Celebration Of Sexual Agency : Justice Chandrachud's Soulful Judgment In Section 377 Case

"Sexuality must be construed as a fundamental experience through which individuals define the meaning of their lives"

Deeply moving and empathetic, Justice Chandrachud's judgment in the Section 377 case makes for a compelling read. Rather than legalese, the judgment is brimming with a profound understanding of the human condition and of the urge of an individual to find meaning through self-expression by staying true to one’s core identity.

The judgment deconstructs Section 377 in a larger perspective, to conclude that it is not merely stifling expression of sexuality which is in variance with the dominant “hetronormative” narrative, but is advancing sexual stereotypes and cementing traditionally assigned gender roles. On this premise, Section 377 is held as causing discrimination on the ground of ‘sex’, so as to infringe Article 15(1) of the Constitution. While doing so, the judgment in Nargesh Meerza which took a narrow view of sex-based discrimination was overruled. Moving further, the judgment holds that Section 377 IPC infringes ones’ right to intimacy, which has been held to be a facet of right to privacy under Article 21, observing that “consensual sexual relationships between adults, based on the human propensity to experience desire, must be treated with respect”

The judgment recognizes the need to remedy the “tragedy and anguish” inflicted by the Section. The history of the section is traced to identify its roots in Judeo-Christian notions of morality, which found reflection through a colonial legislation. The judgment draws power from the exhortations of Dr.Martin Luther King against the ‘doctrine of wait’, which advocates that non-conformists should wait till the mainstream understands their way of life, before disturbing established social mores. The sexual minorities have waited long, but nothing changed.

Unreasonable classification based on ‘Order of Nature’.

The section was held to be violative of Article 14 of the Constitution, as it is based on unreasonable classification. The 2013 SC judgment in Suresh Kumar Koushal had held that there was no unreasonable classification, as “those who indulge in carnal intercourse in the ordinary course and those who ... [do so] against the order of nature constitute different classes”. This view was criticised as a formalistic application of Constitution. Justice Chandrachud identified the base of classification in Section 377 as “order of nature”, an indeterminable factor. “What is ‘natural’ and what is ‘unnatural’? And who decides the categorization into these two ostensibly distinct and water-tight compartments? Do we allow the state to draw the boundaries between permissible and impermissible intimacies between consenting adults?”, the judgment asked (Para 28, Page 294).

Developing from that premise, it was held that there was logical fallacy in ascribing legality to perceived natural acts on the basis of majority practise. As human being evolved, there has been a shift from reproductive instinct to erotic instinct, which may not be strictly ‘natural’.  And all that is not natural, need not be illegal. The judgment quotes an interesting observation from Brandon Ambrosino that, “Many of the things human beings value, such as medicine and art, are egregiously unnatural. At the same time, humans detest many things that actually are eminently natural, like disease and death”(Page 296).

 “Section 377 is based on a moral notion that intercourse which is lustful is to be frowned upon.It does so, on the basis of a social hypocrisy which the law embraces as its own. It would have human beings accept a way of life in which sexual contact without procreation is an aberration and worse still, penal. It would ask of a section of our citizens that while love, they may, the physical manifestation of their love is criminal. This is manifest arbitrariness writ large”, (Page 298)

Section 377 reveals only the hatred, revulsion and disgust of the draftsmen towards certain intimate choices of fellow human beings.”, held the judgment(Page 301).

Discrimination based on sexual orientation violates Article 15(1)

A significant finding of the judgment is that discrimination based on ‘sexual orientation’ amounts to sex-based discrimination, which is prohibited under Article 15(1). While reaching this conclusion, the judgment overturned the precedent Air India v.Nargesh Meerza (1981) 4 SCC 335. In the said case, service conditions prescribing different age of retirement for air hostesses, and that pregnancy will attract termination etc. were not held to be discriminatory with respect to male colleagues on the ground that females and males in service of aircraft constituted different cadres, and hence were not comparable. It was held there that where persons of a particular class, in view of the “special attributes, qualities” are treated differently in ‘public interest’, such a classification would not be discriminatory

Justice Chandrachud criticised this view as missing to notice the latent stereotypical notions of the differences between men and women which are then used to justify the discrimination. Nargesh Meerza was held to be incorrect noting, “A discrimination will not survive constitutional scrutiny when it is grounded in and perpetuates stereotypes about a class constituted by the grounds prohibited in Article 15(1). If any ground of discrimination, whether direct or indirect is founded on a stereotypical understanding of the role of the sex, it would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex”(para 41, page 313).

