[Reader-list] WE DISSENT ON SC JUDGEMENT ON SECTION 377

[Asit Das]

*We Dissent*

*A preliminary walk through the unreason of the Supreme Court in the 377
judgment by **SIDDHARTH NARRAIN*

*We hope to see many more pieces which exposes the judgment for what it is-
an example of judicial non application of mind. I have also written a short
piece looking at the judgment in the context of the Mandela moment
<http://www.bangaloremirror.com/bangalore/others/A-backward-walk-away-from-freedom/articleshow/27227986.cms?>*

The Supreme Court’s decision in *Suresh Kumar Kaushal & Another* v. *Naz
Foundation & Others *is an unprecedented ruling, deciding to turn the clock
back to pre-July 2009, when LGBT persons were criminalized by section 377
of the Indian Penal Code. On close reading, the judgment is based on a
narrow and blindfolded interpretation of the law, ignoring the momentous
changes in society and notions of morality that India is witnessing.
Further, the judgment, in many parts, relies on shaky precedent, does not
explain the logic of its conclusions, and is surprisingly dismissive of
substantial evidence that was placed before it.

The judgment can be divided into six issues that the Court addresses:

*I. Restrictive Reading of the Power of Judicial Review*

The Court, going against its recent history of judicial activism, defer to
the legislature in order to respect the doctrine of separation of powers
and the democratic mandate of the legislature. The court, while recognizing
that pre constitutional laws like 377 can be declared void if they are
inconsistent with the Constitution and to the extent they abrogate
fundamental rights, goes on to invoke the principle of ‘Presumption of
Constitutionality’, whereby courts Additional Solicitor General Indira
Jaisingh, in interviews to the media, immediately after the judgment has
pointed out that the inconsistent approach taken by the Bench in this case.
She wondered why, the same judges who did not have a problem encroaching on
the legislative domain on a regular basis for a wide variety of issues were
suddenly reluctant to do so when it came to implementing fundamental rights.

*II. Meaning and Scope of Section 377*

The Court, referring to precedent on the interpretation of section 377
observes that the law can be interpreted only in a case-by-case basis,
“with reference to the act itself and circumstances in which it is
executed”. It also observes that all the case law it has relied on is
incidents of non-consensual sex, thereby throwing into doubt whether the
same interpretation can be applied to consensual sexual acts.  Yet, the
Court goes on to hold that in light of its plain meaning and legislative
history, section 377 applies irrespective of age and consent, and that it
criminalized acts, not identities, orientation or a particular people. The
court says that such prohibition criminalises sexual conduct regardless of
sexual orientation and gender identity.

*III. Appreciation of Evidence*

The Court fails to appreciate the evidence of discrimination, harassment
and torture faced by LGBT persons that was placed before in the form of
FIRs, personal affidavits, fact-finding reports, official statistics, peer
reviewed articles, and the reported judgments. Instead the Court holds that
the respondents “miserably failed to furnish the particulars of the
incidents of discriminatory attitude exhibited by the State agencies
towards sexual minorities and consequential denial of basic human rights to
them.”

*IV. Article 14 (Right to Equality) and Article 15 (Non-Discrimination)
Arguments*

a) *Reasonable Classification*

For a law to be withstand an Article 14 challenge, it has to satisfy the
Test of Reasonable Classification, which has two requirements – (1) Is the
classification based on intelligible differentia? (ii) Is there a rational
relation to the object sought to be achieved by the Act? The court
distinguishes between “those who indulge in carnal intercourse in the
ordinary course” (presumably non-anal, non –oral, non-thigh sex) and “those
who indulge in carnal intercourse against the order of nature”.  The Court
says that therefore section 377 is not classified irrationally or
arbitrarily.

b) *Too Small a Community to Protect*

The Court hold that the LGBT community is only a “miniscule fraction of the
country’s population”, thereby implying that they are not in need of
protection from the law. This is counterintuitive to the notion of discrete
and insular minorities who are unable to fend for themselves or use the
political process and in need of judicial intervention to protect their
rights and freedoms. The Court also said that there were ‘only 200 persons’
prosecuted under section 377 in the last 150 years, ignoring the fact that
these are 200 recorded judgments of the High Courts and Supreme Court,
which is only a fraction of the unreported cases at the trial level.
Further this does not take into account the impact of having the law on the
statute book, and the threat of use of the law, that LGBT persons face on
an every day basis.

