Naz to Navtej and Before

Today we are witnessing a historical era of the judiciary. Last year the apex court delivered judgements such as K S Puttuswamy and Shayara Bano. This year however, with the departure of CJI Dipak Mishra, India witnessed a period of defining judgements and an unshakable stand by the judiciary on matters of national importance. In a matter of weeks, India saw the judiciary take tough calls on long pending matters affecting millions of people and their fundamental rights.

The judgement of Navtej Singh Johar v. Union of India became one of the defining judgements delivered during the plethora of impactful judgements delivered by the apex court. It witnessed an impact both within the country as well as in the international sphere. While the ultimate judgement is a result of concerted efforts of the LGBTQ+ community across the entire country, our understanding of homosexuality, in terms of occurrence and its illegality is largely confined to the contemporary era. It is very important to trace the existence of homosexuality in history in order to understand the grave predicament we might be incurring upon ourselves upon alienating homosexuals as an aberration from society at large.

Brief History of Occurrence of Homosexuality

Ancient Greece was considered to be a sort of utopia, where same sex relationship between males was rife. This was generally known as “paiderastia” (pederasty) meaning “boy love.” The premodern era witnessed a consistent depiction of homosexuals in famous works of Plato, Hadrian, Virgil, Leonardo da Vinci, Michelangelo, Christopher Marlowe, etc. The depiction of homosexuals in art and literature was a direct acknowledgment of homosexuals in society. The permeation of homosexuality into art and literature ushered the discourse across all classes of society.

Hinduism has always been extremely tolerant towards homosexuality and homosexual behaviour. In Vedic society homosexuality was generally accepted and its practice came under the label ‘tritiya prakriti’ or the third sex. The dichotomy that exists in Western societies between biological sex and sexual orientation does not exist in Vedic conceptions, instead these two are put together by their physical and behavioral characteristics to judge one’s psychological identity. Thus, in Vedas, there exist pums-prakriti (men), striy-prakriti (women), and tritiya-prakriti which included the napumsaka (homosexual men) and nastriya or svairini (lesbians). ). The present-day hijras are a testament to the existence of the third sex in Vedic culture. Even many deities have a male, female and third-sexed form, such as Vishnu, Mohini and Vallabhavardhana. The Vedas and Puranas do not refer explicitly to homosexuality, but the people of the third gender ‘tritiya-prakriti’, who are not fully men or women, are mentioned but not defined and are portrayed as effeminate men with no desire for women.

One of the earliest appearance of the term ‘homosexuality’ was in 1869, in an anonymous German pamphlet (Paragraph 175) against the Draft of a Penal Code for North German Confederation written by Karl Maria Kertbeny. This pamphlet advocated the repeal of Prussia’s sodomy laws. The Prussian code included a law prohibiting sexual contact between members of the same sex, which was punishable by one to four years in prison. This law was adopted unchanged and included in the newly formed German penal code as Paragraph 175.

It read: “An unnatural sex act committed between persons of the male sex or by humans with animals is punishable by imprisonment; the loss of civil rights might also be imposed.” Thus, the occurrence and penalising of homosexuality can be traced back to 1869.

Roots in Law Made by Henry VIII in 1533

The provision under Section 377 can be traced back to the reign of Henry VIII in 1533. Justice Rohinton Fali Nariman explicitly elucidated the role played by the laws made by Henry VIII. Section 377 was modelled on Britain’s Buggery Act of 1533 which was brought in by the then King Henry VIII which prohibited “the detestable and abominable offence” of buggery (anal intercourse) committed with mankind or beast. The word “buggery” is derived from the old French word ‘bougre’ and was taken to mean anal intercourse.

The Buggery Act, 1533, which was enacted by Henry VIII, made the offence of buggery punishable by death, and continued to exist for nearly 300 years before it was repealed and replaced by the Offences against the Person Act, 1828. Buggery, however, remained a capital offence in England until 1861, one year after the enactment of the IPC.

A total of 8,921 men were indicted between 1806 and 1900 for “sodomy, gross indecency or other unnatural misdemeanours” in England and Wales. On an average, 90 men per year were indicted for homosexual offences during this period. Fifty-six were executed, and the remainder were either imprisoned or transported to Australia for life.

Indian Law Commission was established in 1833, Thomas Babington Macaulay was appointed as its head. Lord Macaulay’s draft was substantially different from what was finally enacted as Section 377. Lord Macaulay had recognised a lesser sentence for the crime of “unnatural lust”, if performed with consent. This hints at the earliest reference of the importance of consent as a predetermination in the handling of the offence of same sex offences. After several reviews of the draft, the revised edition of the Penal Code and Section 377 was enacted.

Naz to Navtej: The Lead up to Navtej Johar Judgement

Like all historical judgements, the Navtej Johar judgement is a consolidation of concerted efforts by various agencies. Majorly, Naz Foundation can be attributed as the forerunner in sparking a debate to decriminalize Section 377. However, the road from Naz to Navtej was an arduous one, paved with numerous obstacles that would be overcome in a course of almost 2 decades since its inception.

