By: Advaya Hari Singh

INTRODUCTION

On 6^th September 2018 the Supreme Court had its “moment of atonement”, a moment which comes seldom in the history of constitutional adjudication. This was the moment when Supreme Court decriminalized Section 377 to allow a marginalized section of the society to truly realize their constitutional guarantees in a democracy. These moments allow the Apex Court to pause and reflect on its true responsibilities as the guardian of constitutional values and expunge stray elements from the system. A similar instance had arisen in the year 1978 when the Supreme Court in the case of Maneka Gandhi v Union of India, moved beyond a purely positivist interpretation of Article 21 to read due process as a necessary concomitant of Article 21. This was a moment for undoing the harm which had been wrecked in the previous decisions of A.K. Gopalan and A.D.M. Jabalpur, two stray decisions which needed cleaning up. The Navtej Singh case was heard and decided in a similar context wherein a previous ruling of Suresh Kumar Koushal v Naz Foundation, the same Court passed in dereliction of its duty to be the sentinel on the qui vive, was in front of the Court as a rare ‘stray’ decision. Not only this, another landmark ruling in the case K.S. Puttaswamy v Union of India declaring privacy as a fundamental right stood almost as a sacred command demanding the Court to reconsider its stand on the most basic questions of equality, dignity and liberty.

It was, therefore, hardly surprising that the Court took it upon itself to declare Section 377 as an anachronism unsuitable to a dynamically moral society like ours. A note of caution here, this dynamic morality has been lent by the Constitution and not by societal notions which invariably reflect majoritarian views and ignore minority views. The judgment itself is illuminating for its analysis of a gamut of Constitutional values like decisional autonomy, equality, dignity, non-discrimination and liberty. However, this piece is devoted to a particular analysis which appears in the judgment of Chandrachud J. who invokes the principles on liberty propounded by John Stuart Mill. While the Constitutional logic of equality, non-discrimination and dignity certainly solidify the verdict’s reasoning, it is the rather simple argument of individuality which undergirds all other justifications.

MILL AND CONSTITUTIONAL JURISPRUDENCE

John Stuart Mill wrote extensively on the struggle between individual autonomy and governmental authority. The former often rests on a numerically weak notion against the mighty ‘public interest’ connotation of the latter. Realising this quantitative distinction, Mill asserted the importance of autonomy or sovereignty when he said, ‘In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign’.[1] This is similar to another Constitutional argument which has been canvassed before the Court and accepted by it in recent decisions- freedom of choice. The centrality of ‘choice’ was prominently highlighted in the Puttaswamy judgment wherein a number of opinions asserted the importance of individual choice over matters concerning oneself. The Court also recognised this right in the Hadiya case where it asserted that curtailment of the freedom to choose in the name of  “societal obeisance” will be destructive of the individualistic identity of the person. If Mill were alive today he would certainly be pleased with the Court’s reasoning in recognising individual autonomy in decisions which had nothing to do with the society’s mind, body or soul, but were merely concerning oneself.

Where a particular choice is regarding the life and conduct of one person, it is natural to assert that other persons do not unnecessarily substitute their judgment in the name of morality. Mill’s most prominent contribution lies in an often quoted paragraph which deserves to be reproduced in its entirety:

The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right.[2]

There are a few important takeaways from this paragraph; that the liberty of a person is not dependent on the subjective satisfaction of another’s morality, sensibility or perception. Individual liberty can only be curtailed if it is ‘harms’ another; note the word ‘harm’ here. Mill felt that a harm would have to be violative of a distinct and assignable obligation to another person. Merely because the conduct of an individual in his liberty is ‘perverse, foolish or wrong’ does not mean that others can justifiably claim it to be illegal.[3] The Constitution echoes a similar sentiment in the provisions for restrictions on right to freedom and the provision on the right to religion.[4] Both envisage autonomy in matters personal to oneself but impose restrictions if this affects others detrimentally.

EXPRESSION OF SEXUAL PREFERENCE AND MILL’S THEORY

Mill asserted individuality as the guiding principle in any state and laid emphasis on non-interference by the State in the lives of individuals where their conduct did not result in any harm to others. The expression of one’s sexual preference falls squarely within this analysis; a person’s choice of sexual conduct is a matter which concerns that person, it is not a decision which affects others and neither is it a decision in which any other member has a sufficient interest. Each individual has the freedom to choose a particular sexual preference and in absence of any legitimate justification, can assert that particular preference without fear of legal reprisal. There is, in all probabilities, no material harm that is caused to other members of a society when same-sex persons exercise their freedom of choice. Just because it is revolting to see persons stray away from the natural path (the judgment has already highlighted the ambiguity in deciding the questions of what is natural) to one of depravity does not lend license to an interference.

Moreover what is ‘natural’ is often a question of cultural perception and something deemed ‘unnatural’ is nothing more than conduct which is against the cultural percept of another. To deem homosexuality as unnatural is tantamount to saying that “because you do not do what I want you to do but do what you want to do, it is unnatural.” This is precisely a kind of instance Mill wanted to prevent when a person’s conduct is regulated not because it is ‘harmful’ but because it is not ‘right’, ‘bad’ or the curtailment is ‘good for him’. These are all subjective terms devoid of certainty, objectivity and legality. Chandrachud J. has highlighted in his Navtej Singh a ‘taxonomy of types of conduct’ which classifies conduct as self- regarding conduct, conduct which may hurt others without violating a legal right (similar to the tort principle of damnum sine injuria) and actions which violate the legal rights of another. He has rightly held that sexual conduct is part of the first category of conduct and criminalisation of sodomy is nothing but a substitution of one’s personal judgment for another’s in a kind of paternalism which has no place in a society of autonomous individuals.

The verdict rests on a simple notion of non-interference, where the conduct of another person is not harmful to us, it is just not our place to interfere. The brilliance of this logic lies in its undergirding of other theories of equality, dignity and non-discrimination. If another’s conduct does not concern us it is indisputable that we accord it with the same level of equality and dignity as we do for other conduct. Furthermore, someone’s harmless choice cannot become a ground of discrimination just because it is not in consonance with the notions others harbour. This is the simple yet persuasive logic of Mill’s argument which in its own way lends justification to this landmark decision.

[1] John Stuart Mill, On Liberty (Batoche Books 2001) 13.

[2] ibid.

[3] ibid.

[4] These are articles 19(2)-(6) and article 25 of the Indian Constitution.

(Advaya Hari Singh is currently a student at National Law University, Nagpur.)