c) *Vagueness and Arbitrariness*

The Court says that while it is true that, especially in criminal law, the
language of the law must not be vague or arbitrary, neither the
constitution nor the law requires impossible standards, there can only be
expectation of a reasonable degree of certainty, and the law must contain
adequate warning measured by common understanding. The Court says that
while analyzing a penal provision, the court must keep in mind the vagaries
of language and prior application of the law For instance the law uses
terms like ‘bringing into hatred and contempt’ (s. 124A IPC), ‘maintenance
of harmony between different religious groups’ (s. 153A IPC). ‘likely to
cause harmony, or hatred or ill-will (s. 153B IPC) or ‘annoyance to the
public’ (s. 268 IPC).

In a counter-intuitive move, the Court relies on the *K.A. Abbas* case to
say that there is ample authority that a law affecting fundamental rights
may be considered bad for sheer vagueness.  The judges in *K. A. Abbas* in
turn refer to referring to *State of Madhya Pradesh and anr* v *Baldeo
Prasad *where sections of Central Provinces and Berar Goondas Act, 1946 was
declared void for sheer uncertainty, because the definition of ‘goonda’ was
uncertain and vague.

The Court simply cites para 47 of *K.A. Abbas* (reproduced below) without
bothering to link this passage to the facts in the case.

*The real rule is that if a law is vague or appears to be so, the court
must try to construe it, as far as may be, and language permitting, the
construction sought to be placed on it, must be in accordance with the
intention of the legislature. Thus if the law is open to diverse
construction, that construction which accords best with the intention of
the legislature and advances the purpose of legislation, is to be
preferred. Where however the law admits of no such construction and the
persons applying it are in a boundless sea of uncertainty and the law prima
facie takes away a guaranteed freedom, the law must be held to offend the
Constitution as was done in the case of the Goonda Act. This is not
application of the doctrine of due process. The invalidity arises from the
probability of the misuse of the law to the detriment of the individual. If
possible, the Court instead of striking down the law may itself draw the
line of demarcation where possible but this effort should be sparingly made
and only in the clearest of cases.*

A reasonable application of the above passage would be that section 377 is
susceptible to a constitutional challenge because of the ‘boundless sea of
uncertainty’ it creates and the fact that prima facie it does take away a
guaranteed freedom.

The Court dismisses the Article 15 challenge along with Article 14
(non-discrimination) arguments without even addressing Article 15
substantively. This is in direct contrast to the Delhi High Court judgment,
which read Article 15 expansively to include discrimination based on sexual
orientation.

*V. Article 21:*

a) *Right to Privacy:*

In this part, the Court shows poor judicial craftsmanship again. It
cites *Maneka
Gandhi* acknowledging that the U.S. Supreme Court standard of substantive
due process has been read into the Indian Constitution and that this is
governed by principles of legitimate state interest and proportionality.
The Court talks of the privacy-liberty-dignity link, and refers to *Kharak
Singh* and *Gobind*, two important cases on the right to privacy. However,
like in the previous section, the Court cites these cases and does not
complete the logical flow of its statement, by applying its reading of
these cases to the facts in *Naz*. Instead, the Court cites Para 46 of *Kharak
Singh* and Para 47 of *Gobind *as if it is self-evident why privacy and
liberty arguments do not apply here.

For instance if one were to pick the para below from the extracts they cite

*27. There are two possible theories for protecting privacy of home. The
first is that activities in the home harm others only to the extent that
they cause offence resulting from the mere thought that individuals might
he engaging in such activities and that such ‘harm’ is not Constitutionally
protective by the state. The second is that individuals need a place of
sanctuary where they can be free from societal control. The importance of
such a sanctuary is that individuals can drop the mask, desist for a while
from projecting on the world the image they want to be accepted as
themselves, an image that may reflect the values of their peers rather than
the realities of their natures see 26 Stanford Law Rev. 1161 at 1187.*

This extract could as easily be support the claim that section 377 violates
the right to privacy. One is supposed to assume that they depend on the
part of the extract, which says that that the right to privacy is not
absolute. Again, they do not even attempt to connect the precedent to the
facts of *Naz*.

b) *Right to bodily integrity and sexual choice*

The Court again relies on a rights-enhancing judgment to restrict rights.
This time it cites *Suchitra Srivastava* , where the Supreme Court had held
that women have the right to dignity , privacy and bodily integrity, the
right to contraception and the right to refuse to participate in sexual
activity. The Court (presumably, since it does not bother to clarify)
instead on focusing on these rights, refers to the fact that these rights
were held subject to the provisions of the Medical Termination of Pregnancy
Act.

