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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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Kirankumar Rameshbhai Devmani v. State of Gujarat [(2014) 71 VST 555 (Guj)]- Part 1

On the 28th of February, 2014, the Gujarat High Court sitting as a division bench considered whether the Gujarati film Meghdhanushya, which was on the topic of homosexuality, qualified for the entertainment tax exemption given to all Gujarati films since 1997. In brief, the court decided that the film qualified for the exemption as per the government policy regulating the issue, and that it was not caught within any of the exceptions to the policy. However, there are three remarkable features of this case: 1. the court’s attempt to give meaning to the morality of the constitution[1], and to apply this meaning in this case; 2. how legal incompetence at official levels can delay and frustrate day to day affairs of people; and 3. the place occupied by same sex sexual relations in the case. In this edition, I will summarize the arguments of both parties and the decision of the court. In the next edition, I will address the three remarkable features abovementioned.

WHAT THE FILM WAS ABOUT

Summarily, the film was about a boy who discovers that he is gay. Through the medium of this boy, the film depicts the various difficulties faced by gay persons in society.

THE STATE POLICY

The State of Gujarat framed a scheme dated June 8, 1999 exempting all Gujarati colour films produced after April 1, 1997 from entertainment tax. This measure was intended to lower the ticket prices of Gujarati films in the cinema halls, giving them a fighting chance against the Hindi film industry. As per para 4 of the policy, the only films that could not receive the exemption were films that depicted “evil customs, blind faith, sati, dowry, and such social evils and those which are against national unity.” The petitioner, being the producer (and director) of the abovementioned film, applied to the Commissioner of Entertainment Tax (hereinafter “commissioner”) for the tax exemption. After several rounds of back and forth with the commissioner, the petitioner’s application was rejected. The petitioner challenged the refusal in the present case arguing that as per the 1999 policy, his film should receive the tax exemption, and that it did not fall within any of the exceptions abovementioned.

ARGUMENTS OF THE STATE

It is to be noted that the commissioner was obligated to base his decision for refusal on the grounds mentioned in the exceptions to the policy. However, he did not. His reasons for refusal did not pin point the exact policy reason why the film was not eligible for exemption. The reader will note that the only reasons for refusal were either: 1. Evil customs; 2. Blind faith; 3. Sati; 4. Dowry; 5. Such social evils; and 6. Films against national unity. However, the commissioner’s reasons did not pertain to any of these grounds. Similarly, the State counsel’s arguments also did not pertain to any of these grounds though it is to be noted that the State counsel did attempt to make two thin arguments on policy grounds which he was not able to substantiate as per the judgment. As a result, the court had a more convoluted job ahead of itself. Instead of analyzing whether the reason for refusal reasonably fit into any of the grounds for exception, it had to counter the generalist objections of the commissioner and the State which neither pertained to policy, nor stemmed from it. As the court replies to each argument raised by the commissioner’s final order and the State counsel in his defence of the order, I will not separate the arguments by the commissioner and State. Instead, I will present them jointly as the total set of objections raised by the State and its instrumentalities to providing the tax exemption to the film. Here are the objections:

  1. The tax exemption is to be granted to films providing entertainment or carrying a “useful message” to society. Granting an exemption to such a film will create “friction between members of the society holding diverse ideologies.” This will likely cause “deterioration of law and order.” [para 6(i) of the judgment].
  2. The topic of the film is controversial and “no decent family can watch the film together.” [para 6(ii) of the judgment].
  3. The core of the film is to promote homosexuality which is not only a crime (S. 377, IPC)[2] but also a social evil.
  4. The film producer is free to exhibit the film even without the tax exemption.
  5. Granting tax exemption to the film would suggest that the government endorses the homosexual ideology.
  6. Homosexuality increases the incidence of AIDS.
  7. The film is a threat to national unity.

ARGUMENTS OF THE PETITIONER AND THE AMICUS CURIAE

The arguments of the petitioner’s counsel are not outlined in the judgment but the amicus argued three points:

  1. The film does not fall under any of the exceptions to the policy and therefore should receive the tax exemption.
  2. If the State denies exemption to the film without providing an intelligible differentia and a reasonable nexus, then it violates the Article 14 equality guarantee of the constitution by discriminating against the present film and other Gujarati films which have received the exemption.
  3. Denial of the tax exemption places a heavy financial burden on the producers of the film and indirectly restricts the Article 19(1)(a) freedom of speech and expression through an extra constitutional route.

