Criminalising the expression of the right to love is profoundly cruel and inhumane

…says India’s Supreme Court while decriminalising homosexuality!

In a landmark judgement delivered on 6 September 2018, the Indian Supreme Court in the case of Navtej Singh Johar and Others v. the Union of India has ruled that Section 377 of the Indian Penal Code (IPC), which criminalises homosexuality, is unconstitutional. 

Cat’s Eye applauds and celebrates this decision, which is the culmination of a long struggle waged by human rights and social justice activists through the Indian legal system, over many years and vicissitudes. A number of other cases in the High Court of Delhi and the Supreme Court, such as the Naz Foundation case and the National Legal Services Authority v. Union of India, serve as critical markers in this journey.

A judgement overwhelming in its breadth and depth

The Indian Supreme Court in this case did not merely strike down a piece of bad law inherited from the British, but delivered a judgement which is overwhelming in its breadth and depth. It is more than 500 pages long. It comprises four separate judgements written by the five judge bench of the Supreme Court – Chief Justice Deepak Misra and Justices A.M. Khanwilkar, Rohinton Nariman, Dhananjaya Chandrachud and Indu Malhotra – the single woman on the bench. 

It is both literary and legal, invoking William Shakespeare, Johann Wolfgang von Goethe, Vikram Seth, Lord Alfred Douglas and John Stuart Mill, amongst others. It relies on judicial precedents from India and across the world. It traces the colonial history of this law enacted in 1860 and looks to a future in which we can leave these unjust and violent pasts behind. 

It explores issues of gender identity, sexuality and sexual orientation. It relies on biology and science as much as that which makes us human: emotion (pain, shame, fear, pride, dignity, pleasure, joy and love), to arrive at its conclusion. For these reasons, The New York Times hailed it as “MAGNIFICENT.” It is a must read, especially as the legal fraternity in Sri Lanka is still inexcusably shackled within legal positivism. 

Perhaps the most remarkable feature of the judgement as a whole is the affirmation of the Supreme Court as being an oppositional and empowering space for those who are marginalised and minoritised in our societies. Much has been written and said about the role of higher courts in crafting legal language that benefits not just the case at hand, but as a medium which reverberates through and transforms the lives of many. It sets the tone and paves the way for other countries grappling with (colonial) legislation to acknowledge the violence and discrimination faced not just by queer people, but various others and provide positive legal remedies. 

Sec. 377 of the IPC, which is similar to Sec. 365 and 365a of the Sri Lankan Penal Code, states that whoever voluntarily has carnal intercourse against the order of nature of any man, woman or animal shall be punished with imprisonment and a fine. 

In the judgement, the court unanimously ruled that Section 377 deals with private acts of adults including the LGBT community, which are not only consensual but also innocent, and that such acts neither cause disturbance to the public order nor are they injurious to public decency or morality. 

Therefore, it goes against several provisions of the Indian constitution. In particular, the right to life or personal liberty (Article 21), the right to equality (Article 14), the right to freedom from discrimination (Article 15) and the right to non-restriction of rights guaranteed by the constitution except through reasonable restrictions required in the public interest (Article 19). 

The court therefore holds that any law which penalises any consensual sexual activity between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) and lesbians (woman and a woman), cannot be regarded as constitutional. Any kind of sexual activity with an animal, however, remains a penal offence under Section 377 of the IPC.

It is impossible to do justice to the scope of this decision in a single article. As such Cat’s Eye will focus on a few aspects.

An evocative and moving lesson

The court’s judgement is an evocative and moving lesson in constitutional interpretation and more broadly what it refers to as transformative constitutionalism and constitutional morality. 

The court sees the constitution as an organic, living, breathing document, a social document, and a “living integrated organism,” with “senses which are very much alive to its surroundings” and which can “adapt to the needs and developments taking place in the society.” It has “a soul and consciousness of its own and its pulse beats, emanating from the spinal cord of this basic framework, can be felt all over its body, even in the extremities of it limbs.”

Once the constitution is seen in this way, the duty of the court charged with interpreting it is “transformative constitutionalism,” i.e. “to transform society for the better”; “to guide the nation towards a resplendent future.” 

Further elaborating on this idea of transformative constitutionalism, the court stresses the need to take a “dynamic and purposive interpretative approach, which “strives to breathe life into the constitution” and to “supply vitality, blood and flesh” in the balancing of competing rights, rather than rendering it a “collection of mere dead letters.” 

