“Asking Searching Questions to Forms and Symbols of Injustice”: Indirect Discrimination, Intersectionality and the Principle of Anti-Stereotyping | IACL-AIDC Blog

Op-Eds by Public Law · September 14, 2018
Author(s): Akshat Agarwal

The Supreme Court of India’s (Supreme Court) decriminalisation of same-sex relationships in Navtej Johar v. Union of India (Navtej Johar) was a culmination of the almost two-decade long, bruising legal struggle for LGBT+ rights in India, which saw the earliest petitions being filed in 2001 and decriminalisation by the Delhi High Court in Naz Foundation in 2009, followed by the Supreme Courts’s re-criminalisation in Suresh Kumar Koushal v. Naz Foundation in 2013. While the outcome was not wholly unexpected, considering judicial remarks at the time of hearing, what distinguishes the judgement is its willingness to push the doctrinal boundaries of Indian anti-discrimination law to realize the true transformative potential of the Indian Constitution.

The reading down of Section 377 of the colonial Indian Penal Code, 1860 would have been entirely sound on grounds of violating personal liberty and privacy, the latter having been given explicit recognition by the Supreme Court in Puttaswamy last year, freedom of expression and the guarantee of equality under Articles 21, 19 and 14, respectively, of the Indian Constitution. The Supreme Court, however, went a step-ahead and unambiguously acknowledged the core discriminatory content of Section 377 and held that it violated Article 15(1) of the Indian Constitution which stipulates that, “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” As has been argued elsewhere, this was a fitting response to the Supreme Court’s own “institutional sin” of re-criminalisation, and due to the enormous expressive significance of the judgement, in the context of how the discourse on LGBT+ rights has evolved in India and the current political climate where disempowered minorities feel unduly threatened.

Chandrachud J’s opinion, in particular, perhaps displays the most elaborate understanding of Indian sex-discrimination law, yet and unequivocally recognizes the LGBT+ person’s right to anti-discrimination. This is significant, as decriminalisation of same-sex relationships (evidenced through the experience of other jurisdictions around the world) is only an entry-point into greater civil rights such as the guarantee against work-place discrimination, marriage and adoption.

The wording of Section 377 is peculiar in its neutrality since it only criminalizes conduct, which is described as “carnal intercourse against the order of nature” and does not refer to a specific identity or group of people. The Supreme Court undertook an elaborate analysis in order to establish how criminalisation of sexual orientation violates LGBT+ rights and is discriminatory on the ground of sex under Article 15(1).

For ease of understanding, I have broken down the Supreme Court’s analysis into three points. First, the Court demonstrates that Section 377 is problematic due to its indirect effects of criminalisation on the lives of LGBT+ people who are forced to lead closeted lives, face societal stigma and are subjected to social control. Second, this effect on the lives of LGBT+ people is intrinsically linked to societal notions of gender, since sexual orientation defies traditional gender roles and therefore the impact on their lives is a direct consequence of their subversion of gender stereotypes. And finally, such stereotyping on the basis of gender roles that provisions like Section 377 perpetuate, clearly conflicts with the prohibition on discrimination on the grounds of sex, which is both intersectional and encompasses an anti-stereotyping principle.

Section 377 and Indirect Discrimination

The starting point of this new doctrinal understanding is the existing constitutional position in India that in constitutional adjudication (Para 19, Maneka Gandhi v. Union of India, (1978) 1 SCC 248) it is not the object of the law but the effect of the infringement of the right which matters. This is material as discrimination under a neutral provision such as Section 377 of the Indian Penal Code that does not distinguish between heterosexuals and homosexuals is never direct but occurs indirectly due to the disproportionate impact such a provision has on the lives of LGBT+ community.

What was particularly defining about the current round of litigation before the Supreme Court is how LGBT+ citizens for the first time had approached the court to enforce individual rights, while forsaking the traditional Indian public interest route under which, due to liberalisation of rules of standing, courts can be approached in larger public interest. They could therefore demonstrate the impact of criminalisation through their own lived-experiences. This in turn gave the Supreme Court ample material in the form of personal stories to demonstrate how Section 377 has had a disproportionate impact on LGBT+ lives, thereby establishing indirect discrimination. The Supreme Court recognised the concept of indirect sex- discrimination in Article 15(1) on the basis of its earlier transgender rights decisions (NALSA v. Union of India), where it was observed that the constitution gave emphasis to the “fundamental right to sex discrimination so as to prevent the direct or indirect attitude to treat people differently for not being in conformity with stereotypical notions of binary gender.”

