responding to virtually identical arguments, within the space of two weeks. What is also striking is the similarities between the overall approach adopted by the Botswana High Court on the one hand, and the Delhi High Court in Naz Foundation and the Indian Supreme Court in Johar, on the other. Both are issues that I shall discuss.

As a preliminary point, the judgment stands out for its clear endorsement of the value of pluralism, which made its first appearance in the second paragraph. Pluralism – and the necessity of respecting diverse ways of being and life choices, which the Court defined as inclusiveness – form, in a sense, the intellectual scaffolding that allowed it to build and develop its substantive rights-based arguments. Tellingly, “pluralism” and “inclusiveness” were also two words that were at the heart of the Delhi High Court’s 2009 judgment in Naz Foundation; and perhaps equally tellingly, the Kenyan High Court’s judgment did not have a similar, framing value that would help to contextualise the constitutional challenge. Within that framework, let us now examine the judgment.

Vagueness

After a brief account of the Christian – and later, colonial – origins of anti-sodomy laws, the Court considered the first substantive challenge – that of vagueness. Like the Kenyan High Court – and unlike the situation in India, where judicial interpretation of Section 377 had been inconsistent – the Court found that there existed binding court judgments explaining what “carnal knowledge … against the order of nature” meant: in Botswana, it had been defined as anal sex. For this reason, the impugned sections – 164(a), (c) and 165 – of the Penal Code were not vague; and the question then became, did the blanket criminalisation of anal sex violate the Constitution of Botswana? (paragraph 96)

Acts and Identities: Liberty, Dignity, Equality

This, in turn, allowed the State to set up that old and familiar argument, which makes an appearance in every litigation around this family of legal provisions: that ultimately, the sodomy law only criminalised a certain kind of “sexual act.” It did not criminalise homosexuality – or homosexuals – per se, and therefore, none of the constitutional values of equality, dignity, or liberty, were relevant. As the Court recorded the Attorney General’s submissions:

In answer thereto, the Attorney General has submitted that the applicant is a “cry baby” and that he is free to engage in sexual activity as long as it is not sexual intercourse per anus. It is the respondent’s position that Sections 164 (a) and (c) are not discriminatory as they are of equal application to all sexual preferences, and that Section 15 of the Constitution provides limitations on the enjoyment of fundamental rights. (paragraphs 136 – 7)

Recall that this classification of sodomy laws as targeting only “acts” was accepted both by the Indian Supreme Court in Koushal and by the Kenyan High Court, and formed an important part of these Courts’ reasoning in upholding the laws. It was, however, rejected by the Indian Supreme Court in Johar, and the High Court of Botswana similarly gave it short shrift. At a very basic level, the Court noted that while the section may have been neutrally worded, it nonetheless targeted a form of sexual expression that, in effect, targeted homosexuals, because they could not – by definition – engage in penile/vaginal sex. (paragraph 144) This being the case, the section clearly denied to homosexuals the right to sexual autonomy and the right to a choice of a sexual partner, choices that fell squarely within the domain of individual liberty; it also denied them the right to sexual expression, which was a violation of individual dignity. (paragraph 151) As the High Court colourfully noted, “the impugned provisions force him [the individual] to engage in private sexual expression not according to his orientation; but according to statutory dictates.” (paragraph 144)

The Court then made a deeper argument about equality and discrimination. Section 15(3) of the Constitution of Botswana defines discrimination as “affording different treatment to different persons, attributable wholly or mainly to their respective descriptions by race, tribe, place of origin, political opinions, colour, creed or sex.” Like Article 15(1) of the Indian Constitution, this is a “closed list.” Unlike Canada or South Africa, It does not use words like “including” or “among others” before “race, tribe…” etc., and therefore, textually, precludes a Court from adding in entirely new grounds into the Section.

However, working within these constraints, and citing the previous judgment of Attorney-General v Dow, the High Court noted that:

I do not think that the framers of the Constitution intended to declare in 1966, that all potentially vulnerable groups and classes, who would be affected for all time by discriminatory treatment, have been identified and mentioned in the definition in section 15(3). I do not think that they intended to declare that the categories mentioned in that definition were forever closed. In the nature of things, as farsighted people trying to look into the future, they would have contemplated that, with the passage of time, not only groups or classes which had caused concern at the time of writing the Constitution but other groups or classes needing protection would arise. (paragraph 158, citing Dow)

As I have argued elsewhere, this is exactly the approach that should be adopted towards an anti-discrimination provision. Assessing discrimination is always a contextual enquiry, and the groups that are identified and persecuted by virtue of their group identity can – and do – change from time to time. For this reason, ideally, an anti-discrimination provision should lay down the principle, set out the groups that are salient at the time of drafting, and remain open-ended (as in Canada or South Africa). However, where it isn’t, a Court should at least be able to interpret the existing grounds flexibly, even if it can’t add new ones. And this is precisely what the High Court did, following comparative jurisprudence to hold (like the Delhi High Court in Naz), that sex included “sexual orientation”, as “sex and sexual orientation, are associable signifiers of a similar scope and content.” (paragraph 161) Interestingly, the Court buttressed this finding by noting that the Employment Act already prohibited discrimination on grounds of sexual orientation in the workplace; like the case of the 2017 Mental Healthcare Act in India, a poignant example of the first meaningful legal change coming through a statute.

Armed with this interpretation of Section 15(3), the Court returned to the question of acts and identities. Relying upon both comparative law and evidence (including evidence provided by the Applicant, a gay man), to hold that sodomy laws – whatever their wording – had the effect of stigmatising the LGBTQ population, “render[ing] the[m] … a criminal, or an “unapprehended felon”, always on tenterhooks, waiting to be arrested.” (paragraph 169) This, in turn, meant that the sections were discriminatory in effect (an argument similar to that made by Chandrachud J. in Johar) – a conclusion that was aided by the fact that the Constitution of Botswana explicitly prohibited indirect discrimination. Here again, the High Court’s approach was in stark contrast to that of its Kenyan counterpart: while the Kenyan High Court – like Koushal in India – found that there was no “evidence” for any of this, and that simply “pleading” rights violations in affidavits was insufficient, the High Court of Botswana took seriously the account of discrimination recounted by the Applicant, as well as relying upon scholarly studies for the stigmatic effect of sodomy provisions.

Privacy

The High Court also engaged in an interesting discussion of the right to privacy. Like the American Constitution, the Constitution of Botswana – through Sections 3(c) and 9 – frames “privacy” in its classical sense, as pertaining to spaces – the home, property, freedom from an unreasonable search, and so on. Specifically acknowledging this (para 116), the Court nonetheless refused to limit privacy to the merely spatial, instead – in line with comparative jurisprudence – extending it to include decisional autonomy and the privacy of intimate choice, free from State control. (para 122)

The State’s Arguments

Interestingly, this was not the first time that the constitutionality of sodomy laws was being litigated. In 2003, in a case called Kanane, the Botswana Court of Appeal had held that it “was not yet time” to decriminalise same-sex relations. Much like Johar in India, therefore, and Lawrence in the United States, the Court was faced with a recent decision that had gone the other way. The High Court of Botswana, however, was quick to get around this, noting that no expert evidence had been presented in Kanane, and that the Court had not even dealt with the arguments on privacy, dignity, and indirect discrimination. (paragraph 171)

The State then argued that the purpose of the law was to protect and advance public morality and public interest. – another familiar argument. Applying the proportionality standard, the Court responded by noting that these were merely “bare assertions and or speculations that sexual anal penetration is contrary to public morality or public interest.” (paragraph 180). However, none of this had been demonstrated, it had not been shown that criminalisation was the least restrictive method of achieving the State’s goal (even of advancing public morality), and evidence of the harm caused to the LGBTQ community had not been rebutted. (paragraph 181). But in any event, the Court noted, public morality was relevant in a constitutional claim, but not dispositive. (paragraph 185) In this case, for the reasons advanced above, it fell well short of the proportionality standard; the same was true for the public interest justification, as criminalisation:

… disproportionally impacts on the lives and dignity of LGBT persons. It perpetuates stigma and shame against homosexuals and renders them recluse and outcasts. There is no victim within consensual same sex intercourse inter se adults. (paragraph 189).

The only other possible justification, the Court noted, was the Victorian, “Judeo-Christian” idea of the purpose of sex being for procreation. That premise, evidently, had long ceased being valid. (paragraph 208). The Court therefore struck down the provisions prohibiting carnal knowledge against the order of nature, and read down the provision criminalising “gross indecency” (Section 167) by severing and excluding acts done in private.

