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.
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