Excerpt from the Judgment of Justice Ravindra Bhat

The trinity – autonomous choice, dignity and non-discrimination

1. Importance of personal choice under the Constitution

The journey of our constitutional progression, and our understanding of the personal liberties, especially right to life (Article 21) and equality (Article 14) has peeled and laid bare, so to say, multiple layers of prejudice, insensitivity and indifference of the social order or other collectives, in regard to a person’s freedom to exercise her volition, and free will, in several matters.

For instance, a woman’s choice and bodily autonomy in regard to exercise of her reproductive rights has been acknowledged as a fundamental right–- integral to the right to life, in Suchita Srivastava & Ors. v. Chandigarh Administration[1] reiterated in Devika Biswas v. Union of India[2]; X v. Principal Secretary, Health and Family Welfare Department (hereafter, “X v. Principal Secretary”)[3];

Independent Thought v. Union of India and other decisions A person’s autonomy to choose a spouse or life partner, has been declared as integral to one’s fundamental right to live: in Asha Ranjan v. State of Bihar[4] , this choice of a “partner in life” was held to be “a legitimate constitutional right” that is “founded on individual choice” and the court decried the concept of “class honour” or “group thinking” which acted as barriers from the exercise of free choice.

Similarly, In re [Gang-Rape Ordered by Village Kangaroo Court in W.B.,[5] echoed the same idea and said that the state is “duty-bound” to protect the fundamental rights “and an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage.”

Shafin Jahan v. Asokan K.M & Ors., (hereafter, “Shafin Jahan”)[6], brought home that expressing choice is in “accord with the law” and is “acceptance of individual identity.” The nine-judge decision in K.S. Puttaswamy v. Union of India (hereafter, “K.S. Puttaswamy”)[7] through Dr. Chandrachud J writing for himself and five other judges, in several places, explored the various nuances of the right to privacy, and observed that “personal choices governing a way of life are intrinsic to privacy”.

The choice of a woman to seek employment, was upheld in Anuj Garg v. Hotel Association of India[8] where gender and age barriers were held unconstitutional; the choice of an individual patient has been held to exercising his (or her) legal right to euthanasia (or to his relations in certain circumstances, particularly when the patient is unconscious or incapacitated to take a decision), in Common Cause (A Regd. Society) v. Union of India (UOI) & Ors (hereafter, “Common Cause”)[9] .

Traditional barriers to temple entry based on gender was the subject matter of this court’s ruling in Indian Young Lawyers Association & Ors. v. the State of Kerala & Ors.[10]).

ii. Dignity as a dimension of equality and all our liberties

The promise of the Preamble to the Constitution is of ‘fraternity’ “assuring power, conflicts, and oppression, denial of participation. Quite naturally, these occupied centre-stage in our struggle for Swaraj. We did not strive merely for freedom from the shackles of a foreign power; our founders realized that millennia old practices of marginalization, oppression and exclusion produced humiliation, resulting in dehumanization of the human “self”.

The relation of self to other self, the dominant or powerful self to the oppressed self, ventures on the concept of equality. It thus tries to eliminate untouchability, sex and caste-based discrimination, and ensure dignity.

Dignity is understood to mean the intrinsic worth of a person or the inherent value of a human being which entitles one to respect. The crucial aspect of substantive dignity lies in the state’s role in providing basic conditions of life which enable individuals to fully realise the potential of intrinsic dignity by living, what is called, a ‘dignified life’.

In the Indian context the idea of equality and dignity is to reach its constitutional commitment to be a republic, based on democracy. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi[11] , this court said that the “right to life includes the right to live with human dignity”.

Prem Shankar Shukla v. Delhi Admn[12] voiced the same idea, i.e. that the Preamble set the “humane tone and temper of the Founding Document and highlights justice, equality and the dignity of the individual.” The court went on to hold that Article 21 “is the sanctuary of human values, prescribes fair procedure and forbids barbarities, punitive or procedural”.

This court, in Jeeja Ghosh v. Union of India[13], spoke about human dignity as a “core value” and that the “right to life is given a purposeful meaning by this Court to include right to live with dignity”. The court quoted from Aharon Barak[14] that human dignity has a “central normative role” and that as a constitutional value it is “the factor that unites the human rights into one whole. It ensures the normative unity of human rights” expressed in different ways i.e., normatively as a basis for constitutional rights; an interpretive principle for determining the scope of constitutional rights and that dignity has “an important role in determining the proportionality of a statute limiting a constitutional right.”

In Kesavananda Bharati v. State of Kerala (hereafter, “Kesavananda Bharti”)[15] too the value of dignity was underlined: “the basic dignity of man does not depend upon the codification of the fundamental rights nor is such codification a prerequisite for a dignified way of living”. This view has been adopted in several other decisions. It would be to borrow the words of Justice K.K. Mathew “an idle parade of familiar learning to review the multitudinous cases”[16]underpinning this aspect.

This court in K.S. Puttaswamy (supra) too, recognized the value of dignity. The judgment of this court in National Legal Services Authority v. Union of India & Ors., (hereafter, “NALSA”)[17] is significant; it underlines how dignity can be said to form the basis of enjoyment of fundamental freedoms.

