Naz Foundation v. Union of India

The Delhi High Court has read down s. 377 to exclude consensual sex between adults in private in its judgment in Naz Foundation v. Union of India (2009). Aspects of the case will surely be discussed in detail. Here, I just want to highlight one aspect with far-reaching constitutional implications.

The Court has given a new lease of life to Article 15: it read sexual orientation as an analogous ground in Article 15(1), insisted that Article 15 pohibits horizontal discimination between citizens as well, and applied strict scrutiny! (paras 105-115) On the latter, it harmoniously read Anuj Garg and Ashoka Thakur to suggest that strict scrutiny will be applied to Article 15 violations, except for affimative action provisions (paras 109-111). This is exactly what I had argued in my article ‘Beyond Reasonableness: A Rigorous Standard of Review for Article 15 Infringement’ in JILI in 2008.

On horizontality, para 104 says:

Article 15(2) incorporates the notion of horizontal application of rights. In other words, it even prohibits discrimination of one citizen by another in matters of access to public spaces. In our view, discrimination on the ground of sexual orientation is impermissible even on the horizontal application of the right enshrined under Article 15.

This is groundbreaking. Pesumably, the horizontal protection extends not just to sexual orientation but also to other grounds like sex, religion and caste. Prohibiting discrimination in the private sector is now a constitutional imperative. Para 93 of the judgment cites nuanced concepts such as ‘direct discrimination’, ‘indirect discimination’ and ‘harassment’: concepts that this Open Letter to the Minority Affairs Minister on the Equal Oppotunity Bill insisted upon. For all their opposition to the judgment, religious groups should not miss this crucial constitutional interpretation which will probably benefit them the most.

On the question of justification of a restriction of Article 21, the Court draws this crucial distinction between popular morality and constitutional morality in para 79:

Thus popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. If there is any type of “morality” that can pass the test of compelling state interest, it must be “constitutional” morality and not public morality. This aspect of constitutional morality was strongly insisted upon by Dr. Ambedkar in the Constituent Assembly.

See also: Nivedita Menon’s moving post on the verdict on Kafila.

Written by
Tarunabh Khaitan
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  • A passing thought..last time when in 2004 the same issue was agitated before the Delhi High Court, the matter was dismissed. However, on appeal to SC, it saw some merit in the case and directed HC to look into it.

    In the process the litigants lost enarly 5 years.

    Could there have been a more expeditious way of dealing with this case?

    Could it be said that the case never saw the light of the day during last few years, perhaps because of non-congenial political environment?

  • Three questions:

    1) Interpreting Article 15 ejusdem generis, do you think that incorporating "sexual orientation" into "sex" is justified, given the other words of the article are "religion, race, caste, and place of birth." Don't you think that in light of the other expressions used in Article 15, "sex" should be limited to "gender."?

    2) Secondly, the Court did not go into the issue of Article 19 violations. Do you think 377 violates 19(1)(a) inasmuch as it prohibits sexual conduct (which can be viewed as an offshoot of "expression") of a certain kind? I ask this as the Court repeatedly referred to "autonomy" as the guiding philosophy behing 21 and 14 (and therefore it would presumably apply to 19 as well). A theory that grounds 14, 19 and 21 in autonomy would probably also support sexual conduct being part of 19(1)(a).

    3) Do you think that importing strict scrutiny into India is justified, especially in light of the clear words of Ashoka Kumar Thakur. Is the Court's distinction between affirmative action cases and 14/15 cases tenable?

  • dear gautam, it is important to note in para 104 that the court says 'sexual orientation' is analogous to rather than included within sex. reading on from para 99, it is clear that the court is including sexual orientation as an independent ground, not within sex. it has basically made article 15 open-ended, its language notwithstanding. i think now disability,pregnancy etc. can also be included in 15. my JILI article answers your last question. i think 19 would also give the same result, although the court rightly did not consider it.

    renu, the delay was because of the usual slowness of the indian legal system. the first rejection on a technical ground of standing, which was reversed by SC. full merits were considered only the second time around.

  • Dear Tarunabh:

    First off, I am in favour of decriminalizing homosexuality. Indeed, I'd want the state to give legal status to same-sex unions. That said, I have to say I am not at all clear about the reasoning of the Delhi High Court.

    From what I can see, Section 377 criminalises particular (sexual) acts which are "against nature." It makes no mention of whether the acts involves homosexual or heterosexual couples. Anal intercourse, for instance, would be criminal under Section 377 for both homosexual and heterosexual couples.

