Possible Impact of Navtej Singh Jauhar v. Union of India(Sept 6, 2018) [(2018) 1 SCC 791]:[1]A Futuristic Analysis

Anurag Deep, LLM (BHU) PhD (Gorakhpur)

Associate Professor, The Indian law Institute

Democracy does not mean rule by majority only. While elections based on vote shares is an essential tool to decide who will move the chariot of a democratic country, democracy based on constitutionalism is judged by the enforcement of democratic values of equality, liberty and dignity of “we the people” and not “we the majority.” These values enshrined in the preamble of the Constitution of India are not only educative or persuasive in nature but also decisive for present and future of India some time. People who display alleged deviant behaviour cannot be deprived of dignity.

Navtej Singh Johar case (popularly called as 377 or LGBT or homosexuality judgement) reflects the decisive dominance of constitutional values over intentions of the majority. Section 377 of the Indian Penal Code, 1860 criminalised “carnal intercourse against the order of nature with any man, woman or animal” irrespective of the conduct being consensual or non consensual, among adults or non adults and in private or in public. The constitutional validity of a part of this provision which made consensual sex under section 377 penal was challenged before the Delhi high court mainly by LGBT community in the case of Naz Foundation v. Government of NCT of Delhi.[2] The Division Bench led by AP Shah, J. (with S Murlidhar) declared the consensual part of section 377 as partially unconstitutional and violative of article 14, 15 and 21. The high court judgement was challenged before a Division Bench of the Supreme Court in the case of Suresh Kumar Koushal v. Naz Foundation,[3] where the high court verdict was set aside. A review petition was also filed before the Supreme Court which was rejected. Then a curative petition was filed which was finally heard by a Constitution Bench in the case of Navtej Singh Jauhar. In a unanimous verdict, section 377 of IPC was partially declared as unconstitutional for violation of article 14, 15, 19 and 21. Suresh Kumar Koushal was overruled and Naz Foundation was restored. The judgement was unanimous where Deepak Misra, CJ (with A.M. Khanwilkar, J.), delivered the lead opinion to which RF Nariman, DY Chandrachud, Indu Malhotra, JJ. concurred in their a four separate opinion.

Consequently, alleged ‘unnatural sex’ between male to male, female to female and male to female has been decriminalized provided the conduct qualifies three elements; if it is between adults; it is voluntary and if it is in private. In other words, actus reus of unnatural sex is recognised as criminal in three situations, (i) any sexual conduct described under section 377 between non-adults (below the age of 18 years) even if it is voluntary and consensual, [maturity rule] (ii) If such conducts are forceful, non-consensual, or involuntary; they are still penal, [harm rule] (iii) Any sexual conduct with animal is still penal even if an adult is involved in it, [manifestly unnatural rule]

The judgement of the Supreme Court received mixed reactions. While LGBTQ community was elated, intellectuals in general and media have hailed the decision as the restoration of democratic values. Legal community is sharply divided. Many politicians are generally neutral. Most of the religious leaders and those who feel very passionate for traditions and culture are disappointed by the judgement. There is a feeling that the Supreme Court has imported the western idea of liberty and sexual autonomy in Indian jurisdiction, which is not suitable for this country. This author has interacted with many critics of the judgement and found that most of the criticism is because of ignorance as to natural sexual orientation. Many among us used to believe that homosexual relationship was a departure from normal human conduct which was controllable like conspiracy, theft, or bigamy. We wrongly believed that any sexual attraction between same sexes is unnatural and is product of some devils desire while science established long back that there is no un-naturality in an attraction towards same sex. Most of us wrongly presumed that same sex attraction is a disease which can be cured or is something out of choice which can be checked by inflicting pain. Therefore, they rush to an incorrect inference that medical and legal measures are essential remedy. Since 1860 we religiously followed an uninformed hypothetical misplaced moral norm and supported criminalisation with closed eyes. That is why Nariman, J. In Navtej Singh Jauhar rightly directed the government to give wide publicity of the judgement so that the cloud of ignorance and wrong believes be removed as early as possible. I have doubts if the government has discharged this obligation of wide publicity because I have not seen enough government advertisement on media channels or hardly received any sms in my cell phone nor my friends have experienced differently.

Possible impact of the decision may be manifolds. A few hypothetical cases may be taken as illustrations.

