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Pramod Kumar Sharma v State of UP and Ors Writ A No. 8399 of 2020

The petitioner’s appointment to the post of Home Guard was cancelled after a video of him was made ‘viral’ by someone. From the rudimentary facts that appear in the final judgment, it seems that the petitioner was engaged in public displays of affection with a person of the same sex. When this video was seen by his employer, the District Commandant of the Home Guard, his appointment was cancelled. This cancellation was challenged in the Allahabad High Court and was duly reversed.

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Poonam Rani and Ors. v. State of UP and Ors. Writ C No. 1213 of 2021

1.PROTECTION ORDERS

On the 20th of January, 2021, a Division Bench of the Allahabad High Court granted a protection order to two women in a live-in relationship. I have previously argued[1] that protection orders are privacy enhancing tools for queer women and transgender men in live-in relationships. Recorded cases show that live-in relationship related litigation is a unique category of litigation that queer women and transgender women face in the queer community. In this blog, I will discuss why protection orders can be an important legal instrument for queer women in live-in relationships and then specifically discuss the case at hand and the protection order granted therein. Protection orders can be utilized not just by queer couples but more generally by members of the queer community.

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Legal Discourses on Queer Women- Privacy

What are the legal experiences of queer women in India? This is a severely under-researched topic from the legal point of view. Most of the academic work on the experiences of queer women in India lies in the area of literature and culture and associated fields.

In the present blog, I will discuss one aspect of an article that I recently wrote about the legal issues of queer women. That article had the following aims: 1. to study the case law and understand the legal narrative surrounding queer women in India; 2. theorize about the main legal problems faced by them; 3. analyze the Navtej judgment to see whether it provides solutions for those problems; and 4. begin a conversation to address the problems.

Queer women are women, i.e., persons who are socialised as women, who have, romantic and/or sexual feelings for/relations with, other women. The history of activism on this issue in India has shown that a variety of terms have been used to refer to them. Examples include, lesbians, bisexual women, ekal mahila, gender non-conforming women, women in a husband-wife relationship. Some of these terms reflect personal choices, but some also reflect what was possible to say at a particular time in history. In this article, I argued that the experiences of transgender men may have commonalities with queer women since many of them may have been socialized as women. Therefore, to that extent, the findings of the article were relevant to understand the problems faced by that community as well. I identified the core issues faced by queer women through two distinct methods. The first was a case-law method where I identified cases pertaining to queer women using a keyword search on Manupatra. The second was to study various scholarly articles and stock-taking reports that have concentrated on queer women in India. These two methods allowed me to cull out the seemingly core areas of concern for queer women that law needs to address. They were: 1. Privacy; and 2. Live-in relationships; 3. Marriage pressure; and 4.allegations of lesbianism in divorce cases. In this blog, I will discuss the issue of privacy as it relates to the legal entitlements of queer women.

1. PRIVACY

The lack of privacy is a major area of concern for women, and queer women India. The Navtej judgment has allowed sexual relationships between two consenting queer adults in private. This formulation of the sexual right has failed to take into account the realities of the lives of queer women. Women in general, including queer women, do not have access to privacy within their homes, and little say over how they would like to exercise their sexuality. In the first known large-scale Indian study to understand the violence faced by lesbians, Bina Fernandez and NB Gomathy found that the family was the main source of violence for lesbian women. They faced physical, mental, and sexual violence from their family members, which only ever abated when they either left their homes or lied about not being attracted to women anymore. Thus, for this section of the queer community, granting a right in private was no grant at all, not unless the idea of privacy was connected to the idea of access to public spaces.  What those spaces could be, whether hostels, or cafes, or parks, etc. is a question that can be best answered by taking the views of a wide cross-section of queer women, and the State and funding bodies should devote funds to this enterprise. In the meanwhile, within existing structures, two options can be further strengthened; 1. Access to shelter homes; and protection orders.

1a. ACCESS TO SHELTER HOMES

Shelter homes have their own set of problems. They restrict the mobility of women, and their ability to take up employment among other things. Many of them are queerphobic, and either refuse to take in queer women or claim to cure them. Still, being able to take shelter in a shelter home offers immediate access to a physically safe place for queer women who leave their home, and are in need. They also offer a bargaining position to women who can then negotiate better terms of treatment with their families.

1b. PROTECTION ORDERS AS PRIVACY ENHANCING TOOLS

Understanding privacy from the point of view of queer women also offers up other legal solutions to their concerns. One such solution is a protection order which is available through the writ jurisdiction of the High Court. Recorded cases show that women who exercise their choice to live with one another have taken recourse to these orders. These orders typically place the local station house officer in charge of the physical safety of the couple, with the responsibility to determine the safety protocol for the couple. Usually the phone number of a beat constable is shared with the couple to call in case of any actual or apprehended danger. Lawyers working on these cases have shared that these orders provide an immediate sense of physical safety to the couple, even if they can provide only limited protection from emotional blackmail from the families involved.

The discussion on other areas identified by this blog, along with a fuller discussion on privacy can be found in the forthcoming article, Surabhi Shukla, The L World: Legal Discourses on Queer Women 13 NUJS Law Review 3 (September 2020). Update (Oct, 2020): The article can be found here.

