This got me thinking about the recent Indian Supreme Court (SC) decision last December which effectively re-criminalised homosexuality in India, by upholding the constitutionality of Section 377 of the Indian Penal Code (see my blog about this here. You can also access the full judgment here). I was interested in what the reasoning was behind their decision and how they came to that conclusion – a decision they more recently declined to review. I therefore printed off all 98 pages of the judgment and set about reading through it. After about 10 pages I fell asleep for 2 hours…….a consequence I hope not of the judgment itself but of a bad cold I happened to have at the time. My sleeping clock was then really messed up when I found myself awake in the middle of that night thinking about the decision and the logic behind it.
I do have that kind of pedantic mind that likes trying to follow logic and arguments. I have to give our own senior courts here in England and Wales credit for their ability to summarise and analyse arguments and come to a decision in often very controversial cases. I may not always agree with the decision, but I can usually see how they have arrived at a decision. The more I read of the Indian SC decision, however, the less I followed its reasoning. I am aware that this readership will probably not be a bunch of lawyers or even pedants, so I will try to curtail my inclinations towards a lengthy micro-analysis, but wanted to share some of my reactions and thoughts on the judgment[2].
The first 45 pages of the judgment are taken up with summarising the previous Delhi High Court decision, and the arguments put forward by the appellants and respondents. Then the SC puts forward its reasons for allowing the appeal. I have put these under different headings for clarity, together with my comments.
The SC may have the power to declare Section 377 void but says it’s Parliament’s job, not theirs
The SC first considered the technical point of whether the High Court and the SC had the necessary power to declare as void any pre-Constitution legislation judged inconsistent with the Indian Constitution. Section 377 forms part of the Indian Penal Code enacted under British rule in 1860, and therefore pre-dates the Indian Constitution. The SC stated that the High Court and SC were indeed empowered to declare void any law enacted prior to the Constitution and which was inconsistent with the Constitution. There was, though, a presumption of constitutionality in favour of all laws, including pre-Constitutional laws (para.31, p.60). The SC, however, then went on to state that:
‘…..After the adoption of the IPC in 1950, around 30 amendments have been made to the statute, the most recent being in 2013 which specifically deals with sexual offences, a category to which Section 377 IPC belongs. The 172nd Law Commission Report[3] specifically recommended deletion of that section and the issue has repeatedly come up for debate. However, the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India has not thought it proper to delete the provision……..
….It is, therefore, apposite to say that unless a clear constitutional violation is proved, this Court is not empowered to strike down a law merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose and its need’ (paras.32-33, p.61-62)
So: the Law Commission has recommended the repeal of Section 377, the government of India did not challenge the 2009 Delhi High Court ruling, the SC has the power to declare any law void which is unconstitutional yet decides it won’t do it, but instead says it is up to Parliament. It could be a game of who blinks first – SC waiting for Parliament, Parliament waiting for the SC….
Section 377 is not arbitrary or irrational and is not therefore illegal with respect to Articles 14 and 15 of the Constitution
The judgment then spends the next 14 pages reviewing the rape laws in the IPC and legislative history of Section 377. Given that Section 377 is very non-specific, in criminalising ‘carnal intercourse against the order of nature with any man, woman or animal’ it is not surprising that interpretations in case law have ranged from anal sex to oral sex and even ‘thigh sex’. The SC notes that, despite the cases cited referring to non-consensual and coercive sex, Section 377 applies to anyone and refers to certain acts rather than a particular identity or orientation. So far so good.
After this, I am truly struggling to understand the logic of the judgment.
Article 14 of the Constitution states, ‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India’.
Article 15 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth.
The SC quotes from Re. Special Courts Bill, 1978 (1979) 1 SCC 380 where it was considered whether a particular classification is unconstitutional. Here it is argued that Article 14 does not mean that the same laws should be applicable to all persons but that all persons in similar circumstances should be treated alike. Therefore different classes of people may be treated differently – which is OK as long as the classification in relation to a law is not arbitrary or irrational.
