Written by Preeti Singh, PhD Scholar at Dr RMLNLU, Lucknow
The phrase “right to Love” has many connotations attached to it. One of such is right to love of an individual that emerged from the recent landmark judgment of apex court on 6th September 2018 in Navtej Singh Johar v. Union of India[i]. This marked a historic victory for the struggle of thousands of the people across the country in creating the visibility and space for the recognition of rights of LGBT persons in India by partly striking down Section 377 of Indian Penal Code, 1860 which criminalized “carnal intercourse against the order of nature” and declared it unconstitutional so far it criminalized consensual sexual conduct between adults of the same sex. This case resulted in overruling of court’s own judgment in Suresh Koushal v. Naz Foundation[ii] that had upheld the constitutionality of Section 377 IPC on the ground that “only a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgender (LGBT)”.
In India, the rights of the individual as male and female are recognised from the very beginning of society. Howsoever, there were a lot of differences among the recognition of rights of male and female because of the patriarchal nature of Indian society. Nevertheless, equality to some extent, if not in totality, is achieved among the rights of male and female with the demanding needs of the society. For example equal pay for equal work, female as the Karta of the family, representation of females in the areas of lawmaking, sports, service and many others. Thus, the principle of equality among male and female is addressed with the passage of the time and many changes are also taking place as per the demands of the society.
But, the problem comes up to the recognition of the rights of the transgenders along with male and female. The reason is the non-acceptance of transgenders by the society from time immemorial. Our society has not accepted the transgenders as what they are i.e. they were not treated equally in terms of rights in the society as available to male and females. Therefore, this inequality is against the fundamental right to equality guaranteed to all person under article 14 in India[iii]. Henceforth, the need for the recognition of the rights of transgenders was felt which lead to recognition of transgender as the third gender in the society. The Supreme Court in the case of National Legal Services Authority (NALSA) v. Union of India[iv] held that it is a right of a person to have the gender of his/her choice and transgenders are to be treated as “third gender” for the purposes of safeguarding and enforcing appropriately their rights guaranteed under the Constitution. This case, therefore, recognised “right to choice” of an individual under Article 21 which guarantees right to life and personal liberty of an individual.
Further, the Supreme Court in 2017 in the case of K.S. Puttaswamy (Retd.) and Anr v. Union of India[v] expanded the horizons of Article 21 to include “right to privacy” to the pedestal of a fundamental right and privacy is intrinsic to liberty and freedom guaranteed under the Constitution of India. Thus, it was like putting a nail in the coffin of Section 377 of Indian Penal Code, 1860 (IPC).
Moreover, the Supreme Court in 2018 in its decisions in Shafin Jahan v. Asokan K.M[vi]and Shakti Vahini v. Union of India[vii] also paved the way for “right to choose” i.e. the right of every adult to choose a life partner of his/her choice is a facet of individual liberty.
In the same streamline in 2018, the five-judge bench of the Supreme Court in the case of Navtej case[viii] unanimously held that Section 377 IPC, insofar as it applied to consensual sexual conduct between adults of the same sex in private was unconstitutional. This restored the judgment of Delhi High Court in Naz Foundation v. Govt. of NCT of Delhi[ix] which already read down Section 377 to exclude sexual conduct between consenting adults in private saying it violative of Article 14, 15, 19 and 21 of the Constitution.
All this lead to the origin of new right i.e. “right to love” which resulted by the decriminalisation of homosexuality through the judgment of the supreme court in 2018. Section 377 IPC was modelled on the 16th-century law, called the Buggery Act, 1533.[x] This law of England also found its way to India through the recommendation of the first law commission of India under Thomas Macaulay and it has survived as Section 377 from thereafter.[xi] It has now continued for centuries in India even though it has been discarded in Britain a long time back. It was repealed and replaced by the Offences Against the Person Act 1828[xii], and buggery would remain a capital offence in England and Wales until the enactment of the Offences against the Person Act 1861. The United Kingdom Parliament repealed buggery laws for England and Wales in 1967 in so far as they related to consensual homosexual acts in private.
