Human Rights

A judgment very much in error — Part 3 (presumption of constitutionality and judicial overreach)

NoticeAndStayAdityaVerma_SupremeCourtcolumnWe need to get rid of two red herrings that have captured at least some of the debate that followed the Supreme Court’s decision in Suresh Kumar Koushal and Another v. NAZ Foundation and Others. The first is the issue of the presumption of constitutionality of the Indian Penal Code, 1860 (“IPC”) and the second relates to whether the Court characterised the Delhi High Court’s judgment as an instance of judicial overreach.

The question of presumtion of constitutionality

The rule of presumption of constitutionality of laws is that when any law is under judicial review, it is for the person challenging its constitutionality to establish its unconstitutionality. It is a rule of procedure applicable to cases in which the constitutional validity of a law has been called into question. It is not a substantive rule. If the law is not shown to be unconstitutional, its validity will be upheld. Conversely, the presumption of constitutionality is rebuttable, and it does not prevent a law from being declared unconstitutional.

The presumption of constitutionality of a law does not mean that a law is actually constitutional any more than the presumption of innocence until proof of guilt in criminal cases means that a person accused of a crime is actually innocent — it only means that the task of proving guilt lies on the prosecution.

Indian colonial laws authored by people like Thomas Babington Macaulay (left) and James Fitzjames Stephen (right) continue to benefit from the presumption of constitutionality.
Indian colonial laws authored by people like Thomas Babington Macaulay (left) and James Fitzjames Stephen (right) continue to benefit from the presumption of constitutionality. Macaulay is considered the author of the Indian Penal Code while Stephen is considered the author of the Indian Evidence Act. 

There is little controversy about the rule of presumption of constitutionality applying to laws made after the Constitution of India came into force. However, the IPC (including Section 377) is a pre-Constitution law. The High Court stated (Paragraph 105 of its judgment) and others have argued that the presumption of constitutionality of laws does not or ought not to apply to pre-Constitution laws, primarily because the colonial law could not possibly have anticipated the requirements of constitutional validity.

To the contrary, in Madhu Limaye v. Sub-Divisional Magistrate, (1970) 3 SCC 746, at page 753, a seven-judge bench of the Supreme Court has held:

Pre-constitution laws are not to be regarded as unconstitutional. We do not start with the presumption that, being a pre-constitution law, the burden is upon the State to establish its validity. All existing laws are continued till this Court declares them to be in conflict with a fundamental right and, therefore, void. The burden must be placed on those who contend that a particular law has become void after the coming into force of the Constitution by reason of Article 13(1), read with any of the guaranteed freedoms.

According to Article 395 of the Constitution, two pre-Constitution laws that were obviously at odds with the Constitution were expressly repealed – the Indian Independence Act, 1947, and the Government of India Act, 1935. According to the Article 372, laws in force prior to the commencement of the Constitution shall continue in force, subject to the other provisions of the Constitution, until altered or repealed. This should be read with Article 13(1), which makes pre-Constitution laws void “in so far as they are inconsistent with the provisions of [Part III – Fundamental Rights]. This constitutional stricture applicable to pre-Constitution laws applies in analogous terms to post-Constitution laws, by virtue of Article 13(2).

The standard for validity of laws remains the same, whether the law in question is a pre-Constitution law or a post-Constitution law. Therefore, if Parliament does not repeal a law (such as Section 377, IPC), it remains in force by virtue of Article 372, unless its unconstitutionality is established. It bears reiteration that the presumption of constitutionality does not imply that Section 377 is actually constitutional any more than the presumption of constitutionality implies that any post-Constitution law is actually constitutional.

If the presumption of constitutionality does not apply to pre-Constitution laws, two anomalies arise.

– Firstly, there is no reason for anyone to consider themselves bound by any provisions of a law such as the IPC (which also criminalises murder, for instance), unless those provisions are declared constitutional. Not having a presumption of constitutionality is another way of saying that the law is not valid until found to be so by the Supreme Court or any high court.