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Shampa Singha v. The State of West Bengal & Ors. WP 23120(W)of 2018

On the 29th of January, 2019, a division bench of the Calcutta High Court applied the Navtej Johar decision to a lesbian couple, holding that consensual co-habitation and intercourse between adults of the same sex does not fall within the ambit of S.377. As in the Sreeja case, the sexual relationship between the two women involved was openly mentioned in the court. The facts of the case are not entirely clear but it is evident that the writ is filed by one of the partners. Presumably, one of the partners, had returned to her mother and the petitioner partner had filed a writ alleging that the mother was holding her partner captive. The other partner, who had hitherto been residing with her is now inclined to stay with her own mother. There are three facets which are interesting to note about this case:

  1. Article 21

Following Navtej Johar, this case also finds that the right to life under Article 21 includes an inherent right to determine, by oneself, one’s sexual orientation and sexual partner. This choice is inherent under Article 21 even if the choice is not made for procreation. Additionally, the court notes that not only is this right inherent under Article 21, it is also essential for the enjoyment of the life and liberty guaranteed under Article 21.

  1. Constitutional Morality

The court also notes that our scheme of constitutional morality does not permit objections of religion or personal morality to whittle down this inherent right (of orientation and choice of partner). It is unclear why the court specifically mentions religion as an impermissible restriction on the abovementioned right. One can conjecture that perhaps in the argumentation stage before the court, one’s religious beliefs were pleaded as a ground to deny cohabitation of the two women involved.

  1. Psychological Test

Finally, the court notes that the partner of the petitioner, whom the court calls a “victim” for unexplained reasons, has been assessed for psychological soundness. It is unclear why the court mentions it. It is also unclear whether the court ordered this test or whether this test has been performed due to extant facts of the case. Since the judgment does not summarize the facts or the arguments, it is hard to determine the appropriateness of this psychological test. However, at the outset, it can be said that a psychological test does prima facie seem out of place in this kind of case which involves two majors who want to exercise their right of whether or not to live together arguably, though not explicitly, protected under Article 21 in this case. The Navtej judgment has clearly stated that adults have a right to consensual sexual intercourse with a person of their choice regardless of sex. To avail this right, that judgment has not forwarded a requirement of psychological testing.

I am grateful to Dr. L. Ramakrishnan (Ramki) for telling me about this case. Ramki is the Vice-President at SAATHII, a public health non- profit, and volunteers at Orinam, a volunteer collective with extensive internet resources on the queer movement in India.

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Sreeja S. v. The Commissioner of Police, Thiruvananthapuram and Ors. W.P. (Crl). No. 372/2018

On the 24th of September, 2018, a division bench of the Kerala High Court ruled that a same sex couple had a right to live in a live-in relationship. However, this question arose only co-incidentally in a case which was primarily about illegal confinement. This is the first documented case, as per available court records, in which the romantic relationship between the two women in question is openly acknowledged. It also has the distinction of being the first to apply the Navtej judgment which, pertinently, found that consensual same-sex sex was no longer criminal between adults. This blog post will first summarize the case and then focus on why the open acknowledgement of the relationship between these women is a significant moment in legal history.

Facts of the Case

Sreeja and Aruna were two women in a romantic relationship. Both were majors i.e. above the age of 18. Aruna had left her parental home to live with Sreeja. Aruna’s parents filed a missing person complaint with the police, which resulted in the police taking Aruna into custody and producing her before a judicial magistrate. The custody was illegally in this case, she should have been asked to present herself before a magistrate for the recording of her statement. In those proceedings, Aruna clarified that she was living with Sreeja of her own volition and thus secured her liberty. However, Aruna’s parents forcibly took her with them after the hearings and admitted her to a mental hospital. The hospital was not ready to release her without a court order. Thus, the present proceeding.

Decision and Reasons of the Court

The court found that Aruna was under confinement in her parental home against her will. The court reasoned that regardless of the relationship between the women, Aruna was an adult, and therefore, at liberty to make a choice about where and with whom she wanted to live. The court could have stopped at this point but it took the opportunity to reiterate, citing the Navtej case, that sexual orientation is a natural variation of human sexuality and because 377 no longer criminalizes same sex sexual relationships, Sreeja and Aruna’s sexual relationship, lived through in the form of a live-in relationship will not, “offend any provisions of the law or become a crime in any manner.” Further, the court went on to say that, “on the other hand, if the jurisdiction vested on this court is not exercised, it will amount to permitting a violation of the Constitutional right to perpetrate.” This statement arguably signals to the fact that the legality of live-in relationships of persons in different sex sexual relationships is well established in Indian legal jurisprudence, and if the court does not find that same sex sexual relationship are eligible for the same entitlement, an Article 14 (equality) violation would occur.

The Romantic Relationship Between the Women

The most significant aspect of this case is the fact that it was openly mentioned in the judgment, and therefore, one assumes, was argued in the court, that, the women in question were involved in a romantic relationship. What had hitherto been happening in similar cases was that when 2 women would decide to live together in a romantic relationship, the parents of one of them would accuse the other of kidnapping/kidnapping with the intention of compelling marriage/abduction/illegal confinement. The legal battle, would then involve proving that the woman in question, esp. the one’s whose parents have alleged the above-mentioned crimes, is an adult, and capable of making decisions about her living situation. The romantic relationship between the 2 women would never be brought out before the court by the lawyers of the women. Partly, it was due to the uncertainty over whether 377 criminalized lesbian sex, and partly the romantic relationship was silenced because of the negativity and illegitimacy surrounding such relationships.

