The LGBTQ communities had a long walk to equality. The long standing 157-year-old law which criminalized consensual intercourse between adults including homosexuality and other forms of carnal intercourse, if it is against the order of nature, was struck down as unconstitutional for being against the basic ideals of equality and privacy which is the essence of life.
History owes an apology to the members of LGBTQ community and their families, for the delay in providing redressal for the ignominy and ostracism that they suffered through the centuries. The Court in Navtej Singh Johar versus Union of India, 2018, created history by analysing the focal point of issue, where Section 377 criminalizing even consensual sexual intercourse between adults. The section in view of the Lordships fails to take into account that consensual sexual acts between adults in private space are neither harmful nor contagious to the society.
The Honourable Court while overruling Suresh Kumar Koushal & Anr versus Naz Foundation & Ors 2013, highlighted the principle of “Transformative Constitutionalism” and held that our Constitution is a great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy.
The Honourable Court while identifying the importance of identity, highlighted the magnificent principle of “Constitutional Morality”. The court observed that, constitutional morality is not confined to the provisions and literal text which a Constitution contains, rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society.
The Orissa High Court on 24th August, 2020 allowed the petition of a 24-year-old woman to get back her same-sex partner who was forcibly separated from her by the partner's (Rashmi) Mother and Uncle.
Background of the Case
The petitioner in the present matter originally a female had exercised his rights of self-gender determination and preferred to be addressed as 'he/his’. Therefore, the court recognized the petitioner's right to be treated like a male and referred him as he/him/his throughout the proceedings.
This ruling emanates from an application filed under Article 226 and 227 of the Constitution of India, 1950 in which the petitioner-Chinmayee Jena, aged about 24 years had approached the Court with the grievance that his life partner "Rashmi" (not the original name, which is withheld) had been forcibly taken away by her mother and uncle. In fact, while they were residing so, in a live-in relationship (both having attained the age of majority), on 09.04.2020.
The petitioner, therefore, prayed for issuance of a writ of Habeas Corpus directing opposite parties to produce his partner of the petitioner before the Court.
The court through Justice S.K. Mishra rightly held, “There is hardly any scope to take a view other than holding that the petitioner has the right of self-determination of sex/gender and also he has the right to have a live-in relationship with a person of his choice even though such person may belong to the same gender as the petitioner.”
The court balanced with social expectations and norms and held that, “Love knows no bounds has expanded its bounds to include same sex relationships”.
Story of a Novelist
The next few paragraphs deal with a brief story about a well-known Indian personality, the son of Prem Seth and Leila Seth, who was the first woman Chief Justice of a High Court in India.
Best known for his novel ‘A Suitable Boy’, Vikram Seth has been a renowned face in the literary circles for more than three decades and is regarded as one of the most influential writers of the modern era.
Son of Prem Seth and Leila Seth, who was the first woman Chief Justice of a High Court in India, Seth studied at some of the best schools in the country before going to England for higher studies.
One of the openly gay personalities in India, the Padma Shri recipient has also penned down a heartfelt poem expressing his anguish over the verdict of criminalizing gay sex titled ‘Through love’s great power’.
His mother, Justice Leila has been openly supportive of him and has been a strong supporter of the gay rights movement. Her disapproval of Section 377 of the Indian Penal Code, 1860, is known to the world.
"It Took Me Long To Come To Terms With Myself. Those Were Painful Years.”- Vikram Seth
ROAD TO EQUALITY
The preamble to the Indian Constitution mandates justice - social, economic, and political equality of status - for all. The right of equality before law and equal protection under the law is guaranteed in Articles 14 and 21 of the Constitution.
In April 2014, the Supreme Court of India ruled in NALSA vs Union of India that the rights and freedoms of transgender people in India were protected under the Constitution; in September 2018, the Supreme Court also decriminalized adult consensual same-sex relationships in the Section 377 judgment review. These judgments are considered a landmark both in terms of their expansive reading of constitutional rights and in empowering LGBT persons.
But the journey of “Right of choice” and “Right to self-determination” was not easy for the LGBTQ community.
