Homosexuality and the Expanding Scope of Article 21
Author: Yashvi Jain
Rajiv Gandhi National University of Law, Patiala
The following paper is an attempt to understand the emergence of the concept of homosexuality under Article 21 of the Constitution of India, 1950. It lays emphasis on the expanding scope of Article 21 which provides for all-inclusive protection of rights and individual identity. The paper aims to elucidate on particularly Part III of the Constitution which expands from articles 12 to 35. Fundamental Rights are enshrined and guaranteed by the Constitution of India to all citizens irrespective of their sex, caste, creed, religion, and race. These rights are essential and fundamental to the existence of mankind as they are crucial for the development of personalities of the individual. These rights ensure the protection of the dignity of an individual and grant other freedoms that are imperative and indispensable. While the fundamental rights protect the people of the nation, they also prevent and avert the absolute violations of human rights. They accredit emphasis on the fundamental harmony and unanimity of India by promising to all citizens the adoption and use of the equivalent amenities, regardless of the background. Furthermore, the paper delves into the expanding scope and interpretation of Article 21 encapsulating the right of gender identity and homosexuality. It aims to analyze the delimiting nature of the Indian Constitution and the introduction of new concepts which are based on the interpretation of Article 21.
The constitution was adopted by the Constituent Assembly, headed by Dr. Rajendra Prasad, on 26th November 1949. The longest Constitution came into effect on 26th January 1950 with B. R. Ambedkar as the chairman of the drafting committee. The constitution of the nation declares it to be a sovereign, socialist, secular, democratic republic. It further ensures justice, equality, and liberty, and aspires to encourage fraternity.
The paper will further elicit and define the Article 21 of the Indian Constitution, which talks about the Right to Life and Personal Liberty and is understood to be one of the most important rights with the widest interpretation. The Article comprises various rights some of which have been laid down in various landmark judgments by the honourable apex court.
The paper uses various methods to deduce the meaning, essentials, examples and case laws of the said sections. Various judgments of the courts in India have been used to come about the research. The paper uses already established acts, sections and definitions to research further. The following research is facilitated by a battery of published research papers, bear act, books, and authentic internet websites.
2. ARTICLE 21 OF THE INDIAN CONSTITUTION
2.1 Introduction to Article 21
Article 21 reads, “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to the procedure established by law.”
A part of the golden triangle, Article 21 holds an extremely significant place in the Constitution of India. The golden triangle consists of articles 14, 19 and 21 which provides an individual with complete protection of their rights from the state and others. In Ashok Kumar Thakur V. Union of India, it was stated that “democracy is only restored when the triangle is given to the citizens. Without the golden triangle, democracy is impossible”. The triangle is said to evoke when an individual feels violated of their sense of equality, freedom and have a threat of their sense of life and personal liberty.
Article 21 gives recognition to the sanctity of human life and protects the well-being of an individual through various provisions and implied rights guaranteed under it. The meaning of the term right to life is interpreted by the hon’ble courts in various landmark judgments given by them. These judgments are crucial in the understanding of the said article and they also define the scope of the article which is dynamic in a sense.
According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme importance in a democratic society.” Iyer, J., has characterized Article 21 as “the procedural Magna Carta protective of life and liberty”.“Everyone has the right to life, liberty, and security of person.” The right to life is without any doubt, central to the lives of all individuals and is the most fundamental of all rights. Article 21 of the Constitution of India, 1950 provides that, “No person shall be deprived of his life or personal liberty except according to the procedure established by law.” ‘Life’ in Article 21 of the Constitution is not just the act of breathing and physical well-being. It does not connote mere animal existence or continued labour through life. It has a much wider meaning which includes the right to live with human dignity, right to livelihood, right to health, right to pollution-free air, etc.
The right to life is indispensable to our very survival per se. This fundamental right is guaranteed to both citizens and non-citizens. The existence of the said right leads to the violation of the most basic right guaranteed. Under Article 21, the said right includes all those aspects of life, which lead to making an individual’s life meaningful, comprehensive and worth living. It is the only article in the Constitution that has received the most extensive possible interpretation by the various landmark judgments. Under the canopy of Article 21, so many rights have found shelter, growth, and nourishment. Thus, the bare necessities, minimum and basic requirements that is essential and unavoidable for a person is the core concept of the right to life.
2.2.1 Expanding scope
The meaning of the term ‘life and personal liberty’ is dynamic in its being. It keeps developing and expanding with years passing by. Various judicial pronouncements stand as an elucidated example of the same.
In the case of AK Gopalan V. State of Madras, it was held that protection of law will be available only in the case of an arbitrary action the executive. The arbitrary action of the legislation was not taken into account in the said case. It further spelled out that if an individual is deprived of the right to life and personal liberty, the legitimacy of the law could not be challenged. 
