Alright then, this marks my first non-tax post! The Supreme Court delivered its verdict on the constitutional validity of Section 377 a few months ago, in the case of Suresh Koushal vs. Naz Foundation. It drew outrage and approval in almost equal measure. Personally, I was quite disappointed with the decision primarily because I could hardly believe that it was authored by Justice G. S. Singhvi. I still respect and admire him; he has always been utterly unafraid, candid and fair in his judgments, many of which have been hailed as landmark (cancellation of 2G spectrum allocation, making land acquisition more stringent, restricting usage of red beacons to people holding constitutional posts only, protecting the safety of sewage workers). Whether or not one agreed with the outcome of Justice Singhvi's judgments, it was beyond doubt that they were well reasoned and reflected due application of mind. Except for the one upholding constitutionality of Section 377 of the IPC, criminalizing homosexuality. Speaking purely from a legal point of view, I believe the judgment is very poorly reasoned and I have attempted to outline the reasons in this post.
I am not sure why I have chosen this subject as my first non-tax post; I haven't been particularly vocal about the rights of the LGBT community. I suppose it is because I was in the Supreme Court on the day of pronouncement, which also happened to be Justice Singhvi's last day as a Judge. '377' was the only topic of discussion and the atmosphere was emotionally charged. Every single person I met that day had something to say about it. The judgment was vehemently criticized from the moment it was pronounced but I decided to refrain from commenting on it before reading it, because it was authored by Justice Singhvi. I read it carefully, realizing that it had left out various important aspects which should have been adequately addressed. Though this post comes quite late, after the review petition has been dismissed, I am putting up my thoughts anyway because I rarely scrutinize non-tax issues with such interest! So here goes.
The Supreme Court has failed to address whether the interveners before the Delhi High Court had any locus standi to file an appeal before the Supreme Court. While upholding the constitutional validity of Section 377, the SC observed that it was upto the Legislature to amend the provision as it deemed fit and that it was not for the Court to interfere and read it down. However, at the same time, it failed to attribute importance to the fact that the State had not appealed against the High Court's verdict and that the appeal was filed in the SC by non-State entities. The proceedings before the SC were appellate proceedings, and not writ proceedings in the nature of a PIL. The scope of appellate proceedings is limited compared to PIL proceedings. Undoubtedly, the SC has wide powers under Article 136 of the Constitution to admit an appeal if it involves a substantial question of general importance. However, in line with established principles of judicial practice and propriety, the SC ought to have addressed the issue of locus before proceeding to answer the substantial question of law raised before it.
The Delhi High Court had not struck down Section 377, but merely read it down to make it inapplicable to actions of consenting adults within private confines. Before ruling on the merits, the SC ought to have clarified how the High Court’s judgment had prejudiced or aggrieved the non-State entities so as to enable them to have a sufficient cause of action to file an appeal before the SC. In fact, those non-State entities who can be said to have a legitimate stake in the outcome of the proceedings i.e. parents of the LGBT individuals, too supported the judgment of the Delhi High Court. Viewed in this light, the SC failed to address an important issue, the answer to which could have resulted in dismissal of the appeal at the outset.
Right to Privacy
The Supreme Court has not entirely addressed the violation of the right to privacy. Paragraph 45 onwards, the SC has only reproduced the ratios of various other Indian decisions which deal with the right to privacy under Article 21. These decisions lay down that the right is not absolute, there are no fixed parameters for defining the essence and scope of the right and it can be curtailed in larger public interest by imposing reasonable restrictions. It appears as if the SC has merely reiterated the judicial position on the approach to the right to privacy. There are no reasons that reflect what the essence and scope of the right is in this case, how it is not being violated, how its curtailment is in larger “public interest” or how criminalizing consensual acts between consenting adults in private confines counts as a “reasonable restriction.”
The High Court had extensively relied on judgments of other jurisdictions while decriminalizing homosexuality. The SC has taken the view that these judgments cannot be applied blindfolded for deciding the constitutionality of an Indian law. Though this view is undoubtedly correct, the SC has not explained how such reliance is wrong or blindfolded or how the judgments depart from Indian jurisprudence and Indian judicial approach when it comes to testing the constitutionality of a legal provision, especially where an issue of human rights is involved.