From this the SC concludes that:
‘Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification…..Therefore the High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution’. (para.42, p.82).
So, the argument seems to be that because Section 377 will apply to anyone having sex ‘against the order of nature’ (whatever that means) – heterosexual as well as homosexual, married or not - it is not discriminatory.
It is true that Article 15 does not directly outlaw discrimination on the grounds of sexuality. But it is almost certainly the case that gay men will be subject to indirect discrimination (on the grounds of sex) as by definition sex between two men does not involve penile-vaginal intercourse. For the law to truly not be discriminatory, presumably every married heterosexual couple will have to be questioned about how they have sex, and whether this includes anal, oral or ‘thigh’ sex – which is almost certainly not going to happen. Gay men will therefore be unfavourably discriminated against in the application of this law.
And a law criminalising sex ‘against the order of nature’ is not arbitrary or irrational?
Not enough evidence of discrimination
‘The writ petition filed by respondent No.1 was singularly laconic inasmuch as except giving brief detail of the work being done by it for HIV prevention targeting MSM[4] community, it 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’. (Para.40, p.78-79)
But surely the SC should be dealing in matters of law and principle? They are not deciding a specific alleged case of discrimination here but rather the principle of Section 377 and human rights.
The LGBT community in India is only tiny
‘While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s 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’. (Para.43, p.83)
But what has the number of prosecutions, or size of the population most affected got to do with the principle of whether a law is unconstitutional? It is a point of principle, not of numbers – and often human rights protection is even more important for minority populations at risk of discrimination. Section 377 also legitimises anti-gay attitudes in the country and reinforces discrimination in society generally.
Just because a law is vague, it doesn’t necessary make it unconstitutional
- at least I think that is what the SC is arguing here (it’s not very clear).
The SC remarks that, ‘The vagueness and arbitrariness go to the root of a provision and may render it unconstitutional, making its implementation a matter of unfettered discretion. This is especially so in the case of penal statutes’ (Para.44, p.83).
Exactly, you might think. So, criminalising sex ‘against the order of nature’ is pretty vague and open to interpretation or even ‘unfettered discretion’. Anal or oral sex may be perfectly in accordance with the order of nature for a gay man or woman.
The SC then says, ‘However, while analyzing a provision the vagaries of language must be borne in mind and prior application of the law must be considered’. (Para.44, p.83). It then quotes from K.A.Abbas v. The Union of India and Anr. (1970) which seems to say that no law will be considered bad for sheer vagueness, and that if a law is vague or appears to be so, the court must try to construe it in accordance with the intention of the legislature.
After this quote, the SC moves straight on to considering Article 21 – without stating its conclusion from the previous discussion about the vagueness of the law and discretion in relation to Section 377. We are therefore left guessing what they are trying to argue here from the two cases they quote from.
The SC can’t help it if Section 377 has been misused
‘Respondent No.1 attacked Section 377 IPC on the ground that the same has been used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community. In our opinion, 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 reflection of the vires of the section. It might be a relevant factor for the Legislature to consider while judging the desirability of amending Section 377 IPC’. (Para.51, p.91)
So the argument seems to be that ‘it’s nothing to do with us’ if the law has been ‘misused’ against the LGBT community even though it seems to criminalise everything other than penile-vaginal sex and this is bound to focus on gay men in particular.
We won’t rely on interpretations from other jurisdictions
Article 21 of the Constitution states, ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’.
The SC states that Article 21 includes the right to privacy, dignity and autonomy and then has a discussion, including again various quotes from cases about the limits of this and how privacy must be balanced against other rights and values.
This seems fair enough – and directly relevant to whether it is any of the State’s business what consenting adults get up to in private[5].
But then, bizarrely, instead of following up this analysis, and when it is reasonable and proportionate to limit personal liberty, the SC berates the High Court for having relied on judgments of other jurisdictions:
‘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’. (Para.52, p.93).
