The Supreme Court has laid the foundation for the formation of a more egalitarian society by toning down a law which has for over 150 years effectively criminalised non-heteronormative people in India.
This law, Section 377 of the Indian Penal Code, forms part of India’s colonial legacy. It was thrust upon the country without any public discussion, and it criminalised the commission of what it called unnatural offences supposedly against the order of nature. The Supreme Court has now modified its import, by decriminalising consensual sexual acts.
In its judgment delivered on Thursday, the court also went beyond the letter of the law. It discussed the Constitutional imperatives underlying its decision as well as other issues like how mental health professionals should treat non-heteronormative people.
Although Section 377 became a provision that could have potentially been used to penalise non-consensual marital sex that had no possibility of being procreative, as well as bestiality and pedophilia, it was primarily used to target those who engaged in homosexual acts.
Sophistry had some argue that Section 377 criminalised only specific acts and not an entire class of individuals, but in reality there was no way to separate the acts from the individuals. And so, it effectively came to be that Indian law criminalised not only homosexual acts but also homosexuality and, in consequence, homosexuals along with anyone else who did not appear to be heteronormative.
The Constitution’s promise of equality
At no point in the history of independent India has it ever been easy to justify such discrimination in light of the Constitutional guarantee of equality and its implicit promise to protect those who do not belong to the majority. Attempts were occasionally made to claim that the prohibition against discrimination on the grounds of sex, which the framers of the Constitution had stipulated in the chapter on fundamental rights, was limited to an understanding of physical “sex” in terms of the male and female binary.
However, as time wore on, there were fewer and fewer people willing to accept a narrow interpretation of the Constitution. In law schools and in legal academia, it became increasingly acceptable to interpret the Constitution to mean that the prohibition against sex discrimination meant a prohibition of discrimination on the grounds of physical sex (which we now know is not a binary), gender identity, and sexual orientation.
The evolving interpretation of the Constitution has not always been explicitly endorsed in its specifics by the judiciary, but the Supreme Court has clearly indicated that the Constitution, which determines the relationship between the State and the individuals in it, is not a static document. The principle of originalism, which dictates that Constitutional interpretation must be in line with the intention of its framers, has no place in India.
On the contrary, the Indian Constitution is an evolving document and the Supreme Court has recognised that it has the ability to produce a social catharsis. In addressing the unjustifiable criminalisation generated by Section 377, it repeatedly referred to Constitutional morality as well as recognised intersectional oppressions, the accordance of diminished healthcare to people who have been unjustifiably criminalised by the law, and the responsibilities of both State and society to work towards a more equal society.
“The veil of social morality cannot be used to violate fundamental rights of even a single individual, for the foundation of constitutional morality rests upon the recognition of diversity that pervades the society,” the Supreme Court said.
In the case of Section 377, however, the underlying rationale of the law traces its roots not so much to Indian social morality as to conservative interpretations of Judeo-Christian scripture. It was introduced into Indian law based on the understanding that the Bible prohibits homosexual acts.
Ancient Biblical mores suggest that man, created in God’s image, was granted dominion over all the Earth’s other living beings apparently including women. It wasn’t long before behaviour by men considered effeminate began to be considered illegitimate both by religious proscription and by temporal prohibition at law.
Thus, laws against homosexual acts, like Section 377, have always been rooted in the toxic patriarchy endorsed by scripture.
In its decision to limit the scope of the law, the Supreme Court pointed out: “There is an unbridgeable divide between the moral values on which it is based and the values of the Constitution. What separates them is liberty and dignity.”
The court recognised the harm that has been done stating: “History 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.” It repeatedly rejected the notion that Constitutional morality can be superseded. As the Supreme Court itself pointed out in its decision, “Constitutions are scripts in which people inscribe the text of their professed collective destiny.”
First step of a long process
Nonetheless, today, too, there is conflict between non-heteronormativity and the practice of religion. Courts still have to arbitrate disputes where one person’s individual freedoms and rights in relation to sexuality interact with another person’s freedoms and rights in relation to the practice of religion. This is especially true where religion either supports or mandates discrimination against non-heterosexual persons. Should a business owner, for example, be allowed to refuse to serve a homosexual person citing religious convictions?
Recognising that people who are not heterosexual do not belong in jail is only the first step in what is bound to be a long process of ensuring that all people regardless of where they belong on the spectrums of sex, gender, and sexual orientation enjoy equal rights without being discriminated against on account of their identity.
The Supreme Court has provided the blueprint to ensure that people who are not heteronormative can enjoy equal participation and dignity as well as, where it applies, equal citizenship. Ensuring that people who are not heterosexual are not left at the mercy of the carceral state is not the same as granting them their civil rights, liberties, and privileges which heterosexual people take for granted. Not being at risk of being jailed does not automatically enable them to marry or to adopt children unimpeded or to make tax and inheritance arrangements which heterosexual people could make possibly with their spouses, for example.
People who are not heterosexual are often unable to fully participate in public life because both the State and the private sector tend to be geared to accommodating the needs of no-one but those in heterosexual relationships approved by patriarchy. Applying for a loan, for example, or subscribing to an insurance policy is not always a clear-cut matter for non-heterosexual people because the approved list of those whom one may apply with or nominate as a beneficiary may not include a same-sex partner.
A collective responsibility
Decriminalising consensual sexual acts, as the Supreme Court has done, is important but the devil will lie in the details and in how the Indian body of law is recalibrated. One can only hope that those who have had no recourse but to rely on the provision to address sexual violations that would not otherwise be criminal, are not left out and forced to endure without adequate legal recourse to address the wrongs done unto them. Ensuring that the law respects the agency and autonomy of individuals, too, will likely require careful consideration and a range of proactive measures.
Failing to respect individual autonomy and, indeed, the existence of individuals who do not conform to patriarchal demands would likely endorse societal conservatism entrenched in the religious notion of dominion as the basis of social interaction. That, of course, is not ideal in a world where we intend to have the private consensual sexual lives of adults not to be interfered with by external agents, and to do away with discrimination on the basis of sex. Ensuring that such a failure does not come to be is now our collective responsibility.
Nandita Saikia is a media and technology lawyer in Delhi.