A ‘Rainbow’ in the East: India’s Supreme Court delivers landmark ruling by Victor Azure

In September 2018, the Supreme Court of India held unanimously in the case of Navtej Johar Singh v. Union of India that section 377 of the Indian Penal Code (IPC) is unconstitutional to the extent that it criminalizes consensual sexual activity between adults of the same sex. The section reads:

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 a fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence in this section.

Navtej Johar Singh v. Union of India marks the end of a long drawn out legal clash within India to define the scope of rights for homosexuals. Even though very few people have been arrested under the law, it has been a source of threats, blackmail and other such encroachments on the freedoms of homosexuals in India. The plaintiff in this case sought to strike down the law to address that. The first judicial incursion on the matteroccurred in 2009 in the case of Naz Foundation v. Govt. of NCT of Delhi in which the High Court of New Delhi ruled that section 377 of the IPC violates Article 14 of the Constitution of the Union of India, which guarantees all people “equality before the law;” Article 15, which prohibits discrimination “on grounds of religion, race, caste, sex or place of birth;” and Article 21, which guarantees “protection of life and personal liberty,”  and was null to the extent of the violation.

The 2009 case was overturned by the Supreme Court of India in 2013 in the case of Souresh Kumar Khousal v. NazFoundation, the court held that any repeal or amendment of section 377 was a matter for parliament and not the judiciary.Thus, with the 2018 ruling India has come full circle back to the Delhi High Court position in 2009. The country is politically polarized on the subject, the myriad of secular and religious views can hardly find any alignment. Yet what stands out in this Indian case is one of extraordinary judicial assertiveness. It is suggested in this post that the Indian saga has some useful lessons especially for the developing world whose arguments against the recognition of same sex relationships are similar to that raised and sustained in India over a long period. These arguments generally draw a fine distinction between the changes in the West led by the US with its Supreme Court rulings in Lawrence v. Texas to Obergefell v. Hodges which had the combined effect of decriminalizing same sex activity and recognizing same sex marriages under US law as something peculiar to the West and their time tested institutions and good economy which enables them to focus on tertiary issues like rights of same sex couples. India, although significantly more economically advanced than many African states is still a far cry from an ‘advanced country’ as it still has the largest number of poor people within a single nation. India is also the world’s largest democracy with a constitution and constitutional principles stemming from the British colonial experiment just like many countries in Africa, like Ghana, Nigeria and Kenya. India’s U-turn through the judicial channel on this issue calls for a re-examination of the arguments on this issue as they pertain in Africa. This post attempts such an examination.

The ‘we are not there yet’ arguments on the rights of homosexuals

For context, let us go back to a press conference in Nairobi between President Barack Obama as he then was and Kenya’s President Uhuru Kenyatta sometime in 2016 which in the view of the present writer sums up what could pass for a Westernposition on the matter as presented by President Obama which many Africans reject and what could pass for an African position put forward by President Kenyatta that many Africans accept. A transcript of the dialogue:

Barack Obama: “I believe in the principle of treating people equally under the law, I believe that all people are deserving of equal protection under the law and that the state should not discriminate against people based on their sexual orientation”.

…if somebody is a law abiding citizen and is working in a job and is obeying the traffic signs and doing the things that good people are supposed to do and not harming anybody, the idea that they are going to be treated differently or abused because of who they love is wrong full stop…

Uhuru Kenyatta: “the fact is that Kenya and United States share so many values, our common love for democracy, entrepreneurship, value for family, these are things that we share. But we must admit there are things we don’t share that our cultures do not accept and it’s hard to impose on people that which they do not accept and that is why I say for many Kenyan’s today the issue of gay rights is a non-issue, we want to focus on issues that affect the day to day lives of people, health, education, roads etc.…maybe once we have overcome these like you have done (reference to the USA) we may begin to focus on others…”

From the Western end, as articulated by Barack Obama, the issue about whether homosexuals will have equal protection under the law is one of law not morals or religious belief and the state must apply the law as it should be, we can term this the Western categorical imperative—rights of homosexuals are human rights and should have equal protection. The African view as put forward by President Kenyatta is that in Africa there is no such categorical imperative, rather, the issue will be resolved by a cultural compatibility and material importance inquiry and for present purposes the subject fails both ends of the inquiry.

A recurring theme in the interaction between African leaders and Western media outlets has been why African countries ignoring or criminalizing same-sex activity. Their responses have generally been along the lines articulated by President Kenyattaand can be put in a few categories namely 1) Africa is culturally different and homosexuality is alien to it, 2) the issue of homosexuality is not primary to the needs of Africans today, Africans want jobs, food, housing among others and homosexuality is a non-issue; 3) even if governments were interested in recognizing homosexual activity as legal and confer on them rights the vast majority of the population will rise up against it.

