35 Recent Developments through the Judiciary

1. Learning Outcome

The purpose of the chapter is to provide a brief overview of important cases pertaining to the rights of LGBT persons.

2. Introduction

The role of the judiciary is an integral part of the LGBT movement seeking rights for LGBT persons under the constitution. LGBT persons have approached the higher courts to decriminalise adult homosexual relationships by reading down section 377 of the Indian Penal Code that penalises adult same sex relationships. The Supreme Court has also been approached to assert the rights of transgender persons. Three important decisions is this regard are Naz Foundation v Government of NCT Delhi and Others, Suresh Kumar Koushal v Naz Foundation and National Legal Services Authority (NALSA) v Union of India. We will look into each of these cases in some detail.

3. Constitutional Validity of Section 377 of the Indian Penal Code

Section 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 10 years, and shall be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

Section 377 is a colonial law which finds its place in the Indian Penal Code since the year 1860. This section has many problems and violates fundamental rights under the Constitution. The section does not take into consideration consent of the persons indulging in the sexual acts which are described in the section as ‘carnal intercourse against the order of nature’. Also, the section does not speak about the age of the persons involved and thus becomes applicable to consenting adults as well. Though the section looks neutral i.e. it applies to people irrespective of their sexual orientation of gender identities, in its application it has primarily been used to persecute and prosecute members of the LGBT community.

3.1 Naz Foundation v NCT of Delhi

A constitutional challenge was made to this provision of law before the Delhi High Court in 2001 on the grounds that it is against the fundamental rights of LGBT persons. After almost a decade, the Delhi High Court, on July 02, 2009 held that, “section 377 IPC, insofar it criminalises consensual sexual act of adults in private, is violative of Article 21, 14 and 15 of the Constitution.” The High Court concluded that the law violates the rights to equality, right against discrimination and the right to life which includes the right to dignity and right to privacy under articles 14, 15 and 21 respectively of the Constitution of India. The court stated that public morality i.e. majority opinion is not a ground to limit a person’s fundamental rights and constitutional morality ought to be the test.

“Popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as district from a constitutional morality derived from constitutional values, is based on shifting and subjective notions of right and wrong. If there is any type of ‘morality’ that can pass the test of compelling state interest, it must be ‘constitutional’ morality and not public morality.”

This judgment was widely welcomed by LGBT persons and the country saw a lot of celebration in welcoming the judgment. The progressive potential of the judgment was immense and had larger implications not just to LGBT persons but also other minorities. Many LGBT persons asserted their identity and came out as lesbian, gay, bisexual and transgender to their family, friends and at their workplace. With the renewed confidence which was the result of the judgment, there were many queer events organized and many support spaces came into existence.

Though this judgement now stands overruled in light of the decision of the Supreme Court of India in Suresh Kumar Koushal v Union of India discussed below, it is important to understand some of the key aspects of the Delhi High Court’s decision.

On right to life and dignity, the court said,

“At its least, it is clear that the constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society. It recognises a person as a free being who develops his or her body and mind as he or she sees fit. At the root of the dignity is the autonomy of the private will and a person’s freedom of choice and of action. Human dignity rests on recognition of the physical and spiritual integrity of the human being, his or her humanity, and his value as a person, irrespective of the utility he can provide to others.”

The right to privacy is read into Article 21 of the Indian Constitution guaranteeing the right to life. Elaborating on this, the court held that,

“In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21. Section 377 IPC denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution. As it stands, Section 377 IPC denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution.”

It is pertinent to note that though section 377 does not mention any class of persons like gay, lesbian, transgender or bisexual, it is often used against LGBT persons. While clarifying this, the court observed,

“When everything associated with homosexuality is treated as bent, queer, repugnant, the whole gay and lesbian community is marked with deviance and perversity. They are subject to extensive prejudice because what they are or what they are perceived to be, not because of what they do. The result is that a significant group of the population is, because of its sexual non-conformity, persecuted, marginalised and turned in on itself… The inevitable conclusion is that the discrimination caused to MSM and gay community is unfair and unreasonable and, therefore, in breach of Article 14 of the Constitution of India.”

A crucial idea that the court relied on to affirm the rights of LGBT persons is that of ‘constitutional morality’.

The court noted:

“Popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjective notions of right and wrong. If there is any type of “morality” that can pass the test of compelling state interest, it must be “constitutional” morality and not public morality… Moral indignation, howsoever strong, is not a valid basis for overriding individual’s fundamental rights of dignity and privacy. In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.”

Thus the court placed a higher threshold of understanding morality as opposed to popular morality.

3.2 Suresh Kumar Koushal v Union of India

Within a few days after the judgment of the Delhi High Court decriminalizing homosexuality, Suresh Kumar Koushal, an astrologer by profession approached the Supreme Court against the judgment of the Delhi High Court. On December, 11, 2013, the Supreme Court of India recriminalized homosexuality and held that, “section 377 does not suffer from any constitutional infirmity”. The court mentioned that Lesbian, Gay, Bisexual and Transgender persons constitute a miniscule fraction of the country’s population. The reasoning of the Supreme Court is flawed on many counts. The Court relied on instances of section 377 being used to prosecute persons who have indulged in non-consensual sexual assault by way of sodomy and came to a conclusion that section 377 is constitutionally valid.

It is important to note that the Supreme Court has held that only sexual acts covered under section 377 IPC are penalised and not identities or persons. The court has held that, “Section 377 does not criminalize a particular people or identity or orientation. It merely defines certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.” Thus, it can be concluded that it is not an offense to identify as gay or homosexual but it is only the act described in section 377 that is penalised.