Points of Critique

The judgment of the High Court of Botswana is a powerful and eloquent defence of the rights of privacy, dignity, freedom, and equality; its clear and unequivocal holding, which decriminalises same-sex relations, is to be welcomed and applauded. However, while most of the judgment is a study in excellent rights-reasoning by a constitutional court, there are three discordant notes, which also need to be highlighted.

First, from time to time, the High Court got sucked into the question of whether sexual orientation was “innate” (paragraph 142); towards the end of its judgment, it held that sexual orientation is an “innate attribute that [people] have no control over.” (paragraph 190) As I pointed out in my analysis of the Kenyan High Court judgment, however, the “born this way” argument is controversial even within LGBTQ circles, but more importantly, it is a red herring. The question of whether sexual orientation is innate or not is irrelevant to issues of group discrimination (where, as the South African Constitutional Court pointed out, a homosexual identity is first “constructed”, and then subject to persecution), and to questions of decisional autonomy and individual freedom in making intimate choices.

Secondly, as part of its substantive reasoning, the High Court drops the odd claim that homosexuals can “only” have anal sex (and that’s why Ss. 164 and 165 take away sexual freedom). Now, it’s unclear where the High Court gets this from, but in any event, this also misses the point: the struggle around getting sodomy laws removed is not – and has never been – about legalising a particular sexual act, but about bringing down a range of discriminatory practices that deny to the LGBTQ community equal moral membership in society.

Thirdly – and again, this comes at the end of its judgment – the High Court’s stress on the “private” sits ill at ease with its excellent analysis of freedom, equality, and discrimination. In Johar, the Indian Supreme Court was careful not to go down the Delhi High Court’s path and qualify decriminalisation by adding the words “in private.” Like Johar, the Botswana High Court also does not add any such qualification while striking down Ss. 164 and 165, but it does so in its analysis of S. 167 (gross indecency), where it strikes out “private”, and leaves the criminalisation of “gross public indecency” intact. But what is “public indecency” if not the same kind of socially-perceived “deviant” behaviour that the Court is otherwise so concerned to protect under the Constitution? Without a clearer definition, that is the only use it will ever be put to.

It is important to note, however, that none of these three points are central to the core of the decision; the decision would remain even if we jettisoned them. The High Court’s arguments on freedom, equality, and dignity, and its ringing endorsement of diversity, plurality and the protection of the marginalised, does not require it to commit to the “born this way” theory of sexual orientation; it does not require any holding on the mechanics of anal sex; and it does not need a re-entrenchment of the public/private divide. It is to be hoped, therefore, that in future, it is the rights-expanding, liberty-protecting aspects of the judgment that will stand the test of time, while these odd discordant notes will, ultimately, fade away.

Conclusion

Coming two weeks after the intense disappointment of the Kenyan High Court’s judgment, Letsweletse Motshidiemang marks a welcome reversion to form: across the world, the fact that sodomy laws have no place in liberal democracies is increasingly becoming part of judicial common sense. Arguments from “public morality” and “deference”, which once held powerful sway over the minds of judges, are losing their purchase. The Botswana High Court’s clear, powerful, and unambiguous judgment gives us hope that what happened two weeks ago was a brief aberration, which will be swiftly set right by the Kenyan appellate courts; in the meantime, there is another judgment to celebrate.

Notes from a Foreign Field: A Critique of the Kenyan High Court’s Homosexuality Judgment

In a judgment delivered last week (EG v Attorney-General), the High Court of Kenya upheld the criminalisation of same-sex relations under the Kenyan Constitution. At issue was the constitutionality of Sections 162 and 165 of the Kenyan Penal Code. Section 162 prohibits having “carnal knowledge of any person against the order of nature.” Section 165 criminalises acts of “gross indecency” between two male persons. In arguments that, by now, have attained a ring of familiarity, these provisions were challenged on the bases that they violated the rights to equality and non-discrimination, privacy and dignity, and health under the Kenyan Constitution, as well as being vague and over-broad.

In criticising the judgment of another country’s court, one must proceed with a degree of circumspection. Every nation’s constitutional jurisprudence is specific and unique, and the assumptions that one brings from a study of one’s own legal system may simply not hold. That said, however, on a reading of the judgment, the arguments advanced before the Kenyan High Court, and the manner in which the Court engaged with them have, by now, attained an almost universalistic cast: they have been litigated across a range of countries, and in supra-national forums, over many decades. It would, therefore, be almost remiss if one didn’t point out the ways in which the Kenyan High Court, with respect, appears to have delivered a seriously flawed judgment.

The Argument from Vagueness

It was argued before the Court that the phrases “carnal knowledge”, “against the order of nature”, and “gross indecency”, were impermissibly vague. This is, of course, a familiar argument, and readers will recall that in Kaushal, the Indian Supreme Court had dodged it entirely by recounting conflicting precedent, and then claiming that the question could be determined on a case-to-case basis. The Kenyan High Court, however, did a little better. Relying on precedent, it defined “carnal knowledge” as “sexual intercourse” (paragraph 270), “against the order of nature” as “anal sex” (paragraph 271), and “gross indecency” as contact between genital organs, or the breast and buttocks. (paragraph 273) Having defined each of these terms, the Court then held the two provisions were specific enough to pass constitutional muster.

That is fair enough in its own right, but notice that, having defined Section 162 in terms of a specific and particular sexual act, the implications of what that meant for the constitutionality of the statute could not, later, be dodged. However, when it came to the constitutional argument, this – as we shall see – was exactly what the Court did.

The Argument from Equality and Non-Discrimination

Article 27 of the Kenyan Constitution guarantees equality before law, and prohibits direct and indirect discrimination on a host of specified grounds, including race, sex, pregnancy, marital status, and so on. While interpreting the provision, the Kenyan High Court borrowed from the ECHR and South African jurisprudence, to (correctly) note that “unfair discrimination” occurs when a law “treats some people as inferior or less deserving of respect than others. It also occurs when a law or conduct perpetuates or does nothing to remedy existing disadvantages and marginalization.” (para 288) However, after stating the position of law, the Court went on to hold in paras 295 and 296 that Sections 162 and 165 did not violate the Constitution, because:

The substance of the Petitioners’ complaint is that the impugned provisions target the LGBTIQ community only. If we understood them correctly, their contestation is that the impugned provisions do not apply against heterosexuals … [O]ur reading of the challenged provisions suggests otherwise. The language of section 162 is clear. It   uses the words “Any person.” A natural and literal construction of these words leaves us with no doubt that the section does not target any particular group of persons.

Readers will recall that this is a very old and very familiar argument, which was also employed by the Supreme Court in Kaushal: the supposed distinction between “acts” and “identities”. According to this argument, anti-sodomy laws only target a specific set of sexual acts (in the present case, as defined by the Kenyan High Court, the act of anal sex), which could – in theory – be committed by heterosexuals or homosexuals. They do not target same-sex relations and, therefore, do not attract equality and non-discrimination provisions.

However, as old as this argument is, its basic flaws have also been pointed out multiple times. For example, as the US Supreme Court pointed out in Lawrence v Texas, when the act that is criminalised “is closely correlated with being homosexual … there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.” Likewise, in National Coalition, the South African Constitutional Court noted that “it is not the act of sodomy that is denounced by the law, but the so called sodomite who performs it.” The point, in other words, is that by criminalising a specific set of acts, anti-sodomy laws effectively construct the homosexual identity as legally salient, and go on to persecute it – a point that has, by now, been made in reams of scholarly literature. That point cannot be understood, however, if the statute is examined only on its own terms, and in the absence of the social context within which it is embedded and operates. And indeed, the text of Article 27 of the Kenyan Constitution does require the latter approach: by prohibiting both direct and indirect discrimination, it requires a court to examine the effect of a law (an enquiry that needs to be contextual), and not merely its formal language (which is what the Court limited itself to in the above paragraph).

In fact, when faced with Section 165, even the Court’s formal analysis began to border on the illogical. Section 165, it held, used the term “any male person”, and therefore targeted male persons in general, and not male persons of any particular sexual orientation. The Court seemed to miss the second half the provision, however, which uses the term “with another male person”! Now, when a statute criminalises “acts of gross indecency” only between two male persons, we don’t even need to go into questions of indirect discrimination – on its face, the statute clearly targets gay men.