– Secondly, many pre-Constitution laws still in force today are relatively innocuous – for instance, the Indian Contract Act, 1872, the Transfer of Property Act, 1882, the much-loved Code of Civil Procedure, 1908, and a substantial chunk of the law of tort (not all pre-Constitution laws are in the form of statutes). Is there any reason these laws should not have the presumption of constitutionality?

The Supreme Court in this case was correct to state that the presumption of constitutionality applies to Section 377. The error, as far as this issue is concerned, was in then stating (in Para 32 of the judgment):

While [the presumption of constitutionality] does not make the law immune from constitutional challenge, it must nonetheless guide our understanding of character, scope, ambit and import.

Article13(1)_ConstitutionofIndia.jpgThe phrase ‘character, scope, ambit and import’ appears to refer to the constitutional challenge. In other words, the presumption of constitutionality appears to erroneously guide the understanding of the question of the validity of the law, as if the presumption is a self-reinforcing one. A procedural rule was allowed to have a substantive impact. The presumption is only a rule of procedure meant to indicate that the party challenging constitutionality must establish it to succeed.

The fact that Parliament has not interfered with Section 377 only means that the presumption of constitutionality is applicable to it, not that the law, by virtue of having implied popular approval, is somehow more likely to be constitutionally valid. Popular approval has no relevance to Article 13. The question of whether a law is consistent with fundamental rights has to be decided by analysing the law with reference to those fundamental rights, and not by looking at how many people (presumably) support that law. The Constitution guarantees fundamental rights and democracy, not fundamental rights subject to democracy.

Did the Supreme Court characterise the High Court judgment as a case of judicial overreach?

Two or three passages from the Supreme Court’s judgment appear to have created an impression (especially prior to the publication of the full judgment online) that the main reason for setting aside the judgment of the High Court was the doctrine of separation of powers, with the Court acknowledging that interpreting Section 377 as unconstitutional would be an instance of judicial overreach. These passages perhaps were:

In fact a constitutional duty has been cast upon this Court to test the laws of the land on the touchstone of the Constitution and provide appropriate remedy if and when called upon to do so. Seen in this light the power of judicial review over legislations is plenary. However, keeping in mind the importance of separation of powers and out of a sense of deference to the value of democracy that parliamentary acts embody, self-restraint has been exercised by the judiciary when dealing with challenges to the constitutionality of laws.” (Paragraph 26)

In 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.” (Paragraph 52)

Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General.” (Paragraph 56)

By describing the interpretation by the High Court of Section 377 as “legally unsustainable”, the Supreme Court has impliedly endorsed the previous interpretations of Section 377, as a result of which any carnal intercourse other than penile-vaginal sex is classified as ‘against the order of nature’. Admittedly, this position of law was a result of judicial interpretation, which is certainly not beyond the scope of the Supreme Court.

While deference to legislative preference may appear to be part of the overall reluctance to uphold the judgment of the High Court, adjudication upon the core issues of the constitutional validity of Section 377 vis-à-vis Articles 14, 15, and 21 was unavoidable. The judgment of the Supreme Court is unambiguous in concluding that in substance, Section 377, as interpreted prior to the judgment of the High Court, does not violate the Constitution.

(The previous parts of this article are here and here.)

(Aditya Verma practices as an Advocate at the Supreme Court of India. He is an alumnus of NLSIU, Bangalore, and is on the roll of solicitors in England and Wales.)

Human Rights

A judgment very much in error — Part 2 (Dignity, privacy, and reasonableness)

Article21_ProtectionOfLifeAndPersonalLiberty_ConstitutionofIndia.jpgThe Delhi High Court had concluded that interpreting Section 377 to include consensual acts between adults violated Article 21. The Court had reasoned that not doing so would result in:

Violation of the right to dignity, which is part of the right to life, as interpreted by the Supreme Court. The High Court provided a Kantian colour to the meaning of ‘dignity’, stating that “at root of the dignity is the autonomy of the private will and a person’s freedom of choice and of action”, and that “Section 377 IPC denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution.

