Navigating the Noteworthy and Nebulous in Naz Foundation — Part II

Having celebrated Naz Foundation’s glorious ramparts yesterday, I turn now to critically appraise the decision’s side streets and alleys. I thought I would be able to complete that task in a single post today. However, after further meditating on Naz Foundation’s meaning, I think I need another post to do full justice to the case (and to save you from the exhaustion of reading). There are several disparate elements of the judgment that I discuss in today’s post. But I’m especially interested in the court’s privacy analysis and consequential holding. In tomorrow’s post, I will focus on Naz Foundation’s discussion of the “compelling state interest” standard as well as its handling of the equality and equality protection issue.

Before I resume my analysis of the judgment, I want to pay special tribute to petitioners’ counsel (and their many advisers) for their superb litigation strategy in this case. They did an exceptionally good job of marshaling and submitting a complex mélange of arguments backed by solid and first-class research. The written pleadings and oral arguments reflect considerable hard work, much internal discussion and organization, and careful planning. I’m especially impressed by petitioners’ decision not to ask the high court to strike down Section 377. It was a potentially risky decision. But it was a responsible one that helped ensure a successful outcome. Now back to Naz Foundation.

1. Format and Style.

Let me start with some structural quibbles.

First, many readers complain that the judgment is 105 pages. I suspect that, after it is edited for publication in the law reports, the page count will go down considerably. I am disappointed, however, that the bench chose to adopt the tedious, standard template for Indian judgments. That template requires a detailed, and mostly superfluous, summary of arguments before a discussion of the issues. Consequently, pages 6 to 25 of Naz Foundation are a rambling regurgitation of the arguments presented by both sides. If this section had been considerably reduced or even eliminated, the judgment could have been considerably abbreviated.

Second, although the text is divided into convenient headings to facilitate easy reading, each of the headings has the same font with no numbering scheme or outline to indicate how they relate to each other. This makes it difficult to identify the boundaries between major parts of the decisions. Third, text is so evenly formatted that it is difficult to determine, in many instances, whether a certain sentence is the bench’s observation or a verbatim quote from one of the many authorities cited in the judgment.

2. Legal and Legislative History.

The judgment has a very brief section on the legal history of Section 377. This section appears largely to rely on the account presented in Naz Foundation’s original writ petition. However, that reliance is incomplete for the judgment omits a critical paragraph in the writ petition, which explains how the introduction of Section 377 “was contrary to then existing Indian traditions, which did not treat sodomy as a crime.” It is unclear why the judges chose to ignore this paragraph borrowed from an important collection of essays on same-sex attraction. Perhaps, they felt that this issue would take them down the slippery road of interpreting religious and spiritual sources — a journey fraught with potential for controversy, as Chief Justice Chandrachud discovered after his Shah Bano decision. It would have also required the judges to accept, deny, or at least comment on the petitioners’ loaded submission that Section 377 was based on “traditional Judeo-Christian moral and ethical standards.” Accepting such a submission, even if substantiated by historical evidence, could have made the judgment appear unnecessarily divisive.
Laconically observing that the “Penal Code was drafted by Lord Macaulay and introduced in 1861 in British India,” the judgment fails to mention anything about the statute’s colourful legislative history (“travaux preparatoires”). For instance, it could have referred to Macaulay’s decision to refrain from appending any guidance notes or illustrations to Section 377 (contrary to the practice for other parts of the Penal Code) motivated by his puritanical belief that the provision involved “an odious class of offences [about which] as little as possible should be said.” It could have mentioned, if the bench was so inclined, other historical nuggets, such as the fact that early offenders under this section could receive a whipping, in lieu of imprisonment, under the Whipping Act of 1864. In this respect, Naz Foundation is a bit of a disappointment, as I had fully expected it to discuss the statute’s Victorian background and why it had been enacted in order to understand why it is no longer relevant. In this respect, Naz Foundation is in stark contrast to the extensive discussion of legal history in the case it cites so extensively, Lawrence v. Texas.

