The decision of the US Supreme Court in Obergefell et al v. Hodges, Director, Ohio Department of Health, et al (2015) US No. 14-556, regarding the constitutionality of same-sex marriages is a welcome one. With the true spirits of liberty and equality prevailing in the skies of freedom in the West it becomes imperative to decipher the problem in the East.
The Due Process Clause and the Equal Protection Clause in the Fourteenth Amendment to the US constitution along with liberal interpretations of ‘Life’ and ‘Liberty’ has turned out to be a harbinger of dignity to the LGBT community of the US by reversing the decision of the United States Court of Appeals for the Sixth Circuit.
Though in India, the Constituent Assembly had adopted “procedure established by law”, after the landmark judgements of R C Cooper v. Union of India AIR 1970 SC 564, and Maneka Gandhi v. Union of India AIR 1978 SC 597, Article 21 of the Indian Constitution encompasses “due process” as well. Therefore, the present position is such that the law cannot be a mere enacted piece but has to be a reasonable one. (Sunil Batra v. Delhi Administration AIR 1978 SC 1675.)
Thus, it becomes de riguer to understand this shift and its necessary implications on the ‘rainbow’ rights.
The position with respect to the inter-relationship between Article 14, 19 and 21 has radically been changed by the judgement in Maneka Gandhi . Prior to this, courts had reservations while accepting the present notion a propos Article 21. The exclusivity of Fundamental Right, non-observance of reasonableness of the law and only the justness of the procedure laid down thereunder was the prevalent thought.(A K Gopalan v. State of Madras AIR 1950 SC 27.) However, through a series of cases this positivist approach changed and the Supreme Court enunciated the reasonableness doctrine within Article 21.
When one analyses the situation with regard to sodomy, its history has been universal and corresponds to the offences under English Law, adopted by almost all legal systems around the world, including US and India. The sodomy laws in US have been declared unconstitutional . (Lawrence v. Texas 539 U.S. 558 (2003). The Court observed that the sodomy laws which made consensual adult homosexual intercourse illegal were vioative of the basic tenets enshrined in the 14th amendment to the US Constitution and part of the ‘liberty’ protected by due process.
However, even after the acceptance of due process in our Constitution, India still finds itself wedged in those rudimentary sodomy laws in form of Section 377 of Indian Penal Code, 1860. The section makes voluntary carnal intercourse against the order of the nature with any man, woman or animal illegal.
The position came into question in Naz Foundation v. Government of NCT of Delhi (2010) Cri LJ 94 (Delhi),wherein the High Court of Delhi held that Section 377 is violative of Article 14, 15, 19 and 21 of the Constitution and thus, decriminalized ‘unnatural’ sexual intercourse between two consenting adults in private but stressed upon the fact that provisions of Section 377 would still continue to govern non-consensual penile non-vaginal sex. However, in Suresh Kumar Koushal v. Naz Foundation AIR 2014 SC 563, the Supreme Court of India overruled the Delhi High Court’s decision and upheld the constitutional validity of Section 377 of Indian Penal Code, 1860.
Now, let us deconstruct the the considerations put forth in the Delhi High Court’s Judgement and understand the plausible reasons behind its fervent overruling by the Supreme Court and its possible ramifications.
Section 377 was contended to be violative of Article 14 and the equality clause therein. Article 14 of the Constitution of India uses two expressions i.e. “Equality before Law” and “Equal Protection of Law” to, perhaps, make the concept of equal treatment a binding principle of State Action. However, the provision does not entail universal application of the law to all persons, but a reasonable classification. In order to pass the test for reasonable classification, two conditions must be fulfilled, 1) the classification must be found on an intelligible differentia and 2) the differentia must have a rational relation to the object sought to be achieved. (State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC 75; Raj Pal Sharma v. State of Haryana AIR 1985 SC 1263). Therefore, the classification among men is permissible only when that classification is having a reasonable and rational nexus with the object of the classification. The classification done by Section 377 is between persons indulging in carnal intercourse and those indulging into carnal intercourse against the order of nature. Further, the section does not take into account the true essence of such offences which fall under Sexual Offences like Rape, which is Mens Rea. With a complete disregard to substantial ingredient of such offences it makes carnal intercourse an Absolute Liability Offence. The object sought with this Section was to prevent violation of a persons’ body and dignity without his/her consent.
It can be understood in this way- a consensual sexual intercourse is not considered rape under the provisions of the IPC because the necessary ingredient of Rape is a guilty intention to violate a woman’s body without her consent. Thus, consent becomes the most vital aspect of such Sexual Offences. It can be safely stated at this point that the classification done under Section 377 is based on an irrelevant rationale. It becomes disadvantageous towards a group without a rational reason.