NoticeAndStayAdityaVerma_SupremeCourtcolumnViolation of the right to privacy, which is part of the right to life, as interpreted by the Supreme Court, and internationally. The right to privacy thus has been held to protect a “private space in which man may become and remain himself”, and “privacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which one gives expression to one’s sexuality is at the core of this area of private intimacy.

The law being unreasonable, as no compelling state interest was proved — this is a requirement under Article 21 as interpreted by the Supreme Court for validity of a law curtailing personal liberty. The high incidence of HIV/AIDS among male homosexuals and their medical treatment to ‘cure’ them of homosexuality were raised as arguments to show a compelling state interest in support of criminalisation. These arguments were rejected in the face of contrary evidence (from the National Aids Control Organisation and the Ministry of Health) that criminalisation actually increases health risks by driving affected individuals underground where they are susceptible to severe harassment, and psychological studies indicating that homosexuality is not a ‘disease’. ‘Reasonableness’ therefore, was not proved, especially as the State admitted that Section 377 was not enforced against homosexuals in practice, which betrayed the absence of a genuine public health interest. Popular morality against homosexuality, it was also argued, provided a compelling state interest in criminalising it. This argument was rejected as popular morality is distinct from constitutional morality, and only the latter can be used to restrict fundamental rights. Mere disapproval is not a sufficient reason for criminalising an activity.

Again, there were three distinct grounds (highlighted in bold above) in relation to life and personal liberty on the basis of which the High Court interpreted Section 377 to exclude carnal intercourse between consenting adults in private. In order to set aside the judgment of the High Court, it was necessary for the Supreme Court to conclude that each of these grounds was fallacious.

Analysis of the Supreme Court judgment in relation to life and personal liberty (Paragraphs 45 to 49 and 52 to 53)

In Paragraph 45, the judgment recognises that Article 21 requires laws to be just, fair, and reasonable. Paragraphs 46, 47, and 50 acknowledge that privacy and dignity are within the ambit of Article 21.

In Paragraph 48, a case is cited in the context of reproductive rights and abortion to demonstrate that while a woman has full control over her reproductive rights under Article 21, the right to abortion is not absolute. The conditions for abortion specified in the Medical Termination of Pregnancy Act, 1971 are reasonable given the “compelling state interest in protecting the life of the prospective child”. The judgment does not discuss how this case provides a sufficient analogy to establish a compelling state interest in criminalising consensual penile–non-vaginal intercourse.

In Paragraph 49, another case is cited in the context of the medical duty of confidentiality of patients. Recognising that although a patient has a general right of privacy, the duty of confidentiality does not prevent a doctor from informing the patient’s wife-to-be that he (the patient) is HIV+. Again, there is no discussion how this analogy is relevant in to consensual penile–non-vaginal intercourse.

Needless to say, in contrast to the examples in Paragraphs 48 and 49, the existence of consent and the absence of harm would be distinguishing factors.

Out of the three challenges under Article 21, the judgment only attempts to deal with ‘reasonableness’ and ‘existence of a compelling state interest’. The challenges under the right to privacy and the right to dignity are not refuted.

In Paragraphs 52 to 53, the judgment cites other cases to the effect that judgments from foreign jurisdictions need not necessarily be adopted by Indian courts. This is correct, The reliance on foreign judgments by the High Court however, was only to develop persuasive reasons within the framework of the requirements of the Indian Constitution, and not as an appeal to formal authority. Without addressing the arguments on privacy and dignity, disapproving the reliance on foreign judgments and using it to set aside the judgment of the High Court is a case of missing the forest for the trees.

There were six distinct constitutional challenges to the existing interpretation of Section 377 – three each under Articles 14 and 15 (which I wrote about in the first part of this article) on one hand, and Article 21 on the other. To set aside the judgment of the High Court, the Supreme Court had to refute each of these six challenges. To say it fell short of doing so in respect of any of them is an understatement.

