NHRC, the law and the police

Readers who read Justice Verma's take on the Naz Foundation case will also be interested in a historical connection going back almost a decade. The NAZ case was born out of the NHRC rejecting a gay man's plea against psychiatric abuse by aversion therapy administered to him, which left him devastated. The NHRC reasoned that it couldn't help him, and cited s. 377. This is what inspired Naz Foundation to challenge the section in the Delhi High Court. I think this deserves mention not merely for the immediate context of 377, but the larger context of the appropriate role of the NHRC. In particular, the relationship of the NHRC with the rest of the state apparatus is topical, given the controversy surrounding its recent report on the Batla House 'encounter' case, where it merely endorsed the police's version of the story without making any attempts to corroborate it. [See also, this previous post] On the other hand, the NHRC also has a sterling record of standing up to state institutions implicated in the violence in Gujarat in 2002 (under Justice Verma himself).

The particular history connecting NHRC and the Naz Foundation case is well documented in a book called 'Queering the Pitch' published by the Alternative Law Forum. Relevant excerpts are quoted below:

The NHRC Case
... The wider definition of human rights in The Protection of Human Rights Act seemed to indicate that the NHRC would be more hospitable terrain when it came to protecting the human rights of queer people.
It is in this context that a petition was filed in the case of a patient at the All India Institute For Medical Sciences (AIIMS), who had been undergoing treatment by a doctor in the psy-chiatry department for four years to cure him of his homosexuality. The patient went to Naz Foundation India (an organization working on MSM issues), and the coordinator of the MSM project, Shaleen Rakesh, filed a complaint with the NHRC alleging psychiatric abuse.
The patient himself noted that “[m]en who are confused about their sexuality need to be given the opportunity to go back to heterosexuality. I have never been confused but was nev-ertheless told that I had to be ‘cured’ of my homosexuality. The doctor put me on drugs, which I had been taking for four years.” The treatment reportedly involved two components: counselling therapy and drugs. During counselling therapy sessions, the doctor explicitly told the patient that he needed to curb his homosexual fantasies, as well as start making women rather than men the objects of his desire. The doctor also administered drugs intended to change the sexual orientation of the patient, providing loose drugs from his stock rather than disclosing the identity of the drugs through formal prescription. The patient reported experiencing serious emotional and psychological trauma and damage, as well as a feeling of personal violation.
The moment the petition was filed, there was a wide mobilization of the sexuality minority community and a number of letters were written to the NHRC urging it to protect the rights of the community. The NHRC, after admitting the complaint (#3920), finally chose to reject it. Informal conversations with the Chairman of the NHRC revealed that the Chairman believed that until Sec 377 was repealed nothing could be done and in any case most of the organizations were foreign-funded, without any real grassroots support. (See Annexure I.) According to another NHRC source, “homosexuality is an offence under IPC, isn’t it? So, do you want us to take cognisance of something that is an offence?”
What is clear from the above comments is that there is a significant lack of understanding of gay people as human beings whose lives encompass a complexity beyond the mere fact of a certain kind of sexual act. There seems to be an easy collapsing of the category of sexual act, sexual identity and sexual orientation, with sexual acts defining identity and orientation. (pp. 55-56)


Annexure I: Letter to the NHRC Regarding the Dismissal of Complaint #3920 on Medical Treatment of Homosexuality

4.09.2001

Dear (former) C.J. Verma,

We genuinely appreciate the stand of the NHRC that caste discrimination is equivalent to racial discrimination and thereby clearly establishing that the NHRC is a protector of human rights regardless of political concerns. While congratulations are in order with respect to the above decision we are deeply shocked and disheartened by another decision arrived at by the NHRC. This is with reference to the decision of the NHRC to dismiss the complaint of the person who was subject to aversion therapy. Regarding this matter we did have a chance to have a short dialogue with you while you were visiting the National Law School, Bangalore for the Seminar on 'Caste and Racial Discrimination’ held on the 10th of August, 2001.

We asked you about the decision in complaint(No. 3920), which was a case regarding treatment of homosexuality as a disease where a homosexual patient was allegedly adminis-tered aversion therapy (which includes administration of electric shocks along with showing a person homo-erotic pictures to ‘convert’ him to heterosexuality). The patient then complained to an organization NAZ Foundation which then brought the matter before the NHRC. The complaint, though admitted by the NHRC was later rejected. We do know that the complaint received public attention and a number of concerned citizens including gay, lesbian, bisexual people wrote to you. However, in its wisdom the NHRC chose to reject the same.

In our conversation, the grounds you stated which justified the rejection were as follows:

 To talk of homosexual rights is okay in other countries but there was little you could do when the law in India, Sec 377 was against it. You advised that one should strive to get rid of the law but nothing could be done till it was repealed. This opinion seems to be buttressed by other reported opinions within the NHRC. As one source within the NHRC put it, “homosexuality is an offence under IPC, isn’t it? So, do you want us to take cognizance of something that is an offence?” (The Pioneer, Thursday, August 2, 2001)

 You also mentioned that the entire campaign for the rights of sexual minorities is run and funded by international organizations and that there is no grassroots support or demand for such rights.

