Reordering the Order of Nature

Trevor Padasian highlights the key points on the decriminalisation of LGBT sex between consenting adults in India.
On 6 September 2018, the Supreme Court of India (“SCI”) delivered another one of its epochal landmark decisions in Navtej Singh Johar & Ors. versus Union of India thr. Secretary Ministry of Law and Justice (Writ Petition (Criminal), No. 76 of 2016 with 5 other writ petitions) where it decriminalised LGBT sex (which encompasses homosexual sex and transgender sex) between consenting adults.
In doing so, the SCI declared that a major part of the colonial-era section 377 of the Indian Penal Code (“IPC”) (in force since 1 January 1862), was unconstitutional as it contravened Articles 14, 15, 19 and 21 of the Constitution of India (“Constitution”). (An Article hereinafter refers to an Article of the Constitution.) It did clarify that the adults concerned must be above the age of 18 years who are competent to consent and the consent must be freely given.
Navtej’s significance in terms of constitutional law and the human rights movement in India is far-reaching and monumental. It is on par with the ground-breaking National Legal Services Authority v Union of India case ((2014) 5 SCC 438) (“NALSA”) which preceded it by five years and Joseph Shine v Union of India (Writ Petition (Criminal) No. 194 of 2018) which was decided 21 days after Navtej was pronounced. In NALSA, transgender people were declared to be a ‘third gender’ deserving of fundamental rights under the Constitution. In Joseph Shine, another colonial-era section 497 of the IPC criminalising adultery was struck down as being unconstitutional.
As described in Justice R.F. Nariman’s judgment, the cases which were heard together had a ‘chequered history’. At the heart of these cases was section 377 of the IPC which reads:
377. Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
Prior to Navtej, the Delhi High Court in Naz Foundation v Government of NCT of Delhi 111 DRJ 1 (2009) declared that, insofar as it criminalised consensual sexual acts of adults, section 377 contravened certain constitutional freedoms provided by the Constitution and was therefore unconstitutional. Although the respondent in that case did not file an appeal, the SCI in Suresh Kumar Koushal and Anr. v Naz Foundation and Ors (2014) 1 SCC 1 (“Suresh Koushal”) heard appeals filed by private individuals and groups and reversed the Delhi High Court’s judgment.
Three years after Suresh Koushal, a nine-Judge Bench of the SCI in Justice K.S. Puttaswamy (Retd.) and Anr. v Union of India and Ors. (2017) 10 SCC 1 (“Puttaswamy”) unanimously declared that there was indeed a fundamental right of privacy in favour of all persons and that the right to make choices fundamental to a person’s way of living could not be arbitrarily interfered with. The decision in Puttaswamy led a three-Judge Bench of the SCI to refer the correctness of Suresh Koushal’s decision to a larger bench. Hence the Navtej case was heard by five judges of the SCI.
The Petitioners described themselves in one of the petition as “upstanding, public-spirited citizens who live and work in India and have the greatest love for this country and faith in the rule of law” []. Two of the petitioners, Navtej Singh Johar and Sunil Mehra, were in a 20-year relationship. Sunil Mehra opted not to apply to join the Indian Administrative Service although he had passed the requisite civil services preliminary exam because he was “apprehensive about his career prospects in State employment because of criminalization of his sexual orientation.” Another petitioner, Ayesha Kapur, could not reveal her sexual orientation to her mother until she was in her mid-30s and her mother had become terminally ill. Ayesha had also given up a profitable corporate career for fear of being outed [].
The SCI unanimously allowed the writ petitions on 6 September 2018. Four uplifting judgments were delivered, comprising in total nearly 500 pages. They were written by the former Chief Justice of India, Dipak Misra (with whom Justice A.M. Khanwilkar concurred), Justice R.F. Nariman; Justice Dr Dhananjaya Y Chandrachud, and Justice Indu Malhotra, the first female lawyer to be appointed directly as a SCI judge.
Misra CJI held that the Constitution is a “living and organic document capable of expansion with the changing needs and demands of the society”. The primary objective of having a constitutional democracy is to transform society progressively and inclusively. “Transformative constitutionalism not only includes within its wide periphery the recognition of the rights and dignity of individuals but also propagates the fostering and development of an atmosphere wherein every individual is bestowed with adequate opportunities to develop socially, economically and politically.”   
With this in mind, the Justices upheld the constitutional right to equality (Article 14), the right not to be discriminated against on grounds of religion, race, caste, sex or place of birth (Article 15), the right to freedom of speech and expression (Article 19), and the right to life and personal liberty (Article 21) in the context of a person’s identity. At the core of the concept of identity is self-determination.
Dignity is “an inseparable facet of every individual that invites reciprocative respect from others to every aspect of an individual which he/she perceives as an essential attribute of his/her individuality, be it an orientation or an optional expression of choice.”  In that context, the SCI rejected the argument (accepted in Suresh Koushal) that the Lesbian Gay Bisexual and Transgender (“LGBT”) community comprised only a ‘minuscule’ fraction of the total population of India. “Discrimination of any kind strikes at the very core of democratic society.” The framers of the Constitution could never have intended that the fundamental rights are for the benefit of the majority only.
