I found Vikram Raghavan’s three posts analysing the Naz Foundation judgment extremely useful to understand its significance. What I attempt in this post is to answer some of his concerns, as well as that of others, not necessarily in the order of their importance.
Q.1: Was it necessary for the Bench to use 20 pages of its judgment to sum up the arguments?
A: As someone who has not followed the arguments during the hearing of the case, I found this summing up very useful to know who, among the parties to the case, said what.
Q.2: Should the Bench have gone into the legal and legislative history of S.377?
A: In my view, it is not necessary to know why it had been enacted in order to understand why it is no longer relevant. Though it would have been an interesting academic background to know why and how it was enacted, it was not necessary for the Bench to digress into this issue. It was obvious that S.377, even at the time of its enactment, did not reflect the then prevailing Indian conception of morality. Still, it could be enacted without resistance because people thought it did not concern them. [the same unconcern which characterises some sections even today; I refer to those who wonder what is this huge controversy all about. On the contrary, those who actively oppose the judgment do so for imaginary reasons]. In other words, S.377 was not relevant then when it was enacted, and hardly relevant even now.
Q.3: Is there a taxonomical confusion?
A: Although the judgment uses different terms under homosexuals synonymously, there appears to be no confusion with regard to its reasoning. The use of different terms in different paragraphs is justified according to their contexts.
Q.4: Did the Court rely on certain principles of International Law which are less authentic, because it has been adopted by very few States?
A: The Yogyakarta Principles, drawn in 2007, and the London Declaration of Principles on Equality (2008) and referred to in the judgment, have persuasive value as of now, for they have been adopted by very few States. I don’t see any harm if a Court cites these to buttress its reasoning. The Court did not say we ought to follow these principles because they are binding.
Q.5: In Paragraph 35 of the Judgment, did the Court make a sweeping assertion that the Supreme Court in Kharak Singh held that the right to privacy was part of the right to life in Art.21? Was it correct to do so after noting that the majority in that judgment did not go into the question whether the police domiciliary visits violated the right to privacy?
A: If you read Kharak Singh carefully, (esp. the judg. By Ayyangar) it is clear that the Court was concerned with the question whether the U.P.Regulations authorise the police to make domiciliary visits. Therefore, it was not necessary for the Court to examine whether the police actually made those visits, because the police denied that they did. Ayyangar makes this distinction clear.
Q.6: Is Paragraph 47 confusing? What is its practical meaning?
A: By declaring that a person cannot leave behind his sense of gender or sexual orientation at home, the Court makes it clear that it sees homosexuality as a trait, rather than as a disorder and that a homosexual does not become a homosexual by choice. The HC relies on the weight of medical opinion for this. This is also buttressed by the responses of homosexuals themselves, who might say: “We are not attracted by the opposite sex; what do we do? Why criminalise us calling it unnatural?”. The following statement that “privacy allows persons to develop human relations without interference from the outside community or from the State” is consistent with this understanding.
Q.7: Does Paragraph 132 undercut the Bench’s finding that S.377 violates the fundamental right to privacy?
A: In Paragraph 132, the Bench bars the applicability of S.377 to consensual sexual acts in private between same sex persons. Does it mean that the section may still be freely applied to prosecute “non-private” conduct in a public place? Public Display of Affection (PDA) -whether between same sex or hetero sex couple – is covered under anti-obscenity provisions, namely, S.294(a) IPC. The Bench may be justified in avoiding a discussion on obscenity in order to confine its focus on S.377. PDA must be understood differently from that of carnal intercourse mentioned in S.377. Yes, if there is a carnal intercourse between same sex couple at a public place, even with consent, they must be prosecuted under S.377 even after this judgment. A hetero sex couple indulging in a similar act at a public place cannot be prosecuted under S.377, but under S.294(a).
I agree there is an anomaly even after this judgment in that the Court implicitly agrees that the S.377’s use of expression ‘against the order of nature’ is correct and that same sex carnal intercourse is against the order of nature, if it is at a public place. This inference is unfortunate because the Court questions the underlying assumption of S.377 – in terms of its application – that same sex intercourse is against the order of nature.
The Court could have avoided this contradiction by suggesting that consensual same sex intercourse in public could be prosecuted under S.294(a), rather than under S.377.