A JOURNEY to Navtej Singh Johar
(Reference- Stances of Faiths on LGBTQ Issues: Hinduism)
The third largest religion in the world – after Christianity and Islam – Hinduism accounts for roughly 14% of the global population Among its most familiar texts are the Bhagavad Gita, though the Vedas are considered the authoritative guiding text by which one’s life is shaped. Dating to 6,000 BCE, the Vedas constitute the oldest scripture in the world.
The Vedas refer to a "third sex," roughly defined as people for whom sex is not procreative, either through impotence or a lack of desire for the opposite sex.
The epic Mahabharata also features the transgender character Sikhandin, and depicts the warrior Arjuna cross-dressing to become Brihannala, teacher of fine arts.
The TG Community comprises Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. and they, as a group, have got a strong historical presence in our country in the Hindu mythology and other religious texts. The Concept of tritiya prakriti or napunsaka has also been an integral part of vedic and puranic literatures. The word ‘napunsaka’ has been used to denote absence of procreative capability.
Lord Rama, in the epic Ramayana, was leaving for the forest upon being banished from the kingdom for 14 years, turns around to his followers and asks all the ‘men and women’ to return to the city. Among his followers, the hijras alone do not feel bound by this direction and decide to stay with him.
Aravan, the son of Arjuna and Nagakanya in Mahabharata, offers to be sacrificed to Goddess Kali to ensure the victory of the Pandavas in the Kurukshetra war, the only condition that he made was to spend the last night of his life in matrimony.
Jain Texts also make a detailed reference to TG which mentions the concept of ‘psychological sex’.
The Holy Quran at several places mentions that humans are created in pairs. The verses are as follows:
“Glory to Allah, Who created in pairs all things that the earth produces, as well as their own (human) kind and (other) things of which they have no knowledge.” (Ya-Sin: 36 : 36)
“And Allah did create you from dust; then from a sperm-drop; then He made you in pairs.” (Al- Fatir: 35:11)
"That has created pairs in all things, and has made for you ships and cattle on which ye ride” (Az-Zukhruf: 43:12)
“And of everything We have created pairs: That ye may receive instruction.” (Az-Zariyat: 51: 49)
Therefore, from the above verses, it is clear that Allah has created humans and everything in pairs i.e. two in number.
Hijras have played a prominent role in the Royal courts of the Islamic world especially in the Ottaman empires and the Mughal rule in Medieval India.
A detailed analysis of the historical background of the same finds a place in the book of Gayatri Reddy, “With Respect to Sex: Negotiating Hijra Identity in South India” – Yoda Press (2006).
What's in a name?
Shakespeare through one of his characters in a play says “What's in a name? That which we call a rose by any other name would smell as sweet”.
The name may be a convenient concept for identification but the essence behind the same is the core of identity. Sans identity, the name only remains a denotative term. Therefore, the identity is pivotal to one’s being. Life bestows honour on it and freedom of living, as a facet of life, expresses genuine desire to have it. The said desire, one is inclined to think, is satisfied by the conception of constitutional recognition, and hence, emphasis is laid on the identity of an individual which is conceived under the Constitution. And the sustenance of identity is the filament of life. It is equivalent to authoring one’s own life script where freedom broadens everyday. Identity is equivalent to divinity- (Justice Dipak Misra’s version- Navtej Singh Johar).
The natural identity of an individual should be treated to be absolutely essential to his being. What nature gives is natural. That is called nature within.
Non-acceptance of it by any societal norm or notion and punishment by law on some obsolete idea and idealism affects the kernel of the identity of an individual.
Destruction of individual identity would tantamount to crushing of intrinsic dignity that cumulatively encapsulates the values of privacy, choice, freedom of speech and other expressions.
Importance of Identity
The eminence of identity has been lucidily stated in National Legal Services Authority , popularly known as NALSA case, wherein the Court was dwelling upon the status of identity of the transgenders. Radhakrishnan, J., after referring to catena of judgments and certain International Covenants, opined that 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.
The learned Judge further observed that at times, genital anatomy problems may arise in certain persons in the sense that 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.
Sikri, J., in his concurring opinion, dwelling upon the rights of transgenders, laid down that gender identification is an essential component which is required for enjoying civil rights by the community.