3. Review of Section 377 Caselaw.

I find Naz Foundation’s discussion on Section 377’s case-law incomplete. Although the judgment refers to several leading cases (many from obscure and hard-to-find law reports), it does not tell us whether all or any of these cases involved same-sex conduct. Instead, after discussing the underlying holdings in each case, Naz Foundation argues that the “tests” for attracting Section 377 have changed from “the non procreative to imitative to sexual perversity.” If the judges intended to use “tests” as a moniker for “standards,” I’m afraid that the cases they cite offer them very little support. Those cases appear to have been discussing the object or intent of Section 377 (which varied from case to case) instead of the ingredients of the offence or the standards for sustaining a conviction under it.

4. What Should We Call “Them?”

The decision suffers from some taxonomical confusion about what to call those with same sex attraction given the diverse nature of groups involved. Discussing the petitioners’ standing in paragraph 6, the judgment refers to Naz Foundation’s work with the “gay community or individuals described as “‘men who have sex with men.’” It then states that, “for sake of convenient reference, they would hereinafter be referred to as ‘homosexuals’ or ‘gay persons’ or gay community.” Now, it does not seem particularly convenient to use three terms as a substitute for two. And where do these definitions leave lesbians, bisexuals, and transgendered persons? Are they subsumed within “homosexuals” or “gay persons”? What about those men who aren’t conventionally bisexual or homosexual but aren’t straight either because they have sex with men? Are they also homosexuals or gay persons under paragraph 6?
The confusion over nomenclature is further compounded in subsequent paragraphs of the judgment because either the judges forget about the definition in paragraph 6 or simply decided against using it. Paragraph 50 refers to the “MSM and [the] gay community” (emphasis mine). But paragraph 52 mentions “MSM,” “lesbians,” and “transgenders.” And paragraph 61 reverts to the phrase “MSM and [the] gay community.”

5. Government’s Legal Representation.

In paragraph 11, the bench notes that a “rather peculiar feature” of the case involved the Home Ministry and Health Ministry filing separate and contradictory affidavits about Section 377. Yet, the judgment goes on to accept the Home Ministry’s affidavit and arguments as the Union of India’s position without providing any explanation. The choice may have been obvious to the court, but it is not for a bystander like me.
As a related matter, it is worth mentioning that, at various points in the judgment, the bench justifiably rejects the bizarre and absurd submissions made by the Additional Solicitor General (who appeared on the Union of India’s behalf) and castigates him for making them (see especially paragraphs 70-72). It even offers him a little civics primer when he questions the court’s competence to exercise judicial review. It is amazing that the government’s position was presented so poorly and crudely in such an important case.
Among the Additional Solicitor General’s arguments, which the bench rebuked, was his contention that Section 377 is not “prone to misuse as it is not enforced against homosexuals.” Now, besides the high court’s cogent reasons for rejecting this unsubstantiated statement, there was an additional justification for not accepting it. Under our federal scheme of governance, it is the state governments who control police and law-enforcement agencies. The Central Government has very little direct role in determining whether or not to prosecute a case under Section 377. Thus, it would have not been appropriate for the high court to have relied on the Additional Solicitor General’s statement on Section 377 prosecutions because he was not representing any of the states (they were not even parties to the proceedings).

6. The Christmas Tree Effect.

Reflecting the growing cosmopolitanism of the Indian judiciary, the case cites a large number of international and comparative constitutional sources. But unlike other contemporary decisions, the foreign citations in Naz Foundation are not mere ornaments or serial lights to make the decision sparkle. The case is among a handful of decisions in which judges rely on foreign precedents to actually shape an imaginative domestic outcome. References to Hong Kong, Fiji, and Nepal decisions in Naz Foundation are particularly important because they remind the reader that gay rights aren’t some luxurious western construct. The dates of many citations reveal that the bench continued to research the case long after it had been reserved for judgment.

Yet, precisely because it includes so much material, Naz Foundation is like an over-decked Christmas tree with decorations obscuring virtually every bit of green. In some parts, the decision seems like the work of magpies: no shred of information seems to be too obscure for inclusion in its great kitchen sink of ideas. It is surely the Indian first case to actually cite a webcast!

