Justice Anthony Kennedy of the United States Supreme Court while commenting on the U.S. Supreme Court’s historic ruling recognizing the constitutional right of same-sex couples of marry – in Obergefell v. Hodges - called the transcendent moment as the victory of the “dignity” and “profound hopes and aspirations” of the many loving couples of the lesbian, gay, bisexual or transgender (LBGT) community. The next day the New York Times carried the front-page headline “Equal Dignity”.
This same dignity of an individual’s core identity has been denied under Indian law for more than 157 years, solely on the basis of an individual’s sexuality. Section 377 of the Indian Penal Code (IPC) criminalizes, among other things, consensual sexual acts of homosexual adults in private. This statutory deprivation was given constitutional propriety by a two judge bench of the Supreme Court of India, when in 2015 – in Suresh Kumar Koushal v NAZ Foundation (Koushal) - while overruling a Delhi High Court decision, it upheld the constitutional validity of section 377 of the IPC.
In Koushal, the Supreme Court held that given a miniscule fraction of India’s LBGT population has been prosecuted under section 377 of the IPC, it cannot be made a valid legal basis for declaring section 377 ultra-vires under Article 21 of the Indian Constitution – which guarantees the individual right to life and liberty. Further, in Koushal, the Court also held that blind reliance on international judgements in an attempt to protect the “so-called” rights of LBGT persons could not be the basis for deciding the constitutional validity of an Indian legislature.
This week the majority of a nine judge bench of the Indian Supreme Court – in Justice K.S. Puttaswamy (Retd) v Union of India (Puttaswamy) - while upholding the fundamental right to privacy under the Indian constitution - in a self-catharsis act expressly repudiated the very grounds on which the Koushal judgment upheld the constitutional validity of section 377. Granting the Indian LBGT community their rare transcendental moment for acclaiming the dignity of their autonomous and fuller liveable life.
The de-minimis logic of the Koushal judgment, where the invasion of the fundamental rights of a few were granted constitutional consolation, as opposed to a large number of persons, was found to be unsustainable for deprivation of the right to privacy and to that of life under Article 21 of the Constitution. The majority of the bench expressly held that the test of popular acceptance cannot serve as a proxy for sanctity of constitutional protection – expressly stating that the right to privacy and the protection of sexual orientation is at the core of the guaranteed fundamental rights of equality, law and life.
Teaching a lesson on civility of judicial vocabulary the Court criticised the Koushal judgment’s use of the terminology “so-called rights of LBGT persons”. The use of such terminology was found to be suggesting that rights of the Indian LBGT community were illusionary or unreal. The majority decision expressly held that, on the contrary, an individual’s right of sexual orientation was inherent in her right to life and an essential component of her identity which demanded constitutional protection without discrimination.
However, given that the matter of constitutional validity of section 377 of IPC is specifically sub-judice before the Court under a batch of curative petitions and that scope of the petitioner’s relief sought in the Puttaswamy case was restricted to the declaration of the constitutional validity of the right to privacy as a fundamental right, the Court stops short of directly overruling Koushal and declaring section 377 of the IPC as unconstitutional, just yet.
By repeatedly locating the right of choice of sexuality within the “privacy – dignity” paradigm of an individual’s fundamental right to life with dignity, the majority of the bench has all but de-facto included the right of sexual orientation within the catena of fundamental rights under Article 21 of the Constitution.
The American philosopher Martha Nussbaum has described dignity as the transition from ‘disgust’ to ‘humanity’. The usage of human dignity as the central justificatory tool to locate an individual’s right of sexual orientation within the Constitution signals the Court’s intention to perhaps nudge the Indian society to cultivate a socio-constitutional morality towards the rights and choices of India’s LBGT community – where the right of a man is not required to be sacrificed at the altar of the prejudices of men.
The author is an assistant professor at the Jindal Global Law School