That said, the Court did go on to consider questions of selective enforcement. After noting petitioners’ affidavits that set out various instances of discrimination and violence, the Court noted that “a party pleading violation of constitutional rights is at the very least expected to give credible evidence of the said violation and that it is not enough to merely plead and particularize a  violation.” In this case, “save for the allegations made in the Petition and the affidavits, no tangible evidence was given to support the allegations.” (paragraph 299)

But this is a bewildering argument. It is in the nature of social discrimination and prejudice that it is experiential: it takes the form of discrimination in access to services, taunts in public and private, physical violence, and so on. The only “tangible evidence” that can be produced in such cases is in the nature of the testimony of those affected by it – all of which was before the Court. And this is also the reason why there exist detailed sociological studies (see here) that discuss the interface between anti-sodomy laws and social norms. It is therefore unclear what kind of evidence the Court would have found satisfactory in this case (it did not specify).

The Argument from Privacy and Dignity

After moving quickly through some other arguments such as the right to health (I have refrained from analysing the Court’s analysis of this, because it appears to require access to the pleadings), the Court came to the final argument: that the provisions violated the rights to privacy and dignity. The Court made two arguments to reject this claim. First, it held that there was no conclusive evidence to support the proposition that homosexuals were “born that way.” (paragraph 393) And secondly, it held that the question of legalising same-sex marriage had been explicitly raised during the drafting of the Kenyan Constitution, and it had been answered in the negative, with Article 45 of the Constitution specifying that “every adult has the right to marry a person of the opposite sex.” According to the Court, allowing same-sex relations would “indirectly open the door for unions among persons of the same sex”, something that would conflict with Article 45. (para 397)

Let us take both arguments in turn. On the first issue, the Court is right that there exists some scholarly debate on the issue of whether sexual orientation is “innate” or whether it is a product of biological and social factors. Where the Court is wrong, however, is on the question of whether that matters at all. As this piece puts the point: “Why should gay rights depend on being born this way?” Indeed, the question of whether sexual orientation is innate or not is irrelevant to a privacy/dignity claim, where one of the core elements is that of decisional autonomy, and, in particular, the right to make intimate choices in freedom and without State coercion. Therefore, wherever upon the innate/choice spectrum sexuality may lie, its position upon that spectrum does not change the fact that it is protected by the constitutional rights to privacy and dignity.

The second argument is even more difficult to parse. Article 45 uses the specific term “marry“, and in the absence of a claim for same-sex marriage, it is difficult to see where the conflict is. The Court attempted to get around this by observing that Section 3(1) of the Marriage Act defined “marriage” as the “voluntary union between of a man and a woman.” For the second time in the judgment, however, the Court appears to have engaged in a spot of selective reading. Section 3(1), in full, reads: “Marriage is the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with this Act.” This means that the Court’s attempts to equate “marriage” and “unions” when it says that legalising same-sex relations would “indirectly open the door for unions among persons of the same sex” is a piece of casuistry: by its very terms, a same-sex union would not amount to a marriage unless it is registered under the Marriage Act; and therefore, there is absolutely no conflict with Article 45 of the Kenyan Constitution.

It is also impossible to ignore the Court’s own shifts in meaning through the judgment: while considering the equality and non-discrimination claim, the Court held that Sections 162 an 165 only criminalised certain “acts”, and not persons. But when it came to the privacy and dignity claims, the Court switched tack, and found a seeming conflict with Article 45 of the Kenyan Constitution on the assumption that what Sections 162 and 165 did do was to outlaw same-sex relations, and not simply anal sex.

Conclusion

Article 27 of the Kenyan Constitution is a striking provision. It outlaws both direct and indirect discrimination. It provides a host of grounds: race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language, or birth. And it uses the word “including” just after “ground”, signifying that the definition is open-ended. This makes it one of the most progressive anti-discrimination provisions in any Constitution, anywhere in the world.

It would seem the easiest and most natural of analytical feats to hold that sexual orientation falls within Article 27. The multiple grounds in connection are united by two things: they are either “personal characteristics”, or the products of personal and intimate choices. And they are united, further, by one overarching theme: they have been the historical and continuing sites of discrimination, used in order to identify and single out groups of people, and then target and attack them. On every conceivable understanding of this provision, therefore, sexual orientation clearly comes within its terms.

Why then did the judgment of the Kenyan High Court come out the way that it did? Reading it, I was in fact struck by the similarities that it had with Kaushal: both judgments are characterised by a similar unwillingness – an unwillingness not to justify or to defend discrimination, but simply to acknowledge that it even exists. This is what explains the fact that in both Koushal and in EG, ultimately, the Court dodged the hard questions by holding that the equality and non-discrimination provisions of the respective Constitutions didn’t even apply, because, after all, the only thing prohibited was a set of acts. The contextual analysis that was required to link these apparent “acts” to the stigmatisation and persecution of sexual minorities was the missing step that the Courts seemed either unwilling – or unable – to take.

But the future of Kaushal perhaps give hope that in Kenya as well, this is an error that shall soon be rectified.

Civil Rights at the High Courts: Sedition and Transgender Identity

This month has seen two important civil rights judgments come out of the High Courts. The Kerala High Court reaffirmed the narrow scope of sedition, while the Madras High Court reaffirmed the right of self-determining one’s gender identity. Neither judgment broke new ground; but affirming – and entrenching – existing jurisprudence is often equally important, especially in circumstances where the possibility of erosion is ever-present.

The Kerala High Court, Sedition, and the UAPA

In Union of India v Shameer and Ors, a group of men were convicted of sedition (along with other provisions under the IPC and the UAPA). The gravamen of the offence, according to the Prosecution, was that in 2006, the accused organised a meeting where seditious pamphlets (of the banned SIMI organisation) were distributed, and seditious speeches were made. Two of the accused had stated that:

Indian army are killing Muslims who are doing jihad in Kashmir. Other Muslims are being tortured with oppressive laws like TADA, NSA etc., against which all of us should fight under the leadership of SIMI.

Present India was made by Britishers. Earlier, we were ruled by Nizams and Mughals. We should go back to that Old India for which we should fight through SIMI and no one else can destroy SIMI.

On the basis of this, the NIA Court convicted five out of the seventeen accused, of both sedition as well as membership of a banned organisation [SIMI] under the UAPA, and acquitted the rest. Both the convicted men, as well as the State, appealed. The Kerala High Court began by noting that if at all anyone had committed an offence, it was the two speakers – Accused No. 2 and 3. There was no evidence to demonstrate a larger conspiracy involving the people who had booked the hall, and therefore, at the threshold, the other convictions could not stand.

What this left, it will be seen, was a pure speech offence: the convictions of accused nos. 2 and 3 were purely on the basis of what they had said at the meeting. In this context, the bench of Shaffique and Menon JJ. held, reading S. 124A narrowly, that the offence of sedition had not been made out because the speech did not target the government established by law in India. The Court read the references to the Nizam and to the Mughals as expressing discontent with the way that India was governed, but that this, in itself, did not rise to the level of sedition. On the question of the UAPA, the Court held, following Arup Bhuyan, that the mere fact of holding a meeting – and even clapping and applauding through it – did not constitute the offence of “membership” of a terrorist organisation.

The High Court’s narrow reading of the substantive part of the definition – of both sedition and the UAPA – is welcome. Indeed, there has been very little judicial analysis of what, precisely, “government established by law” means in the context of S. 124A, and the High Court’s narrow interpretation does well by Article 19(1)(a) of the Constitution. To this we can add one further point: even if the Court had found, in this case, that the speech in question was against the “government established by law” (S. 124A), and that the accused did come to the meeting with the intention of “propagating SIMI ideology”, it would still not constitute either the offence of sedition, or of membership under S. 10 UAPA. After Shreya Singhal and Arup Bhuyan, it is clear beyond cavil that the appropriate legal standard to apply in these cases is that of “incitement to violence”; mere speech – including advocacy of revolutionary ideas – does not make out either offence. In this case, the High Court did not need to address that issue because of its findings on the content of the speeches, as well as on the nature of the meeting, but we should not lose sight of that larger point.

The Madras High Court and Transgender Identity 

Meanwhile, in Arunkumar & Sreeja v The Inspector-General of Registration, the High Court of Madras was called upon to decide whether a marriage between a man and a transwoman could be validly solemnised under the Hindu Marriage Act. G.R. Swaminathan J. held that it could, correctly noting that “by holding so, this Court is not breaking any new ground. It is merely stating the obvious.”