The constitutional emphasis on dignity is not without a reason. Ambedkar, and several of our constitution framers, meticulously sought to carve out of the remnants of a socially repressive, hierarchical, and unequal society a modern constitution, reflecting the aspirations of a confident people, in a vibrant democracy. The society which our constitution created was to emerge out of darkness of caste and other forms of social prejudice and oppression, into the light of the rule of law, social justice, and egalitarianism.

 To Ambedkar and other constitution makers, political freedom (swaraj) meant precisely the freedom to make the self, to make choices with dignity, to break from historical suffering and humiliation. The drafting history of the equality code (Articles 14, 15, 16, 17 and 18) bear poignant testimony to this aspect.

Dignity has both an internal and external aspect. In its internal context, dignity and privacy are intrinsically twined. In its external context, dignity is multidimensional: it is a right to be treated as a fellow human, with all attributes of a human personality, which is, the right and expectation to be accorded due respect, treated with dignity and equal worth.

Denial of these, has a disproportionate impact on the individual: they are diminished in their own eyes, and the rest of the world, resulting in a loss of one’s self worth and moral worth. This is the vision of equality, social justice, welfare and dignity which our Constitution articulates.

iii. Equality, non-discrimination and non-exclusion

The equality code – Articles 14, 15, 16, and 17 (and Articles 23 and 24), so referred to in various previous decisions of this Court – for instance as the constitution’s “identity” in M. Nagaraj v. Union of India (hereafter, “M. Nagaraj”)[18] is not a “wooden” equality before law and equal protection of law. It contains specific injunctions prohibiting the state from discriminating on specifically forbidden grounds [such as caste, race, sex, place of birth, religion, or any of them, in Article 15; and caste, sex, religion, place of residence, descent, place of birth, or any of them, in Article 16].

The rooting of such explicit issues – commanding the state against discriminating on such specific heads, is therefore, as much a part of the equality code, as the principle of equality indorsed in Article 14.

The inclusion of Article 17 enjoins the state to forbear caste discrimination, overtly, or through classification, and looms large as a part of the equality code and indeed the entire framework of the Constitution. The protected attribute of ‘sex’ has been held to include ‘sexual orientation’ and ‘gender expression’ by this court in NALSA (supra) and Navtej Johar & Ors. v. Union of India (hereafter, “Navtej Johar”)[19] .

The rationale for enacting proscribed grounds under Article 15 or 16 (or both) is the awareness of Constitution makers that courts could use these markersor pointers of distinction, to determine if reasonable classification were permissible. Hence, absent the prohibited ground of sex, gender could have been a plausible basis for an intelligible differentia.

To prevent such classifications specific proscribed grounds were enacted as injunctions against State action. The provisions, and the equality code, are consequently not only about the declaratory sweep of equality: but also about the total prohibition against exclusion from participation in specified, enumerated activities, through entrenched provisions.

A closer look at Article 15, especially Article 15(2), would further show that likewise most of the proscribed grounds in Article 15(1) were engrafted to ensure that access to public resources – in some cases not even maintained by the state, but available to the public generally, could not be barred. This provision was made to right a historical wrong, i.e., denial of access to the most deprived sections of society of the most basic resources, such as water, food, etc.

The aim of the Constitution was to act as the ultimate leveller, ensuring that equality in practice, and substance, became the constitutional culture of this great nation. Together with the affirmative action provisions – Articles 15(3) & (4), 16(4) & 16(5) was intended to guarantee that not mere facial discrimination was forbidden but that existing inequalities were ultimately eradicated. Flowing from these, this court has, time and again, emphasized that non-discrimination is essential for enjoyment of all rights and freedoms of citizens of our country, to realize their worth and potential.

In the context of the present debate, in NALSA (supra), this court took note of the Yogyakarta Principles and principle on right to equality and non-discrimination enshrined therein which reads as:

“2. The rights to equality and non-discrimination – Everyone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity. Everyone is entitled to equality before the law and the equal protection of the law without any such discrimination whether or not the enjoyment of another human right is also affected. The law shall prohibit any such discrimination and guarantee to all persons equal and effective protection against any such discrimination.”

In this backdrop, the declaration of law, in Navtej Johar (supra) has provided impetus, so far as LGBTQ+ persons are concerned. Consensual queer relationships are not criminalized; their right to live their lives, and exercise choice of sexual partners has been recognised. They are no longer to be treated as “sub-par humans” by law.

Yet, that ipso facto, the petitioners allege, is not sufficient, because the fact that they are allowed to be by themselves, “let alone” in the privacy of where they live, is not adequate. Discrimination and prejudice faced by the queer community has been acknowledged, and discussed at length by this court in NALSA (supra) and Navtej Johar (supra). The draft opinion of the Chief Justice, also highlights these aspects, so is only briefly touched upon in the following section, for the sake of completeness.

