The Social Transformation Project: Section 377 Verdict

“There must come a time when the constitutional guarantee of equality and inclusion will end the decades of discrimination practiced, based on a majoritarian impulse of ascribed gender roles. That time is now.” (Chandrachud, J., at paragraph 53)

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“We may conclude by stating that persons who are homosexual have a fundamental right to live with dignity, which, in the larger framework of the Preamble of India, will assure the cardinal constitutional value of fraternity … We further declare that such groups are entitled to the protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them. We further declare that Section 377 insofar as it criminalises homosexual sex and transgender sex between consenting adults is unconstitutional.” (Nariman, J., at paragraph 97)

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The Supreme Court of India on Thursday, 6 September 2018, read down section 377 of the Indian Penal Code, 1860. The judgment declared section 377 unconstitutional in as much as it criminalised homosexual or transgender sex. In doing so, the court announced that the Indian LGBT community is entitled to the full protection afforded by the Constitution of India.

The court announced that the LGBT community has its support.

Through 495 pages of a much awaited judgment, the five judges of the Supreme Court recounted the colonial origins of section 377 of the IPC. The judgment reminded us that this retrograde piece of law was discarded by our colonisers in their home country in 1967. It held that pre-Constitutional laws do not carry a presumption of validity with them (Nariman, J., at paragraph 90). It recounted the systematic stigmatisation and exclusion of those who do not conform to societal standards. It took us through the ongoing struggle of the LGBT community for recognition as equal citizens, not only in India, but across borders, across legislations and peoples. The court acknowledged that section 377 was destructive to the very identity of these groups (Chandrachud, J., at paragraph 6). That for 68 years after India’s Constitution came into being, these groups lived without the rights that most of us take for granted — they lived in oppression, in silence, invisible, in the absence of the dignity which inheres in each person of this country. That it is difficult to right the wrongs of history (Chandrachud, J., at paragraphs 7 and 53; Malhotra, J. at paragraph 20), but that this court would set the course for the future.

This is what the court said:

On biology: ‘I am what I am’

That being gay is not a choice. It is definitely not a mental disorder. It is biological, though it may not be the ‘norm’. Being gay is a part of the personality of a person, and this nature and the associated natural impulses are to be accepted. Non-acceptance of this fundamental part of a person’s life due to a societal norm or notion and further, punishment based on ‘some obsolete idea’ affects the kernel of an individual’s identity (Misra, CJI and Khanwilkar, J., at paragraph 4).

On sexuality: ‘it cannot be put into boxes’

That sexuality is fluid, and that heteronormativity is an idea best left in the past. One must grant the individual the freedom to ascertain her own desires and proclivities. Sexuality cannot be equated with marital, procreational sex. It is to be defined more broadly as an experience through which individuals define the meaning of their lives (Chandrachud, J., at paragraph 66).

On morality: ‘constitutional morality trumps any imposition of a particular view of social morality by majoritarian regimes’

That the court must and will only be guided as constitutional morality. Societal morality or public morality — that which is determined by popular perceptions existent in society — are of little value. Constitutional morality is that morality which is based on the vision of the Constitution of India.

“Constitutional morality requires this Court not to turn a blind eye to their right to an equal participation of citizenship and an equal enjoyment of living. Constitutional morality requires that this Court must act as a counter-majoritarian institution which discharges the responsibility of protecting constitutionally entrenched rights, regardless of what the majority may believe. Constitutional morality must turn into a habit of citizens. By respecting the dignity of LGBT individuals, this Court is only fulfilling the foundational promises of our Constitution.” (Chandrachud, J., at paragraph 146)

On protecting the ‘miniscule fraction’

The bench held, unanimously and unequivocally, that it is the duty of the court to protect every citizen of this country. There can be no ruling based on majoritarian perception. The majoritarian perception is always mercurial (Misra, CJI and Khanwilkar, J., at paragraph 223). It cannot and does not apply to constitutional courts (Nariman, J., at paragraph 61 citing Kaul, J. in the Puttaswamy (the right to privacy) judgment). It is the duty of the court as guardians of the Constitution to ensure the right to life of every miniscule fraction that constitutes the Indian population. The values of non-discrimination, equality, fraternity and secularism won’t come easy to the country or its people, but the court is — evidently, through this judgment — committed to the realisation of this vision.

On civil rights: where do we go from here?

The full protection of the law, as envisioned by the Constitution, requires all people to be treated as equal citizens of the country. The section 377 bench noted that the people within the LGBT group remain incomplete citizens owing to the criminality attached to sexual acts between these persons (Misra, CJI and Khanwilkar, J., at paragraph 18). The judgment acknowledges that to deny the members of the LGBT community the full expression of the right to sexual orientation is to deprive them of their entitlement to full citizenship under the Constitution (Chandrachud, J., at paragraph 58).

Particularly, the conclusions of the court as to citizenship are:

(i) Members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution; and

(ii) Members of the LGBT community are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of law. (Chandrachud, J., at paragraph 156)

The judgement aspires towards a more equal citizenship for LGBT groups in India. For now, it means the right to love freely. Civil rights such as marriage, inheritance and adoption exist only in a heteronormative universe. Parliament will have to amend these laws in light of the judgment. 

The Social Transformation Project

The 377 judgment is historic. The court acknowledged that a forward thinking Constitution was imposed upon a fundamentally undemocratic India (the court quoted Ambedkar: “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it.”; “Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.”), that the citizens must continuously imbibe the values of the Constitution — equality, the right to life, liberty, fraternity. In stating so, the judges of the Supreme Court uphold the document for what it truly is: a social transformation project.

The Constitution of India was enacted not by India’s people, but by a select few. And yet it says that it is given to the people, by the people. It is not merely a framework of governance, but embodies a vision. It represents the aspiration of its framers. It is goal oriented and its purpose is to bring about a social transformation in the country (Chandrachud, J., at paragraph 139). The judges of the 377 bench brought to life this very purpose.

The 377 judgment marks the recognition of rights for the entire gender spectrum. It reduces the gap between Constitutional ideals and reality. We are one step closer to the equality that Article 14 talks about, and to the right to live a fulfilled life, one of dignity and expression, that Article 19 and Article 21 speak of. The court knows that this is only a small step forward. A mammoth, uphill task awaits. The government will now work to ensure the widest publicity of this ruling through all forms of media. Sensitisation programs will be initiated to eliminate the stigma associated with LGBT groups. Officers of the Union of India and the States will be given periodic sensitisation and awareness training (Nariman, J., at paragraph 98).

The social transformation project of the Constitution is a team effort. The judgment in section 377 represents a culmination of this effort: of the judges and lawyers, the activists, every person who works relentlessly to see a more equal India, a freer India where it is the mandate of the law not to govern who or in what manner one loves, but always to protect one’s right to do so.  

Sanaya Patel is an Editor at One Future Collective.

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