COMMENTARY

Struggling for Reason

Fundamental Rights and the Wrongs of the Supreme Court
Danish Sheikh, Siddharth Narrain

masks prejudice and law and is full of logical inconsistencies and short on legal reasoning. It is the utter inadequacy of reason in this judgment that we will assess in this article, through an overview of the major themes of the judgment. Restrictive Reading

The judgment of Indias highest court has re-established discrimination based on sexual orientation. A close reading of the judgment upholding Section 377 of the Indian Penal Code indicates that the Supreme Court misread the Constitution and legal precedent. More worryingly, it failed to uphold the fundamental rights of Indian citizens.

Danish Sheikh (danish@altlawforum.org) and Siddharth Narrain (sid@altlawforum. org) are lawyers at the Alternative Law Forum, Bangalore.

n 11 December 2013, the Supreme Court of India overturned one of the landmark judgments of the Indian judiciary, the Delhi High Courts Naz Foundation vs NCT, Delhi. In doing so, the Court effectively re-criminalised millions of lesbian, gay, bisexual and transgender (LGBT) individuals across the country, just four years after the lower court had allowed them the status of equal moral citizenship. In the days that have elapsed since the judgment was declared, it has already gone down in public discourse as one of the Supreme Courts most reviled decisions, spoken of in the same breath as Mathura, where police ofcers accused of raping a tribal girl were acquitted on the grounds that she was habituated to sex and ADM Jabalpur, where it said the writ of habeas corpus could validly be suspended in conditions of declared state emergency. Suresh Kumar Koushal vs Naz Foundation has been accused of being a cowardly judgment, one that
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The Court, going against its recent history of judicial activism, defers to the legislature in order to respect the doctrine of separation of powers and the democratic mandate of the legislature. The Court, while recognising that preconstitutional laws like Section 377 of the Indian Penal Code (IPC) 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, stating that that principle applies to pre-constitutional laws that have been adopted by Parliament. The Court bases its determination of a presumption of constitutionality in the present matter on the fact that the legislature has had a chance to amend the law but has not done so far. It then goes on to make the puzzling statement that both pre-constitutional and postconstitutional laws are manifestations of the will of the people through the Parliament and are presumed to be constitutional a statement that would
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seemingly equate the all-English legislative council to the democratically elected post-constitutional Parliament. The Court points out that since the IPC was adopted in 1950, Parliament has made 30 amendments to the statute. It notes that the most recent of these was the 2013 amendment of rape and sexual assault law, the category of offences under which Section 377 nds itself. Since the legislature has chosen not to delete the law, the Court reasons that this strengthens the presumption of constitutionality of the statute. This is unaffected, they say, by the fact that the Union has decided to not challenge in appeal the order of the Delhi High Court: but of course, the Union did not only not challenge, they submitted a memorandum stating they found no legal error in the Delhi High Court judgment. When the Court questioned the Attorney General about the Unions altered stance, he emphatically answered that they too had learnt from the judgment. None of this seems to have moved the Court. Further, the Court refuses to apply the doctrine of severability as per which it can read down a law to save it from being rendered unconstitutional. The Delhi High Court had read down Section 377 to apply it only to consensual sexual acts in private. So Section 377 remained on the statute books to address nonconsensual same-sex acts, child sexual abuse and bestiality. In the intervening period between the Delhi High Court judgment and the Supreme Court decision, Parliament has enacted a law protecting children from sexual abuse (The Protection of Children from Sexual Offences Act, 2012). Last year, Parliament had also come very close to enacting amendments to the Section 376 of the IPC to protect men and transgender persons from rape. The Justice J S Verma Committee report has recommended that the rape law be amended to Section 376 to protect LGBT persons. However, the government did not enact this, and the rape law remains gender specic. The Supreme Court, relying on Parliaments wisdom, completely ignores the Justice Verma Committee recommendations. Further, the amendments that
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Parliament made last year were specic to non-consensual sexual offences, and it does not automatically follow that Parliament wanted to criminalise nonconsensual sexual acts. Section 377 and Article 14 A question which occupied the Court through much of the hearings was what acts constituted carnal intercourse against the order of nature the offence under Section 377, a question that was posed to just about every advocate who argued before them over the six weeks of the hearings. As we note in the last section, the Court takes cognisance of the 2013 amendments to sexual assault law. Strangely enough, it begins this portion by citing not the amended version of Section 375 of the IPC dealing with sexual assault, but the older unamended text, which limited the understanding of rape to sexual intercourse. Without addressing how the amended Section 375 would affect 377, the Court refers solely to precedent on the interpretation of Section 377 and observes that the law can be interpreted only on 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 laws it has relied on are incidents of nonconsensual 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 criminalised acts, not identities or orientation or a particular people. It is signicant to point out again that the judges note that no uniform test can be culled out to classify acts constituting carnal intercourse against the order of nature. With this persisting lack of clarity, the Court goes on to examine the constitutionality of the section under Article 14 of the Constitution. The classical test under Article 14 is whether a law is based on a reasonable classication: for a classication to pass constitutional muster, it must be made on intelligible differentia with a rational relation to the object of the Act. They apply this test to
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the section and nd that it does create a classication: between carnal intercourse ordinarily and carnal intercourse against the order of nature, then go on to state that the high court was not right in declaring Section 377 ultra vires of Articles 14 and 15. Since, by the courts own admission, there is no uniform test to determine what constitutes carnal intercourse against the order of nature we are left with a classication that makes little or no sense. Presumably, the court is distinguishing between sexual intercourse that involves anal, oral and imitative acts like thigh sex, and sex that does not. It leaves one guessing what in the constellation of sexual acts and positions have actually been criminalised. The reasonable classication test as mentioned requires that there be a rational relation to the object of the Act. Only if a provision satises this ground as well can it be constitutionally valid, and yet the Court makes no effort to apply this portion of the test to the statute. It is not too difcult to discern why: doing so would have probably required the Court to acknowledge that the purpose of the classication was based on public morality, a discussion of which it avoids with almost painful care. Yet, in doing so, this leg of the argument is left woefully incomplete. Perhaps realising this, they consider the other classic test under Article 14: that vagueness and arbitrariness may render a provision unconstitutional. This is especially so in the case of criminal statutes they note. Considering that they have been unable to outline what acts are punishable under the section, one would assume that this would clearly allow for Section 377 to fail under this test. At the very least, one would assume they would attempt to circumscribe the magistrates discretion under the section. Instead they give us a single sentence as an aid to interpretation: however, while analysing a provision, the vagaries of language must be borne in mind and prior application of the law must be considered. This statement does nothing to aid the millions of individuals rendered criminal under this judgment. All it says is that if they are at some point dragged before a magistrate, the
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magistrate must bear in mind the prior application of the law which, note has only been used against consenting adults when they have belonged to the LGBT community and the vagaries of language and somehow hope that they will not be convicted. Finally, the Court goes on to cite paragraphs of A K Roy and K A Abbas without bothering to link the passages to the facts in the case (a characteristic common to many such citations in the judgment). Their selection from Abbas includes a passage from Baldeo Prasad, a case in which the Central Provinces and Berar Goondas Act, 1946 was declared void for uncertainty. This passage mostly seems to undercut their case, indicating 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. Minuscule Minorities
While reading down Section 377 IPC, the Division Bench of the high court overlooked that a miniscule fraction of the countrys 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.