In fact, no proper follow up or analysis of the perhaps crucial Article 21 takes place.
The first glaring point to note from this section is the term the ‘so-called rights of LGBT persons’. In what way are their rights ‘so-called’? The SC does not elaborate. LGBT people are human beings and therefore, surely subject to exactly the same human rights as any other human being. They are rights, not ‘so-called’.
The SC quotes from Jagmohan Singh v State of UP (1973) in which the Court observed that, ‘We have grave doubts about the expediency of transplanting Western experience in our country. Social conditions are different and so also the general intellectual level’ (Para 14. p.94).
The SC also quotes from another case where the High Court refused to rely on Halsbury’s laws of England, seemingly because marriage in India was primarily arranged unlike social norms in other countries. I am not entirely sure what this has to do with what kind of sex someone has, in private between consenting adults.
It is fair enough that India wants to rely on its own Constitution and legal decisions, but jurisdictions all over the world, particularly those sharing similar types of legal systems – the UK, US, Canada, NZ and Australia in particular will often refer to cases in these other jurisdictions for how issues have been decided. Also India, like many other countries are signatories to various international legal declarations – for example the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights – which aim to set minimum universal standards, particularly of the relationship between State and individual. Does India really want to isolate itself from other countries, in such a globalised world?
But there is no such discussion in the SC judgment, simply a statement, after the quoted cases that, ‘In view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High Court is legally unsustainable’ (Para.54, p.97).
Let’s also not forget that Section 377 itself is a product of a foreign jurisdiction – the British – in the midst of a Victorian puritanicalism. The UK – along with most other democracies – have moved on from this though as social attitudes have changed and developed.
Some other observations
It is worth also noting that only 2 Supreme Court judges made this judgment: Justices G.S.Singhvi and S.J.Mukhopadhaya. Justice Singhvi apparently retired straight after this judgment, while S.J.Mukhopadhaya was one of 2 judges who rejected the petition from Indian government lawyers to review its decision.
I was surprised to see only 2 judges having made such a decision of national and international importance. Their decision would have carried much greater legal weight had there been 5 or 7 judges contributing to the decision.
I was disappointed at the lack logic behind much of the reasoning. All lesbian, gay, bisexual, transgender people in India – actually everyone regardless of sexual orientation in India deserves better reasoning and better judgments than this one. It affects not just people in India but 2nd and 3rd generation Indians in the diaspora – slowly gaining confidence in their sexual identity in more liberal countries. It leaves LGBT people in India open to further discrimination and harassment.
I am not an expert in Indian law and these are my thoughts and comments as I read through the judgment. I am a product of a Western liberal democracy and a believer in universal human rights. By supporting gay rights, you are supporting human rights – for everyone.
People in India and across the diaspora deserve better than this. Even if the Indian Supreme Court had come to the same decision, their reasoning should have been so much better. It won’t be the first or the last time that a senior court has undertaken tortuous intellectual cartwheels to justify a previous opinion already held.
Let’s hope the Indian Parliament can change this for a better and more equal world.
[1] See http://articles.timesofindia.indiatimes.com/2014-01-21/india/46410477_1_orientation-dr-indira-sharma-ips. Accessed 10 Feb 2014
[2] Prachi Shrivastava has also summarised some of the Supreme Court arguments – ‘7 creative (legal) reasons the Supreme Court found not to strike down Section #377’ in Legally India.com on 11 December 2013. Mine certainly overlap but the comments are my own.
[5] Don’t think the UK law is perfect on this point though – as any good law student will know in the case of R v Brown (the ‘Spanner case’) criminalising consensual sadomasochistic acts between adults done in private. Except that in R v Wilson the Court of Appeal upheld that a husband branding his initials on his wife’s buttocks was OK – with her consent – because consensual activity between a husband and wife in privacy was not a matter for the courts. Not great logic here either.
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