Naz Foundation Judgment

A copy of today’s Naz Foundation judgment overturning the Delhi High Court and upholding 377 can be found here. Others on this blog have followed this case far more closely than me and I will let them write a more detailed and comprehensive analysis.

To me, on initial reading, the judgment seems long on block quotes and short on reasoning. The judgment claims that section 377 of the Indian Penal Code does not discriminate on the basis of gender or orientation. This seems to imply that not only gay sex is now criminalized in India, but potentially any kind of anal or oral sex. Yet, the judgment does not really let us know when section 377 would be applied – leaving this up to the whims of future courts (and law enforcement officials). As the judgment states, “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. All the aforementioned cases [where Section 377 was applied] refer to non consensual and markedly coercive situations and the keenness of the court in bringing justice to the victims who were either women or children cannot be discounted while analyzing the manner in which the section has been interpreted. 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.”

I believe Naz should be reheard by five judges because it never should have been heard by two judges in the first place. As I have written elsewhere the Indian Constitution explicitly mandates that substantial questions of constitutional law must be heard by five or more judges and there is good reason to be wary when such questions that have such far-reaching impact are heard by just two or three judges. 

Written by
Nick Robinson
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  • "Those 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. " – Could someone please explain what this means? It seems to be the only substantive finding on the Article 14 challenge.

  • If the following are the key points of consideration for adjudicating on the validity of Section 377, then they are not addressed in the operational sections of the judgment:
    "31. From the above noted judgments, the following principles can be culled out:
    (i) The High Court and Supreme Court of India are empowered to declare as void any law, whether enacted prior to the enactment of the Constitution or after. Such power can be exercised to the extent of inconsistency with the Constitution/contravention of Part III.
    (ii) There is a presumption of constitutionality in favour of all laws, including pre-Constitutional laws as the Parliament, in its capacity as the representative of the people, is deemed to act for the benefit of the people in light of their needs and the constraints of the Constitution.
    (iii) The doctrine of severability seeks to ensure that only that portion of the law which is unconstitutional is so declared and the remainder is saved. This doctrine should be applied keeping in mind the scheme and purpose of the law and the intention of the Legislature and should be avoided where the two portions are inextricably mixed with one another.
    (iv) The court can resort to reading down a law in order to save it from being rendered unconstitutional. But while doing so, it cannot change the essence of the law and create a new law which in its opinion is more desirable."

    Points 2, 3, and 4 are not considered in proper detail. At least, the Court has not used Section 377 adequately to answer these tests! The questions that come to my mind on a rather surface reading of the judgment, questions the Court should have shed light on:
    1) Has it been reported in Parliamentary debates that the Parliament considers it necessary to keep Section 377 alive for the benefit of the people? If so, what are the benefits derived from Section 377 and where are the pitfalls? Is there a need to keep the law alive, if so, what is the need? Is this need determined legally, morally or socially?
    2) The question of severability has not been answered in the context of Section 377. The Court does not even consider what part of Section 377 can be severed from the other. Are all parts of Section 377 so inextricably linked that none can be severed?
    3) Does the Delhi High Court read down the provision to make it constitutional? How can Section 377 be held constitutional? What aspects of the provision render it so? Has the Delhi High Court changed the law to make it more "desirable"? If so, how?

    No questions regarding Section 377 or its constitutionality have been answered. The Court goes into unnecessary explanations about what constitutes an offence under Section 377 without testing if these offences fit into the framework the Court itself proposes to test the validity of the provision!