Soon after, the Supreme Court of India overruled the judgment of the AK Gopalan case. In Meneka Gandhi V. Union of India, the court held that the protection of law will be available not only in the case of an arbitrary action the executive but the arbitrary action of the legislative as well. This was an act that also introduced the American concept of ‘due process of law’ It gave the term ‘personal liberty’ an extremely wide interpretation and it the term now covers a large amplitude of rights under the same. 
One of the most primary examples of widening the implications of Article 21 is the addition of the article 21A with the 86th Constitutional Amendment in 2002. It recognizes free and compulsory education for children below the age of 14 years. The expansion of the term life and personal liberty to education is nothing short of an ideal example of the widening scope, implication and dynamic meaning of Article 21. 
2.3 Implied Rights under Article 21
As discussed earlier in the paper, Article 21 consists of many implied rights guaranteed under it. The paper will elucidate on the most crucial and rights which have been deliberated upon by the apex court of the country in a plethora of cases.
- Right to live with Human Dignity
Right to Dignity is not expressly mentioned in the constitution but it is held that it falls under Article 21. Article 21 states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law”. By the term “life” as here used something more is meant than mere animal existence.
Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment and is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits.In Maneka Gandhi case, the Supreme Court of India interpreted that ‘the expression personal liberty in Article 21 covers a variety of rights which go to constitute the personal liberty of man.’
Justice P.N. Bhagwati interpreted the term ‘Life’ in the concept of the right to life with human dignity and held that “that right to life includes the right to live with human dignity and all that goes along with it.”Supreme Court in the case of Munshi Singh Gautam, held that “The sacred and cherished right i.e. personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes the right to live with human dignity.”
Further, the Supreme Court has held that it is to be the primary duty of the state to ensure the protection of human dignity through proper statutes and by the creation of suitable and adequate mechanisms.Justice Krishna Iyer, recognized that “The value of human dignity and the worth of human person enshrined in Article 21, read with Article 14 and 19 obligates the state not to incarcerate except under law which is fair, just and reasonable in its procedural essence.”Thus, going by the set precedents, it can be concluded that the right to dignity falls under Article 21.
- Right to Privacy
It has been a long-standing debate in the courts of the country as to whether the right to privacy flows from the right to life and personal liberty or not. This issue was raised for the first time in the case of Kharak Singh V. State of Uttar Pradesh. It was a minority judgment in which Justice Subba Rao states his views regarding the most deliberate debate related to privacy in the country. Justice S Rao stated that privacy does draw its roots from the right to life and personal liberty under Article 21 of the Indian Constitution. The said minority judgment gave way to a larger debate that was started in the country soon after. 
Further on, in the RamlilaMaidan case, the apex Court of the country held that the individuals have the right to sleep. “Knock at the door weather in the day or at night as a prelude to a search without the authority of law amounts to police incursion into privacy and violation of the fundamental right of a citizen. The right to privacy has been held to be a fundamental right of a citizen being an integral part of article 21 of the Indian Constitution.”
A landmark judgment that answered various questions pertaining to whether the right to privacy is a part of the constitution of India and under Article 21, hence a fundamental right is K.S.PuttaswamyV. Union of India. The historic judgment, with a 9- judge bench, overruled various crucial judgments that were passed in the past. ‘The judgment held that the right to privacy is an implied and intrinsic right under the right to life and personal liberty. It is part of the protected rights under part III of the constitution, specifically, Article 21’.
Article 21 can be treated like a living organism in the society that continuously evolves and derives a wider scope. The process of growth of the said article is an indefinite process. It keeps inheriting traits of flexibility to serve the compelling needs of the ever-progressing society.
3. SELF IDENTIFICATION OF GENDER UNDER ARTICLE 21
In the most basic sense, self-identity relates to one’s perception of oneself. It is an inherent belief and awareness that an individual has about own self. Self-identity is primarily created and perceived by the sole individual and hence has a huge role to play in their life. In a more psychological discernment, self-identity is essentially one’s recognized characteristics in a specific social arena. It includes various things about a person, for example, hobbies, personality, gender, physical features, etc. Self-identification of gender can be defined as an individual and intimate sense of one’s own gender. This identified gender does not necessarily need to correlate with allocated and assigned sex at the birth of a child. The self-identified gender can differ from how one recognizes himself/herself, whether it is in the role of a female, male or third gender.