Furthermore, Naz Foundation is among the first cases that I’m aware of in which statements of the prime minister, health minister, and solicitor general are used as “unilateral declarations” (in the sense of the International Court of Justice’s 1974 Nuclear Tests Case) of the government’s position on Section 377 and attitudes towards men having sex with men. I suppose the court intended to formulate something like an estoppel doctrine using statements of high constitutional functionaries.

Naz Foundation also relies on several international “soft-law” sources, such as the “Yogyakarta Principles,” and the “London Declaration of Principles on Equality” to argue that there is an emerging norm of international law on sexual orientation. As appealing as these principles might be, they hardly qualify as authentic sources of international law for they have been adopted by very few states. They are not general principles of international law, much less customary international law.

7. Dignity Dimension.

I liked the bench’s discussion of “dignity,” in paragraph 26. But I felt that the judgment could have elaborated a bit more on the reference to the “dignity of the individual” in our Constitution’s preamble (borrowed word-for-word from the Irish Constitution). Moreover, it is very surprising that Naz Foundation did not cite Kharak Singh here. In paragraph 16 of Kharak Singh, Justice Ayyangar makes a direct link between privacy and individual dignity enshrined in the preamble. This paragraph was subsequently reproduced as a block quote in Gobind. Why Naz Foundation did not use the quote is a mystery to me especially since it was attempting to telescope privacy with dignity – a maneuver first undertaken in Kharak Singh, a six-judge-bench decision of the Supreme Court.

8. Privacy and Indian Constitutional Law.

In yesterday’s post, I hailed Naz Foundation for expanding the doctrinal understanding of privacy. However, I believe that the bench’s analysis of privacy under our Constitution is far from adequate. Let us start with paragraph 35, which is located immediately below the caption “development of law of privacy in India.” This paragraph is devoted to a discussion of Kharak Singh (the largest Supreme Court bench to discuss privacy in any meaningful sense). In Kharak Singh, Justice Ayyangar, speaking for the majority, explicitly held that “the right to privacy is not a guaranteed right under our constitution.” However, he found that a state regulation, which permitted domiciliary visits by the police, was unconstitutional because it violated a “common law right to privacy.” He located this common-law right under the expression “personal liberty” under Article 21.
In a separate and concurring opinion, Justice Subba Rao went much further than Justice Ayyangar and affirmed that the Constitution protects a fundamental right to privacy. In discussing Kharak Singh, Naz Foundation notes that the majority “did not go into the question” whether the police domiciliary visits “violated the right to privacy.” Yet, after referring to Subba Rao’s concurring opinion, Naz Foundation blithely concludes: “in effect, all seven learned judges held that ‘right to privacy’ was part of the ‘right to life’ in Article 21.” The High Court does not explain the basis for this sweeping sentence. It appears to have simply lifted it — without proper attribution — from the Supreme Court’s opinion in Canara Bank. Canara Bank is an embarrassingly bad opinion for a number of reasons, including its completely unnecessary digression into American constitutional theory, Just read it and you’ll see what I’m talking about!
After Kharak Singh, Naz Foundation mentions Gobind (a somewhat maverick decision of Justice Mathew, which has been criticized for glossing over the majority holding in Kharak Singh) and Rajagopal (where Justice Jeevan Reddy largely followed Gobind on the privacy issue). In both decisions, the Supreme Court cautioned that privacy was not an absolute fundamental right and it would “necessarily have to go through a process of case-by-case development.” Yet, that admonition was conveniently forgotten by the Supreme Court in Canara Bank. As Naz Foundation accurately reports, Canara Bank concluded that the right to privacy has been accepted as “implicit in our Constitution.”
While I acknowledge that Canara Bank is binding precedent on the Delhi High Court, I believe that Naz Foundation could have undertaken a more rigorous privacy analysis without simply cutting and pasting from Canara Bank. This is not unreasonable to demand from a bench, which demonstrated great skill in cherry-picking among conflicting Supreme Court decisions on application of the strict scrutiny test.
Upon holding that there is a right to privacy under the Indian Constitution, Naz Foundation proceeds to articulate an untethered and delocalized understanding of privacy. Relying on that broad notion of privacy, paragraph 47 contains the poignant declaration that “[a] person cannot leave behind his sense of gender or sexual orientation at home.” It is unclear, however, whether this sentence is the high court’s own words or simply a quote from another source. Then, we stumble upon following statement (also in paragraph 47): “privacy allows persons to develop human relations without interference from the outside community or from the State (emphasis mine).” I’m tempted to stop and reflect further on the practical meaning of this remarkable observation, but I need to move on. So, I’ll defer to your comments about its wisdom.

