And Justice for None

ON 11 DECEMBER, the Supreme Court of India delivered a devastating verdict confirming the criminalisation of consensual sexual acts “against the order of nature”. The case, Suresh Kumar Koushal v. Naz Foundation, on appeal from a visionary Delhi High Court ruling, offered the court an opportunity to usher India into a new era of enriched civil rights. Instead, Justice GS Singhvi’s judgement, which garnered the silent concurrence of his brother judge SJ Mukhopadhaya, evoked memories of the court’s darkest moment, when, during the national emergency imposed in 1975, it infamously ruled in the “Habeas Corpus” case that fundamental rights—including the right to life—could be suspended during such emergencies. Singhvi’s judgment, delivered on his last day as a judge, also validated the terrifying proposition that a person’s right to govern how he or she lives is subject to the state’s ability to discriminate at will.

In July 2009, the Delhi High Court sought to extricate Section 377 of the Indian Penal Code (IPC), the colonial-era law under challenge, from its entrenched arbitrariness. The law seeks to punish with imprisonment for life or for a term of up to ten years any person who voluntarily has “carnal intercourse against the order of nature with any man, woman or animal”. Over the years, the term “against the order of nature” has been interpreted in a manner that includes all penile-non-vaginal sexual acts. Although in theory the provision is applicable to persons of all sexual orientations, it criminalises, without mitigation, every penetrative sexual act between two men. The effect of this discrimination—as Naz Foundation (India) Trust, the petitioner in the Delhi High Court, successfully argued—is a profound vilification of LGBT communities in Indian society. Now, four years later, the Supreme Court has reversed this verdict by way of acute moral proselytisation, and has infused its own sense of virtue into the constitution. The Delhi High Court, Singhvi wrote, was anxious to “protect the so-called rights of LGBT persons and to declare that Section 377 violates the right to privacy, autonomy and dignity”. These matters, according to Singhvi, were best left to the parliament. “The competent legislature,” the judge wrote in conclusion, “shall be free to consider the desirability and propriety of deleting Section 377.”

This illusory appeal to democratic principles that espouse parliamentary supremacy is, however, misinformed, and contradicts India’s constitutional structure. Our country’s parliament, unlike Britain’s, is not sovereign. Its ability to make laws is subject to the constitution’s parameters, chief among them Article 13, which forbids legislatures from enacting laws that contravene fundamental rights. Section 377, which effectively criminalises homosexuality, is a classic case of discrimination. The Supreme Court, in allowing this perversely illegitimate provision to stand, has abdicated its foundational responsibility and struck a hammer blow against India’s constitutional philosophy.

In India, the power of judicial review resides in the courts through constitutional design. The Supreme Court and the various high courts of the land have the authority to invalidate legislation which violates the constitution in one way or another. In Koushal, the court was hearing an appeal against a decision that had specifically struck down a portion of a statute on the grounds that it contravened certain fundamental rights. An analysis of such a decision required that the Supreme Court interpret the abstract clauses of the constitution that confirm these rights in a manner that maintains a fidelity to past decisions of the court, to the fundamental text of the constitution and the IPC, to examples of contemporaneous judicial knowledge, and, most importantly, to the foundational ideals of the constitution. Regrettably, the only fidelity that Singhvi’s judgement in Koushal maintains is to Victorian moralism. In fact, as early as 1983, in Mithu v. State of Punjab, a five-judge bench of the apex court struck down Section 303 of the IPC, which mandatorily imposed a death sentence on those who commit murder while serving a sentence of imprisonment for life. The court, in Mithu, did not wait for the parliament to amend the law; yet, in Koushal, Singhvi ignored Mithu and other such binding precedents, offering no rationale for his departure from settled law. In so doing, the judgment brushed aside, almost flippantly, each of the core grounds of challenge against Section 377.

First, Article 14, which states, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” This clause, the courts have held, guarantees both formal and substantive equality. To this end, it permits a competent legislature to make laws that impose a “reasonable classification”—that is, a particular law may make divisions between the people it governs so long as such a division is based on “intelligible differentia”, and has “rational nexus” to a lawful object that it seeks to achieve. For example, where a law appoints a special court for trying cases of corruption by public officials in the interest of expediting justice, such a law would not run afoul of Article 14 merely on the grounds that a different court had been prescribed for these cases. There is an intelligible difference between those accused of corruption and those accused of other crimes, and a special trial is sought for the former class of persons to achieve a lawful object: expediency of justice.

In 2008, before the then chief justice AP Shah and Justice S Muralidhar of the Delhi High Court, the government argued that the objects of Section 377 were to protect women and children, to help prevent the spread of HIV, and to enforce a societal morality against homosexuality. The court held that there is no evidence of any serious harm accruing from private sexual relations of any kind between two consenting adults, and, in the absence of such evidence, the classification made by Section 377 violated Article 14. Further, the law, Shah wrote, had the effect of decreeing all gay men criminals, leading to the persecution of a community purely on the basis of its sexual orientation.

The Supreme Court’s response to Shah’s specific and lucid finding was bizarre. “Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature,” wrote Singhvi, “constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification.” This observation defies every test that the court has established in judging the validity of legislation against the constitution’s equality clause. Specifically, the court offered no definition for the term “against the order of nature”; it offered no reasons why those who indulge in such forms of sexual activity ought to be differentiated; and, most curiously, it offered no explanation for the object that the law seeks to achieve, making the classification’s supposed rational nexus to the object moot.