The aforesaid judgment, as is manifest, lays focus on inalienable gender identity and correctly connects with human rights and the constitutionally guaranteed right to life and liberty with dignity. It lays stress on the judicial recognition of such rights as an inextricable component of Article 21 of the Constitution and decries any discrimination as that would offend Article 14, the fon juris of our Constitution.
Decisions in Naz Foundation and Suresh Koushal
A Division Bench of the Delhi High Court in Naz Foundation v. Government of NCT of Delhi (“Naz Foundation”), [111 DRJ 1 (2009)], after considering wide- ranging arguments on both sides, finally upheld the plea of the petitioners in the following words:
“132.We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non- vaginal sex and penile non-vaginal sex involving minors. By ‘adult’ we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.
We allow the writ petition in the above terms.”
The court also viewed that Article 15 of the Constitution prohibits discrimination on several enumerated grounds including sex. The High Court preferred an expansive interpretation of 'sex' so as to include prohibition of discrimination on the ground of 'sexual orientation' and that sex-discrimination cannot be read as applying to gender simpliciter.
Another facet of the Indian Constitution that the High Court delineated was that of inclusiveness as the Indian Constitution reflects this value of inclusiveness deeply ingrained in the Indian society and nurtured over several generations. In the High Court's view, where a society displays inclusiveness and understanding, the LGBT persons can be assured of a life of dignity and non-discrimination.
In court’s view it cannot be forgotten that discrimination is the antithesis of equality and recognition of equality in its truest sense will foster the dignity of every individual. That apart, the High Court had taken the view that social morality has to succumb to the concept of constitutional morality.
Despite the fact that no appeal was filed by the Union of India, in appeals filed by private individuals and groups, the Supreme Court in Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors. (Suresh Kumar Koushal), [(2014) 1 SCC 1], reversed the judgment of the High Court. Reviews that were filed against the aforesaid judgment, including by the Union of India, were dismissed by this Court.
While so opening, the Court held that Section 377 IPC would apply irrespective of age and consent, for Section 377 IPC does not criminalize a particular person or identity or orientation and only identifies certain acts which, when committed, would constitute an offence. Such a prohibition, in the Court's view in Suresh Koushal (supra), regulates sexual conduct regardless of gender identity and orientation.
Other judicial pronouncements on
Section 377 IPC
While interpreting the said provision, the Courts have held that the provision stipulates certain acts, which when committed, would constitute a criminal offence. In Childline India Foundation and another v. Allan John Waters and others 2011 the Court held that ingredients of Section 377 IPC were proved and, accordingly, restored the conviction and sentence of 6 years rigorous imprisonment and confirmed the imposition of fine.
In Fazal Rab Choudhary versus State of Bihar 1982 , although the Court convicted the accused under Section 377 IPC, yet it took note of the absence of any force in the commission of the act The Court also took into account the prevalent notions of permissive society and the fact that homosexuality has been legalized in some countries. In view of the same, the Court reduced the sentence of 3 years imposed on the accused to 6 months opining that the aforesaid aspects must also be kept in view as they have a bearing on the question of offence and quantum of sentence.
A reference may be made to Khanu v. Emperor AIR 1925 SIND 286 which was also alluded to in Suresh Koushal’s case.
The principal point in the case is Section 377 punishes certain persons who have carnal intercourse. Is the act here committed one of carnal intercourse? It is clearly against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings which in the case of coitus per os is impossible.
Intercourse: Intercourse may be defined as mutual frequent action by members of independent organisations.
But there is no intercourse unless the visiting member is enveloped at least partially by the visited organism, for intercourse connotes reciprocity. Looking at the question in this way it would seem that sin of Gomorrah is no less carnal intercourse than the sin of sodomy. (para 75- Navtej Singh Johar)
Therefore, that coitus per os is punishable under Section 377 of the Penal Code.
In Suresh Koushal's case, there has also been a reference to the decision of the Gujarat High Court in Lohana Vasantlal Devchand v. State 1967 wherein the issue presented before the High Court was whether an offence under Section 377 read with Section 511 IPC had been committed on account of the convict putting his male organ in the mouth of the victim, if the act was done voluntarily by him. A contention was raised that there was no penetration and, therefore, there could not have been any carnal intercourse. The High Court referred to a passage from the book “Psychology of Sex”.