DECISION OF THE COURT

The court noted that providing the tax exemption was the rule and not providing it was an exception. The exemption was not a matter of discretion in that sense. To be disqualified from the exemption, the film had to necessarily fit into one of the categories mentioned in the policy.  Most importantly, the court noted that its decision was guided by the policy alone and not by its own personal opinion on homosexuality. In the words of the court, “we have no personal views and beliefs. Our only personal view is to uphold the rule of the law…” [para 51 of the judgment]. Accordingly, the court replied to each State objection in the following manner:

  1. The purpose of the government policy is to grant tax exemption to all Gujarati colour films made after April 1, 1997, en masse, and not just to films which send “useful” messages to society. Here the court had to contend with the preamble to this policy which outlined its purpose as the promotion of high quality Gujarati cinema. However, the court concluded that the tax exemption is given to all films and not just high quality films or films judged by any other standard. Accordingly, the true purpose of the policy was to enable Gujarati films to compete with the Hindi film industry by making them a little cheaper to watch. There was no evidence of a law and order threat by allowing the tax exemption to the film. Neither the State nor the commissioner had presented any data to support this claim and the police and the Home Ministry had expressed no fears akin to the “spark in the powder keg” standard necessary to invoke an Article (19)(2) restriction on the airing of the film.
  2. Regardless of how controversial a topic is (the court used the phrase “thought provoking”) a topic is, a film can only be denied exemption if it fell into the exception categories. The court noted that a film can be denied exemption if it promotes an evil custom. However, the court noted that to fall within this exception category, a thing needs to be a custom first. Homosexuality was not a custom. Therefore, it could not fall within this category. The other categories of blind faith, dowry, sati and such evil practices, do not apply to this case. The court noted that perceptions change from time to time and generation to generation. What a family can and cannot do together may also change accordingly, from time to time, generation to generation, and from region to region. In any case, that was not a ground to deny a film exemption.
  3. The film does not promote homosexuality. It merely talks about the struggles of being a gay person in society. The court concludes that, “[e]ven a person with homosexual preference as human being has right to life and liberty guaranteed under Article 21 of the [c]onstitution.”[3] This point however, raises the following question: would the film have been denied exemption if it promoted homosexuality? In the Suresh Kumar Koushal case [para 38], the Supreme Court had held that it is not a crime to be gay; only the sex act is criminal. Movies do promote some messages, intentionally or unintentionally. A film like Bahgban, for example, does convey what it means to a good son. A film like Hum Saath Saath Hain, does convey, what it means to have a happy marriage, and a happy family. Similarly Hindi films have traditionally conveyed other messages about a good wife, good love etc. Arguendo, this film promoted homosexuality, would it have been denied the exemption? Arguably not as it does not fit into any of the exception categories which are admittedly the only grounds on which tax exemption can be denied.
  4. The question was not whether or not the producer could still exhibit the film but that whether the film qualified for tax exemption.
  5. The only ideology the government endorses is that all Gujarati films produced after April 1, 1997 are eligible for tax exemption unless they fall in any of the exception categories. Granting of the tax exemption does not signify that the government endorses the message of the film. Lots of films are released every year and the government cannot be said to endorse the message of each of the film. The government is a neutral by-stander. Significantly, “[e]ndorsing one’s right of expression does not imply endorsement of his point of view.” [para 50 of the judgment].
  6. Men having sex with men have a higher incidence of AIDS because a lot of people do not come out in the open to seek medical facilities or help owing to fear of law enforcement agencies.
  7. There is no evidence to prove that the airing of the film will any way hamper national unity nor was the court able to see how the airing of this film could do so.

Accordingly, the court noted that the film was illegally denied tax exemption available to all other films in the same category, and that there was no reasonable basis to treat this film differently, which lead to the violation of Article 14 of the constitution. Additionally, this illegal taxation made this film more expensive to watch which would severely drain the audience for the film and in this manner place a restriction on the freedom of speech and expression of the film producer, which is neither reasonable, nor sanctioned by law, and for those reasons violative of Article 19(1)(a) of the constitution. In keeping with its decision, the court ordered the State to provide the film the requisite entertainment tax exemption and issue a certificate to that effect.

[1] All references to the constitution in this post refer to the Constitution of India, 1950.

[2] Indian Penal Code, 1860.

[3] Para 27 of the judgment.