This was applied in the present case by identifying the root premise operating behind Section 377 – to reinforce gender stereotypes. It was held that Section 377 was based on ‘heterosexism’ and ‘gender binary’.

“If individuals as well as society hold strong beliefs about gender roles – that men (to be characteristically reductive) are unemotional, socially dominant, breadwinners that are attracted to women and women are emotional, socially submissive, caretakers that are attracted to men – it is unlikely that such persons or society at large will accept that the idea that two men or two women could maintain a relationship. If such a denial is further grounded in a law, such as Article 377 the effect is to entrench the belief that homosexuality is an aberration that falls outside the ‘normal way of life.’” (para 44, page 319)

It was noted that a heterosexist society expects and requires men and women to engage in only opposite-sex sexual relationships. “One cannot simply separate discrimination based on sexual orientation and discrimination based on sex because discrimination based on sexual orientation inherently promulgates ideas about stereotypical notions of sex and gender roles” (para 46, page 321)

It was also held that statutes like Section 377 give people ammunition to say “this is what a man is” by giving them a law which says “this is what a man is not.” The existence of the provision nonetheless facilitates it by perpetuating homophobic attitudes and making it almost impossible for victims of abuse to access justice. Thus, the social effects of such a provision, even when it is enforced with zeal, is to sanction verbal harassment, familial fear, restricted access to public spaces and the lack of safe spaces.

Section 377 criminalises identities

A notable feature in the approach of Justice Chandrachud is that he did not dwell much on the argument that Section 377 impacts heterosexual couples as well, as regards their involvement in sexual acts which are non-penovaginal. He emphatically asserted that the impact of the section was on sexual minorities (Para 44, Page 315). Though the provision is ‘facially neutral’ the effect of the provision is to efface specific identities.

“While facially Section 377 only criminalizes certain “acts”, and not relationships, it alters the prism through which a member of the LGBTQ is viewed. Conduct and identity are conflated.The impact of criminalising non-conforming sexual relations is that individuals who fall outside the spectrum of heteronormative127 sexual identity are perceived as criminals”(Para 56, Page 334)

Fresh perspective on right to privacy of sexual minorities

The judgment brought in a fresh perspective to analyse the right to privacy of sexual minorities in the light of Puttaswamy judgment. While sexual orientation has been held as a facet of right to privacy, to push sexual minorities to their private spaces alone will amount to reinforcing the closet in which they are in. The judgment powerfully stated that the “closet has to be confronted”. Confronting the closet would entail “reclaiming markers of all desires, identities and acts which challenge it.” It would also entail ensuring that individuals belonging to sexual minorities, have the freedom to fully participate in public life, breaking the invisible barrier that heterosexuality imposes upon them. Constitution must recognise that the public assertion of identity founded in sexual orientation is crucial to the exercise of freedoms(para 60, page 337). It is imperative that the protection granted for consensual acts in private must also be available in situations where sexual minorities are vulnerable in public spaces on account of their sexuality and appearance.

“If one accepts the proposition that public places are heteronormative, and same-sex sexual acts partially closeted, relegating ‘homosexual‘ acts into the private sphere, would in effect reiterate the “ambient heterosexism of the public space.”  It must be acknowledged that members belonging to sexual minorities are often subjected to harassment in public spaces.The right to sexual privacy, founded on the right to autonomy of a free individual, must capture the right of persons of the community to navigate public places on their own terms, free from state interference” (para 62, page 339)

Celebration of sexual agency

The judgment is a “celebration of sexual agency” in the light of right to intimacy.  Right to intimacy, flowing from the right to privacy and individual autonomy, has not been so beautifully commented upon in any other judgment. The discussion on this, from Paragraph 67, page 344 onwards, is captivating and transcendental. Certain profound observations on the human longing for fulfilment of desire and companionship are extracted below :

“Consensual sexual relationships between adults, based on the human propensity to experience desire must be treated with respect. In addition to respect for relationships based on consent, it is important to foster a society where individuals find the ability for unhindered expression of the love that they experience towards their partner”.