Justice Dr Dhananjaya Y Chandrachud has very aptly advocated for the recognition of the right to love of the homosexuals. He reiterated the words of Justice Leila Seth that what makes life meaningful is love. The right that makes us human is the right to love. To criminalize the expression of that right is profoundly cruel and inhumane. To acquiesce in such criminalization, or worse, to recriminalize it, is to display the very opposite of compassion. To show exaggerated deference to a majoritarian Parliament when the matter is one of the fundamental rights is to display judicial pusillanimity, for there is no doubt, that in the constitutional scheme, it is the judiciary that is the ultimate interpreter.[xiii]
He expressed his views totally against the 158 years old colonial legislation that made it criminal even for consenting adults of the same gender to find fulfilment in love. He says that the law deprived them of the simple right as human beings to live, love and partner as nature made them. The human instinct to love was caged by constraining the physical manifestation of their sexuality. Gays and lesbians were made subordinate to the authority of a coercive state. A charter of morality made their relationships hateful. The criminal law became a willing instrument of repression. To engage in ‘carnal intercourse’ against ‘the order of nature’ risked being tucked away for ten years in jail. The offence would be investigated by searching the most intimate of spaces to find tell-tale signs of intercourse. Civilisation has been brutal.[xiv]
Henceforth, it was held in this case that the right to love and to a partner, and to find fulfilment in a same-sex relationship is essential to a society which believes in freedom under a constitutional order based on rights.[xv] In totality, now section 377 IPC will no more be used as a weapon for the harassment of the LGBT community by subjecting them to discrimination and unequal treatment. The law cannot discriminate against same-sex relationships. It must also take positive steps to achieve equal protection.
Although, in India, there are a lot of issues when it comes to inter-caste, inter-community or LGBT Community relationships because of the limits imposed by the structure of the society in the name of caste, class, religion, community, sex or gender.
Therefore, the right to love is not just a separate battle for LGBT individuals, but a battle for all. Henceforth, the constitutional morality should always be given importance against societal morality because the law of the land itself prohibits any kind of discrimination in the name of caste, colour, religion, sex or gender in its spirit and it is the duty of the courts to interfere whenever called upon to do so.
An article by Preeti Singh, PhD Scholar at Dr RMLNLU, Lucknow. The author can be contacted at firstname.lastname@example.org
[i] (2018) 1 SCC 791.
[ii] (2014) 1 SCC 1.
[iii] The Constitution of India, 1950, Article 14-The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
[iv] (2014) 5 SCC 438.
[v] (2017) 10 SCC 1.
[vi] 2018 (5) SCALE 422.
[vii] (2018) 7 SCC 192 .
[viii] (2018) 1 SCC 791.
[ix] 160 (2009) DLT 277.
[x] The Buggery Act 1533 was an Act of the Parliament of England in 1533 that was passed during the reign of king Henry VIII. Buggery included sodomy between men and women, and unnatural sex by a person with an animal. Thus, buggery refers to anal intercourse and covers bestiality. Buggery was punishable by death under the Act of 1533.
[xi] In pursuance of the authority conferred by Sec. 53 of the Charter of 1833, the first Law Commission was appointed in India in 1834. The commission consisted of Lord T.B. Macually, as chairman and 4 members namely, C.H. Cameron, J.M. MacLeod, G.W. Anderson and F. Millet. The members of the commission prepared a draft penal code which they submitted to lord Auckland, the Governor General on 2nd May, 1837. Thus the draft code became law in 1860, and the said code is still continuing in the country for the administration of criminal justice.
[xii] The Offences against the Person Act 1828, Section 1.
[xiii] Justice Leila Seth, A mother and a judge speaks out on Section 377, The Times of India, 26 January, 2014, (Feb. 25, 2019, 3:31 PM) https://timesofindia.indiatimes.com/home/sunday-times/deep-focus/A-mother-and-a-judge-speaks-out-on-section-377/articleshow/29383723.cms.
[xiv] Navtej Singh Johar v. Union of India, (2018) 1 SCC 791, Judgment by Hon’ble Dr. Justice Dhananjaya Y Chandrachud, part A, para 2.
[xv] Id. at part J, point 5, page 143.