The Supreme Court has held that the classification sought to be made between persons who have intercourse in line with and against the ordinary course of nature, in the context of Article 14, is reasonable. However, the Supreme Court has only considered intelligible differentia without considering 'rational nexus.' Though the classification by itself may be reasonable, it has to achieve a rational nexus as well. The SC has not addressed what rational objective is sought to be achieved by treating homosexuality as a crime. Infact, it has brushed aside the submission of Naz Foundation that due to laws like Section 377, it is not possible to prevent HIV / AIDS or other sexually transmitted diseases. In paragraph 40, the SC has noted that:
“Only in the affidavit filed before this Court on behalf of the Ministry of Health and Family Welfare, Department of AIDS Control it has been averred that estimated HIV prevalence among FSW (female sex workers) is 4.60% to 4.94%, among MSM (men who have sex with men) is 6.54% to 7.23% and IDU (injecting drug users) is 9.42% to 10.30%. The total population of MSM as in 2006 was estimated to be 25,00,000 and 10% of them are at risk of HIV. The State-wise break up of estimated size of high risk men who have sex with men has been given in paragraphs 13 and 14 of the affidavit. In paragraph 19, the State-wise details of total adult population, estimated adult HIV prevalence and estimated number of HIV infections as in 2009 has been given. These details 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.”
It is not clear why these details are insufficient, or which details will be considered to be sufficient. Not only has it failed to answer what rational objective is sought to be achieved, the SC has also failed to elaborate on how the ‘irrationality’ perpetrated by Section 377 is ‘insufficient’ to hold that homosexuals are being accorded discriminatory treatment.
The Supreme Court has ignored Article 15 while arriving at its decision. Naz Foundation had advanced detailed arguments on how Section 377 in its present form violates Article 15, as enumerated below:
- Section 377 violates Article 15 by discriminating on the ground of sexual orientation as although facially neutral, it treats homosexual men unequally compared to heterosexuals and imposes an unequal burden on them.
- The general purport of Article 15 is to prohibit discrimination on the grounds enumerated therein. As Article 15(3) uses the expression “women” the word sex in Article 15(1) must partake the same character. However Article 15(3) must not be allowed to limit the understanding of Article 15(1) and reduce it to a binary norm of man and woman only. This becomes clear when Article 15(2) is applied to transgendered persons who identify as a third gender (for example, as reflected in the application form for the 'Aadhar' card).
- The underlying purpose against sex discrimination is to prevent differential treatment for the reasons of non conformity with normal or natural sexual or gender roles. Sexual relations are intricately tied to gender stereotypes. Accordingly discrimination on the ground of sex necessarily includes discrimination on the basis of sexual orientation. Like gender discrimination, discrimination on the basis of sexual orientation is directed against an immutable and core characteristic of human personality. Even international law recognises sexual orientation as being included in the ground “sex”.
The Supreme Court has not commented at all, on how Section 377 does not violate Article 15.
It appears that the Supreme Court has also failed to recognize that consensual sexual intimacy is an important part of adult life for both physical and mental well-being and a law denying consenting adults of the same sex the right to indulge in sexual intimacy is a violation of Article 21. In this context, it is not out of place to cite a judgment of the Supreme Court where it has been categorically held that sex plays an important role in married life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment. This judgment has been relied on by various High Courts (Delhi, Bombay and Madras) while granting divorce on the ground of wilful denial of sex amounting to mental cruelty.
Though not directly relevant to the issue at hand, these instances serve to highlight the fact that Indian Courts have recognized sexual intimacy and sexual intercourse to be a fundamental part of adult life. So fundamental, that its wilful denial is a ground for heterosexual individuals to seek divorce. Consenting LGBT individuals have to forego this fundamental part of adult life (or face punishment under Section 377), merely because they indulge in intercourse ‘against the order of nature.’ In the present case, the Supreme Court recognizes that the theory that sexual intercourse is only meant for the purpose of conception is out-dated. While consenting heterosexual individuals are legally permitted to experience and indulge in sexual intercourse purely for pleasure, LGBT individuals are penalized for doing so. Not only is this a violation of their right to life and personal liberty under Article 21 but is also a violation of Article 15 because Section 377 discriminates between the two instances of indulging in sexual intimacy only on the basis of sex.
I close by noting that the Supreme Court has reserved judgment in a case involving rights of transgenders. It will be (legally) interesting to see what will be the outcome in this case; whether it follows Naz or takes a different view.