“An individual’s sexuality cannot be put into boxes or compartmentalized; it should rather be viewed as fluid, granting the individual the freedom to ascertain her own desires and proclivities”.

“Accepting the role of human sexuality as an independent force in the development of personhood is an acknowledgement of the crucial role of sexual autonomy in the idea of a free individual. Such an interpretation of autonomy has implications for the widening application of human rights to sexuality”.

“Sexuality cannot be construed as something that the State has the prerogative to legitimize only in the form of rigid, marital procreational sex. Sexuality must be construed as a fundamental experience through which individuals define the meaning of their lives”.

“Human sexuality cannot be reduced to a binary formulation. Nor can it be defined narrowly in terms of its function as a means to procreation. To confine it to closed categories would result in denuding human liberty of its full content as a constitutional right”

“The Constitution protects the fluidities of sexual experience. It leaves it to consenting adults to find fulfilment in their relationships, in a diversity of cultures, among plural ways of life and in infinite shades of love and longing”.

The conclusions of the judgment can be summated as :

• Section 377 of the Penal Code, in so far as it criminalises consensual sexual conduct between adults of the same sex, is unconstitutional;
• 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;
• The choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation;
• Members of the LGBT community are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of law; and
• The decision in Koushal stands overruled.

The judgment soulfully addresses certain existential puzzles of human condition – identity, autonomy, relationship with the collective, dynamics of desire etc. - through the constitutional framework. As much as with constitutional erudition, the judgment has been penned with a romantic and humane touch.

Published in Live Law on September 6

A Journey Through Notable Judgments of The Newly Sworn-In SC Judges

Three new judges— Justice Indira Banerjee, Justice Vineet Saran and Justice KM Joseph were sworn in on Tuesday at 10:30 am in the Chief Justice’s Court, raising the total number of judges to 25, as against the sanctioned strength of 31 judges. A few of the notable judgments delivered by these judges during their tenure at High Court are presented below.

Justice Indira Banerjee.

Justice Banerjee enrolled as an Advocate in July, 1985, and practiced extensively on the Original and Appellate Sides of Calcutta High Court. She was appointed as a Permanent Judge of the High Court in February, 2002, and was transferred to Delhi High Court in August, 2016. She was, thereafter, elevated as the Chief Justice of Madras High Court, a post of which she took charge in April, 2017.

One notable judgment of Justice Banerjee in Calcutta High Court dealt with the issue of consent of woman for sexual intercourse. It was a case where a man was convicted of abducting and raping a woman. The accused had defended himself stating that he and the woman were in a relationship who had willingly came out with him, and that there was no resistance from her against sexual intercourse. The brother judge of Justice Banerjee in the bench, Justice Indrajit Chatterjee, acquitted the accused holding that he had consensual sex. The fact that the woman did not attempt to run away from his company, and the absence of external injury marks in her body persuaded Justice Chatterjee to hold so.

However, Justice Banerjee dissented from that view, and held that mere absence of physical injuries cannot be a ground to presume that sex was consensual. She held that even if it was assumed that the victim harboured the wish to marry the accused appellant for which she readily went to the house of the accused appellant, when he called her, it cannot be deduced that of her own free Will and volition, she consented to casual sex with the accused appellant, knowing that they might never get married

Explaining the nature of free consent for sex, Justice Banerjee succinctly held : "The consent should be spontaneous, stemming from the victim's own desire to sexually unite with the accused. A mere act of helpless resignation in the teeth of compulsion whether by reason of threat of physical violence, emotional blackmail, fear, coercion or duress cannot be consent, as understood in law. In this context it may be pertinent to note that there is a difference between submission and consent and mere non - resistance and / or passive giving in cannot be consent as understood in law. In my view, even emotional blackmail that might reasonably be perceived as a veiled threat to end an existing relationship by calling off an engagement or a marriage proposal would also vitiate the consent".(Laxmi Kantha Kamath v. State of West Bengal 2015 CriLJ 2220)

Her judgment in Srei Equipment and Finance Pvt Ltd v. Khyoda Apik and others AIR 2016 Cal 293 is noteworthy for the clinical analysis of different provisions of Arbitration and Conciliation Act 1996. It was held that an arbitration award can be executed only by a court which could exercise jurisdiction under Section 34 of the Act , and that Court cannot refuse to execute award on ground that assets of judgment debtor were located beyond its jurisdiction.

