–Shubhankar Dam, Professor of Public Law and Governance, University of Portsmouth, England
“The State shall not deny to any person equality before the law or equal protection of the laws”, the Constitution of India majestically says.
The Indian Penal Code, section 377, however, appeared to do just that. By outlawing certain forms of intimate conduct, the penal law branded a class of persons criminals in waiting. Did the provision violate the Constitution?
A cast of characters – dancers, designers, entrepreneurs and engineers – challenged the provision before the Supreme Court. Five judges heard the matter. In Navtej Johar v Union of India, they reached a unanimous outcome: Section 377 is partly invalid. Criminalizing same-sex conduct of consenting adults violates the Constitution. They penned four separate, soulful opinions to explain why.
The opinions wax about LGBT rights only outwardly. Their deepest instincts, instead, are meditations on a much grander idea: Choice, the freedom to choose. The verdict re-imagines the old promise of swaraj: To become self-governing Indians, not simply part of a self-governing India.
How did a petition for LGBT rights blossom into a manifesto of choice for all Indians?
Start with science. What makes people gay, straight or something else? The short answer: We don’t fully know.
But we know quite a bit. A complex interplay of genetic, hormonal, and social (environmental) factors determine orientations. Environment’s precise role remains unclear, says recent research. Perhaps it plays a small part, if at all.
All orientations aren’t equal, though.
Homosexuality, in particular, invites profound anxiety and contest. Still. three things are clear. One, it’s common among mammals. At least 1500 species including monkeys, chimpanzees, dolphins and whales engage in homosexual conduct. Two, among humans, it’s found in populations across the world, and in largely similar numbers. Three, it isn’t a disorder.
One tantalizing piece of the jigsaw, however, eludes us still: What causes it?
Research underlines a suite of likelihoods. Chromosomes, epigenetics, brain structure, hormonal exposure during pregnancy, and even the order of birth (among siblings) determine to varying degrees why some are gay.
The provisional weight of science trends in one direction: Sexual orientations including homosexuality are innate. A spectrum may exist, like the Kinsey scale suggests. But that spectrum, too, is innate.
So, how did the five judges read the science? They ignored it.
Chief Justice Dipak Misra’s lead opinion set the tone. He framed sexual orientation as a matter of will. It’s an “expression of choice”, he said, one that defines our personalities. Deny persons this choice and we deny them both rights to dignity and liberty. Section 377 does precisely that. It criminalizes “an individual’s choice to engage in certain acts within their private sphere”. That taint of criminality violates an “individual’s right to dignity”, he reasoned.
Later, Judge Misra canvassed an alternative view. After reciting the American Psychological Association’s approach to orientation, he added: “Homosexuality is based on [a] sense of identity … It is just as much ingrained, inherent and innate as heterosexuality”.
Judge Nariman did not dwell at length on this. But he, too, stressed the centrality of choice: “The right of every citizen of India to live with dignity and the right to privacy [includes] the right to make intimate choices [about how] such individual wishes to live”.
Judge Chandrachud shared a similar lens. The right to privacy allows individuals “the right to a self-determined sexual orientation”, he declared. These choice “are at the core of privacy”. To him, sexuality is a fluid affair: Individuals are free to ascertain their desires and proclivities as they wish.
Judge Indu Malhotra, the only woman on the bench, however, adopted an iron approach. “Sexual orientation is an innate attribute of one’s identity, and cannot be altered”, she asserted. “It is not a matter of choice”.
Altogether, the five judges canvassed three views. Two highlighted choice. Another two wobbled, but mostly emphasized choice. One denied choice had any role.
The science, its current corpus, heavily favors genetics and hormones. Innate causes, in other words.
Why, then, did the judges – four of them – belabour choice? Because the science simply doesn’t matter.
Same-sex conduct among consenting adults doesn’t harm – or affect – others. So, even if such conduct stem from choice, they’re worthy of constitutional affirmation. The opinions of Chief Justice Misra and Judges Nariman and Chandrachud are best read this way.
