Much notice has been taken of the February 2nd decision of the Indian Supreme Court to allow an appeal of the 2013 case of Koushal v Naz Foundation, which upheld s.377 of the Indian Penal Code retaining a de facto criminality of sex acts between men.
Section 377 dates from the laws enacted by British colonial powers in India. Its wording prohibits “carnal intercourse against the order of nature”, punishable by fines and up to life in prison. While at no point does the provision specify by whom, or with whom, these acts need to be committed in order to fall under its remit, it has been used to target India’s LGBTQ+ community. Perhaps most damagingly, the fear of criminalisation has hampered efforts to combat the AIDS epidemic among the community of non-heterosexual men in India’s cities.
Indian society does not uphold the strict boundary lines between sexual orientation and gender identity that are seen in Western countries. All non-heterosexual, non-cisgender persons are considered to fall within the broad category of ‘third gender’; therefore section 377 hangs over a community broader than what we would consider purely homosexual men. It also criminalises sex acts by and with the hijras, the community of designated-male-at-birth individuals who identify as female or as non-binary/third-sex, as well as continuing the stigma around kothis, the ‘passive’ partners in male homosexual relationships, who are considered neither as women nor as normal men (under the rigid normative gender binary imposed by society). Therefore, section 377 can be seen to be exert a regulatory function over all gender- and sexuality-based minorities who already occupy a marginalised position in Indian society. As may often happen, the existence of the law – as opposed to any particular imposition of its penalties – forms a tool of marginalisation and Othering, as well as a potential ruination of privacy and liberty. This is a situation with which Irish readers will be familiar, as it very much resembles the arguments against the criminalisation of homosexuality in the landmark case of Norris v Ireland.
Section 377 has found itself before the Indian Courts previously; in 2009 it was the subject of a challenge in the case of Naz Foundation v Governor of NCT of Delhi. Naz is an activist group working with queer and trans persons, primarily on the issues of sexual health and the fight against HIV/AIDS. Their challenge contended that criminalising consensual sex acts between adults is a breach of the fundamental rights to privacy and dignity guaranteed by the Indian Constitution. First filed in 2001, Naz’ case was dismissed by the High Court on the grounds of lacking locus standi. That decision was appealed to the Indian Supreme Court, which took the position that Naz could legitimately take a public interest litigation on the subject, and remitted the case back to the High Court for a hearing. Much to the surprise – and delight – of many observers, the Court upheld Naz’ challenge, deeming the application of s.377 to private, consensual sex between adults to be unconstitutional. The Court drew a deeply principled line in the stand, stating that dignity, privacy, and inclusiveness were values imprinted on the Indian legal system from its Constitution: in particular Articles 14 (right to equality); 15 (right to non-discrimination), and 21 (right to protection of personal liberty). It also made reference to a number of international human rights instruments, including the ECHR and ICESCR, showing the influence that international norms were beginning to have on a domestic system still implementing archaic laws from the 1860s.
Despite this victory, s.377 remained on the statute books for use in cases of child abuse and sexual assault. Its retained presence here enabled the complainant in the 2013 case of Koushal v Naz Foundation to challenge for the reinstatement of its use with regard to same-sex acts. The Supreme Court agreed with this reinstatement, holding in the deeply flawed Koushal judgment that the High Court did not have authority to make such a pronouncement, as to do so would infringe on the right of Parliament to make law in accordance with the separation of powers.
The Supreme Court in Koushal held that, although the High Court did have the right to rule on the constitutionality of the provision, the presumption of constitutionality placed upon any law in the statute books meant that there would have to be a clear and provable breach of the Constitution found in order to strike the law down. In the case of s.377, they held, there was not.
Koushal is a decision in which it is plainly visible that the Court is using technical points of law in order to gloss over the fantastical gaps in their reasoning. S.377, they believed, did not criminalise any particular gender or orientation; the wording is gender-neutral and refers only to acts, not persons. Quite where the dedication to Constitutional principles of privacy lay in that particular holding, it is not clear. They then went further, outlining their conviction that there exist two classes of people in Indian society: those who commit sex acts “against the order of nature” and those who not. The fact that the former could be grouped as a ‘class’ means that s.377 is not arbitrary or discriminatory, as it treats everyone whose behaviour it criminalises equally – and in fact, fewer than two hundred people had ever been prosecuted on its basis, therefore its application to this small minority ‘class’ could not override the constitutionality of a law. Finally, it stated that the discrimination and stigma faced by the Naz Foundation and its clients to be irrelevant in the eyes of the Court, as it could not be held to be the result of any legal factor. The Supreme Court held that, if s.377 was to be declared unconstitutional for any reason, it must be up to the legislature to do so.
It is difficult, reading Koushal, to understand either where the learned Court sourced their reasoning or how they felt it would ever stand up to future legal or judicial scrutiny. The judgment shows a lack of analysis, a knee-jerk reaction to the spectre of legalised homosexuality, and a complete lack of attention to the values of the Constitution they are claiming to uphold. Whether one agrees with Naz or not, it is a legally coherent and well-reasoned judgment which takes in domestic and international sources of law as well as displaying careful analysis of Indian values and society. Koushal, on the other hand, feels rushed, badly reasoned, and founded upon deeply discriminatory thinking unworthy of the highest Court in the land.
It will be very interesting to watch how the new challenge on s.377 will unfold. The years between Koushal and the present have seen the judgment in NALSA v Union of India uphold the rights of transgender individuals, including granting the right to identify as third gender on identity documents. It is to be hoped that NALSA shows a willingness on the part of the Courts to uphold the personal rights to dignity, privacy, and freedom of expression of all Indian citizens. Certainly, the challenge to Koushal allows them the opportunity to make good the wrongs of that particular decision, and to allow India cast off one more of the trappings of its harsh legal past.
Sandra Duffy 