Amidst signs of a possible political solution to negate the effect of the judgment, it is clearly not a stage where something like a ‘jail bharo’ campaign would appear to be a conscientious imperative to force a change in an unjust law. It would be ideal that the Supreme Court sets right this constitutional malady on its own in review or curative proceedings.

The next part of this article will look at the debate around the presumption of constitutionality of laws and judicial overreach.

(Aditya Verma practices as an Advocate at the Supreme Court of India. He is an alumnus of NLSIU, Bangalore, and is on the roll of solicitors in England and Wales.)

Human Rights

A judgment very much in error — Part 1 (Equality)

NoticeAndStayAdityaVerma_SupremeCourtcolumnConfusion, shock, and anger continue to simmer in light of the Supreme Court’s judgment in Suresh Kumar Koushal and Another v. NAZ Foundation and Others that “Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.

The effect of the judgment is to sustain previous judicial interpretations of the phrase “carnal intercourse against the order of nature”. As a result, any “carnal intercourse” (which by definition involves penetration) other than penile-vaginal intercourse is ‘against the order of nature’, and constitutes an offence under Section 377, Indian Penal Code, 1860.

Section377On the face of it, such criminality attaches equally to both heterosexual and homosexual activity. The latent legal consequence is that male homosexuality is criminalised without exception due to the impossibility of penile-vaginal intercourse.

Apart from compelling philosophical and practical arguments for decriminalising male homosexuality, there has also been an outpouring of a rhetoric of outrage in the immediate aftermath of the judgment — which may not necessarily convince anyone who is not already a sympathiser!

This three-part article aims to provide a reasoned contribution to the debate from a legal perspective, concluding that the judgment is very much in error. Part I compares how the High Court and the Supreme Court addressed the issue of equality under Articles 14 and 15. Part II contrasts the judgments in the context of the right to life and personal liberty under Article 21. Part III addresses two ‘red herrings’ which have occupied some of the discussion following the judgment, although not forming the substance of the debate.

So, what happened?

On 2 July 2009, the High Court of Delhi declared “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.

This means that carnal intercourse between consenting adults in private would have been outside the scope of the phrase ‘against the order of nature’, and therefore, not punishable under Section 377. The Supreme Court has disagreed.Article14_15_ConstitutionofIndia

Summary of the judgment of the High Court in relation to equality: 

After taking note of previous judgments in relation to Section 377, the High Court reasoned that “It is evident that the tests for attracting the penal provisions have changed from the non-procreative to imitative to sexual perversity.” The issue was whether Section 377 should include sexual acts performed by consenting adults in private (and in particular the legality of male homosexuality). Relying on judgments from India and other jurisdictions, the Constituent Assembly Debates, scholarly works, the 172nd Report of the Law Commission recommending deletion of Section 377, and various international human rights documents, the High Court held such acts to be outside the purview of Section 377, as otherwise Section 377:

– Violates Article 14 resulting in irrational classification having no nexus with the object of the law – it was argued that the object of Section 377 was to protect women and children, prevent the spread of HIV/AIDS, and enforce societal morality against homosexuality. These arguments were rejected as consensual private acts between adults have no connection with the protection of women and children, criminalisation increases health risks instead of preventing spread of HIV/AIDS, and moral norms cannot be enforced by the state on individuals if no harm is caused to anyone else or society.

– Violates Article 14 by targeting male homosexuals specifically, although Section 377 is ostensibly worded without reference to sexual orientation. It makes criminals out of all male homosexuals as a class, as the nature of the activities proscribed bears an unavoidable correlation with that class, which is arbitrary and unjust.

– Violates Article 15 as ‘sexual orientation’ is a ground analogous to ‘sex’, within the meaning of Article 15, which prohibits discrimination solely on the basis of such grounds. The High Court adopted the standards of ‘strict scrutiny’ and ‘proportionality review’ of laws, in cases where rights of a particular class were taken away on the basis of a prohibited ground. Using these standards, Section 377, if interpreted to include male homosexuality, would violate the Constitution.