Ponni Arasu and Priya Thangarajah[1] have shown these very same findings in their 2009 paper. They performed a case search from 1940s-2007 of all habeas corpus matters with ‘lesbian undertones’ and found that only 2 High Court cases appeared which involved what could arguably be, women in sexual relationships. In both of these cases, the romantic nature of their relationship was not brought before the judge though the lawyers involved knew about it. What was argued was that the women were adults and therefore entitled to decide their living arrangements. I performed a case law search on Manupatra, a standard Indian legal database, with the keyword “lesbian.” This search looked for results from all Indian High Courts,  Tribunals, and the Supreme Court. Since Manupatra has case law from the pre-independence era as well, the search covered a period before 1947 and up till 2018. I found no results at all pertaining to the lesbian relationships in such legal battles i.e. to say that in court records, the word “lesbian” has never been used in a matter pertaining to live-in relationships before.

Therefore, I conclude that either: 1. Similar cases have been occurring in court but the romantic aspect has been kept under wraps for the reasons mentioned above; or 2. Cases in which the romantic aspect has been clearly mentioned are not reported cases. The third possibility that such cases have not occurred before is negatived by the fact that: 1. 2 cases have been found by Arasu and Thangarajah, and; 2. anecdotally, I have been made aware that such cases do occur and lawyers still use the strategy of classifying the women involved as adults and ‘good friends’ and as such entitled to decide with whom they wanted to live.

This means that cases which may have involved the same questions of law were being handled without acknowledging that the women are in a romantic relationship (until 2018). Therefore, I argue, that though the results of the case are not new, the manner in which they are achieved i.e. by putting in public records of the court that the women are in a same sex relationship and as such are entitled to live-in, is a significant moment in legal history, attributable to, both: 1. The growing sense of the right to legal entitlements of the LGBT community; but also, very importantly, to, 2. The reading down of S.377.

 

[1] Ponni Arasu and Priya Thangarajah, “Queer Woman and the Law: The Love that Blinds the Court” (Presented at the 2009 LASSNET Conference).

I would like to thank Dr. L. Ramakrishnan (Ramki) for pointing me to the Arasu and Thangarajah paper. Ramki is the Vice-President at SAATHII, a public health non- profit, and volunteers at Orinam, a volunteer collective with extensive internet resources on the queer movement in India.

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Navtej Singh Johar and Ors. v. Union of India Writ Petition Criminal (No.) 76/2016

The arc of the moral universe is long, but it bends towards justice.

Dr. Martin Luther King (cited by Justice D.Y.Chandrachud).

On the 6th of September, 2018, a 5 judge bench of the Indian Supreme Court unanimously found that S. 377 of the penal code violates Articles 14, 19, and 21 of the Constitution of India[1]. This means that consensual sexual activity between adults is no longer criminal, regardless of sexual orientation and gender identity. Bestiality, sex with minors, and non-consensual sexual activity between LGBT persons continue to be criminal. The decision was unanimous in the sense that all judges reached the conclusion mentioned above. However, the judgment was plural in the sense that they offered different reasons for reaching those conclusions. While this judgment is rich in many philosophical strains, this blog will study those reasons.

  1. 377 of the Indian Penal Code

Section 377 of the Indian Penal Code, 1860 (“377”) criminalized carnal intercourse against the order of nature which was punished by an imprisonment term extending up to 10 years:

  1. Unnatural offences.—Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. [Emphasis mine].

Agitation against the section began in the late 1980s after the outbreak of AIDS in India and the section was challenged for the first time in the Delhi High Court in 1994. This challenge was quickly dismissed. Since then, this section has been challenged multiple times. The longest running legal challenge to this section was initiated by Naz Foundation, a NGO working in the field of HIV/AIDS. This action started in 2001 in the Delhi High Court (Naz Foundation case) and in 2013, the matter reached the highest court of the land, which found it constitutional (Koushal decision). That decision was awaiting a curative admission hearing when the Navtej Writ was filed in 2016 alleging that 377 violated the right to, sexuality, sexual autonomy, and sexual partner, rights that the petitioners argued, were protected under the fundamental right to life (Article 21). By this decision, the court resolved the 377 matter and overruled Koushal. In other words, this decision concludes the 377 question and there will be no admission hearing on the curative petition filed in the Koushal case. For more on curative petitions, see here. Before delving into the specific rights, I mention below, 3 notable philosophical strains that frame the decision:

  1. Transformative constitutionalism: it is the idea that the constitution is created for the progressive realization of more and more rights. It is accompanied by the concept of non-retrogression which states that the march of rights must be forward and not backward.
  2. Constitutional morality: it is the idea that the constitution embeds commitment to certain values, which must be upheld even if they are not overtly mentioned in an Article. All judges had different conclusions as to what these values were.
  3. Fundamental rights apply regardless of number: fundamental rights are not meant for the protection of the majority. These are guarantees that each and every person/citizen enjoys. These rights cannot be denied to a community just because they are a small community. That said, the court accepted the research that 8-10% of the population is LGBT. The court uses the term LGBT so I use it here. However, it is a shorthand for all non-heterosexual sexual desire regardless of labels.

Right to Equality

Article 14

Article 14 of the Indian Constitution guarantees the fundamental right to equality, to all persons:

“14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

While “equality before the law” has been understood as a command to the State to treat all persons equally, “equal protection of the laws” has been understood as a command to the State to create conditions of equality between different members of the society (for example through affirmative action measures). Suppose A alleges that a particular law treats them unequally compared to B. The test applied to check a violation of equality is to ask: 1. Whether there is any intelligible differentia separating A from B or is this an arbitrary division?; and 2. Whether there is a reasonable nexus between this differential treatment of A and B and the proposed legitimate State goal, or is the connection tenuous?