The Court goes on to cite *Mr X v Hospital Y, *a case that involved a
doctor disclosing HIV positive status of a patient to his fiancé. In this
case the Supreme to privacy is not absolute and the state can take measures
to protect morals, against crime, health and the rights and freedoms of
others.

Again, the Court after relying on *Suchitra Srivastava* and *Mr X* v *Hospital
Y* makes no attempt to tie the loose ends after citing. We are supposed to
assume from the facts of these case that what the Court is inferring from
these cases is that the privacy is not absolute and can be restricted.

c) *The Right to Live with Dignity*:

The court cites the most important Supreme Court case on the right to
dignity, *Francis Coralie Mullin*, but then deflects this question by
holding that section 377 does not mandate the ill treatment of the LGBT
community.  The court goes on to rely on precedent to hold that the mere
fact that police authorities misuse a law does not reflect on its
constitutional validity.

*VI Reliance on Foreign Jurisdictions*

In a highly insular move, the Court criticizes the Delhi High Court’s
reliance on foreign precedent to read down section 377. The Court observed:

*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. Though these judgments shed considerable light on various
aspects of this right and are informative in relation to the plight of
sexual minorities, we feel that they cannot be applied blindfolded for
deciding the constitutionality of the law enacted by the Indian
legislature.*

Here the court refers to *Jagmohan* v *State of U.P.* where the Supreme
Court during the course of hearings on the challenge to capital punishment
rejected references to the U.S. case law, saying that Western experience
cannot be transplanted in India. It also refers to *Surendra Pal* v *Saraswati
Arora* where the lawyer relied on the English doctrine of presumption of
undue influence in a case where parties were engaged to be married- court’s
logic here was that family law has undergone a drastic change in England,
while in India it is still largely an arranged affair- social norms and
considerations are different. The implication here (again not stated
clearly) is that Indian social conditions and morality differ from the west
and so Western judgments cannot be used as a point of comparison. This
completely ignores the commonalities of LGBT experience and state morality
when it comes to this issue, or the transnational history of this law.

The judgment concludes with the Court declaring is that section 377 does
not suffer from the vice of unconstitutionality. However, the Court ends by
saying that despite this judgment, Parliament is competent to legislate
whether 377 should be deleted from the statute books. With the general
elections around the corner, it seems improbable that the government will
push this issue in Parliament now.

The Court, in overturning the Delhi High Court decision, after almost five
years, has taken the unprecedented step of reversing rights granted to the
LGBT community. From the text of the judgment, it appears as if the Court’s
logic is rooted in a narrow reading of the power of judicial review to
protect the fundamental rights of a “miniscule” minority. The Court has
failed to appreciate the compelling evidence placed before it, preferring
to rely only on the 200 reported judgments of convictions under 377. The
court admits that the meaning of the terms ‘carnal intercourse against the
order of nature’ is not evident, yet does hold the law constitutional, and
uses this as a basis for reasonable classification. The Court’s dismissal
of Art 14, 15 and 21 claims are unconvincing and not expressly laid out.
Further, the Court has not been able to understand the tectonic changes,
the culture-shift that has taken place in Indian society, where LGBT
persons are no longer in the closet.

This moment reminds me of the 1986 *Bowers* v *Hardwick* decision in the
Unites States when the U.S. Supreme Court upheld the constitutionality of a
Georgia anti-sodomy law. (Bowers was overturned in 2003 in *Lawrence* v
*Texas*)

Justice Blackmun, in his dissenting judgment in *Bowers *said

“…I can only hope that here, too, the Court soon will reconsider its
analysis and conclude that depriving individuals of the right to choose for
themselves how to conduct their intimate relationships poses a far greater
threat to the values most deeply rooted in our Nation’s history than
tolerance of nonconformity could ever do. Because I think the Court today
betrays those values, I dissent.”

The Indian Supreme Court has betrayed the values that the Delhi High Court
judgment stood for – dignity, liberty, equality, non-discrimination,
inclusiveness and constitutional morality.

We Dissent.