The High Court noted that, given the other conclusions it had reached, it was not necessary to deal with the issue of the violation of Article 19(1)(a) to (d). Employing the doctrine of severability, Section 377 was ‘read down’ to include only non-consensual penile-non-vaginal sex and penile-non-vaginal sex involving minors.

Therefore, there were three distinct grounds (highlighted in bold above) in relation to equality on the basis of which the High Court interpreted Section 377 to exclude carnal intercourse between consenting adults in private. In order to set aside the judgment of the High Court, it was necessary for the Supreme Court to conclude that each of these grounds was fallacious.

Analysis of the Supreme Court judgment in relation to equality (Paragraphs 38 to 44 and 50 to 51)

The judgment of the Supreme Court discusses previous cases in relation to Section 377 and states (Paragraph 38):

“However, from these cases 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 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.” (emphasis supplied)

It is not difficult to see why a uniform test has not evolved – the words in the provision are in the realm of metaphor, or at best, subjective opinion. The first and last sentences of the above paragraph are directly in conflict. If Section 377 has a ‘plain meaning’, a uniform test should be decipherable from the section itself. In any case, it is acknowledged that even judicial interpretation has not provided a uniform test for the applicability of the section. The absence of a uniform test implies arbitrariness. If at all a ‘core’ meaning of the section can be identified, it has to be restricted to cases of “non consensual and markedly coercive situations”, which is precisely what the High Court had done.

Paragraphs 39 to 41 and 51 of the judgment assert that the factual foundation necessary for the challenge to the constitutionality of the law was not established and that discrimination or abuse of a law cannot be presumed. According to the judgment, the facts pleaded by Naz Foundation “are wholly insufficient for recording a finding that homosexuals, gays, etc., are being subjected to discriminatory treatment either by State or its agencies or the society.

Whether the pleadings were insufficient for such a finding to be reached is a question that permits some subjectivity, although it is relatively unusual for the Supreme Court to make a factual assessment anew in an appeal under Article 136. The reasoning in those paragraphs of the judgment is fallacious because the challenge under Article 14 did not require a factual foundation of that nature to be established. The challenge was based on the presence of an irrational classification in the law without a nexus with its object, not particular instances of discrimination by state agencies.

LGBT activists organised a Global Day of Rage against the Supreme Court judgment. Protestors gathered in cities around the world, including New York (above).
LGBT activists organised a Global Day of Rage against the Supreme Court judgment. Protestors gathered in cities around the world, including New York (above). The photo is from The All-Nite Images photostream on Flickr. CC BY-SA 2.0.

Paragraph 42 states “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 latter (sic) category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification… Therefore, the High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution”

Although Article 15 is mentioned, the challenge under Article 15 based on the prohibition of discrimination on the basis of sexual orientation is not addressed.

As far as Article 14 is concerned, in a case where the challenge is based on the constitutionality of male homosexuality being classified specifically as ‘against the order of nature’, it is no answer that the existence of such classification itself means that it is not arbitrary. According to this logic, there would never be any cases of irrational classification as long as such classification exists.

The conclusion of the argument is that classification under Section 377 is not irrational. The assumption of the argument is that classification under Section 377 is not irrational. This is, by definition, a tautology.

Paragraph 43 states that “a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution”.

According to the Constitution, fundamental rights do not admit of exceptions solely on the ground that the class of people affected is a minority. Imagine laws that would label people as criminals if they were left-handers, or atheists, and the flaw in such reasoning is apparent (although criminalising this does not sound so unreasonable, eh? What about vegetarians?). Those who support criminalisation of homosexuality under Section 377 must justify how a person’s sexuality — a private facet of that person’s life — enables them to cast a moral judgment about that person as a whole, and render that person liable to imprisonment for life.

As a distinct point, it is disconcerting that the judgment only considers the 200-odd who have been prosecuted under Section 377 as affected, and not the 25 lakh men who have sex with men in India whose sexuality is labelled criminal (2006 Government estimate quoted in the judgment).