To recognise the transformative and evolving nature of the right to liberty and equality is not to say that the concepts underlying these rights change with changing times. Rather, changing times illustrate and illuminate the concepts underlying these rights. 

The court is clear that “change is inevitable” and it is the duty of the court to realise the constitutional vision of equal rights in consonance with the current demands and situations and not to read and interpret according to standards of equality that existed decades ago. Moreover, in enacting this duty, it is the weaker and the needy sections of society that should be kept in mind. 

The role of the court assumes further importance when the class or community whose rights are in question are those who have been the object of humiliation, discrimination, separation and violence by not only the state and society at large, but also at the hands of their very own family members. The development of law cannot be a mute spectator to the struggle for the realisation and attainment of the rights of such members of society.

Throughout the judgement, the court makes a distinction between ‘social’ or ‘majoritarian’ morality and ‘constitutional’ morality. The latter, according to the court, must necessarily supersede the former or even any culture or tradition. Applying this distinction to the case at hand, the court rejects homophobia and popular sentiments that marginalise and discriminate against those who go against heteronormativity. It affirms the fundamental right of self-determination, choice and expression, privacy, dignity and most of all, the right to love that belongs to all persons including persons of the LGBTQI community. 

For Justice Rohinton Nariman, Section 377 is based on a Victorian morality that is long gone and for which there is no longer any need to persist with. The learned judge also deftly and conclusively puts to rest the many excuses Commonwealth countries have offered as reasons for delaying legal reform towards decriminalisation. Ridiculous as they may sound to the reader, these excuses include societal health, damaging effects on family life, and allegations related to homosexual men turning their attention to underage boys, which we expressly mention here as they resonate all too loudly in Sri Lanka. 

Chief Justice Misra notes that “…homosexuality is something that is based on sense of identity. It is the reflection of a sense of emotion and expression of eagerness to establish intimacy. It is just as much ingrained, inherent and innate as heterosexuality.” He further holds that “Society cannot dictate the expression of sexuality between consenting adults. That is a private affair.” 

Justice Indu Malhotra, while recognising that “Homosexuality is not an aberration but a natural variation of sexuality and innate part of identity” goes on to state that “(h)istory owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.” 

Going beyond the mere letter of the law to its spirit and heart, Justice Dhananjaya Chandrachud adds, “What makes life meaningful is love. The right that makes us human is the right to love. To criminalise the expression of that right is profoundly cruel and inhumane”.

Lessons for Sri Lanka

At this moment in Sri Lanka, LGBTQI activists are agitating to strike Section 365 and 365a from the Penal Code; Muslim women are fighting to reform Muslim Personal Law; the Tamil community is still waiting for political devolution of power. 

This judgement has many lessons for us. Majoritarian ideology, majority sentiments and cultural discourses are often deployed by the State and sections of the public to resist equality and justice. 

Reading this Indian judgement, we could not but help compare it with two recent judgements of the Supreme Court of Sri Lanka and their timidity. 

In Wimalasiri Vs. State (SC Appeal No. 32/11), the Supreme Court is explicit in defining Section 365a of the Penal Code as relating to consensual acts between adults, and connecting them to ‘sodomy’ and ‘buggery’ which were a part of the law in England based on public morality. The Supreme Court decided not to impose a custodial sentence on two men charged with having oral sex in the back of a van, taking into consideration that the act was consensual, they had no prior criminal record and that the act had taken place more than 13 years ago. However, it still imposed a sentence of two years of rigorous imprisonment which was suspended for five years! 

The second case is Gomez vs. Gomez (S.C. Appeal No. 123/14), in which the court refused to grant a divorce to a woman on the grounds of constructive malicious desertion as a result of physical verbal and emotional abuse, even while recognising that our divorce law is an archaic one. 

There are other significant cases where the Supreme Court of Sri Lanka preferred to stand with the majority and dominant forces in our society rather than uphold the rights of minorities and those who live in the margins with profound historical implications. These stand in stark contrast to the Navtej Singh Johar case, in which the Indian Supreme Court showed us how the gift of language and legal and moral persuasion can be used to overcome such ideologies and prejudices just as much as legalism. 

(The Cat’s Eye column is written by an independent collective of feminists, offering an alternative feminist gaze on current affairs in Sri Lanka and beyond.)