The Supreme Court’s recent judgment in Suresh Kaushal v. Naz Foundation on the constitutional validity of Section 377 of the Indian Penal Code, which criminalizes “carnal intercourse against the order of nature”, has dismayed the LGBT community and its supporters, as much for its vapidity and lack of intellectual rigor, as with the conclusion it reached. Coming a good five years after a historic, erudite and progressive judgment of the Delhi High Court, which held that Section 377 cannot extend to criminalizing sexual acts between consenting adults (including homosexual acts), the very least that one expected from the Supreme Court, was for it to fully engage with the arguments before it and to give a strong legal basis for overturning the High Court’s decision. Instead, as one reads through the Supreme Court’s judgment, one is confronted with a regressive, doctrinaire approach to constitutional interpretation, and what is essentially a cop-out which crushes the hope and aspirations of millions of India’s LGBT citizens. The Supreme Court held that it is the  parliament’s prerogative to legislate for deletion of Section 377 from the statute books, and until that happens the criminality of homosexual acts would remain, and would have be adjudicated upon on a case to case basis.
Although the judgment is on poor footing and evasive on multiple substantive grounds relating to the interpretation of the fundamental right guarantees made by our constitution, I restrict myself here to addressing two particularly formulaic and insular strands of the court’s reasoning, namely, the court’s blind adoption of the principle that statutes are presumed to be constitutional, and its stance that judgments of foreign courts have little place in interpretation of India’s constitution. These two strands of the court’s judgment are worrying because they reveal the court’s selective reluctance to even acknowledge, let alone engage with, contrary positions previously taken in its own decisions, and evolving international trends in judicial and legal thought.
In its judgment, the court rightly asserts its powers of judicial review even over pre-constitutional statutes like the Indian Penal Code which was enacted in 1860, but almost immediately caveats this with the observation that legislation enacted by parliament or a state legislature carries with it a presumption of constitutionality. The reason for extending this institutional courtesy to legislatures is partly rooted in the Montesquieuan doctrine of separation of powers which holds all three branches of the state, viz., the legislature, judicial and the executive, to be co-equal, and partly on the idea that legislatures are representative of and accountable to their electorate and would hence presumably act in the interests of the people and within the confines of the constitution. This presumption is in itself not very problematic, but for the fact that the Indian Penal Code, being an archaic, pre-constitutional legislation principally drafted by Lord Macaulay, was not enacted by any of independent India’s elected legislatures. The statute is more likely reflective of Victorian English societal norms rather than the views of India’s present generations.  The big trouble, however, really starts when the court would have us believe that:
“[T]here is nothing to suggest that this principle would not apply to pre-constitutional laws which have been adopted by the parliament and used with or without
This assertion is wrong on multiple counts.
Firstly, the Supreme Court’s own judgment in Anuj Garg v. Hotel Association of India (2008), another two-judge bench of the Supreme Court unequivocally held that pre-constitutional legislation is “susceptible to challenge on the touchstone of Articles 14, 15 and 19 of the Constitution of India”. The “strict scrutiny” assessment required by this judgment has been viewed by Indian academics as a dilution of the traditional presumption of constitutionality (Tarunabh Khaitan has viewed this to be a positive development here, while Moiz Tundawalla and Malavika Prasad are slightly more apprehensive here and here). Further, in  NDMC v. State of Punjab (1997), which is a slightly more challenging precedent to understand, the then Chief Justice Ahmadi, speaking on behalf of four judges of a mammoth nine-judge bench, took the view that the doctrine of presumption of constitutionality is not of infinite application and would not apply to a pre-constitutional enactment such as the Punjab Municipal Act, 1911. 
In particular, he doubted the applicability of the presumption to pre-constitutional legislation by stating that
“[T]he basis of this doctrine is the assumed intention of the legislators not to transgress constitutional boundaries. It is difficult to appreciate how that intention can be assumed when, at the time that the law was passed, there was no such barrier and the limitation was brought in by a constitution long after the enactment of the law.”
In contrast, Reddy J. writing on behalf of the majority of 5 judges proceeded on the basis that the Punjab Municipal Council Act, 1911, is a post-constitutional enactment by virtue of its specific extension to the Part-C State of Delhi under the Part ‘C’ State (Laws) Act, 1950, which came into effect from only in April, 16, 1950 after the adoption of the constitution. Thus, although the majority raised the presumption of constitutionality, it did so on specifically on the basis that the enactments before the court were post-constitutional enactments, and hence the majority did not go into the question of the applicability of the presumption of constitutionality to pre-constitutional enactments.