9. Privacy and the Vires of Section 377.

Naz Foundation’s substantive commentary on privacy ends with the observation that Section 377 denies a gay person a right to full-personhood, which is implicit under Article 21 of the Constitution. Presumably, this is because Section 377 violates the unarticulated fundamental right to privacy. Yet, the thickness of this important conclusion is substantially undercut by the decision’s actual findings on the merits in paragraph 132. That operative paragraph of the judgment states that Section 377 is unconstitutional “insofar as it criminalises consensual sexual acts of adults in private” (emphasis mine).
Based on the wording of paragraph 132, one cynical, but plausible, way to interpret Naz Foundation is that the new constitutional bar on Section 377 prosecutions applies only to sexual acts in a private dwelling or establishment. Under this interpretation, the section may still be freely applied to prosecute “non-private” conduct in a public place. Such a result would be particularly unfortunate because many documented instances of 377 harrassment have involved conduct in parks and other public places. They are quite unlike the police raid on John Lawrence’s bedroom, which was later declared a zone of privacy in the US decision, upon which Naz Foundation appears to have strongly relied.
In some sense, the substantial disconnect between Naz Foundation’s soaring rhetoric on the concept of privacy and its parsimonious finding regarding the applicability of Section 377 illustrates the limitations of using privacy as a legal theory to challenge morality-based legislation. At first blush, privacy is a convenient and tempting shield to prevent the government from intruding into gays’ bedrooms. But it does not protect them when they leave their homes and affirm their bonds (even in the most benign manner) in public. It can be especially problematic in the Indian context because the “private” of many Indian gays is usually in the long shadows or dark corners of public places, like parks or beaches. For them, paragraph 132 does not seem to be a particularly liberating and emancipating holding.

(This post, written entirely in my personal capacity, will be concluded tomorrow).

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  • Vikram: Thanks for a very thoughtful analysis and what was a wonderful read as well. I share your discomfort that the Delhi High Court's decision is predominantly based on the right to privacy. There are just too many decisions of the Supreme Court stating that the right to privacy is not a fundamental right. I would have rather that the Court found more reasons to explicitly fit it into the euphemistic but somehow more accepted principle of "human dignity".

    On the point re para 132, I tend to disagree, if only because I would read more into the Court's declaration that privacy is related to the "person" and not "place". Hopefully, the words "in private" as used by the Court in its concluding paragraph, will be read in relation to person and not place.

  • Thank you Vikram for your forensic critique of the judgment. Your detailed analysis relating to privacy was to me an eye-opener. I was also taken aback by the implications you brought out of the expression "in private" in the operative part of the judgment. Are you suggesting that when it comes to homosexuals, the test of criminality under Section 377 is (a) whether the act was consensual and (b) whether it was performed in private? But when it comes to penile vaginal sex, the corresponding test is just whether it was consensual? In other words, has the judgment, wittingly or otherwise, set double standards for determining the criminality of homosexual and heterosexual acts?

  • The Delhi HC did not cite Kharak Singh because it was the minority decision that read in privacy into Article 21 !!! The view has been constantly mis interpreted by so many people and i think this Judgment is a step in the right direction in the sense that it does not mislead us as to the fact that privacy as a right has still not been incorporated under Art 21 cos technically no bench bigger than Kharak SIngh sat to overrule it.
    Correct me if I am wrong