Difference Between Natural and Unnatural?: A majority of the court[2] found that there is no intelligible way to differentiate natural forms of having sex from unnatural forms of the same activity, especially because sex is no longer associated just with procreation even in legal discourse. On the contrary, they said that natural sex is whatever kind of sex 2 consenting adults decide to participate in. Mental health studies worldwide have found that being LGBT is not a mental disorder or a psychological problem. 1500 species occurring in nature display homosexual orientation and it is a natural variation of sexuality. 377 criminalized sexual acts based only on the fact of sexual orientation, a naturally occurring trait. Justice Chandrachud went so far as to deconstruct the meaning of the word “natural” itself and made 2 notable points: 1. “natural” was a social construct that has historically been used to create a hierarchical society. He cited miscegenation laws which segregated between black and white populations as an example. 2. Not all “naturally” occurring things were desirable (e.g. death) and not all “unnatural” things were undesirable (e.g. heart transplant). In fact, all justices found that this law disproportionately targeted LGBT persons such that the real distinction created by this law was not between natural and unnatural, but between LGBT and non-LGBT persons.

Objective of the Law: 2 judges found that the objective of 377 was to protect women and children subjected to unwilling carnal intercourse. On the other hand 2 other judges found that the objective of the law was to impose Victorian mores of sex on the Indian society – i.e. sex only for procreation.[3] One justice did not overtly identify any State objective behind the law. Whichever objective they identified, they all agreed that 377 does not meet it. If the objective was to protect women and children then the new rape law and POCSO met it[4]. In fact by virtue of the new rape provision all kinds of non-consensual sexual acts by men against women were rape[5]. Therefore, the justices reasoned, all consensual acts, being not rape, were natural and out of the purview of 377. However, all sex acts of LGBT persons was per se “unnatural.” Therefore LGBT persons were subjected to a criminal law just by virtue of being LGBT. The judges found this distinction based on a naturally occurring trait and supported only by prejudice[6], a constitutionally unjustifiable reason. If the objective was to impose Victorian mores of procreative sex then of course 377 only unevenly met it because all forms of sex, whether or not procreative, were allowed between heterosexual couples.[7]

Article 15

While Article 14 provides a general equality guarantee, Article 15 specifically prohibits discrimination on the basis of sex:

“15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth:

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

While traditionally this Article has been used to strike down discriminatory laws against women, 2 judges of this court endorsed a growing trend to understand Article 15 to include a freedom from sexual orientation discrimination as well. They reasoned that the constitution prohibited sex based discrimination because sex was the site at which gender roles became fixed and freedom and capacities became pre-determined. Article 15 intended to strike at these presumptions which included the presumption that men desire only woman and woman desire only men. Consequently, as 377 furthered this sex based stereotype, it violated Article 15 of the constitution. Other judges did not engage with this thread.

Right to Freedom of Expression

Article 19 of the constitution guarantees to every citizen, freedom of expression, among other things. This freedom can be reasonably restricted in the interest of decency and morality.[8] Not all justices dwelled on this Article but a majority[9] of the court found that freedom of expression includes the freedom to express oneself sexually, with a consenting partner of any sex. Justices Misra and Khanwilkar specifically pointed out such expression does not violate decency or morality, because these concepts are not majoritarian in character. Therefore, societal disgust with this population is not a constitutionally permissible reason to restrict the freedom of expression of LGBT persons.

Right to Life and the Scope of Privacy

Article 21 of the constitution guarantees to every person, life and liberty:

“21. No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Previously, another bench of the same court had found that a fundamental right to privacy was implicit in this guarantee.[10] That court had found autonomy of choice and dignity i.e. respect for the choice, to be the building blocks of privacy. That court had also found the right to sexual orientation to be intrinsically protected by privacy. A majority of this court endorsed that reasoning and extended it further to say that an autonomy based conception of privacy recognizes the freedom of persons to a sexual partner of their choosing and to make other intimate decisions.[11] A majority of the court also noted that sexual expression of LGBT persons needn’t be confined to spatially private places. In other words, LGBT persons can express their relationships even in public subject to other laws that regulate public displays of affection.[12] In fact, Justice D.Y.Chandrachud went so far as to deconstruct the word “private” by pointing out that many a times, homes are also not private places because they are the epicentre of heteronormativity. However, it is to be noted that the right to sexual intercourse has only been granted in private spaces by a majority of the court.

Ratio of the Case

Although, it is doubtful that this judgment will ever be read in a narrow technical way, if we must, we can zero in on a ratio decidendi of the case–i.e. the reasons for the decision. A ratio decidendi will emerge when: 1. 3 or more judges find that the same legal provisions have been violated; 2. For the same reasons. As such, the following ratio emerges from this case.

    1. Although the distinction between natural and unnatural sex is indeterminate, 377 classed all consensual non-heterosexual sexual activities as “unnatural” whereas all consensual heterosexual activities were “natural.” This distinction was based only the sexual orientation of persons involved and does not further any legitimate State objective being rooted only in prejudice against LGBT persons. Therefore, it violated Article 14 of the constitution. All forms of consensual sex between adults is natural.
    2. 377 violated Article 19 because the freedom of expression includes freedom to express oneself sexually with a consenting partner regardless of sexual orientation.
    3. 377 violated Article 21 because the right to life includes the right to sexual partner of choice. They can exercise this right in public and private, subject to the same laws which apply to non-LGBT persons.
  1. On Marriage This case was concerned expressly with 377 and the marriage question was not addressed by any judge directly, except J. Chandrachud, who stated that all persons should be eligible for this institutional recognition of their love regardless of sex and gender. Justices Misra and Khanwilkar also opined that Article 21 protects a person’s right to a union. However, they immediately mentioned that this case was not about marriage. As such it would be incorrect to say that this case has provided marriage rights to LGBT persons. However, it has certainly laid the philosophical foundation for marriage, and many other rights—anti-discrimination, parenting etc., just to name a few.  Law will incrementally advance to provide all these rights to LGBT persons. The future is equal.
  1. [1] Constitution of India, 1950.[2] Justices Dipak Misra, A.M. Khanwilkar, Indu Malhotra and Justice D.Y.Chandrachud. Justice Nariman did not address this strain.