Sexual Orientation and Gender Stereotypes

Thereafter, the Court relied on a sociological analysis to highlight how sexual orientation inherently defies gender roles since the latter conceives of all relationships as heteronormative, i.e. being in conformity with the so-called “order of nature” while homosexuality subverts this supposed order. Therefore, the disproportionate indirect impact of criminalisation on LGBT+ lives becomes a direct consequence of a heteronormative worldview that a provision like Section 377 not only embraces but reinforces too.

Principle of Anti-Stereotyping and Intersectionality

In the Court’s view, Section 377 therefore discriminated against LGBT+ people on the ground of stereotypes based on gender and sexual roles. In order to justify prohibition of such discrimination under Article 15(1), the Supreme Court relied on its earlier precedent in Anuj Garg v. Hotel Association of India, delivered in the context of prohibiting employment of women in establishments that served alcohol, wherein it was held that laws based on “incurable fixations of stereotype morality and conception of sexual role” were also discriminatory on the basis of sex under Article 15(1). The Supreme Court thus unambiguously recognised the principle of anti-stereotyping, according to which discrimination on the basis of a stereotype of sex would not be distinguishable from discrimination on the basis of sex. This has been a staple in US Supreme Court jurisprudence for some time now (Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)).

The Supreme Court also overruled its decision in Air India v. Nergesh Meerza (Meerza), which dealt with regulation pertaining to termination of air hostesses’ employment on account of early pregnancy or marriage, wherein it was held that a textual understanding of Article 15(1) meant that discrimination was prohibited when it was only on the basis of sex and not when it was “sex+” i.e. on the basis of sex and other considerations. Chandrachud J. overruled Meerza at two levels. First, the recognition of the principle of anti-stereotyping makes a textual understanding of Article 15(1) unsustainable since there could be situations were discrimination was not only strictly due to sex but because of societal stereotypes and norms associated with sex. Illustratively, in Meerza the Court had reasoned that termination upon marriage was only beneficial since it allowed women to look after their families and bear child-care responsibilities while ignoring that such a viewpoint unfairly attributed care-giving responsibilities as the sole domain of women. Second, that such an understanding stripped the anti-discrimination principle of Article 15(1) of its essential content by not accounting for the intersectional nature of sex-discrimination which implies that discrimination in reality does not operate in isolation of other identities from socio-political and economic contexts.

In the process of recognising the right of LGBT+ person’s rights against sex-discrimination, the Supreme Court therefore conclusively recognised principles such as indirect discrimination and anti-stereotyping as well as acknowledging the intersectional nature of discrimination in Indian constitutional law. The implications of this, as suggested earlier, will extend to civil rights of LGBT+ persons which are likely to come up post-decriminalisation. However, the impact will not be limited to jurisprudence on LGBT+ rights but is also likely to profoundly influence discrimination law in general and sex-discrimination law in particular due to the wide applicability of these principles. The Supreme Court’s judgement in Navtej Johar is thus emblematic of the transformative nature of the Indian Constitution and its guarantee of inclusivity and pluralism against all injustice.

Akshat Agarwal is a Research Fellow at Vidhi Centre For Legal Policy, New Delhi. Views expressed are personal.

Originally published – https://blog-iacl-aidc.org/section-377-expanding-lgbt-rights-in-india/2018/9/13/asking-searching-questions-to-forms-and-symbols-of-injustice-indirect-discrimination-intersectionality-and-the-principle-of-anti-stereotyping

About Akshat Agarwal:

Akshat is a Research Fellow at Vidhi and currently works with the Vidhi Aid initiative. At Vidhi, he has advised on projects relating to the regulation of the digital economy, privacy and federalism. Currently, he is working on research projects relating to LGBT+ rights, withdrawal of care from terminally ill patients and public health. His research interests include public law, human rights, family law and gender and sexuality. Akshat is an alumnus of the National Law School of India University, Bangalore and was previously an Associate at the leading Indian law firm Khaitan & Co., where he worked with their disputes and regulatory practices. He has been published in peer reviewed journals as well as media outlets such as The Wire, LiveMint etc., and has also contributed to international blogs such as the Oxford Human Rights Hub and the IACL-AIDC blog. He served as the Chief Editor of the National Law School of India Review and was also on the editorial board of the Indian Journal of International Economic Law. Link to full bio