Suresh Kumar Koushal v Naz Foundation (“Koushal”) is a bad decision which must be overturned. This is not a new or an original observation. (See, for example, most of December 2013 on this blog.) This post examines one particular aspect of Koushal – its use and abuse of evidence of discrimination, marginalisation and hardship suffered as a result of s 377. It argues that that decision’s cavalier approach to evidence (its preference for sources which underplay abuses and its blithe treatment of testimony from victims) reflects broader biases and structural faults within the legal system. This post compares MD in this regard to the United Kingdom Upper Tribunal’s decision in MD (same-sex oriented males: risk) India CG  UKUT 00065 (IAC) (“MD”). MD is the UK’s current ‘country guidance’ decision for the broad, diverse category of ‘same-sex oriented males’. Its approach to available sources on the treatment of LGBTQ people by India’s legal system (and, more broadly, within Indian society) is preferable to that of Koushal but still problematic.
This post draws on a new article I’ve published with Refuge: Canada’s Journal on Refugees. That article is available open access here. Contrary to any suggestion that this reference – and, indeed, this entire post – amounts to a shameless plug, I can confirm that I am always and at all times utterly ashamed.
In a previous article, I described Koushal’s use and abuse of evidence as follows:
[T]he Koushal decision exhibits … blind faith in official statistics and law reports as an exhibit of LGBTQ Indians’ experiences of persecution – or, as Koushal concluded, lack thereof. It is this privileging of particular forms of data that led the Supreme Court to attach such weight to the limited number of reported prosecutions under section 377, to so readily dismiss the evidence (in the form of ‘affidavits [and] authoritative reports by well known agencies’) provided by the petitioners at first instance, and to conclude that no ‘incidents of discriminatory attitude exhibited by the State agencies towards sexual minorities and consequential denial of basic human rights to them’ had been made out. (Indeed, this analysis of section 377’s pernicious effects purely in terms of its impact upon state agencies – as opposed to its role in sanctioning broader societal abuses – is itself problematic, for reasons explored below). As Sheikh and Narrain record, the Supreme Court’s emphasis upon one particular form of evidence causes it to neglect any suggestion that ‘the impact of the law can go beyond just actual arrest and conviction’. The Supreme Court’s findings in this regard are particularly disappointing in light of the Delhi High Court’s willingness in Naz Foundation to accept the conclusions of the affidavits and reports prepared by NGOs at first instance as to ‘a widespread use of Section 377 IPC to brutalise MSM and gay community’, even contrary to assertions by the government itself as to the limited (formal, official) application of the statute.
The above passage is extracted from ‘Koushal v. Naz Foundation and the Lessons of International Refugee Law’, published in Sarasu E. Thomas (ed), Gender, Human Rights and Law (2016) 161-183. The article was written in February 2014, as part of the torrent of commentary and criticism that followed in Koushal’s immediate wake.
This preference for ‘official’ sources is not a unique pathology of Koushal. The courts perform state functions. Judicial power is a form of state power. Judicial preference for reports, statistics, policies and records prepared by the state, pursuant to lawful authority, over non-official sources – which, unlike the state and unlike the courts, do not necessarily make any claim to impartiality or objectivity – is a product both of the narratives judges tell themselves about their role and the legal system’s innate preference for sources that stem, to whatever extent, from ‘within the system’ itself to those which lack that imprimatur. This also extends to the emphasis, within Koushal, upon ‘formal’ prosecutions and the direct impact of s 377, rather than its role in legitimising abusive practices by state actors (through extortion and blackmail) and lending state support to societal homophobia. (This notion that courts’ character as creatures of the state, bound to the structures which afford them legitimacy in the first place, limits their capacity to effect change is of course not new.)
The advent of ‘social action litigation’ in the 1980s recognised the limitations of traditional modes of fact-finding, and of reliance upon the pre-existing state as a source of admissible evidence, both through procedural innovations (like the appointment of commissioners or amicus curiae) and through the national law school movement itself – whose multidisciplinary aspirations coincided with the courts’ expansion of their remit beyond ‘traditional’ civil-political rights to encompass broader fields of social and economic policy, and the corresponding hope that a new generation of lawyers would be conversant with a wider range of fields and sources than traditional black-letter law.