The Court was obviously confronted with two kinds of information:
A. There is no evidence of S.377 being used against same sex couple indulging in carnal intercourse with consent in private. Most of the trial court cases go unreported, and we don’t know whether there are indeed such cases. It is plausible that there are such cases, and the Court’s judgment must be seen as an answer to such situations. If the police indeed did not invoke S.377 against consenting same sex adults in private, then why have this provision which applies to them and which is a source of much harassment– this is what the court is suggesting in Naz Foundation.
B. The Court was also confronted with several actual cases of harassment by the police against homosexuals by abusing S.377.
Obviously, A & B are not contradictory, and the judgment seeks to address both the claims. The parsimonious finding regarding applicability of S.377 is due to lack of data with regard to trial court cases. But that need not have deterred the Bench from reaching its conclusion.
Q.8. Does the Bench prescribe that every governmental action that violates a fundamental right must henceforth satisfy Menaka’s test of “just, fair and reasonable” as well as Gobind’s requirement of furthering a “compelling state interest”?
Ans: I think Vikram’s suggestion that it is a radical restatement of the law is quite correct. Therefore, the distinction which he subsequently draws between penumbral rights and textual rights for the purpose of applying Gobind+ Menaka to the former is, in my view, unnecessary.
Q.9: How do we understand Constitutional Morality?
A: When the Court is confronted with an issue concerning popular conception of morality, can its reliance on what constitutes constitutional morality provide the answer? There can be no dispute about what is Constitutional morality with regard to what the Constitution says the State cannot do. Thus we do have a huge debate about Constitutional morality with regard to affirmative action (What the State should do and how the State should go about it), but there is a consensus (which signifies constitutional morality) regarding non-discrimination, equality and right to life and liberty. The right to trade in liquor is, like affirmative action, to be understood with reference to the State’s duty to enforce Prohibition under Article 47. The debate and the courts’ dilemma on what constitutes constitutional morality with regard to this right is understandable.
Q.10: Since the High Court concedes that S.377 is facially neutral, its criticism that it targets homosexuals as a class has no basis.
A: Discriminatory enforcement of a neutral provision can be a ground for challenge. Lack of precedents alone need not make this ground vulnerable. The court clearly hints that indirect discrimination is also discrimination. The very definition of indirect discrimination is facially neutral provisions which apply disproportionately to one single class. Indirect discrimination is accepted the world over as an aspect of discrimination. Discrimination based on pregnancy, although facially neutral, is, for example, indirect discrimination on the ground of sex.
Q.11: If sexual orientation is now included as one of these prohibited grounds, several existing laws, including those that define marriage as being between a man and woman, are in constitutional jeopardy.
A: Correct. But could this be a ground to stay or reverse the High Court’s judgment? If other laws are challenged in the light of Naz Foundation, so be it, and let them be heard separately on merits.
Q.12: Can the HC’s observations on Article 15(2) be considered as obiter?
A: No. One has to read only paragraphs 20 and 50 wherein the Court shows that statutory discrimination leads to the general atmosphere of prejudice leading to discrimination against gays by private persons. This was one of the pleas of the petitioner and some respondents. The HC correctly took this into account.
Q.13 Did the HC needlessly import the American doctrines of strict scrutiny and compelling state interest to invalidate S.377?
A. It is true that this was not strictly necessary, given the court’s findings under Articles 14 and 21. Yet, the court found it useful to rely on Anuj garg, as it was a directly relevant judgment on discrimination, given the confusion over the possible impact of Thakur on Anuj garg, the court had to clarify why it could validly rely on Anuj Garg. In fact, the court expressly disagrees with American precedents by suggesting that strict scrutiny does not apply to affirmative action. This is a very Indian position. If you look at the chronology, Anuj Garg was delivered in December 2007 after the hearings of Thakur concluded on November 1, 2007. The Thakur judgment was delivered on April 10, 2008. There is no mention of Anuj Garg in Thakur judgment. But the Judges of Thakur were aware of Anuj Garg. If Thakur wanted to overrule Anuj Garg, they could have done so. But Anuj Garg was not argued during the hearings of Thakur case. Therefore, it was reasonable for the Delhi High Court to attempt a harmonious construction of the two judgments.
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