On a plain reading of the provision, it is noticeable that the “act” covers all categories of persons if the offence is committed.
The Constitution an organic charter of Progressive Rights
A democratic Constitution like ours is an organic and breathing document with senses which are very much alive to its surroundings, for it has been created in such a manner that it can adapt to the needs and developments taking place in the society. It was highlighted by this Court in the case of Chief Justice of Andhra Pradesh and others v. L.V.A. Dixitulu and others 1978 that the Constitution is a living, integrated organism having a soul and consciousness of its own and its pulse beats, emanating from the spinal cord of its basic framework, can be felt all over its body, even in the extremities of its limbs.
-"Our Constitution is organic in nature, being a living organ, it is ongoing and with the passage of time, law must change. Horizons of constitutional law are expanding."
Thus, we are required to keep in view the dynamic concepts inherent in the Constitution that have the potential to enable and urge the constitutional courts to beam with expansionism that really grows to adapt to the ever-changing circumstances without losing the identity of the Constitution.
The authority in NALSA is one such recent illustration where the rights of transgenders as a third sex was recognized which had been long due in a democracy like ours. The Court delivered an important judgment reported as National Legal Services Authority v. Union of India (NALSA), [(2014) 5 SCC 438], which construed Articles 15 and 21 of the Constitution of India as including the right to gender identity and sexual orientation, and held that just like men and women, transgenders could enjoy all the fundamental rights that other citizens of India could enjoy. This Court ruled: -
"It is now very well recognized that the Constitution is a living character; its interpretation must be dynamic.
Transformative constitutionalism and the rights of LGBT community
The ultimate goal of our magnificent Constitution is to make right the upheaval which existed in the Indian society before the adopting of the Constitution. The Court in State of Kerala and another v. N.M. Thomas and others observed that the Indian Constitution is a great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy and its provisions can be comprehended only by a spacious, social- science approach, not by pedantic, traditional legalism.
The whole idea of having a Constitution is to guide the nation towards a resplendent future. Therefore, the purpose of having a Constitution is to transform the society for the better and this objective is the fundamental pillar of transformative constitutionalism.
The concept of transformative constitutionalism has at its kernel a pledge, promise and thirst to transform the Indian society so as to embrace therein, in letter and spirit, the ideals of justice, liberty, equality and fraternity as set out in the Preamble to our Constitution.
Equality does not only imply recognition of individual dignity but also includes within its sphere ensuring of equal opportunity to advance and develop their human potential and social, economic and legal interests of every individual and the process of transformative constitutionalism is dedicated to this purpose.
The society has changed much now, not just from the year 1860 when the Indian Penal Code was brought into force but there has also been continuous progressive change. In many spheres, the sexual minorities have been accepted. They have been given space after the NALSA judgment.
The question of freedom of choosing a partner is also reflective from Shafin Jahan wherein the Court held that a person who has come of age and has the capability to think on his/her own has a right to choose his/her life partner.
In Shakti Vahini , the Court has ruled that the right to choose a life partner is a facet of individual liberty and the Court, for the protection of this right, issued preventive, remedial and punitive measures to curb the menace of honour killings. The Court observed: -
“When the ability to choose is crushed in the name of class honour and the person's physical frame is treated with absolute indignity, a chilling effect dominates over the brains and bones of the society at large.”
Constitutional morality and Section 377 IPC
The concept of constitutional morality is not limited to the mere observance of the core principles of constitutionalism as the magnitude and sweep of constitutional morality is not confined to the provisions and literal text which a Constitution contains, rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time adhering to the other principles of constitutionalism. It is further the result of embodying constitutional morality that the values of constitutionalism trickle down and percolate through the apparatus of the State for the betterment of each and every individual citizen of the State.
Our Constitution was visualized with the aim of securing to the citizens of our country inalienable rights which were essential for fostering a spirit of growth and development and at the same time ensuring that the three organs of the State working under the aegis of the Constitution and deriving their authority from the supreme document, that is, the Constitution, practise constitutional morality. The Executive, the Legislature and the Judiciary all have to stay alive to the concept of constitutional morality.
