As the dust settles over the momentous Supreme Court verdict decriminalising same-sex relations in India (Navtej Johar v Union of India), attention turns to the future. Like the Court’s famous privacy judgment, which was delivered last year, the importance of Navtej Johar lies equally in what it does (that is, read down Section 377 of the Indian Penal Code), and the possibilities that it opens up for the expansion of civil rights in the near future. Here are three such possibilities.
1. “Manifest arbitrariness” as a ground for striking down laws
Article 14 of the Constitution guarantees the equal protection of laws. Historically, the courts have held that this guarantee requires all laws to confirm to a “reasonable classification” standard: that is, there must exist an “intelligible differentia” (between what the law covers and what it doesn’t), and that this differentia must bear a “rational nexus” with a legitimate State purpose. This, however, is a standard that accords great deference to State action, and is often insufficient to capture the full range of inequalities and disadvantages that exist in society.
Aware of the shortcomings of the reasonable classification standard, in the mid-1970s, the Supreme Court developed a parallel test under Article 14 of the Constitution, requiring that State action not be “arbitrary.” The arbitrariness has itself come under severe criticism for its vagueness. Bracketing that controversy, however, it has always been unclear whether an arbitrariness challenge is limited to challenging executive action, or whether the Court can also strike down laws if it finds them to be “arbitrary”.
The most notable rejection of the arbitrariness standard came three years ago, in a judgment called Rajbala v State of Haryana. In Rajbala, the Supreme Court upheld a Haryana law that imposed various disqualifications upon candidates contesting Panchayat elections. These included educational requirements, having a functional toilet, being free of certain kinds of loans, and so on. As part of its reasoning, the Court held that arbitrariness could not be invoked to challenge laws. However, last year, in the Triple Talaq judgment, two judges out of five expressly overturned this position (and a third judge implicitly did so). That controversy has now been set to rest in Navtej Johar, with a majority of the Court holding explicitly that a law is unconstitutional if it is “manifestly arbitrary”. This throws the ruling in Rajbala into doubt, and also casts the responsibility upon the Court to develop the “arbitrariness” doctrine carefully in future cases.
2. Discrimination as a contextual enquiry
Justice Chandrachud’s concurring judgment in Navtej Johar argues at great length that the question of whether a law or a rule has a discriminatory effect must be answered by taking into account the background social context in which the law operates. In 2013, in its judgment upholding Section 377, the Supreme Court in Koushal v Naz Foundation had held that in criminalising “carnal intercourse against the order of nature”, the section only penalised “acts”, and not persons; consequently, the question of discrimination did not arise. In a detailed repudiation of this facile argument, Justice Chandrachud examines how, when Section 377 interacts with the existing social and moral proscriptions, its effect is to confine the LGBT+ community to the proverbial closet, causing great harm to their individuality, personhood, and dignity. Whatever the form of the law, therefore, its effect – when placed within the social context – is discriminatory.
This focus on effect and context has the potential to significantly advance discrimination jurisprudence in India. As an example, take once again the judgment in Rajbala v State of Haryana. While upholding educational disqualifications in that case, the Court noted that it was only education that allowed people to distinguish between right and wrong. What the Court didn’t take into account, however, was that despite our legal and constitutional framework, access to education continues to be skewed along caste, gender, and economic lines, for a multiplicity of reasons (ranging from stereotypes about women’s role in the family, to simple economic stress that does not permit the luxury of sending children to school). Therefore, while the law in Rajbala appeared to be about incentivizing education (a laudable goal), its effect was to further marginalize from the political process those who were already most marginalised. If Chandrachud J.’s reasoning in Navtej Johar is followed, this background context cannot be ignored.
3. Analogous grounds
In her concurring opinion, Justice Indu Malhotra argues that discrimination on grounds of sexual orientation violates Article 15(1) of the Constitution. Article 15(1) prohibits discrimination on grounds of sex, race, religion, caste, and place of birth. Justice Malhotra takes the view, however, that Article 15(1) covers not only these five stipulated grounds, but also “analogous” grounds: that is, characteristics that bear a family resemblance to sex, race, religion etc. What is common to the “grounds” under 15(1) – Justice Malhotra argues – is that they are either immutable (i.e., impossible or extremely difficult to change), and/or deeply linked to personal autonomy. Sexual orientation, thus, is an “analogous ground”, and therefore protected under Article 15(1).
Malhotra J.’s interpretation is difficult to sustain on the text of Article 15(1), which makes it clear that it refers to a “closed list of grounds” – i.e., the Court cannot add to the five grounds stipulated therein. However, if Justice Malhotra’s view is accepted in future judgments, it does open up Article 15(1) to a range of discrimination claims: for example, age, disability, political belief, and economic status are just a few of the possible “grounds” that can be invoked as analogous, and therefore, protected by a non-discrimination guarantee. Here, once again, the Court must tread carefully, and develop the law in an incremental and rigorous fashion.
For a long time now, the Indian Supreme Court’s thinking on issues of equality and non-discrimination has been static. This is contrary to other jurisdictions such as Canada and South Africa, where judges have deepened their understanding of these questions, over time. Navtej Johar’s judgment provides us with a gateway to updating our own understanding of Articles 14 and 15(1) of the Constitution, to match with ever more sophisticated accounts of what constitutes inequality and discrimination. However, it is only the foundation stone: the future development of the law is now in the hands of the courts.