    If I understand rightly, the court is in effect arguing that even though Section 377 only criminalises particular (sexual) acts, that has the indirect effect of violating the equality provisions of the Indian constitution — Articles 14, 15 etc. There is a very big logical step here and one which is not at all obvious to me. Perhaps for the benefit of us non-lawyers following this blog, one of your guys would explain the reasoning in plain English? (I am sorry but it is not clear what phrases like "strict scrutiny" mean, for instance.)

    I have to confess I myself am in favour of tackling this issue through legislative and not judicial methods. That arguably is going to be a much slower process because a suitable "coalition" has to be organised to push the legislation through but it has the virtue that such legislation will reflect a societal consensus which cannot be reversed easily.

    With a judicial approach, I am reminded of what happened in the Shah Bano case. To avoid any misunderstanding, let me emphasize that I am not interested in discussing the merits of that case. Instead, what I want to note here is the relative ease with which a Supreme Court judgment was nullified by the Rajiv Gandhi government. Note that opposition to the High Court's judgment has not been long in making itself heard. I would not be surprised if a strange coalition of Hindutvavadis and conservatives of other religions manage to get through a bill in Parliament which effectively neutralizes the High Court judgment. Or may be, we won't even have to go that far. I think the judgment is going to be appealed and if so, we have to see what the Supreme Court says.

  • 132. We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.

    Sorry for the follow-up, Tarunabh, but the above paragraph — the concluding part of the judgment — raises some questions to my non-lawyer mind. First, if all consensual sexual acts involving consensual adults should be decriminalized, then is incest allowed so long as both parties are more than 18 years old and are consenting adults? If not, why not? Where does one draw the line between "permissible" consensual sexual acts and those which are not? Who draws this line — the judiciary or the legislature?

    Second, the last sentence saying that the provisions of Section 377 will continue to govern non-consensual penile non-vaginal sex (what a convoluted formulation!) and penile non-vaginal sex involving minors strikes me as being totally unnecessary. If the sex is non-consensual then by definition, it's rape. Why does one need Section 377? Similarly, sex with a minor – even with the minor's consent – is statutory rape so far as I know. Again, I fail to understand why one needs the provisions of Section 377.

    I hope, that just because a "desirable judgment" has been handed down by the Delhi High Court, we don't forget to take a good look at it and critique it.

  • dear suresh,
    1. as far as i am aware, consensual incest is not a crime in india. not for heterosexuals, nor for homosexuals. marriage laws prohibit marriage between close relations, but it is not a crime. this is the correct position, and i have argued for a limited role for criminal law here.

    the complicated formulation was necessay because indian rape law only governs peno-vaginal rape. so, non-vaginal rape is not covered by rape law. also, under rape laws, only women and girls can be victims of rape, leaving no protection for men and boys. 377 is therefore the only space to prosecute it (whether for actual lack of consent for adults or deemed lack of consent for a child). judges could not have struck 377 down because that would have left a gaping hole in our criminal laws. but read law commission's 172nd report, where it recommends making rape laws gender neutral and include all forms of sexual assault.

  • Thanks for your clarifications, Tarunabh.

    1. The fact that consensual incest is allowed in India seems strange given that the UK — from which a significant part of our criminal law is drawn — does have laws prohibiting sexual relations between close relations. Even our own traditions — for instance, the strictures against sa-gotra marriages within Hinduism — more-or-less point in the same direction. [On the other hand, I do know that in my home state of Tamil Nadu, it is not that unusual for a girl to marry her maternal uncle!]

    2. I am not sure what you mean by saying that our current laws on incest — permitting consensual sexual relations between close relations but banning marriages — is "correct." Correct in what sense? Are you saying that given our limited resources, it is not worthwhile diverting them to prosecute consensual incestuous relationships — which are "victimless" anyway — when more serious crimes are not prosecuted?

    I am sympathetic to such an argument but incest has some features which make it different from a classic "victimless" crime. First, consensual incestuous relationships even without marriage can produce children. Surely a society should worry about the likely fate of such children? Furthermore, in cases like father-daughter, it is not clear what it means for even an adult girl to give her "consent", particularly in a society like ours. Hence, incest may not be a "victimless" crime. It is not for nothing that many societies have some form of incest laws.

    3. The fact that our rape laws are still stuck in the Victorian era speaks very poorly of us. I certainly hope that the rape laws are changed soon.

  • I just don't understand the conclusion of this Order. So, non-vaginal sex is still criminal. I thought, two men who have sex with one another, commit a non-vaginal sex. Anal sex, to be precise. What is the real relief provided to homosexuals by this Order? Am I the only person wondering about this?