    [3] Justices Rohinton Nariman and D.Y.Chandrachud.

    [4] Except marital rape. Protection of Children from Sexual Offences Act, 2012.

    [5] Except marital rape.

    [6] Justices Dipka Misra, A.M.Khanwilkar, Rohinton Nariman, D.Y.Chandrachud, and Indu Malhotra.

    [7] Justices Rohinton Nariman and D.Y.Chandrachud.

    [8] (1) All citizens shall have the right

    (a) to freedom of speech and expression;

    (2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

    [9] Justices Dipka Misra, A.M.Khanwilkar, and Indu Malhotra.

    [10] Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. (“Puttaswamy”), (2017) 10 SCC 1.

    [11] Justices Dipka Misra, A.M.Khanwilkar, Rohinton Nariman, D.Y.Chandrachud, and Indu Malhotra.

    [12] Justices Dipka Misra, A.M.Khanwilkar, and D.Y.Chandrachud.

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Nimeshbhai Bharatbhai Desai v. State of Gujarat R/Criminal Misc. Application Nos. 26957, 24342 of 2017 and R/Special Criminal Application No. 7083 of 2017

On the 2nd of April, 2018, a single judge bench of the Gujarat High Court decided whether a wife can prosecute her husband for unnatural sex acts under S.377 of the Indian Penal Code, 1860 (IPC). In addition the court also decided whether with regard to a heterosexual couple, fellatio and cunnilingus amount to unnatural sex acts. Summarily, the court concluded that though a wife can prosecute a husband under 377 for unnatural sex acts, fellatio and cunnilingus do not fall in that category. Seemingly, the court based its reasoning on penile penetration of the anus and concluded that apart from sodomy, bestiality and buggery, no other sex acts in heterosexual sex amount to unnatural sex. In this blog, I will make 5 points: 1. The Koushal case may have left it open for future courts to decide the ambit of unnatural offences, including fellatio and cunnilingus, which are pertinent for this case; 2. Even so, the court deviates from the cases it cites; 3. The Koushal case arguably does not criminalize all instance of non-heterosexual sex among consenting adults; 4. The Gujarat case is a live example of the discriminatory application of 377; and 5. The decision has an impact on the maximum punishment that the husband faces.

Facts of the Case

Nikita and Nimeshbhai, two doctors, married each other in May, 2014. Their marriage began to deteriorate after six months, as per the first information report (FIR) filed by the wife against her husband and her in-laws. Her husband would force her to have oral sex with him (fellatio) and also forcibly perform oral sex upon her (cunnilingus). She alleged that he would force her to have sexual intercourse with him i.e. he raped her vaginally. In her FIR, she did not make an allegation of forced anal sex. Accordingly, she lodged an FIR under Ss. 377 (unnatural offences), 376 (punishment for rape) and 498-A (cruelty) of the IPC. At the time of the hearing of this case, the police had not completed investigation into the allegations. The counsel for the husband and in-laws filed a criminal miscellaneous application in the interim praying that the court quash the FIR. The court quashed the FIR against the in-laws in toto whereas with respect to the husband, the court quashed the charges of 375 and 377. Finally, the court recommended that a charge of 354(outraging the modesty of women) be added to the FIR. Before delving into the points, I make a preliminary observation about the marital rape discussion in this case.

Alleged Acts Not Rape by Fact of Marriage—Marital Rape Discussion

As per the amended S.375 of the IPC, non-consensual fellatio and cunnilingus constitute rape. However, as per Exception 2 of the amended section, sex acts by a man with his own wife (18 years or older) do not constitute rape. In this case, the acts in question were sex acts and performed by a husband against his wife. Though these sex acts would have ordinarily constituted rape, the court observed, the fact of marriage takes these acts out of that purview:

In the case at hand, the acts complained or alleged would definitely amount to rape within the meaning of section 375 of the IPC, but it is the lawful marriage between the accused and the first informant that saves the situation for the husband. Section 375 does not recognize the concept of marital rape. If the complainant is a legally wedded wife of the accused, the sexual intercourse with her or any sexual acts by accused would not constitute an offence of rape even if it was by force, violence or against her wishes.” [para 15].