(I) H1 and H2 are Hindu male. They want to marry. They go to a temple with friends. The pandit declines marriage on the ground that Hindu marriage is a sacrament. Customary and traditional Hindu law permits marriage between two opposite sex only. Moreover, section 5(iii) of the Hindu Marriage Act, 1955 states that “ the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage.” Bridegroom necessarily indicates a male and bride necessarily indicate a female. Therefore, neither custom, nor statute allows him to solemnize any marriage between same sexes. Aggrieved by such denial, H1 approaches the high court under article 226 for necessary directions or writ. H2 approaches the Supreme Court under article 32. They argue that pandit is duty bound to solemnize marriage and a writ of mandamus be issued. They also argue that this duty of pandit is a mandatory public duty. A pandit cannot deny this public function on the ground that both parties are of same sex. The Hindu Marriage Act, 1955 does not use the word male or female. They are also not covered under prohibited degrees or sapindas. They also move a contempt petition against pandit for willful disobedience and virtual denial of Navtej Singh Jauhar judgement. They also challenge the constitutional validity of section 5(iii) of the Hindu Marriage Act, 1955. They request the constitutional courts to read down section 5(iii) so that bridegroom or bride covers person of same sex also. Literal or dictionary meaning will negate the judgement. Therefore, new and liberal interpretation is required to give effect of the (377) judgement.

(II) H3 and H4 are female. They apply to get their marriage contracted under the Special Marriage Act, 1954. The concerned officer rejected their application referring section 4(c). According to this section, one of the necessary conditions is that “the male has completed the age of twenty-one years and the female the age of eighteen years.” H3 and H4 approach the Supreme Court under article 32 of the Constitution of India. They challenge the constitutional validity of section 4(c) of Special Marriage Act, 1954. They argue that this provision goes against the Constitution Bench judgement of Navtej Singh Jauhar as well as NALSA. NALSA has already recognised a third category. The provision violates articles 14, 15(1), 19 (1)(a) and 21.

(III) Suppose H1 and H2 ( both males) gets married by pandit with Hindu rituals and saptpadi. After two month of marriage, H1 dies with self acquired properties. H2 applies for succession certificate. The authorities refuse granting a succession certificate because H2 is not female and not wife. The validity of the refusal order and related provision is challenged.

(IV) Suppose H1 and H2 (both males) after getting married want to purchase a property in the name of H2. H1 and H2 claim concession in registration of sale deed. Such concession in registration is available to female members of family. Registry department refuses to grant concession because H2 is not a female. H1 and H2 challenge the validity of the refusal order and related provision.

(V) H3 and H4 are female. They want to purchase a property in a residential society. The property owner refuses to sell because the owner does not want to sell property to a homosexual. H3 and H4 approach the police or District Magistrate. The owner states that he cannot sell the property because they are homosexuals. They also approach courts under article 226 and 32 for suitable remedy.

(VI) H3 and H4 are female and are homosexual. They work in a shop. After three months, the owner discovers that H3 and H4 are homosexuals. The owner tells them to leave the job because they are homosexuals. What are the remedies available to them? Similarly, if H3 and H4 are tenant. After three months the owner asks them to vacate the flat as the room cannot be given to a homosexual. Is there any remedy available to them?

(VII) H5 (a transgender who recognises herself as woman) alleges that A1 passes lewd remark against her, tries to touch inappropriately. A1 tries to “outrage her modesty.” H5 approaches a police station. The police says that section 354 of IPC is a gender specific provision and is applicable only when the victim is a woman. A1 is not a female but a third gender. Therefore a case under section 354 cannot be instituted. The police further state that section 354A of Indian Penal Code, though gender neutral, is intended for the same i.e. to use when the victim is a woman.[4] However, the High Court of Delhi has read the provision literally and on face value. They directed that police can proceed because section 354A is gender neutral.[5] Police has directed to lodge a case under section 354A. H5 also expressed the desire not to proceed further because her demand to lodge a case was fulfilled. Suppose H5 insists that the case be also instituted under section 354 because she is a woman or section 354 ought to be read into to incorporate third gender like me also.

The executives and the courts will have to face similar situations for which positive steps need to be taken with liberal mind. Courts would be required to issue protection orders in some cases. Some of these may be easy to decide like, contempt or direction against Pundit (first hypothetical illustration) but others would be hard cases. The Parliament needs to make suitable amendments to give consequential effect to 377 judgements. If such cases entreat for the jurisdiction of constitutional courts, the courts should not hesitate passing orders under article 226 or article 32/142 of the Constitution of India. A small but significant development is the Transgender Persons (Protection of Rights) Act, 2019 which was passed by the Parliament. Section 3(e) of the Transgender Act expressly prohibits “denial or discontinuation of, or unfair treatment with regard to, access to, or provision or enjoyment or use of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public or customarily available to the public.” Section 3(g) further prohibits “the denial or discontinuation of, or unfair treatment with regard to the right to reside, purchase, rent, or otherwise occupy any property.” Section 18 (c) punishes anyone who “forces or causes a transgender person to leave household, village or other place of residence.” We need similar measures to be incorporated expressly for homosexuals.