Challenging the Constitutionality of Restrictions on Same Sex Sexual Relations: Lessons from India Dominic McGoldrick* KEYWORDS: same sex sexual relations, sexual orientation, equality, non-discrimination, right to privacy, human dignity, liberty, expression, constitutional interpretation, Indian Constitution, Navtej Singh Johar and Others v Union of India 1. INTRODUCTION In September 2018, in the Navtej Singh Johar case,1 India’s Supreme Court unanimously ruled that section 377 of the Indian Penal Code (1860) (IPC), was unconstitutional and had to be read down insofar as it penalized any consensual sexual activity between two adults, be it homosexuals, heterosexuals and lesbians. The Judgment marked the end of almost a quarter of a century of complex legal challenges and campaigning by LGBT organisations.2 * Professor of International Human Rights Law, University of Nottingham, United Kingdom. 1 Navtej Singh Johar and Others v Union of India through Secretary Ministry of Law and Justice, Writ Petition No. 76 of 2016, available at https://www.sci.gov.in/supremecourt/2016/14961/14961_2016_Judgement_06-Sep-2018.pdf [last accessed 22 October 2018). 2 Nicol, et al. (eds), Envisioning Global LGBT Human Rights: (Neo)colonialism, Neoliberalism, Resistance and Hope (2018). It is notable that sexual orientation issues have barely been raised by other States during the three cycles in which India has undergone Universal Periodic Review, See Report of the Working Group on the Universal Periodic Review - India, Third Cycle, 17 July 2017, UN Doc a/HRC/36/ 10 and Add. 1. 1 2. BRITISH COLONIAL RULE AND THE INDIAN PENAL CODE Most of the Indian subcontinent was under British rule from 1858 to 1947.3 The Indian Penal Code (1860) (IPC) was the first codification of criminal law in the British Empire. The model was replicated in a number of other British colonies,4 but never in the UK itself. A successful war of independence ended colonial rule and led to the creation of India and Pakistan as sovereign States. A. Section 377 of the Indian Penal Code Section 377 of the IPC 1860 reads as follows: Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. The law was imposed on India by the government of the British India (the Raj) as part of a package of laws against public vice. On its face, it made no reference to homosexuality or any other same sex attraction. In practice, it was interpreted as criminalising same sex sexual 3 James, Raj: The Making and Unmaking of British India (1998); Tharoor, Inglorious Empire: What the British Did to India (2018); Gilmour, The British in India: Three Centuries of Ambition and Experience (2018). For the century prior to 1858, British settlements and possessions were administered by the East India Company, until the Indian Rebellion of 1857. 4 Han and O’Mahoney, ‘British Colonialism and the Criminalization of Homosexuality’ (2014) 27 Cambridge Review of International Affairs 268. 2 activities on the basis that they were unnatural. The same language as s. 377 (even the same section number) or the same substance was replicated in Bangladesh, Myanmar/Burma, Singapore, Malaysia, Brunei, Sri Lanka, and Papua New Guinea and some 17 African colonies.5 There is a widely-held view that, prior to the colonisation of India, same-sex relationships were not frowned upon.6 S. 377 is commonly represented as an attempt to ‘civilise’ the Indian population through the imposition of standards of morality from the Victorian era where sexual activities were considered to be mainly for procreation.7 It has been used has to prosecute consensual as well as non-consensual sexual acts.8 However, since 1860, less than 150 persons have been prosecuted under s. 377. In the modern era, prosecutions have become increasingly rare.9 Even so, there had been consistent claims that s. 5 Human Rights Watch, This Alien Legacy: The Origins of “Sodomy” Laws in British Colonialism (2008), available at https://www.hrw.org/report/2008/12/17/alien-legacy/origins- sodomy-laws-british-colonialism [last accessed 22 October 2018]; Sanders, ‘377 and the Unnatural Afterlife of British Colonialism in Asia’ (2009) 4 Asian Journal of Comparative Law 1. 6 Vanita and Kidwai (eds), Same-Sex Love in India: A Literary History (2000), cited by Justice Chandrachud in Navtej Singh Johar at pr. 14, n 6. 7 ‘Matters of consent and sexual offences reflect the Victorian assumptions of Macaulay's time, but were nonetheless generally an advance on existing English laws, Wright, ‘Macaulay's Indian Penal Code and Codification in the Nineteenth Century British Empire’ (2012) Journal of Commonwealth Criminal Law 25 at 38. See also Brown, Penal Power and Colonial Rule (2014). 