    If I may ask, what specific sexual activity between consenting adult gays was criminal earlier and decriminalised now?

    I think, the Delhi High Court committed quite a mistake by failing in its duty to analyse distinct sexual acts by gays and to apply its reasoning in its relation to sexual acts by Gays.

    By the way, I was truly amused to see the level of legal accuracy in television reporting. One channel screamed, 'Delhi HC legalises Gay Sex'. Another said, "GAY Sex OK. Says the Delhi High Court'. Most channels were saying that the Court 'legalised' Gay sex. Wonder when the media will realise that nobody did or could have asked the Court to 'legalise' Gay sex.

  • An aspect of the judgment which has far reaching implications on constitutionalism in general are the explicit enunciations by the Court that public morality and opinion has no place in interpreting Constitutional provisions most of all Fundamental Rights.
    Also the Court has in accroding horizontal protection, effectively sought to secure for homosexuals the protection ccorded on SC/ST by the Prevention of Atrocities Act.
    One wonders whether it could have been judgment under A. 142. It certainly goes beyond mere writ remedy.

  • jeet, the judgment now says that article 15 prohibits horizontal discrimination (on all grounds, including caste, sex and religion, not just sexual orientation). this is standard constitutional interpretation — a power that every constitutional court has. also, its implication is not an SC/ST type law, which is a criminal law. The court has not legislated any criminal statute into being. but you are right, now every muslim denied housing on the basis of being muslim will have a constituional right against it, even if the landlord is a private person. this to me is the biggest irony, seeing the reaction of religious groups.
    but yes, it does have far reaching implications.

  • If "popular morality" or "public disapproval" is not a valid justification for restriction of fundamental rights under Art. 21, will spousal beating be protected from "popular morality" or "public disapproval" since it implicates ones family "life" and "liberty" "in the privacy of one's bedroom"?

  • gus, popular morality is irrelevant to constitutional morality in the sense that it is neither necessary nor sufficient. merely because popular morality disappoves of something, it is not wrong. but also, merely because it approves of something, it is not right. notice the 'merely' in both sentences. sati was wrong, dowry is wrong, irrespective of popular morality. very often popular morality and constittuional morality take the same position – on murder, rape, domestic violence etc. the point is not that we should always do the opposite of what public morality says. the point is that we need to argue on independent (critical) morality grounds for whether something is right or wrong. if popular morality agrees, fantastic. if it does now, constitutional morality must prevail anyway. HLA Hart's introduction in 'Law, Liberty and Morality' has a good explication of the difference.

  • Tarunabh,

    I understand their distinction and overlap. Otherwise, there is no need for enumerated constitutional rights, is there? But, how is "constitutional morality" categorically distinct from merely policy preferences popular with a narrow group of unelected judges and their academic cheerleaders, i.e. "morality" popular with a narrow elite?

    Look forward to your thoughts.

  • ronald dworkin's work has some good discussion on the policy-principle discussion. you might also want to access the mountain of literature of judicial deference, from people like endicott. almost all legal scholarship on judicial role agrees that a case of this nature is essential judicial function. see also, john ely's book for judiciary's role as the counter-majoritarian institution.

  • Tarunabh,

    Thank you for your response. I am well familiar with most of the major works. I was hoping to hear your own opinion to stimulate my thinking.

    I believe there is a difference between “constitutional morality” and whatever currently passes for fashionable morality amongst the legal elite. The test is whether there is persuasive legal reasoning supported by a coherent theory of constitutional interpretation.

    There is no court of appeals if the judiciary interprets the Constitution in an arbitrary and capricious way while claiming to march to the beat of the “constitutional morality” drummer. If so, we haven’t made any progress in 3500 years: simply substitute Brahmin elite for the legal elite and Vedic texts for the Constitutional text.

    Ambedkar observed, “Constitutional morality is not a natural sentiment. It has to be cultivated.” I’d submit our courts ought to be the first place. If you doubt that, I’d point to your own words about the “perversity” of Bombay High Court ruling that personal laws aren’t laws after all. And what immunizes the Delhi High Court from such rulings?

    Ambedkar also observed, “…The other is that is perfectly possible to pervert the Constitution, without changing its form by merely changing its form of administration and make it inconsistent and opposed to the spirit of the Constitution.” The substantive due process rights of “dignity” and “privacy” teased out of Art. 21’s “right to life” seems like a bad joke when the courts can’t enforce even an explicitly enumerated right against “deprival of life” without procedural due process given our ubiquitous “encounters.”

    Ambekar also observed, “Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic.” Thanks to the quality of reasoning behind the Naz decision, we can add another layer of different kind of soil.

