Celebration Of Sexual Agency : Justice Chandrachud's Soulful Judgment In Section 377 Case

"Sexuality must be construed as a fundamental experience through which individuals define the meaning of their lives"Deeply moving and empathetic, Justice Chandrachud's judgment in the Section 377 case makes for a compelling read. Rather than legalese, the judgment is brimming with a profound understanding of the human condition and of the urge of an individual to find meaning through self-expression by staying true to one’s core identity.The judgment deconstructs Section 377 in a larger perspective, to conclude that it is not merely stifling expression of sexuality which is in variance with the dominant “hetronormative” narrative, but is advancing sexual stereotypes and cementing traditionally assigned gender roles. On this premise, Section 377 is held as causing discrimination on the ground of ‘sex’, so as to infringe Article 15(1) of the Constitution. While doing so, the judgment in Nargesh Meerza which took a narrow view of sex-based discrimination was overruled. Moving further, the judgment holds that Section 377 IPC infringes ones’ right to intimacy, which has been held to be a facet of right to privacy under Article 21, observing that “consensual sexual relationships between adults, based on the human propensity to experience desire, must be treated with respect”The judgment recognizes the need to remedy the “tragedy and anguish” inflicted by the Section. The history of the section is traced to identify its roots in Judeo-Christian notions of morality, which found reflection through a colonial legislation. The judgment draws power from the exhortations of Dr.Martin Luther King against the ‘doctrine of wait’, which advocates that non-conformists should wait till the mainstream understands their way of life, before disturbing established social mores. The sexual minorities have waited long, but nothing changed.Unreasonable classification based on ‘Order of Nature’.The section was held to be violative of Article 14 of the Constitution, as it is based on unreasonable classification. The 2013 SC judgment in Suresh Kumar Koushal had held that there was no unreasonable classification, as “those who indulge in carnal intercourse in the ordinary course and those who ... [do so] against the order of nature constitute different classes”. This view was criticised as a formalistic application of Constitution. Justice Chandrachud identified the base of classification in Section 377 as “order of nature”, an indeterminable factor. “What is ‘natural’ and what is ‘unnatural’? And who decides the categorization into these two ostensibly distinct and water-tight compartments? Do we allow the state to draw the boundaries between permissible and impermissible intimacies between consenting adults?”, the judgment asked (Para 28, Page 294).Developing from that premise, it was held that there was logical fallacy in ascribing legality to perceived natural acts on the basis of majority practise. As human being evolved, there has been a shift from reproductive instinct to erotic instinct, which may not be strictly ‘natural’. And all that is not natural, need not be illegal. The judgment quotes an interesting observation from Brandon Ambrosino that, “Many of the things human beings value, such as medicine and art, are egregiously unnatural. At the same time, humans detest many things that actually are eminently natural, like disease and death”(Page 296). “Section 377 is based on a moral notion that intercourse which is lustful is to be frowned upon.It does so, on the basis of a social hypocrisy which the law embraces as its own. It would have human beings accept a way of life in which sexual contact without procreation is an aberration and worse still, penal. It would ask of a section of our citizens that while love, they may, the physical manifestation of their love is criminal. This is manifest arbitrariness writ large”, (Page 298)Section 377 reveals only the hatred, revulsion and disgust of the draftsmen towards certain intimate choices of fellow human beings.”, held the judgment(Page 301).Discrimination based on sexual orientation violates Article 15(1)A significant finding of the judgment is that discrimination based on ‘sexual orientation’ amounts to sex-based discrimination, which is prohibited under Article 15(1). While reaching this conclusion, the judgment overturned the precedent Air India v.Nargesh Meerza (1981) 4 SCC 335. In the said case, service conditions prescribing different age of retirement for air hostesses, and that pregnancy will attract termination etc. were not held to be discriminatory with respect to male colleagues on the ground that females and males in service of aircraft constituted different cadres, and hence were not comparable. It was held there that where persons of a particular class, in view of the “special attributes, qualities” are treated differently in ‘public interest’, such a classification would not be discriminatoryJustice Chandrachud criticised this view as missing to notice the...

Celebration Of Sexual Agency : Justice Chandrachud's Soulful Judgment In Section 377 Case

Manu Sebastian

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