laws for third gender in India
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In this article, Swastik Sharma discusses How the decriminalisation of homosexuality impacts the LGBT community in India.

The expression “personal liberty” in Article 21 of the Constitution is of the widest amplitude,[1] and includes “right to privacy” as an implicit right in the concept of individual autonomy and liberty.[2]

It was indeed the case of the “parties against section 377” in the three major battles against its retention[3] that section 377 of the IPC, 1860 (377) violated the right to privacy of the LGBT when it threatened private sexual relations of consenting adults with penalization. Right to privacy could not have been meaningful as long as it was being abridged by a fear of law enforcement agencies. Sexual relations and preferences, being most private and intimate, are inalienable components of the right to life. 377 left the LGBT community unable to experience the private sexual pleasure which was allowed to heterosexuals.

“Parties in favour of retention of Section 377” in Suresh Kumar Koushal v Naz Foundation[4] (Suresh Kumar) did not accept that 377 violated the Right to Privacy and even if it did, it can be so curtailed by following due process of law.[5] It is interesting to note that in Naz Foundation v Govt of NCT of Delhi[6] (Naz Foundation) “parties in favour of retention of Section 377” had conceded that “Right to Respect for Private and Family Life” was encroached. They tried to justify such abridgement in the interest of public safety, healthy environment and protection of health and morals.

Constitutional Morality overrides Public Morality

To understand whether Fundamental Rights under article 21 and 19 can be curtailed under the garb of “morality”, we have to first understand whether the morality in question is “societal morality” or “constitutional morality” and only then we can answer whether enforcement of “morality” is a legitimate state interest.

“Societal/Public Morality” is the set of ethics which the public at one point of time may subjectively perceive as the principles of right and wrong, whereas “Constitutional Morality” is derived from constitutional values enshrined under the preamble, Part III and Part IV of the Constitution. In a tussle between the two, “Constitutional Morality” always prevails. It is very interesting to note in this regard that the Apex Court in Suresh Kumar justified 377 through the lens of societal morality and leaned on majoritarian perception whereas the issue, in actuality, needed to be debated upon in the backdrop of constitutional morality. Further, morality and criminality are not co-extensive. Recognition of an act as ‘sin’ is not punishable on Earth by courts. Criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy.[7]

Where the Delhi High Court in Naz Foundation relying upon many foreign judgements held that 377 grossly violated right to privacy and liberty embodied in article 21 insofar as it criminalized consensual sexual acts between adults in private, the Apex Court in Suresh Kumar Koushal relying upon several of its older decisions,[8] held that though foreign judgements are informative and shed considerable light on various aspects of right to privacy, still they cannot be applied blindfolded for deciding the constitutionality of an Indian Legislation. Ironically, the Court in Navtej Singh Johar v Union of India[9] (Navtej Singh) relies upon a plethora of foreign judgements to overrule Suresh Kumar.

Hence, in Navtej Singh, the Supreme Court inter-alia held that 377, insofar as it criminalizes consensual sexual acts between adults in private, abridges both human dignity as well as the fundamental right to privacy and choice. The right to privacy takes within its sweep the right of every individual including that of the LGBT community to express their choices in terms of sexual inclination without the fear of persecution or criminal prosecution. To criminalise homosexuals only on account of their sexual orientation and would run against the principles of constitutional morality.

The emergence of a new right: Right to ‘sexual privacy’

The seeds for the emergence of the right to ‘sexual privacy’ were sown in Naz Foundation when the Court held that the way in which one gives expression to one’s sexuality is at the core of this area of private intimacy. If in expressing one’s sexuality, one acts consensually and without harming the other, invasion of that precinct will be a breach of privacy.

In KS Puttaswamy v Union of India[10], the Supreme Court declared sexual orientation as an essential and innate facet of privacy. This new right was fully recognized in Navtej Singh where the court widened the scope of the right to privacy by incorporating in it a right to ‘sexual privacy’. The court held that the exercise of the natural and inalienable right to privacy entails allowing an individual the right to a self-determined sexual orientation. Emanating from the inalienable right to privacy, the right to sexual privacy must be granted the sanctity of a natural right, and be protected under the Constitution as fundamental to liberty and as a soul mate of dignity.

Conclusion

Even if it be accepted that 377 was only kept to protect children from sexual abuses and fill lacunae in rape law, its retention would unnecessary because the purpose for its retention died after enactment of Protection of Children from Sexual Offences Act, 2012 and Criminal Law (Amendment) Act, 2013. Further, what was always demanded was to interpret 377 differently, i.e., to decriminalize private consensual sex between adults, not to declare the whole of 377 unconstitutional.

The LGBT community was not only denied “moral-full citizenship” but also reduced to a status of “unapprehended felons” as Section 377 had no other purpose than to criminalise conduct which failed to conform to the moral or religious views of a section of society. Hence, the law, as it stands today, is that for the “compelling state interest” test,[11] the enforcement of “public morality” cannot amount to a “compelling state interest” to justify invasion of privacy of adult homosexuals engaged in consensual sex in private without intending to cause harm to each other or others, though it could be a “compelling state interest” to regulate by law the area of non-consensual sex.

It was easily anticipatable that Suresh Kumar would soon be overruled after landmark judgements delivered in cases of KS Puttaswamy v Union of India,[12] Common Cause v. Union of India[13] and NALSA v Union of India[14], raised the right to privacy to the pedestal of a fundamental right and where the plight of the LGBT community was also recognized. This shows that the Apex Court is indeed moving towards a progressive realization of rights to realize the constitutional vision of equal rights in consonance with the current demands and situations.

As the final arbiter of the Constitution, the Apex Court had to keep in view the necessities of the needy and the weaker sections. Hence, as the law stands today, the right to privacy includes within its ambit the right to engage in consensual same-sex sexual relations in private and moral views of society cannot lead to the criminalization of such acts. The right to privacy is not only the “right to be let alone”, but also extends to the right to spatial privacy, and decisional privacy or privacy of choice. It extends to the right to make fundamental personal choices, including those relating to intimate sexual conduct, without unwarranted State interference.

The Personal Laws, as well as the Secular Law, only provide for marriages between heterosexual couples, and not same-sex couples. Adoption rights have also, only been provided to heterosexual couples. Even though the Apex Court has provided the LGBT community relief to some extent, still a major mending needs to be done in Civil Laws by the Parliament, to truly enrich the LGBT community with their rights.

[1] Maneka Gandhi v Union of India (1978) 1 SCC 248.

[2] Gobind v State of MP (1975) 2 SCC 148.

[3] Naz Foundation v Govt of NCT of Delhi 2009 SCC OnLine Del 1762; Suresh Kumar Koushal v Naz Foundation (2014) 1 SCC 1; Navtej Singh Johar v Union of India 2018 SCC OnLine SC 1350.

[4] (2014) 1 SCC 1.

[5] AK Gopalan v State of Madras AIR 1950 SC 27; RC Cooper v Union of India (1970) 1 SCC 248.

[6] 2009 SCC OnLine Del 1762.

[7] Khushboo v Kanniammal (2010) 5 SCC 600.

[8] Jagmohan Singh v State of UP (1973) 1 SCC 20; State of Madras v VG Row AIR 1952 SC 196; Surendra Pal v Saraswati Arora (1974) 2 SCC 600.

[9] 2018 SCC OnLine SC 1350.

[10] KS Puttaswamy v Union of India (2017) 10 SCC 1.

[11] Gobind v State of MP (1975) 2 SCC 148.

[12] (2017) 10 SCC 1.

[13] (2018) 5 SCC 1.

[14] (2014) 5 SCC 438.

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