However, the court then proceeded to decide whether these sex acts constitute acts, ‘against the order of nature’ for which there is no marital exception.[1] This is how the discussion shifted to 377. Incidentally, the High Court of Tripura has found in an analogous fact situation in 2017 that fellatio is triable under 377.[2]

377 of the Indian Penal Code

377 reads as under:

  1. Unnatural offences.—Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

The court begins with a list of potential activities that may be against the order of nature. Notably, this list seems illustrative because the court states that unnatural sex can take various forms  “such as” sodomy, bestiality, buggery, maschosim, sadism, exhbitisionism, and fetishism.  However, through the judgment the court does not seem to take note of any other kind of sex which may fall under the category of unnatural. Arguably, the court seems to understand carnal intercourse as sexual intercourse involving a penis and penetration as an act that can be accomplished only when the penis penetrates the anus. This conclusion further strengthened by the fact that they do not find fellatio an act of unnatural sex because though it does involve the penis, there is no penetration in the anus. By extension, cunnilingus is not unnatural because there is no penis involved. Accordingly, the court concludes that apart from sodomy, bestiality and buggery, no other sexual acts mentioned on their list classifies as unnatural act [paras 48, 50-51]. The failure of the court to expand the list of unnatural acts shines a light on its narrow understanding of unnatural. However, this is not to argue that the list of unnatural acts must be expanded. This is just to draw attention to the fact that according to the court, unnatural sex acts are those which involve penile penetration into the anus of either a man, woman, or beast.

  1. Suresh Koushal May Have Left it Open for the Court to Conclude that Fellatio and Cunnilingus is Natural

In the case of Suresh Kumar Koushal v. Naz Foundation[3], the Supreme Court was called upon to decide the validity of S.377. The Supreme Court had, in that case, found that S.377 is indeed a valid law.  In its judgment, the Supreme Court cited the past cases involving 377 which all involved non-consensual sexual acts and some of which also involved penile penetration into orifices other than the anus (mouth, nose of animal etc.) However, ultimately, court found itself unable to formulate of list of sexual activities that would be unnatural per se [para 38, page 77, SC version]. Now, there are two ways of looking at what the Supreme Court did in that case. The first way is that whatever else may be unnatural, the Supreme Court certainly thought that penile penetration into the anus, nose, mouth etc. was unnatural., at least when effected non- consensually (which fact coincides with our present case). The second is to conclude that all this previous case law cited by the Supreme Court has no bearing on what is natural and unnatural—that it was merely making a note of the judicial history of 377 without expressly endorsing certain acts as unnatural. This second conclusion may be the stronger one especially because the Supreme Court stated in Koushal that: “However, from these cases no uniform test can be culled out to classify acts as “carnal intercourse against the order of nature”. In our opinion the acts which fall within the ambit of the section can only be determined with reference to the act itself and the circumstances in which it is executed.” [para 38, page 77, SC version]. Therefore, prima facie, this judgment is not in violation of Suresh Koushal as that leaves it open for future courts to decide what is natural and what is not.

  1. Court Deviates from Cases it Cites

However, oddly, the judgments that the Gujarat High Court cites i.e. Brother Anthony v. State[4] and Khandu v. Emperor[5] involve the case of a penile penetration into orifices other than the anus. In both these cases, the accused was found guilty of 377. The court does not explain this deviation though technically it is not bound by these cases as they were high court cases.

  1. Koushal Arguably Does Not Criminalize All Instances of Non-Heterosexual Sex

Arguably, the Supreme Court has not found that 377 criminalizes all kinds of sexual activities between non-heterosexual adults, in the Koushal case. Building on the reasoning in point 1 above, the following conclusions emerge from the Koushal decision:

  1. The Supreme Court does not have a list of unnatural and natural sex acts and it asserts that the 377 categorizes people on the basis of sex acts, and not sexual orientation (the former being criminal and the latter, not: paras 38 and 42, SC version.
  2. The court is apprehensive to conclude from markedly coercive cases of sex it cites (involving penile penetration in a bodily orifice other than the vagina) that were such cases to come up in the future and involved consenting adults, a term that is sex neutral, an offence under 377 would be made out.
  3. The Supreme Court categorically states that, “It is relevant to mention here that the Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.” [para 38, page 77, SC version].

Therefore, these 3 points taken together allow one to argue that not all cases of consensual sex between adults, regardless of sexual orientation and gender identity constitute an offence under S.377. In other words, there may be some instances of homosexual sex which may not be violative of 377, per the force of this judgment.

     4. This Case is an Instance of Discriminatory Application of 377

Here, the Gujarat High Court categorically finds that 377, “penalizes sexual activities between the homosexuals” [para 34]. By doing so, this judgment not only arguably fails to correctly follow the Koushal judgment by which it is bound by force of Article 141 of the constitution[6], it posits itself as an instance of discriminatory application of S.377.

In this judgment, the Gujarat High Court has found that fellatio and cunnilingus are not unnatural sex acts as between heterosexual couples. Because of the wording of 377, the conclusion would have been the same regardless of whether consent was involved. However, since the amended rape provisions will cover non-consensual cases of fellatio and cunnilingus at least between the non married heterosexual couples, for the purpose of our analysis we will compare these two acts performed consensually, once by a non-heterosexual couple, and once by a heterosexual couple. The thrust of this judgment is that the heterosexual couple will not be found in violation of 377 whereas the non-heterosexual couple will be found guilty in violation of 377 because 377, “penalizes sexual activities between the homosexuals” [para 34]. In other words, if a man has consensual oral sex with a woman, neither would be guilty under 377, but if a man performs the same acts with another man consensually, both will be guilty under 377. In other words, 377 will operate differently depending only the sex of the sexual partner. Therefore, this decision advances an interpretation of 377 which mandates a discrimination based only on sex, a clear violation of Articles 14 and 15 of the constitution

      5. Effect of the Judgment on Maximum Sentence

The different crimes alleged in the FIR attract the following sentences:

  1. 376: 7/10 years or life (at least for the facts at hand)
  2. 377: 10 years to life, and fine.
  3. 498-A: 3 years and fine.
  4. 354: 2 years, or fine or both.

