In a recent landmark unanimous verdict, Navtej Singh Johar v. Union of India (Johar case), a five judge bench of the Supreme Court of India, partially struck down Section 377 of the Indian Penal Code (IPC), which made “carnal intercourse against the order of nature” a criminal offence punishable with life imprisonment. The genesis of this archaic provision can be traced back to a time when the Indian society highly stigmatized the existence of the LGBTQI community. Despite evolution and advancement, this provision remained a tool of oppression used against the Indian LGBTQI community and its decriminalization marks a momentous recognition of basic human rights in the country. The fight against this provision commenced in 2009, when a bench of the Delhi High Court held the provision to be unconstitutional, in a decision that was unfortunately short-lived. In an appeal, a division bench of the Supreme Court (in 2013) overturned the High Court’s verdict, upholding the constitutionality of Section 377 on the ground that minorities’ interests cannot supersede that of majorities’. With the recent Supreme Court decision reading down Section 377, the 2013 verdict now stands overturned.
Jurisprudence validating the rights of the LGBTQI community can be traced in yet another relatively recent landmark judgment of the Supreme Court of India in National Legal Services Authority (NALSA) v. Union of India (2014) where the Court recognized transgender as a third sex. In a separate concurring judgment delivered by Justice Dr. A. K. Sikri, the Court interpreted the articles 14, 19 and 21 of the Constitution of India to include the right to gender identity and sexual orientation, and held that just like men and women, transgender persons have equal rights to enjoy all the fundamental rights as enshrined under the Constitution. The Court held that the right of choice given to every individual is an inseparable part of human rights.
In the Johar case, the Court was faced with the question of interpretation of the word ‘natural’ contained in Section 377 of the IPC. The expression ‘against the order of nature’ has not been defined in any of the provisions of the IPC. The connotation given to the expression by various judicial pronouncements included all sexual acts not intended for the purpose of procreation. The Johar Court held that a person’s sexual orientation itself is natural. Further, Justice Dr. D. Y. Chandrachud observed that in addition to the problem regarding the indeterminacy of the terms, there is a logical fallacy in ascribing legality or illegality to the ostensibly universal meanings of ‘natural’ and ‘unnatural’ as is pointed out by Shamnad Basheer, Sroyon Mukherjee and Karthy Nair.
‘Transformative constitutionalism’, ‘constitutional morality’ and ‘progressive realization of rights’ were some of the guiding principles that the Court took into consideration while reading down Section 377. There are, however, several dimensions to this landmark judgment, two of which can be of particular interest to the Global Health Community:
Right to Health (including Mental Health)
The right to health has long been, through numerous judicial pronouncements, read into the right to life and liberty under the Indian Constitution. At the same time, the LGBTQI community in India, has for far too long been pushed out of the public health system, constantly being stigmatized by health providers and other service providers in the health care industry. The queer community in India has been at the center of health inequality and discrimination. This deprives them of their entitlement to a system of health care that gives everyone an equal opportunity to enjoy the highest attainable level of health. The right to health encompasses not just the absence of disease or infirmity, but complete physical, mental and social well-being.
Application of Section 377 of the IPC denied the LGBTQI community full realization of their right to health, which includes sexual health. The Court has confirmed that Section 377 forces consensual sex between adults into a realm of fear and shame, as persons who engage in anal and oral intercourse risk criminal sanctions if they seek health advice. The LGBTQI community is forced to live a ‘closeted’ life, which in turn, seriously disadvantages and prejudices them when it comes to equal access to health care facilities and health outcomes. For example, the Court cited an Indian Journal Medical Research article showing that the silence and secrecy that accompanies institutional discrimination may foster conditions which encourage escalation of the incidence of HIV/AIDS.
Mr. Anand Grover, in his submissions to the Court, highlighted the vulnerability of men who have sex with men (MSM) and transgender persons. The Global Commission on HIV and the Law has noted the impact of Section 377 on the right of health of persons afflicted with or vulnerable to contracting HIV. The Commission reported that MSM were found to be 19 times more susceptible to be infected with HIV than other adult men. The Court referred to the findings of the Human Rights Committee of the United Nations in Nicholas Toonen v. Australia, wherein the Committee noted that the criminalization of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of HIV/AIDS. In 2017, the Indian Parliament enacted the HIV and AIDS (Prevention and Control) Act recognizing the importance of prevention and control of the spread of HIV/AIDS particularly in vulnerable groups such as MSMs.
The criminal nature of Section 377 and the social stigma that it attracted, has also been detrimental to the mental health of the LGBTQI community in India. The Court noted that the mental health of citizens “growing up in a culture that devalues and silences same-sex desire” is severely impacted. Taking cognizance of the situation, very recently, the Indian Parliament enacted the Mental Healthcare Act 2017 that specifically provides for the right to access mental health care and equal treatment of people with physical and mental illnesses without discrimination, particularly, on the basis of “sexual orientation”.
Right to Sexual Privacy
While testing the constitutional validity of Section 377 of the IPC, the Court gave due regard to the elevated right to privacy that was recently proclaimed a fundamental right by the Supreme Court of India in K.S. Puttaswamy & Anr. v. Union of India & Ors. . Justice Indu Malhotra while dwelling upon the LGBTQI community’s right to privacy, observed that the right is not simply the “right to be let alone”. Justice Malhotra noted that the right has travelled far beyond that initial concept, incorporating the ideas of spatial privacy and decisional privacy (otherwise known as privacy of choice). The right to privacy includes the right to make fundamental personal choices, including those relating to intimate sexual conduct, without unwarranted State interference.
Section 377 affected the private sphere of the lives of LGBTQI persons and it blatantly took away the decisional autonomy of LGBTQI persons to make choices consistent with their sexual orientation. Hence the Court did not hesitate, and rightly so, held the provision to be unconstitutional and appropriately widened the scope of the right to privacy to now incorporate a right to ‘sexual privacy’ to protect the rights of sexual minorities. The Court stated that ‘the right to sexual privacy must be granted the sanctity of a natural right, and be protected under the Constitution as fundamental to liberty and as a soulmate of dignity.’
The Road Ahead
Today the LGBTQI community world over has another reason to celebrate. But the work for LGBTQI and health promotion advocates in just beginning. The Johar case marks the end of an archaic and discriminatory law and opens the door to stronger promotion of physical and mental health among the LGBTQI community. Inequity in reproductive health, in India and globally, violates the right to health. It is imperative that the government, global and public health advocates, and the LGBTQI community work together to improve the quality, availability and effectiveness of health services available to LGBTQI persons.
In the official trailer for the upcoming film based on Justice Ruth Bader Ginsburg’s life, “On the Basis of Sex”, Justice Ginsburg is seen saying to a political activist “Protests are important, but changing the culture means nothing if the law doesn’t change”. I would proudly say – but today, it has!!
This blog was written by Kashish Aneja, B.A. LL.B. (H), LL.M. candidate in Global Health Law and International Institutions, Georgetown University Law Center and the Graduate Institute, Research Assistant at the O’Neill Institute.