The dispute arose when the Registrar of Marriages refused to register the marriage, on the basis that Sreeja, as a transwoman, did not count as a “bride” within the meaning of the Hindu Marriage Act, as the scope of that expression was limited to “woman”. The Madras High Court held, however, that the Registrar’s actions were contrary to the ruling in NALSA v Union of India (subsequently upheld in Puttaswamy and Navtej Johar); at the heart of the NALSA ruling was the principle of self-determination as to gender identity. Consequently:

… the second petitioner herein has chosen to express her gender identity as a woman. As held by the Hon’ble Supreme Court this falls within the domain of her personal autonomy and involves her right to privacy and dignity. It is not for the State authorities to question this self-determination. (paragraph 9)

In view of this, Swaminathan J. held, the word “bride” in the Hindu Marriage Act had to be interpreted with the times, and in light of the principle of self-determination of gender identity.

It would … include an intersex person/transgender person who identifies herself as a woman. The only consideration is how a person perceives herself. (paragraph 15)

Interestingly, the Court then also went on to note the existence of multiple genders beyond the male/female binary, as well as going on to ban sex re-assignment surgery for minors (i.e., below the age of consent). As the Court noted:

A person who is in the Third Category is entitled to remain beyond the duality of male/female or opt to identify oneself as male or female. It is entirely the choice of the individual concerned. (paragraph 24)

 

There are a few important points to be noted about this judgment. This is perhaps the first time after NALSA that a Court has interpreted existing legislation in order to bring it line with the principle of self-determination of gender identity. It is, therefore, a landmark moment where the NALSA dictum has finally been given some kind of teeth, and a precedent has been set for future disputes involving the need for updating our existing laws that remain stuck within the male/female binary. This judgment constitutes the blueprint for doing so. Secondly, it is a judgment that moves beyond the rhetoric of self-determination of gender identity, and applies it to a situation where real consequences follow from that recognition (in this case, the right to marry). Of course, unlike affirmative action, marriage is not a situation involving identity-targeted distribution of scarce benefits; it is, therefore, a relatively easy case in which to affirm the principle of self-determination (it remains to be seen how the courts will navigate situations where distribution of scarce benefits does turn upon gender identification).

Perhaps most importantly, however, by placing the self-determination of gender identity – as well as the choice to opt out of the gender binary – upon a constitutional pedestal, Swaminathan J.’s judgment casts serious doubt upon the constitutional validity of the much-criticised Transgender Bill. Recall that that bill denies rejects self-determination of gender identity, as well as maintaining the gender binary and denying the primacy of choice. With the Madras High Court’s judgment, however, locating both these principles within Part III of the Constitution, it is evident that in its exiting form, the Transgender Bill will fail constitutional scrutiny.

Conclusion

The last few years have seen an unfortunate, top-heavy shift towards the Supreme Court, when it comes to constitutional cases. This has led to a gradual erosion of the High Courts as important forums for developing and articulating important constitutional principles. While I believe this has been a mistake, there does remain an important task for the High Courts, even under status quo: and that is to ensure that constitutional principles are entrenched through repeated and consistent application. Without that, Supreme Court pronouncements remain mere words, and can be very swiftly eroded or forgotten. And this is why the judgments of the High Courts of Kerala and Madras are significant additions to the struggle for a progressive civil rights jurisprudence in India.

From Koushal to Navtej Johar: Round-Up

With the conclusion of the Section 377 litigation, here is a round-up of the ICLP essays, which have spanned the last five years.

A. Pre-Koushal

1. “Textualism v Structural Analysis – or why the Court ought to uphold Naz Foundation” (25 September, 2013).
2. “Is there an interpretive methodology for construing colonial era statutes?” (10 October, 2013).
3. “Naz Foundation and homosexuality: a humorous, historical aside” (10 December, 2013).

B. Koushal

1. “The Unbearable Wrongness of Koushal v Naz Foundation” (11 December, 2013)
2. “Koushal v Naz Foundation: Picking up the pieces and exploring the grounds of review” (12 December, 2013).
3. “Koushal v Naz: Issue-wise Round-up of commentaries” (13 December, 2013).

C. NALSA

1. “NALSA v UoI: The Supreme Court on transsexuals, and the future of Koushal v Naz“ (15 April, 2014).
2. “Nalsa v UoI and Koushal v Naz: Acts against the order of nature?” (16 April, 2014).

D. The Interregnum

1. “Foucault, Rubenfeld, Naz Foundation, and Article 15″, (4 October, 2014).
2. “Guest post: Sex, sexual orientation, and the courts” (27 August, 2015) (by Vansh Gupta).
3. “Notes from a foreign field: The Supreme Court of Belize strikes down its anti-LGBT law” (13 August, 2016).

E. Puttaswamy

1. “The Supreme Court’s right to privacy judgment – III: Privacy, surveillance, and the human body” (29 August, 2017).
2. “The Supreme Court’s right to privacy judgment – V: Privacy and decisional autonomy” (31 August, 2017).

F. Navtej Johar 

1. “Section 377 referred to a Constitution Bench: Some Issues” (8 January, 2018).
2. “Guest Post: Inclusive pluralism or majoritarian nationalism: Article 15, Section 377, and who we really are” (9 July, 2018) (by Tarunabh Khaitan)
3. “Guest post: on the presumption of constitutionality for pre-constitutional laws” (11 July, 2018) (by Tarunabh Khaitan).
4. “Guest post: against natural rights – why the Supreme Court should NOT declare the right to intimacy as a natural right” (17 July, 2018) (by Tarunabh Khaitan).
5. “Civilisation has been brutal: Navtej Johar, Section 377, and the Supreme Court’s moment of atonement” (6 September, 2018).
6. “Guest Post: Navtej Johar v Union of India: Key highlights” (9 September, 2018) (by Abhinav Chandrachud).
7. “Guest Post: Navtej Johar v Union of India: What remains of Section 377?” (10 September, 2018) (by Vanshaj Jain).
8.  “Navtej Johar v Union of India: Rethinking Rajbala and the way forward” (15 September, 2018).

 

Guest Post: Navtej Johar v Union of India – What Remains of Section 377?

(This is a guest post by Vanshaj Jain.

Editor’s Note: The intersection between Sections 375 and 377, which constitutes the principal argument of this essay, has been examined by John Sebastian before the judgment in Navtej Johar, available here).

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That consensual sex between adults lies outside the scope of s.377 is now certain, per Navtej Singh Johar. What remains within the confines of the provision, however, is perilously unclear. To understand the conceptual imprecision that lies at the heart of this decision, it is necessary to understand how the normative content of Section 377 has changed since its ignominious birth.

Sections 375 and 377 were originally intended to cover two mutually exclusive categories of sexual acts. While s.375 covered “sexual intercourse”, s.377 infamously covered “carnal intercourse against the order of nature”. Though these terms were left intentionally imprecise, over time their meaning became conceptually dependant on each other. In Khanu v. Emperor, sexual intercourse was considered intercourse ‘in the order of nature’ with “the possibility of conception of human beings” and carnal intercourse against the order of nature was understood to cover all non-procreative sexual acts. Similarly, in Lohana Vasantlal Devchand, the content of s.377 was defined in opposition to s.375 by describing carnal intercourse against the order of nature as “an imitative act of sexual intercourse”. This bifurcation of sexual acts was cemented by the Supreme Court in Sakshi v. Union of India, where ‘sexual intercourse’ in s.375 was restricted to penile-vaginal penetration, while all residual forms of intercourse (including “penile-oral penetration, penile-anal penetration, finger-vagina, finger-anal penetration and object-vaginal penetration”) were considered carnal intercourse against the order of nature under s.377. Thus defined, the relationship between the two provisions could be conceived as follows:

However, the 2013 Criminal Law (Amendment) Act put an end to the watertight separation between these provisions. Section 375 was altered to include acts that earlier fell only within the domain of s.377, including oral sex, anal sex and penetration by objects. Coupled with these changes, the section ceased to describe the actus reus of rape as ‘sexual intercourse’. In fact, the marital rape exception to s.375 which earlier covered only ‘sexual intercourse’ was specifically amended to except “sexual intercourse or sexual acts”. As Sekhri and Mukhopadhyay argue, this ended the binary separation of ss.375 and 377 under ‘sexual intercourse’ and ‘carnal intercourse against the order of nature’. Indeed, it would be strange if the Amendment Act continued to restrict s.375 to ‘sexual intercourse’ alone since it was based on the Justice Verma Committee Report, which expressly recommended removing s.377 and abolishing the ‘sexual intercourse’/‘carnal intercourse against the order of nature’ division. Consequently, following the 2013 Amendment, the relationship between the provisions could be conceived of as follows:

It is this change in the conceptual interdependence of ss.375 and 377 that the Court seems to gloss over in Navtej Singh Johar. The opinions in Navtej erroneously presume that s.375 is still restricted only to ‘sexual intercourse’ and thus has no potential overlap with the actus reus of s.377. Per Chandrachud J., for instance, the 2013 Amendment shifts non-traditional male-on-female sexual acts [now covered in amended s.375(a)-(d)] from the category of ‘carnal intercourse against the order of nature’ to that of ‘sexual intercourse’. He reasons that:

…if ‘sexual intercourse’ now includes many acts which were covered under Section 377, those acts are clearly not ‘against the order of nature’ anymore. They are, in fact, part of the changed meaning of sexual intercourse itself. This means that much of Section 377 has not only been rendered redundant but that the very word ‘unnatural’ cannot have the meaning that was attributed to it before the 2013 amendment…[m]any of these acts which would have been within the purview of Section 377, stand excluded from criminal liability when they take place in the course of consensual heterosexual contact. Parliament has ruled against them being regarded against the ‘order of nature’, in the context of Section 375. Yet those acts continue to be subject to criminal liability, if two adult men or women were to engage in consensual sexual contact.

This misconception is repeated in the opinions of the other judges, compelling them to believe that the 2013 Amendment implies that consensual non-traditional male-on-female sex is legal because it displaces such acts from s.377 to s.375, the latter having a consent requirement. As is argued above, the language of amended s.375 betrays that this cannot be its effect; instead such acts remain within the meaning of ‘carnal intercourse against the order of nature’ but are to be covered both by s.377 and s.375 (under the phrase “sexual acts” added by the amendment).

Further, to add to the confusion, the judges seem to ascribe the intention of decriminalizing all consensual sex between a man and a woman to the 2013 Amendment. Per Nariman J., for instance:

…the legislature has amended one portion of the law in 2013, making it clear that consensual sex, as described in the amended provision, between two consenting adults, one a man and one a woman, would not be liable for prosecution.

The basis for this conclusion is never made clear in the opinions in Navtej, and cannot be located within the text of the 2013 Amendment Act or the Justice Verma Committee Report. Indeed, it is strange to reason that merely because the actus reus of one provision (here: s.375) is expanded but made contingent on a consent requirement, the implication it carries is that the same act cannot be penalized under any other provision (here: s.377), even if it falls within its definitional parameters. This seems patently incorrect.

The second concern with the manner in which the decision addresses s.377 relates to the phrase ‘carnal intercourse against the order of nature’. The concurring opinions indicate that this phrase lacks clear content:

In the contemporary world where even marriage is now not equated to procreation of children, the question that would arise is whether homosexuality and carnal intercourse between consenting adults of opposite sex can be tagged as ‘against the order of nature‘. It is the freedom of choice of two consenting adults to perform sex for procreation or otherwise and if their choice is that of the latter, it cannot be said to be against the order of nature. [CJI]

At the very outset, we must understand the problem with the usage of the term ‘order of nature’. What is ‘natural’ and what is ‘unnatural’? And who decides the categorization into these two ostensibly distinct and water-tight compartments? The simple question which we need to ask ourselves is whether liberty and equality can be made to depend on such vagueness of expression and indeterminacy of content…[i]f it is difficult to locate any intelligible differentia between indeterminate terms such as ‘natural’ and ‘unnatural’, then it is even more problematic to say that a classification between individuals who supposedly engage in ‘natural’ intercourse and those who engage in ‘carnal intercourse against the order of nature’ can be legally valid. [Chandrachud J.]

…the phrase “carnal intercourse against the order of nature” in Section 377 as a determining principle in a penal provision, is too open-ended” [Malhotra J.]

While the reasoning is unimpeachable, the judges don’t seem to fully appreciate its consequence. The phrase ‘carnal intercourse against the order of nature’ forms the crux of s.377; it is the actus reus on which the crime is based. If its content is unclear, as the judges rightly point out, only two consequences can follow: either the Court provides a clear guiding principle to determine the content of this phrase for future use or it strikes down the entire provision for vagueness. Troublingly, the Court does neither.

Instead, the Court reformulates the content of s.377 as follows:

“However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penal offence under Section 377 IPC. Any act of the description covered under 
Section 377 IPC done between two individuals without the consent of any one of them would invite penal liability under Section 377 IPC.” [CJI]

 

The phrase “act of the description covered under Section 377” could, reasonably, only refer to ‘carnal intercourse against the order of nature’. Yet, by virtue of the pronouncements highlighted above, this phrase no longer carries any positive content, since the Court has, in no uncertain terms, departed from the tests laid down in Khanu and Lohana Devchand, without providing a new test of their own. This renders the residual content of s.377 uncertain. It could, potentially, be conceived of in three possible ways:

Option A is the only one consistent with the Court’s statements on the unintelligibility of ‘carnal intercourse against the order of nature’. By undermining this phrase, it is conceivable that the Court wishes to put the divide between ‘sexual intercourse’ and ‘carnal intercourse against the order of nature’ to rest once and for all. Consequently, s.377 could be used to cover all non-consensual acts of sex (in addition to bestiality and paedophilia) that are not already covered by s.375 – this reinterpretation could raise the interesting possibility that marital rape and female-on-male rape are now subject to penal liability under s.377.

Option B indicates that s.375 and s.377 are not watertight categories; whereas s.375 criminalizes non-consensual male-on-female sexual intercourse and carnal intercourse (“sexual acts”), s.377 covers all remaining forms of non-consensual carnal intercourse. While this option best reflects the text of the 2013 Criminal Law (Amendment) Act, it isn’t consistent with the court’s reasoning on the 375-377 relationship. Option C allows for ss.375 and 377 to retain their independent character, the former applying only to ‘sexual intercourse’ while the latter covers only ‘carnal intercourse’, and best reflects the court’s description of their interaction. However, given the Court’s twin reasoning, first, on the unintelligibility of ‘carnal intercourse against the order of nature’ and its clear dicta that non-traditional forms of sex are not ‘unnatural’, and second, that the 2013 Amendment Act has shifted non-traditional forms of sex from ‘carnal intercourse’ to ‘sexual intercourse’, it is possible that, both under Options B and C, s.377 could no longer be used to cover non-traditional intercourse when done non-consensually, rendering the provision redundant (outside the context of bestiality and paedophilia). This would also have the bizarre outcome that even though male-on-male rape was criminalised earlier under s.377, by virtue of this decision it now carries no sanction (due to the gendered nature of s.375’s text). However, if the phrase ‘carnal intercourse’ does have any residual content, this would again raise the possibility, under Option B, of trying marital rape and female-on-male rape (when it entails such carnal intercourse) under s.377.

In conclusion, the normative content of s.377 is uncertain, and will, in all likelihood, require further clarification. What is clear, however, is that the judgment unfortunately glosses over the conceptual boundaries of a criminal law provision whose content it was called upon to decide.

Guest Post: Navtej Johar v Union of India – Key Highlights

(This is a guest post by Dr. Abhinav Chandrachud.)

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Much has already been written and said about the recent landmark decision of the Supreme Court in Navtej Singh Johar v. Union of India, where a bench of five judges of the Supreme Court partially struck down Section 377 of the Indian Penal Code (IPC), which made “carnal intercourse against the order of nature” a criminal offence. Four separate judgments were delivered by the court, by Chief Justice Misra (supported by Khanwilkar J), and Justices Nariman, Chandrachud and Malhotra. Though the conclusions arrived at were the same, some of the reasoning was different. For example, Justice Nariman held that there is no presumption of constitutionality for pre-Constitution laws [Nariman J, paragraph 90], Justice Chandrachud rejected [Chandrachud J, paragraph 36] the “sex plus” test laid down in Air India v. Nergesh Mirza, (1981) 4 SCC 335, while the other judges didn’t dwell much on these subjects. This post therefore focuses on some of the key highlights of the reasoning of the majority in the case. All paragraph number references are from the original judgments published on the website of the Supreme Court of India.