8 Narrain, ‘A New Language of Morality: From the Trial of Nowshirwan to the Judgement in Naz Foundation’ (2010) 4 The Indian Journal of Constitutional Law 84. 9 In Dudgeon v United Kingdom, the European Court observed that in, ‘In Northern Ireland itself, the authorities have refrained in recent years from enforcing the law in respect of private homosexual acts between consenting males over the age of 21 years capable of valid consent (see paragraph 30 above). No evidence has been adduced to show that this has been injurious to moral standards in Northern Ireland or that there has been 3 377 was the basis for routine and continuous violence against sexual minorities by the police, the medical establishment, and the State.10 The police used the existence of the offence to justify practices such as illegal detention, sexual abuse and harassment, extortion and the outing of queer people to their families.11 In 2015, police in different states and union territories arrested 1,491 people under s. 377, including 207 minors and 16 women.12 any public demand for stricter enforcement of the law. It cannot be maintained in these circumstances that there is a "pressing social need" to make such acts criminal offences, there being no sufficient justification provided by the risk of harm to vulnerable sections of society requiring protection or by the effects on the public,’ Application No 7525/76, Merits, 22 October 1981, para. 60. In Toonen v Australia, the Human Rights Committee considered that sections of the Tasmanian Criminal Code ‘interfered’ with T’s privacy, even though they had not been enforced for a decade. The policy of the Department of Public Prosecutions not to initiate criminal proceedings in respect of private homosexual conduct did not amount to a guarantee that no actions would be brought against homosexuals in the future, particularly in the light of undisputed statements of the Director of Public Prosecutions of Tasmania in 1988 and those of members of the Tasmanian Parliament. The continued existence of the challenged provisions therefore continuously and directly interfered with the T's privacy’, (488/92), Merits, 31 March 1994, C/50/D/488/1992. On the effects of criminalization, even if not enforced, see Goodman, ‘Beyond the Enforcement Principle: Sodomy Laws, Social Norms and Social Panoptics’ (2001) 89 California Law Review 643. 10 International Commission of Jurists, ‘“Unnatural Offences” Obstacles to Justice in India Based on Sexual Orientation and Gender Identity’ (Geneva, 2017), available at https://www.icj.org/wp-content/uploads/2017/02/India-SOGI-report-Publications-Reports- Thematic-report-2017-ENG.pdf [last accessed 22 October 2018]. 11 Sanders, supra n 5. See also the allegations of various respondents in Naz Foundation v Govt. of NCT of Delhi, infra n 21. 12 Thomas, ‘14% of those arrested under section 377 last year were minor’, The Times of India, 29 September 2016, available at https://timesofindia.indiatimes.com/city/mumbai/14- of-those-arrested-under-section-377-last-year-were-minors/articleshow/54573741.cms [last accessed 22 October 2018]. 4 B. The Constitution of India The Constitution of India was adopted by a Constituent Assembly of India on 26 November 1949. It became effective on 26 January 1950. It replaced the Government of India Act (1935) as the country's fundamental governing document, as the Dominion of India became the Republic of India, an independent sovereign state. It is the longest Constitution of any sovereign State. Its framers borrowed many features of colonial legislation and retained much of its penal legislation. The Preamble to the Constitution (as amended) declares that the people of India have resolved to constitute India into a ‘sovereign socialist secular democratic republic’, and to secure to all its citizens, ‘Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation.’13 As the Constitution is the supreme law of India, the Parliament can amend it but not override its basic structure. As is in the nature of Constitutions, it establishes the political and legal framework for the federal State and its constituent parts, and for the government. It also sets out ‘fundamental rights’ (Part III), ‘directive principles’ of State Policy (Part IV) and the ‘fundamental duties of citizens’ (Part V). The Constitution repealed many the major pieces of colonial legislation but all the law in force in the territory of India immediately before the commencement of this Constitution, including the 1860 IPC, continued in force until altered, repealed or amended. 13 On the growing use of preambles in constitutional interpretation, including in India, see Orgad, ‘The Preamble in Constitutional Interpretation’ (2010) 8 International Journal of Constitutional Law 714. 5 C.