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India: From ’perversion’ to right to life with dignity

by Kalpana Kannabiran, 6 July 2009

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The Hindu, 6 July 2009

The Delhi High Court judgment makes the articulation of LGBT rights a torchbearer for a more general understanding of discrimination, oppression, social exclusion and the denial of liberty, on the one hand, and the meaning of freedom and dignity, on the other.

“Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it.” — B.R. Ambedkar quoted in para 79 of the Naz Foundation judgment.

The recent judgment of the Delhi High Court in the Naz Foundation versus Government of NCT of Delhi and Others is a milestone in the jurisprudence on diversity and pluralism in India. Importantly, it also inaugurates intersectional jurisprudence that examines questions of constitutionalism in relational terms that underscore inclusiveness. By this token then, it is not merely a judgment that bears significance for the rights of lesbian, gay, bisexual and transgender peoples (LGBT). It makes the articulation of LGBT rights a torchbearer for a more general understanding of discrimination, oppression, social exclusion and the denial of liberty, on the one hand, and the meaning of freedom and dignity, on the other.

The Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity launched on March 26, 2007 were drafted by experts from 25 countries representative of all regions of the world. These principles delineate in painstaking detail the obligation of states to respect, protect and fulfil the human rights of all persons regardless of their sexual orientation or gender identity. On December 18, 2008, the United Nations General Assembly was presented with a statement endorsed by 66 states from around the world reaffirming in substance the Yogyakarta principles. It is these international efforts along with the movement for LGBT rights within India that provided the context and arguments for the decriminalisation of homosexuality.

Drawing on Dr. Ambedkar, the court rejected the argument that homosexuality was contrary to public and popular morality in India, upholding constitutional morality instead, the diffusion of which was contingent on Dr. Ambedkar’s ideas of notional change, as evident in the lines quoted above. To quote from the judgment: “The Constitution of India recognises, protects and celebrates diversity. To stigmatise or to criminalise homosexuals only on account of their sexual orientation would be against the constitutional morality” (para 80). Linked to this is the observation of the Court on the question of the horizontal application of rights, with specific reference to Article 15(2), a barely remembered but critical part of Article 15: No citizen shall obstruct another from access to public places on grounds of caste, sex and other specified grounds (para 104). This purposive and intersectional reading of Article 15(2), hitherto restricted largely to practices of untouchability vis-À-vis Dalits, opens out an important strategy in constitutional interpretation.

Applying the U.N. Human Rights framework to an understanding of sexual orientation and gender identity, the judgment sets out three categories: (a) non-discrimination; (b) protection of private rights; and (c) the ensuring of special general human rights protection to all, regardless of sexual orientation or gender identity.

Perhaps the most important issue the judgment addresses is the meaning of “sex” in Article 15(1) of the Constitution of India: “The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” Does the term “sex” in this context refer to attribute or performance? Is sex to be applied in a restricted fashion to gender or can the multiple resonances of its common usage be taken into account, so that sex is both gender (attribute) and sexual orientation (performance)? This is particularly significant because, as the judgment demonstrates through an extensive review of case law and principles from different parts of the world, gender and sexual orientation are an intrinsic and inalienable part of every human being; they are constituents of a person’s identity. In the words of Justice Sachs of South Africa, the constitution “acknowledges that people live in their bodies, their communities, their cultures, their places and their times” (Sachs J. in The National Coalition for Gay and Lesbian Equality v. The Minister of Justice). It is this composite identity of every person that is affirmed through a nuanced reading of “sex” in Article 15(1): “We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15 (Para 104).”

Justice P.N. Bhagwati’s delineation of the right to dignity in Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others, that “the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life, … expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings,” provides the starting point for the discussion on the importance of self-respect, self-worth and privacy to human social life, recognised nationally and internationally. And privacy is particularly important in the area of sexual relationship where the thumb rule is simply that “[i]f, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy (Paris Adult Theatre I v. Slaton, (413 US 49 (1973), page 63).”

The criminalisation of homosexuality, the judgment says, by condemning in perpetuity an entire class of people, forcing them to “live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery” denies them “moral full citizenship (para 52).” Because Section 377 is aimed at criminalising private conduct of consenting adults, the court held that it comes within the meaning of discrimination, which “severely affects the rights and interests of homosexuals and deeply impairs their dignity(para 93).” It is “unfair and unreasonable and, therefore, in breach of Article 14 of the Constitution of India (para 98).”

The right to public health is another aspect of human rights that is seriously undermined through the criminalisation of same sex behaviour. There are two parts to this right, both of which lead back to the fundamental right to life under Article 21. The first is the right to be healthy. In this context, the concerns of the National AIDS Control Organisation (NACO) are pertinent. Fear of the law-enforcement agencies obstructs disclosure, which in turn impedes HIV/AIDS prevention programmes and increases the risk of infection in high-risk groups.

The second part of the right to health is more expansive and includes the right to control one’s health and body, the right to sexual and reproductive freedom, the right against forced medical treatment and the right to a system of health that offers equality of opportunity in attaining the highest standard of health. While several documented testimonies of LGBT persons speak of the treatment of their sexual orientation as a psychiatric/mental disorder, the judgment importantly affirms the findings worldwide that sexual orientation is an expression of human sexuality — whether homosexual, heterosexual or bisexual. “Compelling state interest,” instead of focussing on public morality, the judgment says, “demands that public health measures are strengthened by de-criminalisation of such activity, so that they can be identified and better focused upon (para 86).”

Asserting that there is no presumption of constitutionality where a colonial legislation is concerned, the judgment holds that Section 377 fails the test of “strict scrutiny” which would require proportionality between the means used and the aim pursued. And when it is a question of “matters of ‘high constitutional importance’” like the rights of LGBT persons, the courts are obliged to discharge their sovereign jurisdiction, in this case, reading Section 377 down to apply only to child sexual abuse.

It is pertinent to point out here that the Andhra Pradesh (Telangana Areas) Eunuchs Act specifically targets Eunuchs and Hijras in far more direct ways than Section 377 does. We hope that the momentum of the movement for LGBT rights will turn its full force on obsolete legislation like this as well, so that transgender communities in areas where such laws are in force begin to enjoy the fullest freedoms and life with dignity.

(Kalpana Kannabiran is a sociologist based in Secunderabad.)