What is “natural”?

Section 377 of the IPC bears the heading “unnatural offences” and it penalizes carnal intercourse which is against the order of “nature”. Some of the judges therefore asked themselves what was meant by the word “natural”. Chief Justice Misra and Justice Malhotra held that a person’s sexual orientation itself is natural [Misra CJ, paragraphs 4, 109; Malhotra J, paragraph 13.1]. Relying on scholars like Zaid Al Baset and Shamnad Basheer, Justice Chandrachud wrote that there are shortcomings in the conceptual categories of “natural” and “unnatural”, that the idea of the “natural” was manufactured by a majoritarian suppression of the history of the prevalence of sexual minorities, that merely because something is natural does not mean that it is desirable (e.g., death), and just because something is unnatural (e.g., a heart transplant) doesn’t mean that it ought to be criminal [Chandrachud J, paragraphs 28-29].

Constitutional Morality:

One of the central themes of the court’s decision in Johar is that the aim of the Constitution is to transform society, not to entrench and preserve the pre-existing values of the majority. In other words, though a majority of people in India may be heterosexuals, though the prevalent “social morality” in India might even dictate sexual intercourse only between a man and a woman, it is “constitutional morality” which must prevail [See, Misra CJ, paragraphs 110, 119; Nariman J, paragraphs 80-81; Chandrachud J, paragraphs 3, 24, 141]. Ambedkar himself had said that “our people have yet to learn” the “sentiment” of “constitutional morality” [Chandrachud J, paragraph 141].

In West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), Justice Jackson of the U.S. Supreme Court famously wrote, “Compulsory unification of opinion achieves only the unanimity of the graveyard.” In passages reminiscent of these words, the Johar court found: “Any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the society would violate the principle of constitutional morality.” [Misra CJ, paragraph 116]; And: “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.” [Chandrachud J, paragraph 5].

The Miniscule Minority:

In Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, the Supreme Court had previously upheld Section 377 of the IPC because only “a miniscule fraction of the country’s population”, according to the court, belonged to the LGBTQI community. This argument was rejected by the court in Johar [Misra CJ, paragraphs 115, 120, 169; Nariman J, paragraph 95; Chandrachud J, paragraph 55; Malhotra J, paragraph 19(ii)]. The number of people asserting a fundamental right, said Chief Justice Misra, is “meaningless; like zero on the left side of any number.”

Unreasonable Classification:

Section 377 of the IPC was partially struck down by the court on the ground that it violates the rights to equality, free speech, and life under Articles 14, 19(1)(a) and 21 of the Constitution. Two tests were applied to determine whether the provision fell foul of Article 14 – the old classification test, and the new manifest arbitrariness test.

Under the classification test, a law falls foul of Article 14 if it either classifies people into categories without applying an intelligible differentia, or if the object sought to be achieved by the law doesn’t bear any rational nexus with the intelligible differentia. Applying this test, Chief Justice Misra found that the object of Section 377 (“to protect women and children from being subjected to carnal intercourse”), did not bear a reasonable nexus with the classification of persons into those who have carnal intercourse against the order of nature and those who don’t [Misra CJ, paragraph 237]. Justice Chandrachud, on the other hand, held that it was “difficult to locate any intelligible differentia between indeterminate terms such as ‘natural’ and ‘unnatural’” [Chandrachud J, paragraph 29]. Justice Malhotra held that “Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia.” [Malhotra J, paragraph 14.3]

Manifest Arbitrariness:

All the judges found that Section 377 was manifestly arbitrary [Misra CJ, paragraph 239, Nariman J, paragraph 82; Chandrachud J, paragraph 29; Malhotra J, paragraph 14.9]. The following were among the reasons given by the court in support of this conclusion: (i) Section 377 does not distinguish between consensual and non-consensual sexual intercourse among competent adults; (ii) it fails to recognize that such sexual intercourse is not harmful to society; (iii) it inflicts a stigma on members of the LGBTQI community; (iv) modern psychiatric studies have shown that members of the LGBTQI community are not persons suffering from mental disorders; (v) Section 377 inflicts life imprisonment, which is disproportionate; (vi) it is rooted in the belief that the sole aim of sexual intercourse is procreation; (vi) it discriminates on the basis of sexual orientation, over which a person has “little or no choice”; (vii) the phrase “carnal intercourse against the order of nature” is too open ended and vague to be in a penal provision; (viii) after the 2013 amendment to the IPC, some consensual sexual acts between heterosexual adults would no longer be considered rape under Section 375, though they would still fall foul of Section 377 [Misra CJ, paragraph 220; Nariman J, paragraph 94; Chandrachud J, paragraph 31 (at pp. 39-41)].

Articles 19(1)(a) and 21:

The court found that Section 377 violates the right of members of the LGBTQI community to dignity, identity, and privacy, all covered under Article 21 of the Constitution [Misra CJ, paragraphs 143, 229; Nariman J, paragraph 83; Chandrachud J, paragraphs 51 (at p. 66), 58; Malhotra J, paragraphs 13.1, 14.5, 16]. Two judges found that it violates the right to health, because the criminalization of homosexual intercourse makes members of the LGBTQI community hesitate to seek medical advice and that they are therefore more susceptible to sexually transmitted diseases [Chandrachud J, paragraphs 76, 83, 84, 87, 92; Malhotra J, paragraph 16.3]. The court also found that Section 377 violates the right to the freedom of expression under Article 19(1)(a) [Misra CJ, paragraphs 245, 247; Malhotra J, paragraph 17].

Partially Struck Down:

However, Section 377 of the IPC has not entirely been struck down. It still covers bestiality and non-consensual intercourse [See: Misra CJ, paragraphs 252, 253 (xvii), Nariman J, paragraph 97; Chandrachud J, paragraphs 7, 156(i)]. Since the court struck down the provision as far as it applies to consenting adults, the provision still presumably applies to consensual sexual intercourse among minors of the same gender. Under Section 375 of the IPC, as amended in 2013, even consensual sexual intercourse among heterosexual minors, if the girl is under 18 years of age, is considered to be rape.

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(The writer is an advocate at the Bombay High Court)

“Civilization has been brutal”: Navtej Johar, Section 377, and the Supreme Court’s Moment of Atonement

Last year, in Justice K.S. Puttaswamy v Union of India, the Supreme Court did a remarkable thing. While declaring that privacy was a fundamental right under the Indian Constitution, five out of nine judges also noted that the Court’s 2013 judgment in Suresh Kumar Koushal v Naz Foundation (an entirely unconnected proceeding) had been wrongly decided. In Koushal, the constitutionality of Section 377 of the Indian Penal Code – that criminalised “carnal intercourse against the order of nature” – had been upheld, and the 2009 Delhi High Court judgment reading it down to exclude consenting same-sex relations had been overturned. How deeply the Koushal Court had erred (in the view of the Puttaswamy bench) was evident from the fact that in his plurality opinion, Chandrachud J. singled it out as one of the two “discordant notes” in constitutional history (the other was the Emergency-era ADM Jabalpur judgment).

The privacy judgment made it clear that Koushal was living on borrowed time. That time came to an end today, when a Constitution Bench of the Court, in Navtej Johar v Union of India, formally overruled Koushal, effectively restored the Delhi High Court judgment in Naz Foundation, and unambiguously held that the LGTB+ community was entitled to equal rights under Articles 14, 15, 19, 21, and the rest of the Constitution’s fundamental rights chapter.

Four concurring judgments were delivered in Navtej Johar. While concurring on the outcome of the case – that Section 377 violated Article 14 (equal protection of laws), 15(1) (non-discrimination on grounds of sex), 19(1)(a) (freedom of expression) and 21 (right to life and personal liberty) – the judges came at the issues from different angles. In this essay, I shall discuss the different strands of constitutional reasoning that we find in Navtej Johar, and their implications for the future.

A. The Chief Justice and the Primacy of Choice 

The Chief Justice wrote for himself and Justice Khanwilkar. His is a wide-ranging judgment, but at its heart lies the idea of choice. This is not as straightforward an argument as it seems at first blush. Recall that there has been a long-standing debate about whether sexual orientation is “natural” and “immutable”, a question of choice, or somewhere in between upon a spectrum. It has always been intuitively tempting to argue that sexual orientation is simply a question of having been “born this way.” It is tempting because if sexual orientation is “natural”, and something beyond the individual’s power to alter, then criminalising it is ipso facto irrational. Our criminal law is based upon the idea of holding people to account for acts that they are responsible for. How then can you criminalise something that is inherent, and which cannot be controlled?

