Re-Criminalizing Homosexuality: The Many Sins of Koushal

The following points struck me as the most problematic in what passes for legal reasoning in Koushal v. Naz:
1. The Classification test for Article 14: The classification test provides for very limited scrutiny of state action (as opposed to alternatives like strict scrutiny and proportionality review). But, as Koushal recognizes, even this limited standard requires two conditions to be met:
(1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that differentia must have a rational relation to the object sought to be achieved by the Act. (In Re: Special Courts Bill, 1978, (1979) 1 SCC 380)
The Court cites this passage from In Re: Special Courts Bill to hold that, “[t]hose who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature 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.”
Even if there is intelligible differentia between these “classes”, what is the object of Section 377? What is the nexus between the classification and the object? The Court is completely silent on these points. 
2. The Classification Test for Article 15? : Article 15(1) prohibits classification based only on certain markers of identity. Sex is one such marker. In Naz the Delhi High Court held that sexual orientation is a ground analogous to sex and therefore cannot be the basis of classification as per Art. 15(1). In Koushal, the Court does not agree or disagree. It brushes off Art. 15(1) claims, by merely extending the flawed Art. 14 reasoning to cover Art. 15 as well, and to hold that “the High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution.” The Court completely misses the point that if sexual orientation is a prohibited marker under Art. 15 there can be no classification on this basis, regardless of whether there is intelligible differentia or rational nexus to some object.
3. The Rights of a “minuscule fraction”: The Court states that:

While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.

It is difficult to engage with this travesty of an argument without appearing facetious, but at the very least it must be pointed out that Article 14 does not say “the State shall not deny to “any significant fraction of the population” equality before the law…” Every person, and every segment of the population, however minuscule, is protected by the provision. So even if a law targets one person and does so in a way that violates the person’s rights, the law or its application can fall foul of Art. 14.
4. Privacy, Dignity and Autonomy claims and Compelling State Interest: The Court recognizes that
While judging the constitutionality of a provision which purports to restrict or limit the right to life and liberty, including the rights of privacy, dignity and autonomy, as envisaged under Article 21….the law must not only be competently legislated but it must also be just, fair and reasonable. Arising from this are the notions of legitimate state interest and the principle of proportionality. (my emphasis)
The Court cites Maneka Gandhi for the proposition that in an Art. 21 review, the constitutionality of a provision has to be judged, “in the context, primarily, of the purpose which the Act is intended to achieve and of urgent situations which those who are charged with the duty of administering the Act may be called upon to deal with.”
Koushal then cites Gobind v. State of M.P., on the point that
[t]here can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling state interest test. Then the question would be whether a state interest is of such paramount importance as would justify an infringement of the right.
The Court cites no “compelling state interest” in favour of the law. In fact, apart from quoting extensively from a series of judgments on the rights of privacy, dignity and autonomy, the Court does not engage at all with the question of whether and how these rights are implicated in the discussion on Section 377 and what, if any, the countervailing compelling state interest might be.
5. Disparate Impact v. Discriminatory IntentNaz recognized that even a facially neutral law like Section 377 can have a disparate impact in it is interpretation, popular reception, and general application. Koushal on the other hand focuses on whether there was any discriminatory intent behind the law, in analysing its constitutionality. The Court therefore dismisses the respondents’ claim that s. 377 has been used “to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community” by holding that “this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section.”
The Court also concludes that “Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.”
By completely discounting the lived experiences of persons subject to this law, the Court regards facial neutrality as enough to shield a law from a challenge of discrimination. This reasoning betrays complete ignorance of how social context, norms and mores shape and influence the quotidian applications of any law, such that even well-intentioned laws (which this is not) can have the most deleterious impact. Anatole France captured this sentiment when he said:
In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread.” This is the majestic equality of the law according to Koushal.
The Supreme Court also needs to be called out for the opportunism of its reasoning here. While discussing the presumption of constitutionality argument, the Court finds that respondents “miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the State agencies towards sexual minorities and consequential denial of basic human rights to them.” When such evidence is placed before the Court it finds that “the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section.” This is Constitutional doublespeak.
6. Act/Identity dichotomy: The Court finds that s. 377 seeks to criminalize certain acts and not gender identity or sexual orientation. The Court’s framing of the act/identity dichotomy completely misses the point that a person’s sexual orientation is not just a series of discrete acts, but a way of being, an integral part of one’s identity. In disregarding how the law is worked and is experienced, the Court also misses nuances of the politics of gender and sexuality that may transform individual sex acts into markers of social and political identity of the actor. The Act/identity distinction is wholly spurious. According to this logic, if a law criminalizes the wearing of turbans, and does so for everyone, then the law is only seeking to regulate a certain act. If wearing a turban is integral to the religious identity of a certain segment of the community, then according to the Court’s logic, this fact does not make criminalizing wearing the turban a de-facto criminalizing of the religious identity of that community.
7. A New Separation of Powers: The Court tries to draw another specious distinction between a law’s constitutionality and its desirability/propriety. It finds that the law is constitutional, but that its desirability/propriety is to be determined by Parliament. As I have explained above, legitimacy of a law’s purpose is integral to tests under Arts. 14 and 21. To make a distinction between the law’s legality and its legitimacy is therefore misguided at best and opportunistic at worst. If the Court had gone into the object of the law, and had engaged in determining the legitimacy of this object as it was required to do, the inherent prejudice of the law and of the Court itself towards the rights of sexual minorities (evident through the use of phrases like “so-called rights of LGBT persons”) would have been exposed. As it stands, the court hides behind opportunistic and false formalism to uphold this law. In doing so, it is not exercising restraint, but abdicating responsibility.
Contrary to the Supreme Court’s understanding, Koushal is not a judgment about a minuscule minority, but about the constitutional commitments of a billion plus people. In Naz, the Delhi High Court had quoted Ambedkar as saying, “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic.” By deciding to re-criminalizes homosexuality, the Supreme Court has proved Ambedkar right.