    The bottom line is if we concede to the judiciary the authority to foment social revolution using the Constitution as a charter, we will have no principled basis to object when the Hindutva judges decide to stage a social counterrevolution using their own arbitrary and evolving definitions of “constitutional morality” and “spirit of constitution.” And those who celebrate the Naz case today will rue that day. Some of us will have no joy in saying, “I told you so.”

  • dear gus
    thanks for your questions. here are some of my tentative views:
    1. i could not agree with you more that the judges can get it wrong, and often have. but this does not mean that we cannot reasonably talk about the nature of judicial reasoning, or the appropriate role of judicial institutions.
    2. on the latter, i think if there is one task courts should perform well in constitutional democracies, it is to protect unpopular minorities from majoritarian biases. what the delhi high court has done in naz is classic judicial function, and i would have been very surprised with any other result.
    3. we jduge the judiciary on teh basis of objective principles. i have some very tentative thoughts on separation of powers and the role of academia, which i hope to develop some day. very briefly, in a healthy democracy, where judges are bound to give public reason, the most effective check on their power is the academy (which will scrutinise, celebrate or criticise those reasons). we are seeing the beginnings of a vibrant legal academic culture in india, and it is essential for a vibrant constitutional democracy.
    4. nothing is right because the majority says so. nothing is right because the judges say so. rightness and wrongness are moral questions, and unless one is a relativist (which i am not), must be decided objectively. so, we retain the resources to deal with encounter deaths, with hindutva, with homophobia and with sexism. majority opinion and judicial opinion may or may not be on the 'right' side of hte moral divide. to judge them is our task as citizens. thus, i don't celebrate naz because the delhi high court has said so, but because it has said the right thing (which, in the case of hte progressive values in the indian constitution, also tend to be the constiututional thing).
    i hope i have answered at least part of your query this time, even if i have rambled on a bit. and i hope i dont sound annoyingly patronizing as before.

  • Tarubh,

    I know you are a busy man. Thank you for taking time to respond. I don't expect a response but here it goes.

    1. I know we have structural features in the judiciary to mitigate some of the problems. The multiple judge panels (although I hate the 2 judge panels) and multiple levels of appeal help us think and rethink legal issues before settling on a legal principle. However, we lack the most important feature: a coherent theory that governs constitutional interpretation. And I see no judicial conservatism in the legal reasoning process. An American official reportedly boasted to the effect “stroke of the pen, law of the land….kinda cool, huh?” Where are the institutional brakes?

    2. Majoritarian biases is a negative euphemism for democratic rule; and “counter-majoritarian” is just as a positive euphemism for anti-democratic rule as “fixing the cat” is for “cutting off his testicles.” But every classification is to some extent “arbitrary.” For example, allowing 16 year olds to get driver’s license while forbidding 15 year olds is arbitrary. Legions of 15 year olds will attest to its capriciousness and not feeling “inclusive.” But the legislature’s judgment on physical and emotional ability to handle a vehicle on the public roads is better than what a judge, who has a driver, thinks. Only on suspect classifications such as religion, caste and others listed in the Constitution, should the court evoke strict scrutiny test. Besides, how do we justify the existence of two different laws for Hindus and Non-Hindus when adopting orphan children? If there is anything begging to be struck down as unconstitutional, it is the dual adoption laws.

    3. The constitution doesn’t envision any role for the academia. The fact we may have intelligent criticism or assistance with developing coherent theories is a bonus. But they are neither required nor sufficient for passing constitutional muster.

    4. Judges are uniquely disqualified to make moral judgments. They are hired to make legal judgments. We agree to abide by a court’s decision because of the PERCEIVED legitimacy of its reasoning process. Not because it is any smarter or has any greater insight into justice or morality than the rest of us. And if that reasoning process is compromised to achieve a social revolution in a hurry, then my opinion is as just as valid of some old men I never met but must abide by.

    I have a better insight into your thinking. I apologize for the ramble back. I think the principle weakness in our legal culture is the unstated assumption everything good is required by the Constitution and every thing bad must be prohibited by it. Instead, we have a handful of enumerated core values that are protected from democratic majorities and the rest have to be fought out in the arena of democracy….as distasteful as it might be to those who are impatient and to whom persuading their fellow citizens is beneath them.

  • Part 1 of 2

    Legally, the Naz decision is an unsteady stool supported by three wobbly constitutional legs:

    1) Art. 21’s Life & Personal Liberty Clause
    2) Art. 14’s Equal Protection Clause, and
    3) Art. 15’s Anti-Discrimination Clause.