The words ‘sex’ and ‘gender’ being used fluidly and interchangeably, like synonyms show the lack of basic knowledge regarding the same.However connected the two terms are, they do not carry the same meaning and are neither equivalent to each other.During the birth of a newborn, the sex of the baby is announced looking at the genitals of the child. As soon as the gender is assigned, the society relates and connects that to a particular gender. This assumption of relating the sex of an individual to the gender is the major cause of concern. Gender, for all, is a very personal identification that they make on their own accord. The whole society is the deciding factor of gender stands as a clear violation of their right to personal liberty and expression. It is most frequently debated that the notion of gender and its extending role is extremely personal and sacred to all individuals. It comes under the concept of the basic right to life and personal liberty granted to all the individuals by the Constitution of India. The gender of a person develops through the experiences one has and how they choose themselves to be. 
The significance of the concept of self-identification of gender can be drawn from the various landmark judgments passed by the honourable Supreme Court of the country. The judgments have explicitly talked about self-identification to be a part of human dignity, freedom of expression and a part of the right to life and personal liberty.
Article 21 protects one’s personal liberty, one’s dignity of human life, one’s personal autonomy, one’s right to privacy, etc. Supreme Court held that the ‘right to dignity forms an essential part of our constitutional culture recognition of one’s gender identity lies at the heart of the fundamental right to dignity. Legal recognition of gender identity is a part of the right to dignity and freedom guaranteed under our Constitution. Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.
Sexual orientation is an integral and innate facet of every individual’s identity.In the opinion of the Chief Justice of India, Dipak Misra, “self-determination gives the freedom to us to create and establish our identity. Identity includes sexual orientation, which is essential for the enjoyment of one’s fundamental rights. If one is not permitted to exercise self-determination in regard to sexual orientation, it would be an impediment in the way of realizing one’s identity. This would also violate the right to dignity and privacy granted by the constitution of India.”Justice A.M. Khanwilkar, “The natural identity of an individual should be treated to be absolutely essential to his being.” 
Hence, the above-mentioned landmark judgments give an insight into the significance of the right to self-identified gender.
4. CASE ANALYSIS
The landmark judgment of National Legal Services Authority v. Union of India (UOI) and Ors will be discussed in detail under this heading. This historic judgment was instrumental in the recognition of self-identification of gender under Article 21, i.e. Right to Life and Personal Liberty.
In the National Legal Services Authority v Union of India, the Supreme Court upheld the Transgender persons’ right to decide their self-identified gender.In Navtej Singh Johar’s case, it was interpreted that each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity, and freedom and no one shall be forced to undergo medical procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity.
The National Legal Services Authority judgment also upheld that “we cannot accept the principle of the Corbett principle of “Biological Test”, rather we prefer to follow the psyche of the person in determining sex and gender and prefer the ‘Psychological Test’ instead of ‘Biological Test’.”This point raised by the judgment gives the choice and psyche of the individual a choice to choose their gender and does not confine them into gender roles created by society. It gives them a form of self-expression and liberty, as guaranteed by the Indian Constitution.
In National Legal Services Authority v. Union of India (UOI) and Ors (NALSA), “the trans genders have also been given recognition as a third gender apart from male and female. It was realized from the NALSA case that the rights of the LGBT group are not fully granted. The view in the said case has also emphasized that the said decision clearly spells out that the right under Article 19(1)(a).
Article 19 (1) (a) includes one’s right to expression of his/her self. The NALSA case along with Article 19 (1) (a) “identified gender that can be expressed through words, action, behavior or any other form.”
Article 19(1) (a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which includes one’s right to expression of his self-identified gender. It was further held that the values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) and Article 21 of the Constitution of India and the State is bound to protect and recognize those rights.
The Right to Privacy granted by the apex court under Article 21 also recognizes that gender is a sacred and private matter of an individual, thus should not be interfered upon by the state or any other body.
Thus, by the set precedents, it is conclusive that the right to self-identification of gender is an implied right guaranteed by the constitution of India under Article 21.
It can be concluded that Article 21, which talks about the right to life and personal liberty, contained in Part III of the Indian Constitution is a very integral part of the same. The research for the paper enables the researcher to identify and study the rights granted under Article 21. It has been an ever-evolving part of the constitution which has been highlighted in the due course of writing the paper.
The research paper further studies the meaning and development of the validity of the self-identification of gender under the right to life and liberty as guaranteed by the Supreme Court of India. The Indian courts recognize the right to self-identify as a part of Article 21. The paper cites landmark judgments, which have inspired the additions in article 21, to prove the same.
The paper will pose a thought and will enlighten the reader not only about the right to self-identification of gender but also the right to live with human dignity and right to privacy which are the implied rights under Article 21. Being two of the most imperative and essential rights, the debates around them have been deliberated.
This paper can further inspire research in the field of Constitutional law in India.
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Supra at 27