As the Chief Justice of Madras High Court, Justice Banerjee had to deal with several prominent and contentious issues like the disqualification of AIADMK MLAs by by the Speaker of Tamil Nadu Legislative Assembly. There too Justice Banerjee delivered a dissenting opinion. While Justice Banerjee upheld the decision of the speaker to disqualify the MLAs, her brother judge Justice Sundar disagreed. As the Chief Justice, she referred the matter to be heard by the next senior judge. Her act of nominating the next senior judge to hear the matter, instead of naming any specific judge, was commended by many in the legal circles as an act of fairness and propriety.

Justice Banerjee delivered yet another dissenting judgment in the case concerning the validity of TRAI Regulations. In October 2017, she authored a  judgment, laying down detailed guidelines for recording of statements under Section 164 CrPC and conduct of test identification parade.

During her tenure, the Madras High Court witnessed the rarity of having an all-women bench. Shortly after her appointment as CJ, she sat in combination with Justice Bhavani Subbaroyan. Later, she  sat with Justice R. Hemalatha. Towards the end of her tenure in Madras High Court, she shared bench with recently appointed Justice P.T Asha. Presiding this bench, she authored the judgment holding that arrest of an accused from a court room is illegal, and punished the policemen who carried out such arrest for contempt of court.

Justice Vineet Saran.

Justice Vineet Saran enrolled as an Advocate with the U.P. Bar Council in July, 1980, and practiced in the Allahabad High Court till February, 2002, when he was elevated as a Permanent Judge of the High Court. He was transferred to Karnataka High Court in February, 2015, and was sworn in as the Chief Justice of Orissa High Court in February, 2016.

As a judge of Allahabad High Court, Justice Vineet Saran authored a judgment, while presiding a Division Bench, holding that the High Court can order CBI enquiry in exercise of powers under Article 226 of the Constitution of India even without consent of the State Govt if the investigation by State Police is demonstrably biased and incompetent(Ravi Kant Gupta v. State of UP 2011 CriLJ 4482). 

In Sandhya Goni v.State of Karnataka 2016 CriLJ NOC 30, as a presiding judge of the Division Bench of the Karnataka High Court, Justice Saran held that habeas corpus petition was maintainable at the instance of a mother, from whom custody of a child was illegally taken away by the father. Justice Saran was also part of the Bench which quashed the decision of the Governor of Karnataka to grant sanction to prosecute ex-CM B.S Yeddyurappa. It was held there that the decision of the Governor was not based on relevant materials(B.S Yeddyurappa v. Princpal Secretary to His Excellency Governor of Karnataka 2016 CriLJ 778).

As the Chief Justice of Orissa High Court, the Division Bench headed by Justice Saran held that the High Court can impose restrictions on news-reporting by print and electronic media to prevent interference with criminal trial. The matter pertained to media reporting an alleged incident involving with some advocates misbehaving with a lady inspector.  There, directions were issued to restrain media from publishing the name and photographs of the accused persons and informants, on the basis of finding that exaggerated reporting of the incident tend to interfere with administration of justice (High Court Bar Association, Odisha v. State of Odisha AIR 2017 Ori.62)

The legalistic fervour of Justice Saran is manifest from the judgment Mohapatra Binders and others v. Innprint and others AIR 2017 NOC 2015 which held that precedents which were not based on legal principles but misplaced sympathy cannot be regarded as binding. In Manuel Antonio Da Anunciaco Parkasch v. Republic of India, AIR 2017 NOC 444, Justice Saran held that a foreigner cannot complaint of infringement of fundamental rights due to denial of citizenship.

In Silicon Institute of Technology v.State of Odisha AIR 2017 Ori.151, the bench of Justice Saran interfered with admission process of self-financing institutions, and held that self-financing institutions picking up students of their choice from the merit list was illegal.