In Paragraph 44, by citing two previous decisions, the judgment seeks to argue that the vagaries of language and the scope for interpretation of a penal provision by itself would not render the provision arbitrary. It is implied that the ‘against the order of nature’ cannot be arbitrary merely on the ground that it can be interpreted to mean different things. However, this does not answer any of the challenges to Section 377 under Articles 14 and 15. There is no legal basis to conclude that an interpretation contrary to these fundamental rights can be sustained.

(Students of jurisprudence will probably afford themselves a wry smile at the irony of the argument in Paragraph 44 of the judgment being a strand of the idea of the inevitable ‘open texture of law’, an idea developed by the jurist H.L.A. Hart, who also formed one half of the Hart-Devlin debate.)

The second part of this article will compare the arguments in relation to life and personal liberty (Article 21).

(Aditya Verma practices as an Advocate at the Supreme Court of India. He is an alumnus of NLSIU, Bangalore, and is on the roll of solicitors in England and Wales.)

Human Rights Supreme Court of India

Koushal — An ADM Jabalpur moment for the Supreme Court

Manish_jimanishThe Supreme Court’s decision in Suresh Kumar Koushal v. Naz Foundation is a disappointing and dangerous failure to fulfil its obligation to uphold the Constitution and protect the fundamental rights of citizens. With shallow and unsatisfactory analysis, seemingly grounded in inexplicable and excessive deference to the legislature, the Court set aside the decision of the Delhi High Court. That decision had read down Section 377 of the Indian Penal Code, 1860, in its application to consenting adults, as being in violation of Articles 14, 15, and 21 of the Constitution of India.

Locus standi of the respondents

The very premise of the appeals was fragile. The respondents at the Delhi High Court (that is, the State) did not choose to appeal the decision. The point of locus standi of the various individuals who filed the appeal was raised in arguments before the Supreme Court, but the Court did not even consider this issue, despite good precedent existing for it to do so.

Baffling deference to legislative superiority

The judgment adopts an unusually — and, it is submitted, wholly incorrect — deference to legislative superiority, beginning with a warped discussion on the presumption of constitutionality. Strangely, the Supreme Court relies on the Criminal Law Amendment Act, 2013 to suggest that Parliament did not intend to amend Section 377 (Para 32).

The fact that the State had chosen not to appeal, and the submissions of the Attorney General (who argued as amicus curiae that the State did not find any error in the decision) (Para 21), seem to have been conveniently ignored. Why a Court that has stepped into the domain of the legislature and the executive, legislating and enforcing policy on several occasions, showed such reluctance to exercise what is undoubtedly its assigned Constitutional function — that of upholding the Constitution and protecting the fundamental rights of citizens — is beyond baffling.

Setback for the Court’s fundamental rights jurisprudence

The worst part of the Court’s reasoning is found in Paragraphs 42 and 43. In Paragraph 42, the Court blandly states, “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…” As to what constitutes the acts in each category, the court gives us no indication whatsoever. The fact that there has to be an intelligible differentia, clearly does not seem to matter to the Court. According to the Court, there exists some classification and that seals the question of any violation of Article 14. The arbitrariness doctrine is not dealt with. The Court does not even bother with Article 15(1) — notwithstanding that the Delhi High Court had made a significant Constitutional point in treating sexual orientation as an “analogous ground” to sex.

More follows in the next paragraph:  “…the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years, less than 200 persons have been prosecuted for committing offence under Section 377.” In one fell swoop, the Court demolishes over sixty years of jurisprudence and constitutional values, suggesting that minorities are second-rate citizens, not entitled to any constitutional protection under Part III.


Besides setting a dangerous precedent in terms of taking a majoritarian view in respect of Constitutional protection, the judgment has worrying implications. Another Bench of the Supreme Court has reserved judgment in a writ petition seeking the recognition of transgender rights. It is unclear what impact the decision in Koushal will have on that case. Further, Section 377 is a cognizable offence, and in light of the recent Constitution Bench judgment in Lalita Kumari that made FIR registration mandatory, re-criminalising it opens the door to frightening possibilities of misuse and intimidation (factors that, incidentally, the Court dismissed as irrelevant in Koushal).