Therefore, it is evident that by quashing the FIR with respect to the husband as regards 376 and 377, the maximum potential sentence that can be awarded to the husband falls drastically from life sentence to 2-3 years. This is a major devaluing of a criminal activity based entirely on the fact of marriage alone.

 

I am thankful to Upasana Garnaik, Arushi Garg and Rishika Sahgal for illuminating discussions around this case which enhance the quality of this blog. Upasana Garnaik is an advocate in India. Arushi Garg is a doctoral (law) student at the University of Oxford whereas Rishika Sahgal is pursuing a MPhil (law) at the University of Oxford.

[1] I am grateful to Upasana Garnaik for pointing out that though certain acts may not be rape, they may still be unnatural for the purpose of an inquiry under 377.

[2] Paramita Majumder (Datta) and Ors. v. Biswanath Datta and Ors. Crl. Rev. Pet. Nos. 80/2013 and 1/2013.

[3] Civil Appeal No, 10972/2013.

[4] 1992 CrLJ 1352.

[5] AIR 1934 Lah 261.

[6] Constitution of India, 1950. Article 141 states as follows:

“141. Law declared by Supreme Court to be binding on all courts The law declared by the Supreme Court shall be binding on all courts within the territory of India.”

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Navtej Singh Johar & Ors. v. Union of India Ministry of Law and Justice Secretary Writ Petition No. 76/2016

On the 8th of January, 2018, a three judge bench of the Supreme Court ordered that the Suresh Koushal decision which upheld the constitutionality of S.377[1] requires reconsideration. The court so ordered while hearing a writ petition challenging the constitutionality of S.377 (Navtej writ). Substantively, the judges stated emphatically that the “litmus test” for finding S.377 unconstitutional was if it offends constitutional morality, regardless of how societal morality on the issue was poised. Should a people exercise the “inherent” right to their sexual orientation within the confines of constitutional morality, the court stated, they will receive the protection of Article 21.[2] To be sure, S.377 is still constitutional, both because the Navtej writ is not finally disposed and because the Suresh Koushal ruling is still in operation. However, these observations no doubt strengthened the judicial discourse on the protection of sexuality rights. However, this blog is not about these substantive proclamations. Instead, in this blog, I will attempt to answer two procedural questions which arise from this January order of the Supreme Court:

  1. Was the Supreme Court empowered to admit the Navtej writ given that the Suresh Koushal decision is due to come up for hearing in the curative process? [Yes]
  2. How does the order passed in this writ, affect the 377 curative petition[3], if at all? [Not at all]

However, before delving into these inquires, a few preliminary matters need to be clarified.

WHAT IS A CURATIVE PETITION?

A case goes through two stages at the Supreme Court: judgment and review. A curative petition is a petition that can be filed after the disposal of the review petition. It is a judicially created process at having yet another look at the decision. Its genesis is owed to the Ashok Hurra Case (2002, SC) which stated that although finality of a decision is very important for certainty and stability of a legal system, the inherent powers granted to the Supreme Court allow it to reconsider its decision to prevent miscarriage of justice. The court then laid down illustrative grounds for understanding miscarriage of justice:

  1. Petitioner must show a violation of principles of natural justice. If they were not a party to the proceedings in the Supreme Court, they must show that the decision adversely affects their interest; if they were a party to the proceedings they must show that they had not been served with notice and the proceedings went on as if he had been served notice [this last ground was successfully pleaded in one of the three successful curative petitions—MP v. Sugar Singh]; or
  2. The judges at the Supreme Court proceedings failed to disclose their connection to the subject matter or parties, which gives an apprehension of bias disadvantaging the petitioner.

Aside from these points, the curative petitioner must also show:

  1. The points raised in the curative have been raised in the review;
  2. A senior lawyer must certify as to the fulfilment of the conditions 1-3
  3. Three of the senior-most judges, along with the judges that heard the original Supreme Court decision will then preside over the matter. The curative petitioners have to make those arguments in these petitions which can demonstrate either points 1 or 2 above (or other grounds which can point to miscarriage of justice)[4] at the first stage to get the petition admitted. If the petition is admitted, the Hurra case says, “the same bench” must hear the matter on merits. The phrasing “same bench” here is confusing. Does it mean the same bench which originally heard the case or does it mean the same bench which is considering the curative? This issue does not arise in the 377 curative as both judges who originally heard the case have since retired. However, I will address this issue here for completeness. Sometimes, the same bench that admits the curative decides, barring of course, the judges that retired since the curative was admitted [see, for example, Bhaskar Lal Sharma v. Monica, Navneet Kaur]. Sometimes, another bench decides though the admitting bench is still on the rolls [for example, MP v. Sugar Singh][5].

This procedure has now been formalized and is housed in Order XLVIII of the Supreme Court Rules, 2013. However, it is important to note that the curative petition arguments are gateway arguments. Once the petition is admitted on points 1 and 2 above (or other miscarriage of justice grounds), the original cases are restored (in our case, the petitions filed by Suresh Koushal etc. and Naz and others at the Supreme Court level) and the court now hears arguments on the points addressed in those filings.

  1. MAINTAINABILITY OF THE NAVTEJ WRIT

This brings us to the point of maintainability of the Navtej writ. Lawyers for Navtej Johar asserted in their writ that the issues raised by their writ petition are “varied and diverse” from those raised in the 377 curative. I argue that this distinction is only surface level and it is unnecessary. It is surface level because once the curatives are admitted, the original SLPs and written submissions will be restored and arguments will once again be heard on the merits of those filings. Those who followed the Koushal arguments in 2012, will recall that they were chiefly around Articles 14, 19, and 21 of the constitution. The Navtej writ also makes Article 21 arguments[6] and so substantively, both petitions will be raising similar arguments.