The “born this way” discourse, however, has been strongly criticised. As this article points out, for example:

If biology determines our expression, then there is no reason to think about making better or different worlds. It has all been decided, from the moment we became Homo sapiens. Yet if we recognise sexuality as constructed, we open up essential discussions about some of the most important aspects of life. Who are we sexually intimate with, and how? What do we do with the consequences of sexual intimacy (offspring and health)? Who is responsible for children’s lives, development and education in a society? The arrangement of sexual relations is the key social building block of society’s reproduction. Hence the importance of gay marriage. Yet we have a surprisingly limited way of engaging this conversation; indeed, biological determinism helps us avoid the issue altogether. A host of social issues are pressing down upon us, and we cannot effectively address them if we deny the reality of the human condition, including sexuality, and thereby close off discussions before they begin.

And, as the work of Foucault and other scholars has demonstrated, essentialising sexuality (and sexual orientation) runs the risk of trapping people in pre-constructed identities, in a manner that – in the long run – is anything but emancipatory.

To the judgment’s merit, it keeps both these propositions in an equilibrium, and refrains from choosing one over the other. So, in paragraph 9, the Chief Justice observes:

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.

“Natural orientation” and “choice” are discussed in a complementary manner throughout the judgment (see, e.g., paragraphs 109 and 148). Admittedly, at various points in the judgment, the Chief Justice comes close to slipping back into the former type of vocabulary, using words such as “inherent”, “innate”, “by birth”, and so on (paragraph 143 – 144). A holistic reading of the judgment, however, makes it clear that the concept of choice (that he also frames as individual self-determination) is as important to the exercise of constitutional rights as the “naturalness” of sexual orientation. Indeed, in paragraph 140, while defining the aspects sexual orientation, the Chief Justice refers both to “inherent orientation” and “demonstration of choice.”

And, perhaps most importantly, it is in the language of choice that the Chief Justice rejects Koushal’s argument (indeed, the only argument actually made in Koushal) that as Section 377 only criminalises “acts” and not “persons”, it does not violate constitutional guarantees:

… individuality of a person and the acceptance of identity invite advertence to some necessary concepts which eventually recognize the constitutional status of an individual that resultantly brushes aside the ―act‖ and respects the dignity and choice of the individual. (paragraph 81)

Additionally, the argument from dignity is also framed in the language of choice:

Dignity while expressive of choice is averse to creation of any dent. When biological expression, be it an orientation or optional expression of choice, is faced with impediment, albeit through any imposition of law, the individual‘s natural and constitutional right is dented. (paragraph 132)

This articulation of “choice” then becomes an important basis of the Chief Justice’s finding that Section 377 violates the Constitution. Because it disrespects individual choice, Section 377 is both irrational and “manifestly arbitrary”, and violates Article 14 (paragraph 240). This is, of course, in addition to the violation of expressive rights under Article 19(1)(a), and the right to privacy under Article 21 – which too is defined in terms of “intimacy in privacy as a matter of choice” (Conclusion X).

B. Justice Nariman and the Presumption of Constitutionality

Justice Nariman’s opinion shares many of the interpretive commitments of the Chief Justice. He too holds that Section 377 violates dignity (paragraph 79), and that it is “manifestly arbitrary” (paragraph 82). Nariman J. arrives at the second conclusion from a slightly different route. He examines the 2017 Mental Healthcare Act, which expressly prohibits discrimination on grounds of sexual orientation (in the domain of mental health). Combining this with scientific evidence, he notes that the natural/unnatural distinction that is at the heart of Section 377 has no rational basis, and consequently, violates Article 14 (paragraph 82).

By far the most interesting aspect of Nariman J.’s opinion, however, is his holding that pre-constitutional laws do not enjoy any presumption of constitutionality. He notes that:

The presumption of constitutionality of a statute is premised on the fact that Parliament understands the needs of the people, and that, as per the separation of powers doctrine, Parliament is aware of its limitations in enacting laws – it can only enact laws which do not fall within List II of Schedule VII of the Constitution of India, and cannot transgress the fundamental rights of the citizens and other constitutional provisions in doing so. Parliament is therefore deemed to be aware of the aforesaid constitutional limitations. Where, however, a pre-constitution law is made by either a foreign legislature or body, none of these parameters obtain. It is therefore clear that no such presumption attaches to a pre-constitutional statute like the Indian Penal Code.

While I believe this is a correct argument, it is nonetheless an incomplete argument. Nariman J. does not tackle one important objection: that Parliament’s failure to repeal a pre-constitutional law indicates an implicit acceptance. It also seems to prove too much (for example, could someone challenging the Indian Contract Act of 1872 argue that there is no presumption of constitutionality?). Consequently, I would suggest that Nariman J.’s argument requires to be slightly deepened: the reason why pre-Constitutional laws should not carry a presumption of constitutionality is because, insofar as they affect fundamental rights, they impose a double-burden upon the individuals they impact: first, these individuals had no say in the framing of these laws (since they were passed by a non-democratic colonial regime); and secondly, now that these laws exist, it is those who suffer their effects who have to mobilise and convince parliament to repeal them. It is this double-burden that is unacceptable, and therefore mandates that the presumption of constitutionality be withheld from those colonial laws that affect fundamental rights (I have made this argument in greater detail elsewhere).

C. Justice Chandrachud and Indirect Discrimination

For me, the most interesting – and complex – argument in the case was that Section 377 violates Article 15(1) (non-discrimination on grounds of sex), and a combined reading of Articles 15 (non-discrimination) and 14 (equality before law). In Chandrachud J.’s opinion, this argument receives detailed treatment. As a prelude, he begins with the following, critical observation:

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. (paragraph 27)

This is an important rebuke, not just to the Koushal Court, but also to the dominant strand of equality thinking on the Supreme Court, which – even in 2018 – continues to apply the “classification test” to judge equality violations (i.e., a law is unconstitutional if there is either an “unintelligible differentia” between the things that it classifies, or if the classification bears no rational nexus to the State goal).

Chandrachud J. goes on to note:

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.

What does this “substantive content” of equality entail? This takes us to the heart of Chandrachud J.’s judgment, which his treatment of the Article 15(1) claim. As he notes, Indian courts have historically interpreted the statement “The State shall not discriminate on grounds … only of sex” in a highly formalistic manner, and have upheld laws that – in their language – use more than one or a differently worded ground (for example, in Koushal, the Court held that because Section 377 only criminalised “carnal intercourse against the order of nature”, there was no question of discriminating against identities). This, however, is flawed: what matters is the effect of law upon the exercise of fundamental rights. (paragraph 34)

The effect of law must be understood by taking into account the broader social context within which law is embedded. It must therefore take into account “the intersectional nature of sex discrimination, which cannot be said to operate in isolation of other identities, especially from the socio-political and economic context.” (paragraph 36) Drawing from progressive gender equality judgments such as Anuj Garg, Chandrachud J. concludes that:

A provision challenged as being ultra vires the prohibition of discrimination on the grounds only of sex under Article 15(1) is to be assessed not by the objects of the state in enacting it, but by the effect that the provision has on affected individuals and on their fundamental rights. Any ground of discrimination, direct or indirect, which is founded on a particular understanding of the role of the sex, would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex.

The words “direct or indirect” are crucial, since this is the first time that the Supreme Court has explicitly recognised the concept of indirect discrimination (i.e., where facially neutral laws – such as S. 377 – nonetheless have a disproportionate impact upon a segment of the population).