1994: AIDS Bhedbhav Virodhi Andolan vs. Union of India & Ors. is filed before the Delhi High Court asking to repeal Section 377 in its entirety. This is the first instance in which the apex court is approached to to repeal the section.

2001: Naz Foundation files a Public Interest Litigation (PIL) before the Delhi High Court. The major focus being the impinging upon acts done in private and consent as a precondition. This is the first instance of shedding light on the constitutional validity of Section 377 too. They contended that the provision, to the extent that it penalises sexual acts in private between consenting adults, violates the India Constitution, specifically, Articles 14 (equality before the law), Article 15 (non-discrimination), Article 19(1)(a)(d) (freedom of speech, assembly, association and movement) and Article 21 (right to life and personal liberty).

2004: However, The Delhi High Court dismisses the PIL, stating that the concerns raised by the petition are purely academic in nature, hence, cannot be examined by the court. The same year, it dismissed a review petition against its order as well.

2006: Supreme Court allows the challenge to both these orders by Naz Foundation and remits the matter back to the High Court for fresh consideration on merits. The remission being a bright reflection of the fact that the court was indeed in a position to examine the petition and the concerns raised were not purely academic in nature.

2009: The Delhi High Court, in Naz Foundation v. Govt. of NCT of Delhi, decriminalises consensual same-sex sexual relations between adults, opining that the provision “grossly violates [homosexual individuals’] right to privacy and liberty embodied in Article 21 insofar as it criminalises consensual acts between adults in private.”

It ruled that Section 377 violates Articles 14, 15 and 21 of the Constitution of India, observing, “Section 377 criminalises the acts of sexual minorities, particularly men who have sex with men. It disproportionately affects them solely on the basis of their sexual orientation. The provision runs counter to the constitutional values and the notion of human dignity which is considered to be the cornerstone of our Constitution.”

The Centre did not challenge this decision. However, fifteen Special Leave Petitions were filed before the Apex Court by several religious groups from all over the country. The list of opposition to the Delhi High Court judgement included names such as Subramanian Swamy, Baba Ramdev, B. P. Singhal, et al.

December 2013: A two-judge Bench of the Supreme Court in Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors. upheld the constitutional validity of Section 377. It opined that the alleged discrimination and violation of fundamental rights cannot be culled out from the past cases. It further noted that no uniform test could be asserted from these cases to classify acts that would fall under Section 377. Rather, the court stated that acts can only be determined with reference to the act itself and the circumstances in which it is executed.

It then ruled that Section 377 would apply to same-sex couples irrespective of age and consent, observing, “Section 377 does not criminalise a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.”

The court felt that consent and sexual orientation played no part whatsoever in determining the nature of offences. The Apex Court asserted that the High Court had overlooked the fact that “a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgender” and that over the last 150 years, fewer than 200 persons had been prosecuted under Section 377, concluding from this that “this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.”

June 2016: A petition filed by several well-known persons, including dancer N.S. Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur. A Two-Judge Supreme Court bench refers a petition against the provision to the Chief Justice of India to decide whether a Constitution Bench should hear it.

2017: The Supreme Court holds Right to Privacy as a fundamental right, observing that sexual orientation is an “essential component of identity” and the rights of the LGBT community are “real rights founded on sound constitutional doctrine.” The K S Puttuswamy judgement plays a pivotal role in identifying key concepts that go on to become fundamental grounds upon which the court decides to repeal section 377.

The Puttaswamy decision noted that the de minimis hypothesis (Koushal’s reference to LGBTQ population as a ‘miniscule fraction’ and assertion that there had only been 200 prosecutions under the law since its inception in 1860) is misplaced as the invasion of a fundamental right is not rendered tolerable when a few as opposed to a large number of persons are subjected to hostile treatment. A plurality of four judges concluded that it was not specifically overruling Koushal only because that case was still pending in curative proceedings.

January, 2018: Supreme Court refers petitions filed by a few LGBT citizens for consideration by a larger bench. While referring the matter to the Constitution Bench, the bench headed by the CJI noted that Section 377 IPC, in so far as it destroys individual choice and sexual orientation, cannot be regarded as a reasonable restriction on the exercise of one’s fundamental rights. It also observed that the individual autonomy and individual orientation cannot be atrophied unless the restriction is regarded as reasonable to yield to the morality of the Constitution.

10 July, 2018: A bench comprising Chief Justice Dipak Misra, Justice A.M Khanwilkar, Justice D Y Chandrachud, Justice R F Nariman and Justice Indu Malhotra begins hearing the challenge and consequently repealed the section.

This brought redemption to the millions of belonging to the LGBTQ community in and outside India. It was a victory for the Indian judiciary and the perpetual efforts put in by various groups and individuals since Naz Foundation in 2001. Indeed, a historical day for the judiciary and all Indians.

Abhilash Pattnaik

Intern

Reference

Ruth Vanita and Saleem Kidwai, ‘Same Same Sex Love in India: Readings from Literature and History’ (St. Martin Press, 2000).

Aradhana Cherupara Vadekkethil, ‘Decriminalising Homosexuality in India: The Long, Twisted Road of Section 377’ (Oxford Human Rights Hub, 27th February 2018).

The views and opinions expressed are those of the author and do not necessarily reflect the official position of the organisation.