Justice K M Joseph

Justice K M Joseph carries the rich legacy of his illustrious father Justice K.K Mathew. Justice Joseph enrolled as an Advocate in January, 1982, and was appointed as a Permanent Judge of the Kerala High Court in October, 2004. He was then transferred to the Uttarakhand High Court and assumed charge as the Chief Justice in July, 2014.

The most debated judgment of Justice Joseph is the one which quashed the imposition of presidential rule in Uttarakhand in 2016. The judgment - delivered on sharing bench with Justice V.K Bist-  held that it was not open for the Governor to control the exercise of discretion vested with another constitutional authority, the Speaker. The imposition of presidential rule was termed "unwarranted". The judgment was rendered despite noting the allegations of corruption against the then incumbent CM Harish Rawat. It was held that the issue had to be addressed at a more fundamental level of federalism and constitutional democracy.

As a judge of Kerala High Court, the bench presided by Justice Joseph ordered the demolition of several resorts built encroaching the backwaters of Kerala, in Ratheesh K R v State of Kerala. The constructions were found to have flouted CRZ Regulations. The judgment expressed anguish and concern at the alarming rate of environmental depradation, which was described as “ecocide”.

“The threat of global warming has assumed alarming proportions. In matters relating to the protection of the environment, a short sighted and myopic approach, may satisfy some and may be many in the short run. But, the Court when it enforces laws in protection of the environment becomes the custodian of the interests of not only the present generation, but also of posterity. While it is convenient and even may sound as just to overlook the mandate of a cumbersome or seemingly oppressive law, both the law giver and the Courts have to enforce the law and cannot but act with vision. Prompt and effective enforcement of such laws will in due course result in the inculcation of the values embedded in the law as habits which will be followed by the future generations”,Justice Joseph observed in the judgment.

In Alexander CC v. Jacob Antony , the bench headed by him held that illegitimacy was no bar for a minor child to claim maintenance from biological father,as the claim was based on paternity and not legitimacy. It was also held that Family Court has jurisdiction determine the issue of paternity.

In Pavithran v. District Superintendent of Police, Justice Joseph, as a single judge, ruled that loudspeakers cannot be used beyond midnight, even for religious and cultural functions.

Justice Joseph is known to have a penchant for constitutional law and jurisprudence. He has a special eye for details, and perceives legal issues in his own unique manner.  Legal principles, which are not commonly known and used, are often invoked in his judgements.  In once case, he expounded the obscure principle of "Desuetude", which states that law, which has not been in use for a considerable long time, is deemed to have been repealed by consistent usage to the contrary( Davis B.O v. B.T Martin and another, Kerala HC)

A direction issued by Justice K.M Joseph regarding prison reforms had earned him encomiums from veteran Justice V. R Krishna Iyer.  Justice V.R Krishna Iyer wrote him a letter, congratulating him.  The letter, which has been accessed by Live Law, reads as follows

"My dear Justice K. M Joseph,

I respect you for many reasons beyond being the sublime son of my dearest brother Justice Mathew. I was once a minister in charge of prisons meant to implement the fundamental duty of compassion towards all living creatures I had reformed the prisons of Kerala from its British barbarity to humane divinity. Today, a friend of mine pointed out that the philistinic barbarity still lurks in our prison and a prisoner was badly beaten in Aleppey Sub Jail. And you a humane justice with compassion ordered an enquiry compelled in your soul by a sense of love and kindness.

Your are truly a great Chairman of Kerala Legal Services Authority. The rule of law serves its purpose only when it ennobles life in all its dimensions.

I congratulate you on the order you have passed and hope the Legal Services under your supervision will make humanism and justice in Kerala prisons undergo a transformation. The newspaper report about your direction also mentions about the inhumanity in the jail where people who are prisoners freely smoke which will cause cancer mortality. In a room of 14, says the Mathrubhumi report, there are 40, which in itself is a condemnation of suffocation and suffering. O, the pity of it!'

With warm regards,
Yours sincerely
V.R Krishna Iyer".

The Live Law team wishes Justice Indira Banerjee, Justice Vineet Saran and Justice K.M Joseph all the best in their judgeship at Supreme Court

[Published in Live Law on August 8]