Unlike for instance section 375 of the IPC where the presence of “wilful and informed consent” takes an act outside the meaning of rape, section 377 of the IPC does not contain such a qualification. Section 377 therefore criminalises even voluntary carnal intercourse by members of the LGBT community. The “unwanted collateral effect” was that even “‘consensual sexual acts’, which are neither harmful to children nor women, by the LGBTs have been woefully targeted thereby resulting in discrimination and unequal treatment to the LGBT community”. This was in direct contravention of Articles 14 and 19.
Chief Justice Misra unswervingly declared that consensual “carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality.” Therefore, so far as section 377 penalises any “consensual relationship between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) or lesbians (woman and a woman), cannot be regarded as constitutional.”
As section 377 failed to distinguish between “non-consensual and consensual sexual acts of competent adults in private space which are neither harmful nor contagious to the society” and had become an “odious weapon for the harassment of the LGBT community by subjecting them to discrimination and unequal treatment”, it was manifestly arbitrary as it was capricious, irrational, without an adequate determining principle, excessive and disproportionate. In view of the SCI decision in Shayara Bano v Union of India (2017) 9 SCC 1, it should be partially struck down. Suresh Koushal, not being consistent with the foregoing principles, was overruled. 
Justice Nariman, after quoting Oscar Wilde’s “love that dare not speak its name” existing between same-sex couples at the outset of his judgment, shone luculent light on a same-sex couple’s right to equal treatment and right to privacy. The rationale for the Victorian-era section 377, that is Victorian puritanical morality, had been superseded by constitutional morality which is the soul of the Constitution, assuring the dignity of the individual. As the rationale had long gone, there was no reason for section 377 to continue merely for the sake of continuing. The Justice cited the Latin maxim cessant ratione legis, cessat ipsa lex (when the reason for a law ceases, the law itself ceases) in support of this proposition.
The American and Indian Psychiatric Associations had debunked the fallacious misdiagnosis that homosexuality was a mental illness. There were now progressive statutory provisions stipulating amongst others that “mental illness shall not be determined on the basis of non-conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person’s community” (see section 3(3)(b) of the Indian Mental Healthcare Act 2017 which came into force on 7 July 2018). The “Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity” (Yogyakarta Principles) were reaffirmed. Justice Nariman concluded that the Yogyakarta Principles gave further content to the fundamental rights contained in Articles 14, 15, 19 and 21. The Judge recommended that the government take all measures to ensure that the Navtej judgment be publicised widely through the public media to reduce and finally eliminate the stigma associated with LGBT members. All government officials, including police officials, should be given sensitisation and awareness training of the plight of such persons.
Justice Chandrachud analysed the international comparative jurisprudence and concluded that, amongst others, sexual orientation is an intrinsic element of liberty, dignity, privacy, individual autonomy and equality; intimacy between consenting adults of the same-sex (and the choice of whom to partner) is beyond the legitimate interests of the state; sodomy laws violate equality by targeting a segment of the population for their sexual orientation. Members of the LGBT community are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of the law.
Justice Malhotra emphasized that the provisions of section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors and acts of bestiality. Her Ladyship declared that the reading down of section 377 would not lead to the re-opening of any concluded prosecutions. It could however be relied upon in all pending matters, whether they are at the trial, appellate, or revisional stages.
The original version of section 377 of the Malaysian Penal Code (“MPC”) mirrored section 377 of the IPC. However, pursuant to the Penal Code (Amendment) Act 1989, the original section 377 was replaced by a new provision and several new provisions, including section 377A, were introduced from 5 May 1989.  Sections 377 and 377A of the MPC provide as follows:
Section 377. Buggery with an animal.
Whoever voluntarily has carnal intercourse with an animal shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to fine or to whipping.
Explanation - Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
Section 377A. Carnal intercourse against the order of nature.
Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.
Explanation - Penetration is sufficient to constitute the sexual connection necessary to the offence described in this section.”
The offence of bestiality in Section 377 of the MPC which is embodied in section 377 of the IPC remains in place in both jurisdictions. However, as a result of Navtej, section 377 of the IPC (which is now in substance section 377A of the MPC) has been read down so that consensual sexual relations between adults of the same sex no longer constitute an offence in India. If the principles laid down in Navtej were to be applied in Malaysian jurisprudence, section 377A would arguably be deemed unconstitutional as Malaysia’s Federal Constitution contains most, if not all, of the constitutional freedoms in the Indian Constitution referred to in Navtej’s judgments.
Navtej is one of three landmark SCI decisions in the last five years that illustrate the progressive outlook of the SCI judges. Their Lordships have strived to safeguard the rights and dignity of individuals in India by giving a dynamic interpretation to the fundamental rights enshrined in the Constitution. In the context of a society renowned for being conservative, Navtej, NASLA and Joseph Shine leave a legacy both transformative and enduring.