• The 377 Judgment, LGBT Discrimination and Gay Marriage

    Surya Rajkumar

    September 13, 2018

    The Supreme Court on September 6, 2018 in the case of Navtej Singh Johar v. Union of India declared unconstitutional Section 377 of the Indian Penal Code which criminalised sex against the “order of nature” to the extent that it prohibited sexual relations between consenting adults belonging to the same gender. Its reasoning was multifarious of which the most pertinent was the violation of an individual’s right to privacy as a result of Section 377.

    But it is significant to note that the bench presiding over the matter did not confine its ruling to Section 377’s unconstitutionality, but also ruled on the issue of discrimination faced by LGBT persons in India. While the bench discussed various judgments of constitutional courts abroad which legalised gay marriage, they refrained from ruling on whether gay marriage had legal recognition in India.

    Regardless, the judgment has far-reaching implications on the issue of discrimination and the legality of gay marriage. Here are some developments that may result in the laws regarding marriage and discrimination in India.

    Discrimination

    In concluding their judgment Chief Justice Misra and Justice Khanwilkar declared, “Any discrimination on the basis of one’s sexual orientation would entail a violation of the fundamental right to the freedom of expression.” Justice Chandrachud remarked, “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.”

    The overarching provision that governs discrimination in India is Article 15 of the Indian Constitution which states, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” Extending this provision to include the ground of sexual orientation, Justice Indu Malhotra remarked, “The LGBT community is a sexual minority which has suffered from unjustified and unwarranted hostile discrimination and is equally entitled to the protection afforded by Article 15.”

    While it is only the state that falls within the purview of Article 15, it will be interesting to see what the Supreme Court decides when it is seized of a matter involving discrimination by a private entity.

    In 2011 the Indian government issued a direction to businesses requiring them to “provide and maintain equal opportunities at the time of recruitment as well as during the course of employment irrespective of caste, creed, gender, race, religion, disability or sexual orientation”. Earlier this year, however, this direction was changed; the grounds mentioned above were replaced simply with the words “without any discrimination”.

    Marriage

    It must be noted that the judgment did not delve into questions of marriage, adoption or inheritance. Indian legal scholar Upendra Baxi said prior to the judgment that these issues would be decided case by case depending on what the Supreme Court decides on Section 377. In the same vein the decision in Navtej Singh Johar could well pave the way for the legalisation of gay marriage in India.

    Marriage, adoption and inheritance are governed by personal laws in India, and the test of fundamental rights applies only to the secular laws governing these subjects. Thus, the judgment can lead to the recognition of same-sex marriages only through the Special Marriages Act, 1954 which is the secular marriage law in India.

    The reasoning of the Supreme Court of the United States (SCOTUS) in the case of Obergefell v. Hodges is relevant, where it was held that same-sex marriage was a legal consequence of the fundamental right to marry a person of choice canonised in Loving v. Virginia. Since all anti-sodomy laws were struck down in another SCOTUS case, Lawrence v. Texas, such a right applied to same-sex couples also.

    The Indian Supreme Court too in the case of Shakti Vahini v. Union of India, held that an adult had the fundamental right to marry a person of choice. Thus, as the combined reading of the SCOTUS cases of Loving and Lawrence resulted in the legal recognition of gay marriage in the US, a joint reading of Shakti Vahini and Navtej Singh Johar could yield the recognition of same-sex unions within the Special Marriages Act.

    In any case, there seems to be no credible argument against recognising same-sex unions under the Special Marriages Act. Consequent to this judgment, the intelligible differentia permitting the law to discriminate against gay individuals have been voided, and if the state does not recognise their right to have a partner under the country’s secular law it will technically be discriminating against gay individuals, in violation of Article 15 of the Constitution.

    With hotelier Keshav Suri, a petitioner in Navtej Singh Johar already suggesting he is willing to fight a fresh legal battle to bring about ‘marriage equality’ in India, one can optimistically say that it is only a matter of time before same-sex marriage is recognised by the Supreme Court under the Special Marriages Act.

    The Way Forward

    Concluding his judgment Justice Chandrachud wrote, “But decriminalisation is a first step. The constitutional principles on which it is based have application to a broader range of entitlements. The Indian Constitution is based on an abiding faith in those constitutional values. In the march of civilisations across the spectrum of a compassionate global order, India cannot be left behind.”

    Although it is desirable that the way forward be a path of progression, one ought to be cautious of the path of regression certain countries elected to take after moving forward in the realm of gay rights. In 1988 the United Kingdom, 21 years after decriminalising consensual sodomy, moved to prohibit the “promotion” of homosexuality in schools, citing Section 28 of the Local Government Act, 1988.

    Although this law was repealed in the year 2000, its enactment and use testify that the journey to getting your rights is not always straightforward.

    A more recent instance was the repeal of same-sex marriage last February by Bermuda, making it the first jurisdiction in the world to do so.

    While the Supreme Court’s judgment is a moment of joy for the LGBT community, the pessimist in me is cautious about a regression or backlash, which might take shape through a future court ruling or a legislative measure to undo the scope of this judgment, and prevent it from extending to issues of discrimination and marriage.


     

    First published in The Citizen.

    Disclaimer: The views expressed in this article are the writer's own, and do not necessarily represent the views of the Indian Writers' Forum.

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