Resisting Stigma and Homophobia: Arvind Narrain's Expert Testimony, Bangalore Panchayat
The Court begins by adopting a view of human dignity that privileges the ability to freely make choices about how to live one's life. "At its least, it is clear that the constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society. It recognizes a person as a free being who develops his or her body and mind as he or she sees fit. At the root of the dignity is the autonomy of the private will and a person's freedom of choice and of action. Human dignity rests on recognition of the physical and spiritual integrity of the human being, his or her humanity, and his value as a person, irrespective of the utility he can provide to others." (para 26).
From this notion of dignity, the court derives a concept of privacy that "...deals with persons and not places." (para 47). That is, the right to privacy is not merely the right to do what one wants in "private
spaces" like the home, but also a right to make choices about how to
live one's own life. Privacy protects personal autonomy.
This dignity-autonomy includes the right to sexual expression, which
necessarily entails being able to choose sexual partners without
unjustified interference by the state. The Justices elaborate on this
point by lengthily quoting the Constitutional Court of South Africa's
germinal opinion in The National Coalition of Gay and Lesbian Equality
v. The Minister of Justice:
"The privacy recognizes that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which one gives expression
to one's sexuality is at the core of this area of private intimacy.
If, in expressing one's sexuality, one acts consensually and without harming the other, invasion of that precinct will be a breach of privacy." (para 40). "For every individual, whether homosexual or not, the sense of gender and sexual orientation of the person are so
embedded in the individual that the individual carries this aspect of his or her identity wherever he or she goes. A person cannot leave behind his sense of gender or sexual orientation
at home. While recognizing the unique worth of each person, the Constitution does not presuppose that a holder of rights is as an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times. The expression of sexuality requires a partner, real or imagined. It is not for the state to choose or to arrange the choice of partner, but for the partners to choose themselves." (para 47).
Relying on several Supreme Court cases, the Justices locate the rights
to dignity and privacy within the right to life and liberty guaranteed by Article 21 of the Indian Constitution. This is because the right to life necessarily includes the right to define one's own life.
"In the Indian Constitution, the right to live with dignity and the right of privacy both are recognized as dimensions of Article 21. Section 377 IPC denies a person's dignity and
criminalizes his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution. As it stands, Section 377 IPC denies a gay person
a right to full personhood which is implicit in notion of life under Article 21 of the Constitution." (para 48).
Thus, the Court concludes that Section 377 violates the Constitution,
not only because it criminalizes acts taking place within a special zone
of privacy, but also because it criminalizes individual choices which
are central to personal dignity. The Court thereby concludes that
Section 377 violates the right of privacy which is both zonal and
decisional. The violation of this broadened notion of privacy infringes
The Court further cites several studies and reports to illustrate how
Section 377 violates the dignity of homosexuals even if it is not legally
enforced. This violation happens through the reduction in self-worth
that homosexuals felt, as well as through harassment from the police
and the community at large. The Court says:
"The criminalization of homosexuality condemns in
perpetuity a sizeable section of society and forces them to
live their lives in the shadow of harassment, exploitation,
humiliation, cruel and degrading treatment at the hands of
the law enforcement machinery." (para 52).
The Justices specifically reference the colonial-era Criminal Tribes Act, which criminalised hijra identity, as a particularly horrendous
instance of the criminalization of sexual minorities. Even without
actual enforcement, laws like Section 377 serve to stigmatize an entire
section of society, thereby violating their dignity as citizens.
(From The Right That Dares Speak Its Name, Alternative Law Forum, Bangalore, 2009)
Right to Health
The Justices in the Naz Foundation judgement note that the Supreme Court has read the right to life in
Article 21 of the Constitution to include a right to health. This right
to health includes various entitlements, such as an equal opportunity to access a functioning healthcare system.
The Justices point out that the International Covenant on Economic,
Social and Cultural Rights (ICESCR) provides that the right to health
is violated by discrimination based on sexual orientation or HIV status.
They then canvass in detail the policies of international and domestic
institutions involved in the struggle against HIV/AIDS, including
several important declarations by U.N. bodies. They further cite
statements by the Union Health Minister in 2008, saying that the stigma attached to sex workers and men who have sex with men by Section 377 presented a serious obstacle to HIV/AIDS prevention efforts.
In response to the Additional Solicitor General's argument that repeal
of Section 377 would lead to an increase in the spread of HIV, the
Justices issue a sharp rebuke, saying his argument "is completely
unfounded since it is based on incorrect and wrong notions" (para
72). They say that there is absolutely no scientific evidence demonstrating a link between the decriminalization of homosexuality and an increase in HIV transmission rates. In fact, the NACO affidavit indicates that decriminalization would have a positive effect on HIV prevention efforts. The Justices therefore conclude that Section 377 is an impediment to public health which particularly infringes on the
right to health of LGBT persons.
Safeguarding public health may indeed be a compelling state interest
that can justify reasonable limitation on the right to privacy. However,
the Court reasons, such an interest would in fact compel the state to
repeal Section 377, because Section 377 demonstrably hampers HIV/
AIDS prevention efforts.
From "The Right That Dares Speak Its Name", Alternative Law Forum, Bangalore, 2009