But Koushal demonstrates a failure of that vision. The notion that the courts, in exercising their jurisdiction under arts 32 and 226, could work in collaboration with NGOs and civil society actors – even by way of expanding standing, allowing groups without a voice in the political process to ‘enter into the conversation and shape its outcome’ – collided in Koushal with the Court’s preference for the authoritative voice of the state and its adoption of a limited, formalistic conception of what s 377 means in practice. The notion that freeing the court from shackles of procedure and inherited strictures on the judicial role could lead to a jurisprudence more sensitive to lived experiences led, in Koushal, to the worst of both worlds – a decision that is poorly reasoned (treating huge block quotes from other judgments as a substitute for ratio), cavalier in its approach to precedents both foreign and domestic, and at the same time exhibiting the same immunity to feeling as any black-letter judgment. And the notion that the court could protect vulnerable minorities against majoritarian tyranny was met with the Court’s sneering insistence in Koushal that the Delhi High Court had at first instance ‘overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders’ (at ). Koushal’s preference for the voices of the state – even where these voices portray an incomplete picture, even where the state is ill-equipped to catalogue abuses of power and authority by its agents, even where the state itself is infected by the sorts of prejudices that the suit purports to attack – over the voices of civil society demonstrates the extent to which a ‘collaborative’ model of public interest litigation has its limits and the extent to which methodology, and how courts prioritise some forms of evidence over others, constraints the courts’ effectiveness as forums for redressing injustice.
There are other approaches. In my article for Sarasu Thomas’s Gender, Human Rights and Law (as cited and extracted above), I identified MD as one example of this – noting how the UK Upper Tribunal, in deciding whether ‘same-sex oriented males’ as a class would face risks of persecution if removed to India, did not restrict itself (like the Supreme Court) to official sources but instead took account of voices beyond the agent of persecution itself:
[T]he Tribunal paid extensive regard to affidavit and oral evidence from Dr Akshay Khanna and reports by government agencies in the US, UK, Canada and Australia (themselves drawing upon press and NGO reports). Although the Tribunal’s decision continues to use the small number of reported prosecutions to conclude that ‘such prosecutions are extremely rare’, the Tribunal nonetheless considers a broader range of actions pursued under the nominal ambit of the section – finding that ‘[t]here can be no dispute that violence and extortion of same-sex oriented males still occurs in India and that those of lower caste, or working class (such as the Hijra or Kothi), are more vulnerable to such actions’.
But even though it considers a broader range of sources and does not rely solely on official accounts, MD is not a perfect decision. In my new article for Refuge, I note that Dr Khanna highlighted limits to available information, particularly official sources – including as to the extent to which s 377 has been used in lower courts or to support violence and blackmail by the police. The Upper Tribunal rejected these claims on the basis of insufficient evidence. This reflects the legal system’s broader discomfort with gaps in the evidentiary record, treating silence as evidence of absence – rather than examining why particular forms of abuse may be underreported, or why the marginalisation of certain groups extends even to their ability to record, assemble and publicise their own experiences.
In February 2014, I praised MD for acknowledging that lower caste or working class same-sex oriented males in India face disproportionate risks of violence and extortion. In the new article, I criticise the Tribunal for failing to ‘disaggregat[e] the broad category of “same-sex oriented males” and considering risks arising from membership of different sexual minority groups, different ways in which sexuality is expressed or substantial diversity of class, race, and religion’. That is: I changed my mind as to whether MD’s acknowledgment of diversity of experiences within the ambit group of ‘same-sex oriented males’ in India, and its heed of the experiences of marginalised segments of that group, was sufficient. Why? Because mere allusions to the experiences of particular groups, and mere acknowledgment of difference, is not enough to demonstrate substantive consideration of whether the orders framed – whether by way of considering the constitutionality of particular statutes or by way of framing particular ‘risk categories’ of individuals facing harm if removed to countries of origin – are bad for members of groups at risk of harm or persecution in practice. Critical reading requires more than mere concession of the existence of exceptions one’s conclusions; in MD, these ‘exceptions’ cut against the existence of the broad ‘risk category’ in terms of which the decision was framed.
This may not actually be capable of reconciliation or adequate redress. To the extent that any progress can be made, courts need to be conscious of the disconnect between the legal system, and its state enforcers, and the population it purports to govern and regulate – both in terms of the extent to which that legal system cannot be trusted to document abuses of its own provisions and in light of how the nominal content of provisions is applied or interpreted very differently in practice. In practice, the extent to which the courts can examine the system critically from the ‘outside’, or from subaltern perspectives, has been undercut from their quest to retain ‘their traditional bases of legitimation with the Bar and the Executive’. At best, this leads to compromised or conditional protection of rights. At worst, this collision of grand pretension with institutional cowardice leads to the sort of arbitrary, lazy and capricious reasoning witnessed in Koushal, lending judicial sanction to the prejudices and status of the majority.
 Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (2008) 133.
 Upendra Baxi, ‘Introduction’ in Upendra Baxi (ed.), K. K. Mathew on Democracy, Equality and Freedom (1978) xvii.