The most inexplicable part of the judgment is the reasoning on Article 21. From Paragraphs 45 to 50, the Court devotes considerable space to this, quoting generously from several of its previous judgments. Then, abruptly, it moves on, without any conclusion whatsoever. Whether there was a paragraph that was accidentally deleted, or whether the Court deliberately chose to leave this question hanging, we will probably never know.

The Supreme Court also berates the High Court for its reliance on international and comparative jurisprudence in what it terms “anxiety to protect so-called rights of LGBT persons”. The careless and hurtful wording aside, it is extremely disappointing that the Supreme Court never bothers to substantively engage with the reasoning of the High Court, much of which drew from Indian precedent and the Constituent Assembly Debates while interpreting the Constitution.

Pratap Bhanu Mehta, writing in the Indian Express, termed the decision “morally regressive” and “constitutionally dubious”, stating that it would be “remembered in infamy as one of those decisions that, like Dred Scott, show how liberal democracies can sometimes give rein to a regime of oppression and discrimination under the imprimatur of law”. A press release by LGBT organisations suggested that it was the Supreme Court’s ADM Jabalpur moment of the twenty-first century.

At the time of writing this, efforts to file a review petition against the decision were in progress. Meanwhile, the ruling political coalition was reported to have opposed the order, and an ordinance is apparently being considered to amend Section 377. It will be a sad day indeed for the Supreme Court if it is Parliament that shows greater resolve in protecting fundamental rights and upholding the Constitution.

(Manish is a Researcher at the National Law University, Delhi.)

Human Rights Supreme Court of India

Section 377 — Supreme Court has failed in its fundamental duty to protect fundamental rights

Today, one day after World Human Rights Day, India’s most progressive and respected institution has stained its proud record of protecting and advancing citizens’ rights — perhaps indelibly.

In 2009, the Delhi High Court in an inspired verdict, that decriminalised homosexuality, had said:

“If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracised.

Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination. This was the ‘spirit behind the Resolution’ of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality, which will foster the dignity of every individual.”

Today, after a long, convoluted appeals process that stretched over four years, the Supreme Court of India overturned the Delhi High Court’s 2009 judgment, thereby re-criminalising gay relationships. In doing so, the Supreme Court of India stands apart — in disgraced isolation — from the judiciary in every other democracy in the world — including developing countries like South Africa, Nepal, Mexico, and Brazil.

In throwing the ball back to the executive branch, the judges sought to couch their decision in terms of showing constitutional deference for the role of the executive. The Supreme Court however, has never shown hesitation in striking down central and state laws and has been perfectly willing to create laws (mostly good) out of thin air, such as the recent judgment banning criminals from contesting elections. In this particular case, the Indian government’s final submission supported the repeal of Section 377 (that is, supported decriminalisation of gay relationships). This would indicate that the deference to executive authority was a fig leaf — enabling the justices to render a regressive and prejudiced decision without overtly appearing to do so. The news media rightly greeted the ruling with headlines like “SC: Gay sex illegal” and “Gay Sex is a criminal offense rules Supreme Court”. For once, the media’s inability to handle nuance is working in favour of truth.


While India’s brave community of LGBT activists and their heterosexual allies will continue to fight for equality — one that they will doubtless win in the long run; in the short term, this decision does real damage to the lives of gay people who are out or in the closet. It will expose lesbians and gays to even more harassment and persecution from the police; give fresh institutional cover to discriminatory practices in every aspect of life — housing and employment among others, and could shrink the already rather limited spaces that the LGBT community has carved out for themselves in public life.

Today, the Supreme Court of India has abjectly failed in its fundamental duty to protect the fundamental rights of an individual and of minorities. Here’s hoping Justices Singhvi and Mukhopadhyaya will see the repudiation of their reasoning by the same Supreme Court in their lifetimes.

(Abhay Prasad is a graduate of IIT Bombay and IIM Ahmedabad and a former volunteer editor of Trikone Magazine, the oldest South Asian LGBT magazine in the U.S. His blog is here.)