Sudhir Krishnaswamy, Dr. B.R. Ambedkar Visiting Professor of Indian Constitutional Law at Columbia Law School and Professor of Law at Azim Premji University, provides another response to the recent ruling in the Naz Foundation case.
There is no doubt that the two-judge bench in Suresh Kumar v Naz Foundation held that section 377 of the Indian Penal Code, 1860 which criminalizes ‘carnal intercourse against the order of nature’ is constitutionally valid.1 The Supreme Court overruled the 2009 Delhi High Court decision which had read down section 377 to exclude ‘consensual sexual acts of adults in private’ as a violation of Articles 21, 14 and 15 of the Constitution of India 1950.2 The Supreme Court judgment has sparked widespread outrage and discontent. In this short response I do not critically evaluate the quality or the correctness of the judicial reasoning in this case. Instead I propose that we should read down the judgment in two ways: first, to provide guidance to prosecutors to not prosecute consenting adults and secondly, to the court in review or hearing a subsequent case to re-evaluate the factual claims on which the core conclusions in this judgment rest.
We must begin by carefully noting what this judgment is not saying: nowhere in the judgment does the court take the view that LGBT people do not exist or that they are unworthy of moral and political respect. We do not hear the view that LGBT people are an invented minority3 or that we are engaged in a ‘culture war’ and the Indian people have the right to protect themselves against a ‘homosexual agenda’ – ‘a lifestyle that they believe to be immoral and destructive.”4 However, like Justice Scalia’s dissent in Lawrence v Texas, the court does conclude that the appropriate forum to settle this question is ‘the competent legislature [that] shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book.’5
Significantly, the rest of the judgment seems to reach factual conclusions similar to those reached by Justice Kennedy’s majority opinion in Lawrence6: that section 377 has not been enforced against consenting adults private sexual activity or that it targets the homosexual community. Like Bowers and unlike Texas the case before the Supreme Court was not one where the petitioner had been prosecuted under section 377, and the absence of sufficient evidence that the provision has been used to target homosexual conduct leads the court to sustain the constitutional validity of the statute on the grounds that no constitutional injury has been shown. In the rest of this post I show that these factual claims lie at the core of the courts conclusion in this case.
In paragraph 38 where Justice Singhvi reviews some reported judgments under section 377, the Court concludes that the section primarily applies to non-consensual acts where coercive violence is used. The court held that ‘in light of the plain meaning and legislative history of the section, … Section 377 IPC would apply irrespective of age and consent’ but ‘we are apprehensive of whether the Court would rule similarly in a case of proved consensual intercourse between adults.’7. Paraphrased in this way the judgment seems to establish two propositions: first, that the record available to the court shows that section 377 ‘does not criminalize a particular people or identity or orientation.’ Secondly, if the record shows otherwise, that police and the prosecutors target homosexual people under section 377 where adult sexual conduct is consensual, then this court would void the Statute. Much of the judgment turns on the failure of the pleadings ‘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.’8 While the court fails to appreciate the concept of disparate impact discrimination arising out of a facially neutral statute more generally, it concludes that the available ‘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.’9 So at least for the equality argument under Article 14 and 15, the court’s primary concern is the lack of factual evidence.
To be sure on the Article 21 analysis it appears that more relevant evidence would not control the conclusion. While the court embraces a substantive due process reading of the right to life and personal liberty it concludes that ‘harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community… is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section.’10
In this brief post I suggest three reasons for reading down the Supreme Court judgment to narrowly rest only on the limited facts available in this case: prosecutorial discretion must be exercised to not target private sexual conduct of consenting adults in a discriminatory fashion, a review court may reassess these factual claims and potentially reach different conclusions and thirdly, a new challenge to section 377 that rests on a firmer factual foundation need not wait for 17 years it took for the US Supreme Court to move from its view in Bowers to that in Texas.
- http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070 [↩]
- http://www.nazindia.org/judgement_377.pdf [↩]
- http://nymag.com/daily/intelligencer/2013/08/scalia-thinks-gay-people-are-invented-minority.html [↩]
- http://www.law.cornell.edu/supct/html/02-102.ZD.html [↩]
- paragraph 56 [↩]
- http://www.law.cornell.edu/supct/html/02-102.ZO.html [↩]
- paragraph 38 [↩]
- paragraph 40 [↩]
- para 40 [↩]
- paragraph 51 [↩]