Second, the high court’s express ruling that Section 377 discriminated against homosexuals in a manner contrary to Article 15 found no justifiable rebuttal from the Supreme Court. The article says, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” The high court held that “sexual orientation” is analogous to “sex”, which made the discrimination fashioned by Section 377 unconstitutional. This was a subtle yet precise legal argument. If the court’s findings were correct, regardless of whether a classification on the basis of sexual orientation is reasonable or not, such a classification would be illegal. So, even assuming the state can differentiate between heterosexuals and homosexuals to achieve any lawful object, the differentiation would ordinarily, according to Shah and Muralidhar, be unlawful.

The Supreme Court has now reversed this finding. While, for the purposes of the Article 14 analysis, Singhvi held that persons who indulge in carnal intercourse “against the order of nature” and persons who indulge in carnal intercourse in the “ordinary course” constituted different classes, he contradicted himself in claiming that Section 377 merely defines an offense without discriminating on the basis of sexual orientation. This assertion, backed by neither evidence nor elucidation, reversed the high court’s imaginative interpretation of Article 15, which would have helped shape equality jurisprudence in a just and progressive manner.

Third, Singhvi and Mukhopadhaya failed to engage with the high court’s explicit finding that Section 377 infringes Article 21 of the Constitution. The article, which prevents the State from denying to any person his or her right to life and personal liberty, except by procedure established by law, has been the subject of a wide-ranging interpretive process. The Supreme Court, after much deliberation on the matter, in Gobind v. State of Madhya Pradesh, recognised that the term “personal liberty” in Article 21 included within its ambit a person’s privacy.

This decision has since been extensively adopted, and the high court ruled, based on such precedent, that in the absence of compelling state interest, a person’s right to privacy cannot be infracted. The court specifically rejected the state’s contention that Section 377 would help control the spread of AIDS. The argument that decriminalising same-sex intercourse “would erode the effect of public health services by fostering the spread of AIDS,” wrote Shah, “is completely unfounded since it is based on incorrect and wrong notions.” The court also ruled that the impression that moral indignation is a valid basis for overriding an individual’s fundamental rights of dignity and privacy was inherently flawed.

Singhvi’s opinion in Koushal is bereft of any justification for the limitation that the provision places on a person’s right to privacy. Even assuming, as detestable as the notion is, that such a right may be curtailed on considerations of a perceived public morality, the court offered no reasoning to this effect. Singhvi cited with supposed agreement the Supreme Court’s decision in Gobind that “Any right to privacy must encompass and protect the personal intimacies of the home ...” But having done so, he deviated inexplicably from the high court’s ruling, allowing us to presume that the rationale for Section 377 is to be found in his own personal morality.

One might have imagined that Singhvi, at the very least, would have offered a defence for criminalising homosexuality in line with Lord Devlin’s famous response to the 1957 Wolfenden Committee Report, published in the UK after several prominent men were convicted of homosexual acts, which recommended that “homosexual behaviour between consenting adults in private should no longer be a criminal offence,” in the United Kingdom. Devlin argued that society possessed not only the right to pass judgment on matters of morals, but also to use the weapon of the law to enforce that judgement. While the flaws in his claims have since been laid bare, even his staunchest critics have not denied that public morality does, in fact, play a role in law-making. Such a role, however, as the legal philosopher Ronald Dworkin contended, cannot, except in the most extreme of circumstances, interfere with how a person chooses to live his or her life: a right, in Dworkin’s words, to “ethical independence”.

Not only did Singhvi fail to offer a moral justification for his conclusion, he also erred in concluding that the case called for judicial restraint. Singhvi failed to recognise that, to the constitution’s framers, democracy wasn’t an aim in itself but a means to confirm in India’s citizens an equal status. Singhvi’s decision is based on an assumption that the only point of a democracy is to pay heed to the will of the majority. But Ambedkar and his peers weren’t concerned as much with providing a structure for majoritarianism as they were with providing a foundation for a particular kind of parliamentary democracy, in which each branch of the state provided checks and balances to the other. To this end, laws, whether enacted before or after the constitution came into force, have to conform to the individual rights that the constitution confers. This means an unelected judge who struck down legislation for its unconstitutionality would not be acting contrary to principles of democracy, but would rather, as Dworkin has argued, be fulfilling the true ends of legitimate government.

Viewed thus, the Delhi High Court’s judgment was a model of constitutional integrity. In recognising that a person’s conception of a good life could not be constrained on dubious moral grounds, the court helped shape a particular way of looking at India’s constitution. Shah’s opinion, contrary to what some might believe, did not eschew political morality. It brought political morality to the core of constitutional interpretation by holding that the government, in seeking to regulate consensual sexual conduct, was violating its citizens’ right to ethical independence. Its interpretation of Article 15, for instance, had been garnered by maintaining a fidelity not only to the text of the constitution, but also to its most cherished values. The decision deserved endorsement as the law of the land. Instead, we are left with a dangerous precedent. If Koushal is sustained, not only would it be a blow to LGBT communities in India, who will be denied their foundational liberty, but it will also accord parliament an unbridled power to suspend, for any reason, our right to exist as equals. It would be the death of democracy as we know it.