This invocation of the minuscule fraction is counter-intuitive 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. To indicate that an oppressed group needs to achieve some kind of minimum number before approaching the Court for relief betrays a complete misunderstanding of its role as a counter-majoritarian institution. The Court fails to appreciate the overwhelming amount of evidence placed before them. Take the gure of 200 prosecuted persons this is referring presumably to the 200 reported judgments in appellate courts of consensual and non-consensual acts prosecuted under Section 377 which would constitute only a fraction of the unreported
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cases at the trial level. A more recent instance of this kind would be the 13 arrests under Section 377 that took place a month ago in Hassan, Karnataka, in clear contravention of the Delhi High Courts verdict, but there do exist a number of such unreported matters, which the Court refused to take on board in assessing the impact of the section. More importantly, the Court remains unconcerned about the evidence from personal testimonies of LGBT persons describing harassment, torture and discrimination. The judges do not mention police FIRs of cases where Section 377 has been used. They do not take into account fact-nding reports documenting gross violations of the rights of LGBT persons and the use of Section 377 to target LGBT persons. There is no acknowledgement that the impact of the law can go beyond just actual arrest and convictions. There is no mention of afdavits from parents who talk about the fears they have of their children being arrested under Section 377. The judges ignore evidence from mental health professionals highlighting the fact that homosexuality was a normal and natural variant of human sexuality, and that Section 377 had an impact, what they termed minority stress on the LGBT community. The one section of the judgment where they do mention this impact of the law is in the analysis of Article 21. In order to full the substantive due process test under Article 21 of the Constitution, the Court notes that the law must not only be competently legislated but it must also be just, fair and reasonable. Arising from this are the notions of legitimate state interest and the principle of proportionality. Once again, the decision cites a string of cases and does not complete the logical ow of its statement by applying its reading of these cases to the facts in Naz . For instance, the Court refers to the privacy-liberty-dignity link, and refers to Kharak Singh and Gobind, two important cases on the right to privacy. Then, it simply 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. Similar treatment is given out to case law relating to bodily integrity and
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dignity, where the Court relies on 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, without clarifying why. The court cites the most important Supreme Court case on the right to dignity, Francis Coralie Mullin, but then deects this question by holding that Section 377 does not mandate the ill-treatment of the LGBT community. The Court delinks the question of the constitutionality of Section 377 from harassment, blackmail and torture faced by persons belonging to the LGBT community, concluding that this treatment 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 reection of the vires of the section. The Court goes on to say that the mere fact that police authorities misuse Section 377 is not a reection of the validity of the provision. The most startling part about this assertion is how the Court ends its discussion on this point here, instead of attempting to discern any manner in which misuse under the law might be curbed. Here then is a particularly chilling instance of judicial abdication of duty: not only does the Court champion a falsely constructed judicial restraint, it also refuses to provide any other kind of remedy that may protect the community from harassment, say in the form of directions to the police. Conclusion The Supreme Court, in overturning the Delhi High Court decision, after almost ve years, has taken the unprecedented step of reversing rights granted to the LGBT community. Its analysis is full of inconsistencies and rooted in a narrow reading of the power and responsibilities of the judiciary. The judges have failed to appreciate the compelling evidence placed before it, preferring to ignore egregious violations of rights that this section allows. Instead, they take refuge in the doctrine of presumption of constitutionality, abdicating the Supreme Courts role as a guardian of constitutional values and a defender of the fundamental rights of citizens.
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