    Using these three legs, individually and collectively, the Delhi High Court invalidated a tiny sliver of Sec. 377 of the IPC as unconstitutional. On its face, Sec. 377 doesn’t target homosexual sex. Instead, it outlaws, “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal…” While it clearly covers homosexual acts, no man or woman was EVER prosecuted or convicted under this statute.

    The Court begins its legal analysis with Art. 21. It provides, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The Naz Court claims, the Supreme Court in Maneka Gandhi vs. India, “held that the expression “personal liberty” in Art. 21 is of the widest amplitude and it covers a variety of rights which go constitute the personal liberty of man and some of them raised to the status of distinct fundamental rights and given additional protection under Art. 19.”

    In fact, that’s not what the Maneka Gandhi Court held. Justice Bhagwati’s plurality opinion (speaking for 3 of the 7 Justices) cited that quote from another case (R.C. Cooper v. India) as part of its obiter dicta (discussion unnecessary for the holding, the legal ruling). It was a highly fractured opinion, with four additional concurrent opinions. So, there is no single rationale that attracted majority support…other than the result.

    In Maneka Gandhi, the passport officials impounded Ms. Gandhi’s passport restricting her ability to travel abroad. The court said her right to Personal Liberty under Art. 21 was implicated. However, the passport officials had no rules by which to determine objectively when and how a passport is impounded. Also, the Min. of External Affairs refused “in the public interest” to disclose the reasons for their decision. The court ruled they can’t do that. Therefore, the actual holding in Maneka Gandhi was Art.21’s Personal Liberty Clause requires passport officials to have objective standards in making impoundment decisions to meet Due Process requirements of Art. 21. The holding wasn’t giving a subsequent court a license to fill “widest amplitude” with its imagination.

    In fact, the opinion states, “if the obiter dicta based on wrong assumption is to be taken as the correct position in law it would lead to strange results. If Art. 19(1)(a)-(e), (g) are attracted in the case of deprivation of personal liberty under Art. 21, a punitive detention for an offense committed under IPC, such as theft, cheating or assault would be illegal…” The court also states, “In the Indian Constitution, on the other hand, the expression “personal liberty” has been deliberately used to restrict it to freedom from physical restraint of person by incarceration or otherwise.” Yet, the Naz court claims Maneka Gandhi is a license to give Art. 21’s Personal Liberty clause “widest amplitude” to fill it with its imagination. The court also cites a string of cases that are not on point.

  • Part 2 of 2

    The court goes on to talk about “dignity” citing Egan v. Canada, Prem Shankar Shukla v. Delhi Admin, Francis Coralie Mullin v. UTD, Law v. Canada. Two are non-binding foreign cases. The other two only vaguely talk about “dignity.” The court cites NO binding legal authority that Art. 21’s Personal Liberty Clause has anything to do with “dignity.”

    Next, in discussing “privacy,” the Naz Court cites Art.12 of the UN Declaration of Human Rights, Art.17 of International Covenant of Civil and Political Rights (which also grants right to religious conversions) and European Convention of Human Rights. The court admits there is no explicit right to “privacy” anywhere in the Indian Constitution. Yet, it cuts and pastes various quotes from a string of foreign (US) cases.

    Finally, we get to Indian case law. While cases such as Kharak Singh v. U.P and Govind v. MP, and Sharda v. Dharmpal are cited for a vague support of a right to privacy under Art.21, the Naz court mischaracterizes People’s Union of Civil Liberties v. India (2004). In fact, Justice Kuldip Singh flatly states in that case “The Right to privacy in India is subservient to the interests of the State.” Moreover, People’s Union’s ruling was in a criminal law case just as Sec. 377 is about criminal law.

    In an earlier case by the same title, PUCL v. India (1996), the court said, “The right to privacy – by itself – has not been identified under the Constitution. AS A CONCEPT IT MAY BE TOO BROAD AND MORALISTIC TO DEFINE IT JUDICIALLY. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case.” Furthermore, it stated “THE LAW AS IT STANDS TODAY DOES NOT KNOW OF ANY GENERAL RIGHT TO PRIVACY.” (CAPS mine).

    There is some old advice to lawyers. “If you don’t have the facts, pound on the law. If you don’t have the law, pound on the facts. If you have neither, pound on the table.” With no facts (because of no prosecutions) and no law, the Delhi HC pounds on the table in the Naz case. The court led its opinion with Art.21 analysis because it felt that was the strongest argument. We can only shudder at the strength of its Articles 14 and 15 analyses that I might review in a later post.