Perspective of human dignity
The Universal Declaration of Human Rights, 1948 became the Magna Carta of people all over the world. The first Article of the UDHR was uncompromising in its generality of application.
The fundamental idea of dignity is regarded as an inseparable facet of human personality. Dignity has been duly recognized as an important aspect of the right to life under Article 21 of the Constitution. In the international sphere, the right to live with dignity had been identified as a human right way back in 1948 with the introduction of the Universal Declaration of Human Rights. The constitutional courts of our country have solemnly dealt with the task of assuring and preserving the right to dignity of each and every individual whenever the occasion arises, for without the right to live with dignity, all other fundamental rights may not realise their complete meaning.
In Common Cause , one of us has observed that human dignity is beyond definition and it may, at times, defy description.
In Maneka Gandhi, Krishna Iyer, J. observed that life is a territorial opportunity for unfolding personality and when any aspect of Article 21 is viewed in a truncated manner, several other freedoms fade out automatically. It has to be borne in mind that dignity of all is a sacrosanct human right and sans dignity, human life loses its substantial meaning.
Sexual orientation and the instructive definition of LGBT by Michael Kirby, former Judge of the High Court of Australia: -
Homosexual: People of either gender who are attracted, sexually, emotionally and in relationships, to persons of the same sex.
Bisexual: Women who are attracted to both sexes; men who are attracted to both sexes.
Lesbian: Women who are attracted to women.
Gay: Men who are attracted to men, although this term is sometimes also used generically for all same-sex attracted persons.
Gender identity: A phenomenon distinct from sexual orientation which refers to whether a person identifies as male or female. This identity' may exist whether there is "conformity or non-conformity" between their physical or biological or birth sex and their psychological sex and the way they express it through physical characteristics, appearance and conduct. It applies whether, in the Indian sub-continent, they identify as hijra or kothi or by another name.
LGBT or LGBTIQ: Lesbian, Gay, Bisexual, Transsexual, Intersex and Queer minorities. The word 'Queer' is sometimes used generically, usually by younger people, to include the members of all of the sexual minorities. I usually avoid this expression because of its pejorative overtones within an audience unfamiliar with the expression. However, it is spreading and, amongst the young, is often seen as an instance of taking possession of a pejorative word in order to remove its sting.
MSM: Men who have sex with men.
Every human being has certain basic biological characteristics and acquires or develops some facets under certain circumstances. The first can generally be termed as inherent orientation that is natural to his/her being. The second can be described as a demonstration of his/her choice which gradually becomes an inseparable quality of his/her being, for the individual also leans on a different expression because of the inclination to derive satisfaction. The third one has the proclivity which he/she maintains and does not express any other inclination. The first one is homosexuality, the second, bisexuality and third, heterosexuality. The third one is regarded as natural and the first one, by the same standard, is treated to be unnatural. When the second category exercises his/her choice of homosexuality and involves in such an act, the same is also not accepted. In sum, the ‘act’ is treated either in accord with nature or against the order of nature in terms of societal perception.
In the case of National Legal Services Authority vs. Union of India (Supra), the Hon’ble Supreme Court has taken into consideration the views of the United Nations, other human rights bodies, gender identity and sexual orientation and has quoted extensively from Yogyakarta Principles.
Principle 1 which deals with the right to the universal enjoyment of human rights, reads as follows: -
‘1. The right to the universal enjoyment of human rights
2. The rights to equality and non-discrimination
3. The right to recognition before the law
4. The right to life
5.The right to privacy
6. The right to treatment with humanity while in detention
7.The right to treatment with humanity while in detention
8.Protection from medical abuses
9.The right to freedom of opinion and expression
Sexual orientation and gender identity. - ‘Other status’ as recognized in Article 2, para (2), Non-Discrimination in Economic, Social and Cultural Rights includes sexual orientation. States parties should ensure that a person’s sexual orientation is not a barrier to realizing Covenant rights, for example, in accessing survivors pension rights. In addition, gender identity is recognized as among the prohibited grounds of discrimination, for example, persons who are transgender, transsexual or intersex, often face serious human rights violations, such as harassment in schools or in the workplace.’