Edit: I wrote another piece on Koushal and Naz for today’s Mint. It can be found here

6 comments

  1. Thanks Aparna. I found this quite useful. What's your take on when Sect. 377 can be applied? It had struck me on my initial reading that the Court was sweepingly ambiguous about this: "We are apprehensive of whether the Court would rule similarly in a case of proved consensual intercourse between adults. Hence it is difficult to prepare a list of acts which would be covered by the section. Nonetheless in light of the plain meaning and legislative history of the section, we hold that section 377 IPC would apply irrespective of age and consent." Within three sentences it seems to say that it doubts a court would enforce 377 between two consenting adults and then makes clear that 377 applies to two consenting adults.

  2. Hey Nick, this is another troubling aspect. The Court never does tell us what goes into the categories of "in the ordinary course" and what is "against the order of nature." In fact it never says expressly that same sex intercourse is against the order of nature. By the same token it doesn't even specify whether other consensual non-procreative intercourse even between a man and a woman is "in the ordinary course" or "against nature." My reading is that in the part you quote the Court is saying that facially the law covers consensual acts, but doubts that courts will ever apply the law to consenting adults. He is making the same legality/"wisdom of the law" distinction that he ends with.

    Having said that, leaving the issue of what comes within the ambit of 377 open is very problematic. The Court says (in the line before your quote) that "However, from these cases no uniform test can be culled out to
    classify acts as “carnal intercourse against the order of nature”. In our opinion the
    acts which fall within the ambit of the section can only be determined with reference to the act itself and the circumstances in which it is executed…..it is difficult to prepare a list of acts which would be covered by the section." This in a criminal statute!! The vagueness of the law itself should have been a ground for striking it down. We had a discussion at NLUD today where the point came up that there is no intelligible differentia between the two classes because of the vagueness of the category. Hence even the first limb of the classification test is not satisfied.

  3. Aparna, Gautam Bhatia points out (http://indconlawphil.wordpress.com/2013/12/12/koushal-v-naz-foundation-picking-up-the-pieces-and-exploring-the-grounds-for-review/) that what the court does by saying that what is covered by 377 has to be decided considering the nature and circumstances of the act, is basically allowing courts to criminalise acts post-facto – he calls it "unbridled judicial activism", and I am strongly inclined to agree!

    There is also the question of serious non appreciation of evidence in saying that the petitioner led no evidence of the harassment of LGBT people: two people filed affidavits describing how they were gang-raped by police, in addition to the affidavits of parents, the reports of Amnesty and Human Rights Watch. There, I think is your first ground for review!

  4. The fact that Section 377 applies to carnal intercourse between consenting adults is fortified by the fact that amended Section 375 et seq clearly covers unnatural sex without consent. Police will not use Sec 377 instead they will rape section for unnatural sex without consent. Some how, the court has ingnored the purport of Section 377 post amendments to Section 375 et seq, in construing the section 377. Niether there were arguments on the purport of the section post amendment to Section 375. Strange are the ways of the Courts.

  5. Maithreyi, I agree. If the court is itself saying that it is not clear ex ante what falls into each class, then the intelligible differentia requirement is just not met. This, like I said, is compounded by this being a criminal statute, where certainty is of utmost importance. So the law should be struck down on vagueness alone.
    On the issue of non-consideration of material, my point is that not only is the court is not considering material. It definitely is not, and that should be a ground for review. But the court has also said that evidence of harassment under the law is not a ground for striking the law down- the possibility of abuse argument. And here the court is misunderstanding/rejecting the disparate impact argument against facially neutral laws that Delhi High Court had accepted. So the court is speaking in two voices- either the material is relevant, in which case the court has acknowledged that it was presented with evidence of harassment which it rejected. Or the material is irrelevant, in which case the court can't reject the respondents claims on the basis that no proper factual foundation was laid.

  6. Quite true, Aparna. I don't think, P.R. Rajagopal, that the amended S. 375 covers all non-penile vaginal sex without consent – S.375 requires a female victim. The SC's fault lies in not considering the meaning of 377 at all, not in forgetting amendments to 375 while doing so.

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