The judgment was received by way of protests globally. The message by the protesting LGBT persons and their ally was clear, ‘No Going Back’. LGBT persons affirmed that all the good that was done by way of the Delhi High Court judgment will not be undone by the Supreme Court’s judgment. A review petition was filed before the Supreme Court challenging the judgment is Suresh Kumar Kaushal. The review petition was accompanied by affidavits of persons who were persecuted and prosecuted under section 377. However, the review petition was dismissed in no time. A curative petition is now pending before the Supreme Court seeking that section 377 be read down.

3.3 The legal road ahead

In the Suresh Kumar Kaushal judgment, the Supreme Court has also held that, “the competent legislature shall be free to consider the desirability and propriety of deleting section 377 made by the Attorney General”. The curative petition is also pending before the Supreme Court of India. Attempts are being made to urge the legislature to amend section 377 appropriately. There is also a move to amend section 377 suitably to not apply to consenting adults, at the state level since criminal law can be amended by the state governments also.

4. Constitutional Rights of Transgender Persons

4.1 National Legal Services Authority v Union of India

The National Legal Services Authority, a statutory body under the Legal Services Authority Act, 1987 petitioned the Supreme Court to affirm the rights of transgender persons. Subsequently, the court constituted an expert committee of the issues relating to transgender persons. The committee made exhaustive recommendations to ensure that the rights of transgender persons were secured. The court accepted all the recommendations in toto and directed the central government and state governments to implement the recommendations within a period of six months.

The Apex court held that fundamental rights of transgender persons under Article 14, Article 15, Article 16 and Article 19 (1) (a) i.e. the right to equality, right to non-discrimination and the right to freedom expression respectively. Further, the Court has asserted the rights of transgender person to identify them as male, female or third gender. The Court has made is clear that self identification is the only basis and “any insistence for SRS (sex reassignment surgery) for declaring one’s gender is immoral and illegal”.

While upholding the tight to freedom of speech and expression of transgender persons, the court on para 66 noted:

“Gender identity, therefore, lies at the core of one’s personal identity, gender expression and presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of India. A transgender’s personality could be expressed by the transgender’s behavior and presentation. State cannot prohibit, restrict or interfere with a transgender’s expression of such personality, which reflects that inherent personality. Often the State and its authorities either due to ignorance or otherwise fail to digest the innate character and identity of such persons. We, therefore, hold that values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) of the Constitution of India and the State is bound to protect and recognize those rights.”

The court upheld the right to self identification i.e. transgender persons will self identify their gender and they shall not be asked to go through any medical process. While elaborating on the understanding of gender identity, the court held as follows:

“Gender identity is one of the most-fundamental aspects of life which refers to a person’s intrinsic sense of being male, female or transgender or transsexual person. A person’s sex is usually assigned at birth, but a relatively small group of persons may born with bodies which incorporate both or certain aspects of both male and female physiology. At times, genital anatomy problems may arise in certain persons, their innate perception of themselves, is not in conformity with the sex assigned to them at birth and may include pre and post-operative transsexual persons and also persons who do not choose to undergo or do not have access to operation and also include persons who cannot undergo successful operation. Countries, all over the world, including India, are grappled with the question of attribution of gender to persons who believe that they belong to the opposite sex. Few persons undertake surgical and other procedures to alter their bodies and physical appearance to acquire gender characteristics of the sex which conform to their perception of gender, leading to legal and social complications since official record of their gender at birth is found to be at variance with the assumed gender identity. Gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body which may involve a freely chosen, modification of bodily appearance or functions by medical, surgical or other means and other expressions of gender, including dress, speech and mannerisms. Gender identity, therefore, refers to an individual’s self-identification as a man, woman, transgender or other identified category.

After due consideration, the court declared the following:

• Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.
• Transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.
• We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.
• Centre and State Governments are directed to operate separate HIV Sero-survellance Centres since Hijras/ Transgenders face several sexual health issues.
• Centre and State Governments should seriously address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and illegal.
• Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities.
• Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.
• Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.
• Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life.

Further, the court also took note of the expert committee’s recommendations placed before it. The court has directed the Centre and State governments to implements all the recommendations within a period of six months. Despite the lapse of time, this is yet to become reality. While seeking compliance of the report (report is briefly discussed in the next section), the court held:

We are informed an Expert Committee has already been constituted to make an in-depth study of the problems faced by the Transgender community and suggest measures that can be taken by the Government to ameliorate their problems and to submit its report with recommendations within three months of its constitution. Let the recommendations be examined based on the legal declaration made in this Judgment and implemented within six months.

4.2 Report of the Expert Committee on the Issues relating to Transgender Persons

The expert committee report is an exhaustive report making elaborate recommendations on a range of issues faced by the transgender community. The committee recommends that at every state a state level transgender welfare board has to be set up and at every district level a district screening committee should be set up to inter alia issue certificate that a person is a transgender person. The report also recommends that various welfare schemes that already exist like MGNREGA, National Rural Livelihood Mission, National Social Assistance Programme etc, should be made available for the transgender community as well. Further recommendations suggests changes in rape laws, provides a way forward to address stigma, discrimination and violence against transgender children and adolescents, addressing concerns of housing, healthcare, education, representation in media and society, concerns of elderly transgender person and subsidizing safe and up to date sex reassignment procedures.

Reference

1. Naz Foundation v. NCT of Delhi, (2010) Cri LJ 94 (Delhi)
2. Suresh Kumar Koushal v. NAZ Foundation, AIR 2014 SC 563.
3. NALSA v. Union of India, Writ Petition (Civil) No. 400 of 2012].