This distinction is also unnecessary because Res Judicata only operates between “the same parties and in respect of the same cause of action.” [Sanjay Singh v. UPSC, SC 2007]. That means that the same parties cannot bring a case based on the same grounds once the Supreme Court has decided the dispute between them (assume review, curative are all done). In the Navtej writ, parties are different from the Suresh Koushal proceedings even though the subject matter is the same (i.e. constitutionality of 377). This is legally permissible. On this point, consider the case of Sanjay Singh v. UPSC. Here, unsuccessful candidates at a judicial selection exam challenged the scaling method deployed by the examiners to calculate scores. This exact question had come up before the Supreme Court earlier in a case called UPSC v. S.C. Dixit wherein the scaling method was found constitutional. This decision was reaffirmed at the curative level as well. The UPSC sought to argue that Sanjay Singh’s case should be dismissed because the Dixit case had already found the same scaling method constitution. The Supreme Court replied that the ratio decidendi [logic of the decision, loosely] of a previous case can always be challenged by a subsequent case [in fact, this is how legal reasoning changes]. What cannot be changed is the order in the previous case. This literally means that a subsequent court cannot pass an order reversing the final order of a prior judgment.[7] This would in the Koushal context mean that the Navtej court cannot pass an order which changes the result of the Koushal review from “dismissed” to “admitted” [See Sanjay Singh, para 10]. However, a subsequent proceeding filed in the court challenging the rationale of the Koushal judgment by different parties is not prohibited.

Similarly, if the parties remain the same but the points of dispute between them change, they can file a writ even though a curative petition on different points has been dismissed. However, since this point is not in issue in the context of the 377 litigation, I am not pressing it here. What transpires from this discussion then is that the Supreme Court was empowered to admit the Navtej writ even as the 377 curative is “pending.

  1. HOW DOES THE NAVTEJ ORDER AFFECT THE 377 CURATIVE?

The Navtej order does not affect the 377 curative in any way. As of now, the 377 curative petition has not been admitted. The last hearing on the curative matter was on the 2nd of February, 2016. In that hearing, a three judge bench of the Supreme Court ordered that the petition should be placed before a five judge bench to decide whether the petition should be admitted, in the first instance. If the five judge bench admits the curative, it will then decide whether the original Supreme Court decision was right on the law. Therefore, at this time, the curative has not been admitted, and the review process being over, for all practical purposes, the decision of the Supreme Court is final [See on this point, Ashiq Hussain Faktoo, SC 2008]. For an analogy, consider a judgment of the High Court that has not been appealed to the Supreme Court. Although hypothetically, the decision could be overturned, until an appeal is admitted to the Supreme Court, the decision is final as between the parties. Similarly, until the Supreme Court admits the curative petition, the review decision is final. The curative and the Navtej are two entirely different beasts; the results of one, leave alone an intermittent order, does not automatically decide the fate of the other.

Now, the lawyers of the Navtej writ have two choices. The first is to argue that the Navtej writ be tagged along with the curative hearing, assuming the curative is admitted. In that situation, the fates of these two petitions will be tied. The other, and perhaps, the more profitable path is for the lawyers to argue that the curative and the writ be heard separately so that assuming that the 377 curative fails to overturn Koushal on merits, there is yet another chance for the constitutionality of 377 to be decided via the Navtej writ. This has been done once before in the case of Abdul Gabbar Khan. Khan appealed in the Supreme Court claiming compensation on the basis of the Bhopal gas tragedy settlement. A curative on the same issue was already pending in the Supreme Court[8].  Khan’s counsel was successfully able to argue that the appeal be decided after the court had heard the curative even though the court had suggested that the appeal and the curative be tagged together.

[1] S. 377 of the Indian Penal Code criminalize carnal intercourse against the order of nature.

[2] Fundamental right to life.

[3] What I refer to collectively as the 377 curative is actually a bunch of curative petitions filed by Naz Foundation, parents of LGBT persons, professors, mental health professionals, Academics Ratna Kapur et. al., Voices Against 377 and Mr. X.

[4] The different curative petitioners have tried to demonstrate a miscarriage of justice through different techniques. For example, Naz has tried to show that the Koushal decision omitted to consider the amended S. 375 while pronouncing the decision. The mental health professionals have chiefly argued that the expert opinion and scientific evidence provided by them on homosexuality was not considered by the Supreme Court. For other arguments raised to demonstrate miscarriage of justice see, curative petitions filed by some of the other petitioners here.

[5] The judges who decided the actual Supreme Court judgment complained of had since retired.

[6] Primarily, that the right to sexuality, sexual autonomy and sexual partner are rights protected by the fundamental right to life guaranteed by the Indian constitution (Article 21).

[7] See especially on this point, para 21 of Shaukat Hussain Guru v. Delhi Writ Petition (Criminal) 106/2007) and U.P.S.C. v. Subhash Chandra Dixit Civil Appeal 8609/2013.

[8] At the last hearing on this matter, the court directed that the matter be heard in open court to decide the issue of admission, in the first instance. The matter has since not been listed for such a hearing.

My thanks to Ramki and Adv. Mihir Samson for helping me figure out where curatives and the Navtej writ can be found online. My thanks also to my young cousin, Smriti, who helped in so many intangible ways to make sure that this blog goes up on time.