From the Yogyakarta principles, it is evident that all humans have the universal right of enjoyment of human rights, right to equality and non-discrimination, the right to recognition before the law, right to life, the right to privacy and right to treatment with humanity while in detention etc. It was also repealed that all forms of crime that have the purpose or effect of prohibiting consensual sexual activity among persons of the same sex, who are over the age of consent and, until such provisions are repealed, never impose the death penalty on any person convicted under them; remit sentences of death and release all those currently awaiting execution for crimes relating to consensual sexual activity among persons who are over the age of consent. Several such resolutions were passed, which have been quoted above.
Privacy and its concomitant aspects
While testing the constitutional validity of Section 377 IPC, due regard must be given to the elevated right to privacy as has been recently proclaimed in K.S. Puttaswamy:
Article 12 of the Universal Declaration of Human Rights, (1948) makes a reference to privacy by stating: -
"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
Similarly, Article 17 of the International Covenant of Civil and Political Rights, to which India is a party, talks about privacy thus:-
"No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and reputation.”
In R. Rajagopal, while discussing the concept of right to privacy, it has been observed that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21 and it is a "right to be let alone", for a citizen has a right to safeguard the privacy of his/her own, his/her family, marriage, procreation, motherhood, child-bearing and education, among other matters.
The litmus test for survival of Section 377 IPC
Having discussed the various principles and concepts and bearing in mind the sacrosanctity of the fundamental rights which guides the constitutional courts, we shall now proceed to deal with the constitutionality of Section 377 IPC on the bedrock of the principles enunciated in Articles 14, 19 and 21 of the Constitution.
225. It is axiomatic that the expression “life or personal liberty” in Article 21 embodies within itself a variety of rights. In Maneka Gandhi (supra), Bhagwati, J. (as he then was) observed: -
“The expression 'personal liberty' in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19...”
In Sunil Batra v. Delhi Administration and others [(1978) 4 SCC 494], Krishna Iyer, J. opined that what is punitively outrageous, scandalizing unusual or cruel and rehabilitative counterproductive, is unarguably unreasonable and arbitrary and is shot down by Article 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21.
M. Nagaraj and others v. Union of India and others [(2006) 8 SCC 21], it has been held: -
The gravamen of Article 14 is equality of treatment. Article 14 confers a personal right by enacting a prohibition which is absolute. By judicial decisions, the doctrine of classification is read into Article 14. Equality of treatment under Article 14 is an objective test. It is not the test of intention. Therefore, the basic principle underlying Article 14 is that the law must operate equally on all persons under like circumstances.
In E.P. Royappa v. State of Tamil Nadu and another [(1974) 4 SCC 3], this Court observed that equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. It was further held that equality is antithetic to arbitrariness, for equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch.
The eminence of identity which has been lucently stated in the NALSA case very aptly connects human rights and the constitutional guarantee of right to life and liberty with dignity. With the same spirit, we must recognize that the concept of identity which has a constitutional tenability cannot be pigeon-holed singularly to one’s orientation as it may keep the individual choice at bay. At the core of the concept of identity lies self-determination, realization of one’s own abilities visualizing the opportunities and rejection of external views with a clear conscience that is in accord with constitutional norms and values or principles that are, to put in a capsule, “constitutionally permissible”.
The primary objective of having a constitutional democracy is to transform the society progressively and inclusively. Transformative constitutionalism not only includes within its wide periphery the recognition of the rights and dignity of individuals but also propagates the fostering and development of an atmosphere wherein every individual is bestowed with adequate opportunities to develop socially, economically and politically. Discrimination of any kind strikes at the very core of any democratic society.
Thus, the Supreme Court of India in Navtej Singh Johar (supra) held that Section 377, Indian Penal Code, 1860, which criminalizes homosexuality is unconstitutional as transgressing Article 14, 15, 19, 21, to the extent it criminalizes consensual acts between consenting adults. The personal autonomy includes both the negative right of not to be subject to interference by others and positive rights of individuals to make decisions about their life, to express himself and to choose what activity take part in. Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution.
The freedom of choice is therefore available to the individuals who decide to have a relationship and live together and society should support their decision.