Rights flowing from previous decisions of this court relating to the queer community

The Constitution assures dignity; also, various fundamental rights guarantee a panoply of rights (to equality, non-discrimination on enumerated grounds, to freedom of speech, expression, of association, of right to travel freely, of right to reside, of the right to trade, commerce and business, to personal liberty, freedom to profess one’s religion, all being important ones).

Various rights not expressly stated or enumerated, have been declared as facets of the right to life – of livelihood, access to healthcare, right to shelter, right to a clean environment, etc.

Sexual relation between persons of the same sex was outlawed, by virtue of Section 377 of the IPC. It characterized such acts as “unnatural sex”, enacted an offence, and prescribed sentence. This provision was read down by a Division Bench ruling of the Delhi High Court in Naz Foundation v. State (NCT of Delhi) (hereafter, “Naz Foundation”)[20], which de-criminalized consensual sex between persons of the same sex.

However, Naz Foundation (supra) was over turned, and it’s holding disapproved by this Court in Suresh Kumar Kushal v. Naz Foundation[21] that became the final word for a time so to say, resulting in the criminalization of physical intimacy between same sex consenting adults. Implicit in this was the chilling effect on the exercise of other freedoms by such couples particularly in exhibiting even bare, decent expressions of affection – which was a position that prevailed till the later five-judge bench decision in Navtej Johar (supra).

NALSA (supra) was a significant ruling regarding the rights of transgender persons. It was held that “discrimination on the ground of sexual orientation or gender identity, therefore, impairs equality before law and equal protection of law and violates Article 14 of the Constitution of India”.

This court, for the first time, recognized what now is obvious but was not perceived to be till then, i.e., that the transgender persons have the same rights and have to be treated as full citizens, entitled to their self-expression of gender identity. In other words, every human being’s right to assert what their gender is, not limited by what has been ascribed to them based on their sex at the time of birth. The court unequivocally declared that the right of transgender persons to non-discrimination is equally contained and resonates in the same manner as it does with other citizens.

The court also acknowledged the right to self-determination of one’s gender as intrinsic to Article 21 of the Constitution. The court further declared that necessarily, to realize such persons’ fundamental right to live with dignity under Article 21, extends to the right of equal access to all facilities to achieve full potential as human beings, such as education, social assimilation, access to public spaces and employment opportunities. The court also expressly alluded to their rights under Articles 15 and 16 of the Constitution of India.

The court was cognizant of the acutest form of discrimination of such persons, resulting in their degradation. This declaration of the entitlement of the transgender persons sensitized the society to take measures for addressing their concerns, eventually paving the way for the enactment of the Transgender Persons (Protection of Rights) Act, 2019 which aims to entrench the principle of non-discrimination and entitles transgender persons to a range of statutory rights, which they can enforce.

The court’s intervention in the oft cited decisions on behalf of the petitioners has been to protect the citizens or those approaching the courts against threats of violence or creation of barriers in the exercise of free choice [Shakti Vahini v. Union of India (hereafter, “Shakti Vahini”)[22], Lata Singh v. State of U.P (hereafter, “Lata Singh”), Shafin Jahan (supra), Laxmibai Chandaragi. v. State of Karnataka[23] respectively].

These decisions were based on the state’s duty to protect citizens and enable the exercise of their individual choice, in the face of external threats. Other decisions, such as Joseph Shine v. Union of India[24], Navtej Johar (supra) and Independent Thought (supra) were instances where specific provisions that criminalized or made exceptions to criminal behaviour, were struck down or read down in the enforcement of the fundamental rights, i.e. Articles 14, 15(3) and 21.

Along the way, K.S. Puttuswamy (supra) articulated the broadest right to privacy which embraces within its fold the right to exercise ones choice of a life partner and to lead their life free from external barriers.

Reference

Supriya @Supriyo Chakraborty & oth. v. Union of India (2023)

[1] 2009 (13) SCR 989. This court held that “a woman’s right to make reproductive choices” is “a dimension of

‘personal liberty’ as understood under Article 21”

[2] 2016 (5) SCR 773

[3] 2022 (7) SCR 686

[4] 2017 (1) SCR 945

[5] (2014) 4 SCC 786

[6] 2018 (4) SCR 955

[7] 2017 (10) SCR 569

[8] 2007 (12) SCR 991

[9] 2018 (6) SCR 1

[10] 2018 (9) SCR 561

[11] 1981 (2) SCR 516

[12] 1980 (3) SCR 855

[13] 2016 (4) SCR 638

[14] Aharon Barak “Human Dignity – The Constitutional Value and the Constitutional Right” Cambridge University

Press (2015)

[15] 1973 Supp SCR 1

[16] State Of Gujarat And Another v. Shri Ambica Mills Ltd 1974 (3) SCR 760

[17] (2014) 5 SCR 119

[18] 2006 Supp (7) SCR 336

[19] (2018) 7 SCR 379

[20] (2009) 111 DRJ 1 (DB)

[21] (2014) 1 SCC 1: (2013) 17 SCR 1019

[22] 2018 (3) SCR 770

[23] 2021 (3) SCC 360

[24] 2018 (11) SCR 765