Secondly, an even older decision of a constitution bench of the Supreme Court in Gulabbhai v. Union of India [AIR 1967 SC 1110], illustrates the absurdity of the suggestion that an authority should be presumed to have known the limits on its powers, when the limits have been introduced after the power has already been exercised. In that case, the court took the view that the President of India could not be presumed to have been cognizant of limits on the exercise of his powers under Article 240 of the constitution, when such limits were introduced retrospectively after the President had already exercised the power. By analogy, a pre-constitutional legislature enacting the Indian Penal Code in 1860, could not have possibly had any conception of the limits on the powers of the legislature introduced by the constitution of independent India in 1950.
Thirdly, the court conveys the impression that Section 377 of the Indian Penal Code has been actively “adopted” by parliament. In truth, Article 372 of the constitution “continues” those pre-constitutional laws which have not been expressly repealed by the constitution, or subsequently altered or repealed by a competent legislature. Post-independence Indian parliaments have merely allowed the Indian Penal Code to continue – the statute exists today mostly because of parliament’s benignity rather than its action. Most importantly, such continuance under Article 372 is made “subject to the other provisions” of the constitution, which would include the fundamental rights guarantees of equality and privacy. It would be a stretch to presume that merely because parliament opted to amend other provisions of the Indian Penal Code at various points in time, it was of the view that Section 377 was constitutional. To presume constitutionality when the parliament is enacting is one thing, but to extend that presumption to a situation of parliament’s benign inaction is quite another.
A similar but much more expansive point has been made in the United States, by legal scholar Randy Barnett, who has repeatedly argued for a converse “presumption of liberty” where state action challenges the personal liberty of individuals. In an article published in the Valparaiso University Law Review, Barnett compellingly argues for this opposite presumption of liberty should extend to both enumerated and unenumerated rights under US constitutional law. However, even in the U.S., the stock presumption is one of constitutionality, and this position position has been defended in a recent issue of the Fordham Law Review, by scholars Gillian E. Metzger and Trevor W. Morrison.
In my view, the Supreme Court in Naz failed to even acknowledge the various standpoints on the limitations of the presumption of constitutionality principle. This is a critical failure on the court’s part and should not have occurred especially when the Delhi High Court had specifically addressed the question and ruled that there is not presumption of constitutionality in the case of a pre-constitutional legislation. This failure also highlights the extremely important need to re-examine from first principles, several canons of constitutional and statutory interpretation that are routinely adopted by Indian courts, and to evolve theoretical frameworks which clearly explain what exactly such principles entail and what they do not.
This brings me to the other worrying strand of the Supreme Court’s approach, which is its cavalier dismissal of the wealth of judgments of foreign courts and other international legal authorities which were considered by the Delhi High Court in reaching its conclusion. In a rather uncharitable treatment of the Delhi High Court’s efforts to write a thoroughly researched and intricately reasoned judgment, the Supreme Court states: 
[I]n its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377
IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded in for deciding the constitutionality of the law enacted by the Indian legislature.” 
However, even a cursory reading of the Delhi High Court’s judgment will reveal that the acceptance of reasoning of the international legal precedents was far from “blind”.  In contrast, the Supreme Court has not discussed even a single such foreign authority in detail and explained why it disagrees with it. Surely there has to be a mid-way point between blindfolded acceptance and blindfolded rejection? This approach is disheartening, especially in light of Indian’s courts traditionally being receptive to international legal scholarship, especially in important matters of constitutional adjudication, most famously the importation of elements of the basic structure
doctrine decision in Kesavananda Bharati v. State of Kerala drawing from the experience of Weimar Germany and the writings of German scholar Dietrich Conrad.
It is tempting to say that irrespective of what one’s position is on the LGBT issue, one cannot be satisfied with the manner in which the Supreme Court has reached its decision. But that would be naïve, for the issue is highly emotive and divisive – it is unlikely that those who believe that homosexuality is sin would be very perturbed by the lack of rigour in the court’s decision. For the LGBT community however, it is this lack of rigour may be crucial. It may be the silver lining which offers them hope of a successful review petition before a larger bench in the Supreme Court; the hope that India would, some day in the future, once again become a land where coming out of the closet would not mean possibly stepping into a jail.
Goutham Shivshankar is an advocate practicing in the Madras High Court.
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