Eulogizing choice inoculates the verdict from the vagaries of scientific research. Choice, after all, constitutes the floor. Advances in our understanding of homosexuality can’t fall any further. In time, studies may tell us: social factors alone cause homosexuality. Still, nothing would change; the court has already factored in that possibility.
The reasoning renders the scholarly hunt for biological markers of homosexuality redundant. Researchers may toil away; or they may abandon their quest. It makes no difference. The constitutional fortunes of LGBT persons in India are secure.
This agnosticism about causes isn’t directed at Western science alone; it applies as much to Indian forms of wellbeing and health. Healer turned businessman, Ramdev, has been on a decade-long neurotic crusade: To “cure” LGBT Indians of their “addiction” through yoga. Now’s a good time to abandon that obsession. Yoga’s power to alter orientations, even if true, doesn’t matter.
Section 377 is unconstitutional today. It shall stay this way, genetics or not, yoga or not. Therein lies the genius of reasoning from choice.
But does the verdict speak to anything more than the choices LGBT persons make? It does.
The opinions are a principled defense of all choices, if they satisfy two conditions: they are consensual and don’t harm others (directly). The Constitution affirms such choices, the judges said, for they rest on three interlocking ideas: privacy, dignity and liberty.
Chief Justice Misra put it succinctly: “If we act consensually and without harming one another, invasion [of our choices] will breach of our privacy”. He added, “Respect for individual choice is [also] the very essence of liberty under law”.
It’s no surprise, therefore, that a verdict on LGBT rights repeatedly alludes to inter-caste and inter-faith marriages – both protected choices but, in some quarters of India still fraught with vicious social repercussions. The court’s message: Respect others’ choices.
Our everyday lives are a melange of many little decisions: What to eat; what to wear; where to work; what to read; who to befriend. How do we identify the proper boundaries of these decisions?
All choices fall into one of three boxes: red (obviously prohibited), green (obviously permitted) and yellow (controversial).
Three things about the lines separating the boxes are important.
One, the lines aren’t fixed; they shift. For long, same-sex conduct in India was red. This verdict firmly puts it in the green. Why? Choosing homosexuality – if it’s a choice – harms no one. There are no good reasons to ban it: Not the supposed religious sentiments of some; not the supposed morals of the majority. The latter can’t hold to ransom the constitutional rights of others.
Two, the lines, often, are fuzzy. Consider suicide or (passive) euthanasia. These are self-regarding acts; they don’t directly harm others. Still, in India, they fell into the red box. only recently did the law change.
Three, the lines are contingent. The yellow box, in particular, depends on time, place and its people. Consider beef and burka. Beef is yellow in India, now perhaps more so than before. Elsewhere, it’s green. It’s the reverse with burka. Many Muslim women freely wear the burka in India. In parts of Europe, though, it’s red. The burka, we are told, heightens suspicion and loathing.
Navtej Johor lays down distinct markers for the red box, and nudges India towards the green one. We should meditate on the choices we make, the Supreme Court says, but also remain mindful of the one’s we take offense to.
Indians are a medley of million identities. We are layered into clans, castes, and classes; rooted in familial ties; siloed into culinary and clothing habits; united in our religious and linguistic differences; and triggered by many more. This verdict invites us to acknowledge something else: We are individuals, too. Autonomous individuals worthy of making choices, and respectful of the ones others make.
Suggested Citation: Shubhankar Dam, The Science of Homosexuality Does Not Matter, Says the Indian Supreme Court in its Historic Navtej Johor Decision, Int’l J. Const. L. Blog, Sept. 20, 2018, at: http://www.iconnectblog.com/2018/09/the-science-of-homosexuality-does-not-matter-says-the-indian-supreme-court-in-its-historic-navtej-johor-decision
so wonderfully written, Prof Subhankar.
Shubankar’ stylistic exposition is inimitable. His scholarship is ever discernible.
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