These arguments are grounded on the following facts; a widely held belief in the ‘deviant nature of homosexuality in the culture of many societies in Africa; its relative lack of importance to the challenges of developing countries; and its fierce rejection by a majority of the people in Africa. Interestingly, similar arguments were put forward in the courts of India.

A colonial ghost story

At the height of its power, the British Empire ruled over almost half of the world, controlling vast swathes of territory in Africa, Asia, and North America all the way to Australia. This body of territorial control is known as the Commonwealth—a loose union of states that still endures in many respects today. A lasting legacy of this broad imperial footprint by Great Britain is seen in the institutions, laws, religion, education and culture among many other aspects of the territories that they once controlled. Perhaps, Britain’s greatest legacy in its former colonies is the construction of a legal framework that will endure for eons. The bill of rights, trial by jury, habeas corpus, the English common law and equity among other things have been useful introductions by Britain into its colonies that have promoted freedom and the dignity of man. Moreover, what accompanied these new legal categories was a transfer of moral codes, a transplantation of a moral universe by the colonial power which comprised notions of right and wrong, natural and unnatural, just and unjust. In this instance, the history of laws criminalizing sexual activity against the order of nature in the Commonwealth is traceable to the English Buggery Act of 1533. A law passed at that time to checkmate the erosion of sexualdecency in England. As a result of this history many in India and around the world have christened this new ruling as a bold move towards reconstructing a former colonized nation beyond the legacy of it colonial master.

Yet, as far as many people in Africa today are concerned, homosexuality is an abhorrent activity on the fringes of society. Another view holds that it is a Western import, a corruption of African culture by Western elements. This is largely because the main religions in Africa Christianity and Islam are clear in their abhorrence for homosexuality. Yet this widespread contemporary African view is in sharp contrast to anthropological findings and contentions to the contrary. De Vosin an article titled ‘On the Legal Construction of Gay and Lesbian Identity and South Africa’s Transitional Constitution’argues that the evidence available shows that homosexuality is not alien to Africa and at any rate it is the intolerance, the regulation and stifling of its expression that is alien to Africa. Other scholars contend that the colonial period which lasted over a century in many places constituted a political and socio-cultural interruption in Africa and have led African’s to forget sexual patterns in precolonial times which is how the practice emerged in the post-colonial phase a stigma, criminalized in many places.

A majoritarian resolution will not do

On homosexuality as a deviant activity that should not be encouraged in a moral society, the Supreme Court of India applied the reasoning of the judge in the 2009 case where the judge reasoned as follows:

If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognizinga role in society for everyone. Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracized. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and nondiscrimination”.

Further, in a separate case in August 2017, the court reasoned on the issue of privacy and right to non-discrimination of homosexuals as follows:

Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.

On non-discrimination the court reasoned:

Their rights are not “so-called” but are real rights founded on sound constitutional doctrine.

They inhere in the right to life. They dwell in privacy and dignity. They constitute the

essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination.

In view of the above, the courts concluded that the interpretation of section 377 of the IPC which criminalized consensual sexual activity between two consenting adults is “irrational, arbitrary and incomprehensible”. The court maintained however that their ruling does not apply to bestiality non-consensual sexual activity and sexual relations involving minors.

Conclusion

It would appear that President Kenyatta’s compatibility and importance inquiry that has been used to relegate the subject matter in many African states is a politically sound one. However, if the issue will not be settled on a political stage like an election or in parliaments but on legal and constitutional principles in a court of law then the cultural compatibility and material importance thesis is capable of being found inadequate as the courts of India have shown.  Cultures may differ but legal concepts like equality, inclusion, right to privacy, freedom from discrimination among others that are etched in the constitutions of India, Ghana, Nigeria, Kenya and many other states of the world have a poignant prescriptive value that has echoed through the ages. From ending racism and segregation to the abolition of apartheid, it was how women got the right to vote and people with disability got protection these concepts have a peculiar moral stridency that changes status quos. Of course, as to what a court seized with the matter in Africa will do in fact, there is no telling. But the lesson from India is that cultural incompatibility, majority rejection and the view that it is not a priority for developing country governments do not pass legal muster on the table of constitutional rights of equality, inclusion, non-discrimination and to privacy. It is suggested therefore thatthe judicial route which settled this matter in United States and India and some places in Europe does not recognize the majoritarian rejection as sufficient basis for not recognizing rights of homosexuals. This was the case in a developed Westerncountry like the USA and it’s now the reality of a developing Eastern country like India. Thus, on a day a court in Kenya, Ghana or Nigeria equally decide not to leave this matter to the parliaments, and proceed to pronounce on it with similar views of constitutional rights, then advocates of the cultural compatibility and importance thesis might have to come up with more. When that day comes, may it please the court?