The terminology and the phraseology of Section 377, IPC itself is quite primitive. Also, the usage of the phrase “against order of nature” bellows towards our narrow comprehension of the nature per se and becomes quite incongruous in today’s setting.
Article 21 has been considered the heart of the fundamental rights and has been one with the widest ambit and application. It assures dignity of life and liberty to all the persons whether citizens or non citizens (Noor Mohammad v. Union of India (2003) 12 SCC 218). It includes the right to live with human dignity including expressing oneself in diverse forms (Francis Corallie Mullin v. UT of Delhi (1981) 1 SCC 660). The right to privacy is an essential part of personal liberty which extends to a spectrum of conducts and expressions which a man is free to pursue. An individual is free from any sort of transgression or encroachment directly or indirectly. The judgement of Kharak Singh v. State of UP AIR 1963 SC 1295 recognized the overlapping nature of the Article 19 and 21 and held privacy as an ingredient of personal liberty. The next judgment quoted by the Delhi High Court in the Naz Foundation was R. Raja Gopala v. State of T.N. wherein the court held that a person has a right to safeguard the privacy of his own, family, marriage, procreation, motherhood etc. It includes all those countless aspects of personal liberty like the right to go to bed when one likes, to eat, to dress or walk away, etc. which is impossible exhaustively to enumerate. The US Supreme Court had similar observations with respect to Liberty protected by the Fourteenth Amendment. The US Supreme Court, while reaffirming the substantive force of the Liberty, held that the law of land gives constitutional protection to personal decisions and choices like marriage, procreation, relationships, etc which are central to personal dignity and autonomy. [Planned Parenthood of Southeastern Pa. v. Casey 505 U.S. 833 (1992).]
Going by similar examples, sexual orientation of a person becomes a subject of privacy and thus should be protected under Article 21.
The Supreme Court in Suresh Kumar Koushal v. Naz Foundation had said that those who indulge in carnal intercourse against the order of nature cannot claim that the impugned section suffers from the vice of arbitrariness and irrational classification. The finding of the apex court is pregnant with suggestion that the constitution and the penal provisions under Indian criminal law seek to regulate and restrain the sexual life of a person, which is quite contrary to the basic tenets of life, dignity, and liberty.
Further, the Delhi High Court’s Judgement was criticised on its heavy reliance on foreign judgements and treaties. Article 51 and 372 of the Constitution recognize International Law and plausible reliance on foreign judgements. Also, it has always been the trend that the Judiciary seeks common law principles, foreign judgements and treaties when it finds the domestic law insufficient, ambiguous or silent. This has been the case in adoption of due process, right to privacy , freedom of press , upholding death sentence , etc.
Article 13 gives ample power to the Judiciary to declare a law, inconsistent with the provisions of Part III of the Constitution, ultra vires. However, the continuance of the provision for more than 150 years led the Supreme Court towards an erroneous understanding that it should not strike at the law with such weak considerations viz. misuse of the section by Police, harrassment of persons belonging to LGBT community, a very small affected population. Therefore, even after having ample powers mandated by the Constitution itself the Supreme Court still suffers in the perpetual Letter of Law v. Spirit of Law debate. The sodomy laws, having complete disregard to consent of the parties, is not only discriminatory towards certain individuals but also erroneous from a legal stand point. The twisted sense of public morality has led us to unidentify a group and derecognize their rights.
However, if the sodomy laws are declared ultra vires the Constitution today, the true recogniton and dignity can only be supplied through equal marriage laws. The marriage laws in India need to go through a complete reconsideration and recuperation for they donot accommodate homosexuality. Hindu Marriage Act, 1955 does not explicitly define “marriage” but the prerequisites of a valid marriage include a man and a woman. Even the secular marriage laws under Special Marriages Act, 1954 have the same conditions attached to marriage.
Alas! Though the Constitution ensures that every generation can invoke its principles in their own search for greater freedom, the ever so dynamic law finds itself shackled by the tyranny of erstwhile laws, almost inapt in contemporary times with the glorious ideals of liberty and equality.
While we settle, firmly ensconced with content, we fail to fathom that it’s not just about the magnitude of the population or the number of cases being reported but about the lofty ideals we sought to reaffirm. The need is not just affirmation of the unconstitutionality of sodomy laws in India but also a welfare legislation to recognize the community and their rights.
“The Voice of Justice should never surpass the years of Liberty.”
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