How must Section 377 be analysed within this constitutional framework? After recording the experiences of LGBT+ individuals subjected to the “shadow of criminality”, Chandrachud J. notes that “Section 377 criminalizes behaviour that does not conform to the heterosexual expectations of society. In doing so it perpetuates a symbiotic relationship between anti-homosexual legislation and traditional gender roles.” (paragraph 44) How does it do so? The answer comes immediately afterwords:

If individuals as well as society hold strong beliefs about gender roles – that men (to be characteristically reductive) are unemotional, socially dominant, breadwinners that are attracted to women and women are emotional, socially submissive, caretakers that are attracted to men – it is unlikely that such persons or society at large will accept that the idea that two men or two women could maintain a relationship. (paragraph 44)

It is in this manner that Chandrachud J. draws together the indirectly discriminatory character of the facially neutral S. 377, the effects test, the prohibition of “sex” discrimination under Article 15(1) in a case about “sexual orientation”, and the importance of social context to the enquiry.  Here is how the argument goes:

1. Article 15(1) prohibits sex discrimination.
2.  Discrimination on grounds of sex is premised upon stereotypes about appropriate gender roles, and the binary between “man” and “woman”.
3. It is these stereotypes about gender roles that constitute the bases of criminalising same sex relations.
4. Section 377 may be neutrally worded, but it’s effect is primarily – and disproportionately – upon the LGBT community. It is therefore indirectly discriminatory on grounds of sexual orientation.
5. Since the basis of that indirect discrimination lies in stereotypes about gender roles (the background social context), S. 377 violates Article 15(1) of the Constitution.

Consequently, to sum up:

Statutes like Section 377 give people ammunition to say “this is what a man is” by giving them a law which says “this is what a man is not.” Thus, laws that affect non-heterosexuals rest upon a normative stereotype: “the bald conviction that certain behavior-for example, sex with women-is appropriate for members of one sex, but not for members of the other sex. (paragraph 51)

As Terry Eagleton wrote in Saint Oscar, his play about Oscar Wilde:

You hold that a man is a man and a woman is a woman. I hold that nothing is ever purely itself, and that the point where it becomes so is known as death. I therefore demand to be defended by metaphysicians rather than by lawyers, and that my jury should be composed of my peers – namely, poets, perverts, vagrants and geniuses.

I do not think it is an exaggeration to say that today represents the most advanced interpretation of Article 15(1) and non-discrimination that has come out of the Supreme Court thus far.

Chandrachud J.’s judgment then goes on to examine Article 19(1)(a), focusing on how S. 377 inhibits the sexual privacy of the LGBT+ community, by forcing them into the closet (paragraph 61). He is careful to notice perhaps the only shortcoming of the Delhi High Court judgment, which was to restrict the right to “private spaces.” Like his judgment in Puttaswamy, Chandrachud J. once again critiques the facile public/private binary, and notes that “the right to sexual privacy, founded on the right to autonomy of a free individual, must capture the right of persons of the community to navigate public places on their own terms, free from state interference.” (paragraph 62) He goes on to discuss the rights to privacy and autonomy (paragraph 65), holds that Article 21 also protects a right to intimacy (paragraph 67), and includes a detailed discussion on how Section 377 inhibits the right to health (including the right to mental health) (Part G). There is also an extended discussion of the limits of criminal law, which concludes with the now-familiar observation that harm to others is the only adequate ground for criminalisation. (paragraph 137)

D. Justice Malhotra and a Truer Vision of Equality  

Justice Malhotra penned a brief, concurring judgment, that discussed Articles 14, 15, 19(1)(a) and 21 in turn. Her judgment, however, takes immutability as the basis for the 14/15 violation. In her view, Section 377 violates Article 14 because:

[It] creates an artificial dichotomy. The natural or innate sexual orientation of a person cannot be a ground for discrimination. Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia. (paragraph 13)

In my analysis of the Chief Justice’s opinion, I have noted that this view is controversial. Here, however, I want to focus on something else: the second sentence. Malhotra J. argues that where a legislation discriminates on the basis of an “intrinsic or core trait”, it ipso facto fails Article 14; that is, it cannot be counted as a reasonable classification. However, there is nothing inherent about such discrimination that makes it an “unintelligible differentia”, or precludes it from having some “rational nexus” with a possible goal. Consequently, Malhotra J. actually advances a more radical reading: she argues that the very concept of equality under Article 14 rules out certain kinds of classifications at the threshold. In her view, legislation based on an “intrinsic or core trait” fails that threshold inquiry. I would put it slightly differently: legislation based on a core trait (related to personal autonomy), a trait that has been a historical or present site of systemic discrimination, is ruled out under Article 14. This is because, for the reasons given above, I believe that the language of “intrinsic” or “immutable” characteristics is a dangerous road to go down. That, however, is a minor point of difference: what is crucial is that Malhotra J.’s reasoning – in its own way, as Chandrachud J in his way – opens up the transformative potential of Article 14 and 15(1).

Malhotra J.’s argument is important for another reason. In Dipak Sibal, the Supreme Court held that in addition to intelligible differentia and rational nexus, Article 14 also required a “legitimate State purpose.” However, neither Dipak Sibal nor any subsequent case clarified what State purposes may be illegitimate. In Malhotra J.’s opinion, we now have an answer: whatever the differentia, and whatever the nexus, the State is not permitted, under Article 14, to disadvantage groups on the basis of an “intrinsic or core” trait.

E. Odds and Ends 

Malhotra J.’s transformative understanding of Article 14 is the best point for us to segue into some of the overarching themes of the judgment. Why is it that discriminating on the basis of an “intrinsic or core” trait is ruled out by the constitutional vision of equality? Two themes – present in all four judgments – answer the question: constitutional morality and transformative constitutionalism. The Chief Justice notes, for example:

Any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the society would violate the principle of constitutional morality. Devotion and fidelity to constitutional morality must not be equated with the popular sentiment prevalent at a particular point of time. (para 116)

Justice Nariman observes:

It must not be forgotten that Section 377 was the product of the Victorian era, with its attendant puritanical moral values. Victorian morality must give way to constitutional morality as has been recognized in many of our judgments. Constitutional morality is the soul of the Constitution, which is to be found in the Preamble of the Constitution, which declares its ideals and aspirations, and is also to be found in Part III of the Constitution, particularly with respect to those provisions which assure the dignity of the individual. (para 78)

And Chandrachud J.:

The Constitution envisaged a transformation in the order of relations not just between the state and the individual, but also between individuals: in a constitutional order characterized by the Rule of Law, the constitutional commitment to egalitarianism and an anti-discriminatory ethos permeates and infuses these relations. (para 52)

The wheel has turned full circle. It was the Delhi High Court, in Naz Foundation, which first introduced all of us to the grammar of “constitutional morality”, and linked it to the Objectives Resolution, and the qualities of inclusiveness and pluralism at the heart of the Constitution. And, nine years later, this vision of constitutional morality lies at the heart of the decriminalisation of same-sex relations. The reason why Malhotra J. is correct when she holds that legislation discriminating on the basis of “intrinsic or core” traits is ipso facto violative of equality, is because equality – viewed through the lens of constitutional morality – is defined by the values of pluralism and inclusiveness: different forms of life and different ways of being are guaranteed equal treatment, equal concern, and equal respect under the transformative Indian Constitution.

The Road Ahead 

What lies ahead? This was, after all, a limited case: it was a constitutional challenge to Section 377 of the IPC. But as the judges themselves acknowledge, there is much work to be done ahead. As the Chief Justice notes, in his judgment:

Equality does not only imply recognition of individual dignity but also includes within its sphere ensuring of equal opportunity to advance and develop their human potential and social, economic and legal interests of every individual and the process of transformative constitutionalism is dedicated to this purpose. (paragraph 104)

Chandrachud J. likewise notes, in his conclusion, “members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution.” This, clearly, indicates at a future beyond mere decriminalisation. It indicates towards civil rights, a guarantee against horizontal discrimination in the domains of housing, education, and access to services (under Article 15(2)), a potential right to affirmative action (on the lines of the NALSA v Union of India), and of course – eventually – equal marriage, if demanded. How rocky the road will be towards full and equal moral membership, of course, remains to be seen.

What of other domains? The judgments of Chandrachud J and Malhotra J, as I have argued above, open new windows for understanding and interpreting Articles 14 and 15(1). Will we see them play out in the future? Will Chandrachud J.’s observations about the limits of criminal law have an impact on litigations concerning bans upon dietary preferences? Will the salutary observations about transformative constitutionalism and the value of the individual percolate into other cases concerning State power and individual rights? In the coming months and years, these questions will be answered.

For today, it remains to be said: five years ago, the Supreme Court committed a grievous error in Koushal v Naz Foundation. Today, the Court has atoned. “Civilization“, observes Chandrachud J., “can be brutal.” That brutality was felt on 11th December 2013, and in the days and months that followed. But today is about the Constitution, and today is about emancipation and liberation.

Navtej Johar v Union of India is a judgment worthy of our transformative Constitution.

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(Disclaimer: The author was one of the lawyers representing Voices against 377, a coalition of organisations challenging S. 377 before the Court.)