It is submitted that none of the above grounds are sound justifications for the rejection of the complaint. The reasons are mentioned hereunder:

Firstly, s. 377 of the IPC does not criminalize homosexuality. It only criminalizes 'carnal intercourse against the order of nature', which has been interpreted to include oral sex, anal sex and some other forms of sex. These sexual practices are neither exclusive to the homosexual community nor definitive of what it means to be a homosexual. It is beyond our comprehension how a legislation which particularly targets certain kinds of sexual acts can be used as a justification for not looking into the human rights violations against a gay person. Is it your understanding that being gay is about engaging in those forms of sex alone or being heterosexual means you do not engage in oral/anal sex? What is clear from the above comments is that there is significant lack of understanding of gay people as human beings whose lives encompass a complexity which goes beyond the mere fact of a certain kind of sexual act.

Secondly, the statute from which the NHRC derives its mandate, i.e. the Protection of Human Rights Act, defines a 'human right' as 'rights guaranteed under the Constitution of India or International Covenants, viz. the ICCPR and the ICSER'. The NHRC mandate is therefore not limited by mere statutory law. Hence the existence of an offensive colonial law, Sec 377 of the IPC ( which the colonial power has finally removed) , cannot trump the right to life ( including privacy) under Art 21 , the right to freedom of expression under Art 19 and the right to equality under Art 14. Thus the argument that a statute criminalizes a particular conduct need not necessarily take it out from the purview of human rights. Apart from being legally unsound, the argument that since law forbids something, it cannot be a human right does not hold waters even logically. If we go by it, then nothing that was done in Nazi Germany shall be a human right violation since it had the sanction of the law! (As a matter of fact, homosexuals were one of the social groups along with Jews, communists and other kinds of dissenters who were targeted in Nazi Germany for persecution).
Further since the two covenants are explicitly invoked by the above mentioned Act, it is appropriate to mention that in Toonen v. Australia, Nicholas Toonen a gay rights activist resident in the Australian state of Tasmania challenged the anti sodomy law as violative of Art 2 (1) Art 17 and Art 26 of the ICCPR , before the Human Rights Committee after exhausting all local remedies.
The Human Rights Committee in its interpretation of the ICCPR has held that the anti sodomy statute did violate Toonen’s right to privacy guaranteed under Art 17. The Committee also held that the reference to the word sex in Art 2(1) and Art 26 is to be taken as including sexual orientation .It held that Art 2(1) was also violated but refused to rule on if Art 26 , the non discrimination clause was violated.
Since India is a party to the ICCPR and human rights as defined in the Protection of Human Rights Act includes the covenant(ICCPR), the interpretation of the rights of those discriminated against on the basis of their sexual orientation needs to be recognized by the NHRC which should if it feels that the barrier to admitting the rights of sexuality minorities is Sec 377 , suo moto challenge the law in the Supreme Court itself , rather than use the existence of the law as an excuse for denying gay lesbian people their rights. To buttress this point further, even the 272nd report of the Law Commission of India has recommended that such an archaic provision be deleted.

Thirdly it comes as a shock to those of us who saw the NHRC as guardian of the human rights of all people in India to understand that the NHRC feels that it can do nothing in the case of a patient at the All India Institute of Medical Sciences (AIIMS) who received almost four years of treatment aimed at the conversion of his homosexuality and was seriously psychiatrically abused. The treatment reportedly involved two components: counseling therapy and drugs. During counseling therapy sessions, the doctor explicitly told the patient that he needed to curb his homosexual fantasies, as well as start making women rather than men the objects of his desire. The doctor also administered drugs intended to change the sexual orientation of the patient, providing loose drugs from his stock rather than disclosing the identity of the drug through formal prescription. The patient reports experiencing serious emotional and psychological trauma and damage, as well as a feeling of personal violation, due to these actions.
This complaint 3920 illustrates the necessity for formal standards to prevent discrimination and abuse on the basis of sexual orientation in medical and psychiatric care. There is no doubt that in the absence of these standards, physicians cannot be held accountable for such human rights violations against lesbian, gay, bisexual, and transgender individuals occurring in psychiatric and medical contexts throughout India. This case also underscores the urgent need for explicit laws preventing discrimination on the basis of sexual orientation to address abuse and inequalities in all sectors of society including the medical establishment.
However this opportunity to address the very real sense of abuse that gay, lesbian bisexual people in India face , was passed by and the medical profession has been allowed to continue its outdated practices of prescribing drugs and trying to change the sexual orientation of a person.

Fourthly it is disheartening to see the stark dissimilarity in the stand taken by the NHRC and the South African Human Rights Commission on the issue of homosexuality. The South African Human Rights Commission acting in coordination with the National Coalition for Gay and Lesbian Equality moved to the highest Constitutional Court in South Africa and got the provision of a similar nature to s. 377 of the IPC struck down as violative of basic human rights of equality, privacy and dignity guaranteed by the South African Constitution. By contrast the NHRC even refuses to acknowledge that the right to choose one's sexual ori-entation is a basic human right.

Finally we would like to make the point that the key to the decision of the NHRC really lies in what you referred to in your second point ie that ‘the entire campaign for the rights of sexual minorities is run and funded by international organizations and that there is no grassroots support or demand for such rights.’ This in a sense is a double failure , the failure of the sexuality movement to communicate its strong indigenous roots and presence, as well as the failure of the establishment to notice the increasingly articulate though marginal voice of people who identify as gay ,lesbian and bisexual.

It is important to understand that today the sexuality minority community comprises a diversity of identities including hijras, gays, lesbians, bisexuals kothis and a multiplicity of other identities both modern and traditional. The lives of individual people who identify as gay or lesbian or hijra or any other sexuality minority deserve a protection which is guaranteed to all other citizens of India.

We do hope that the NHRC would consider the rights of gay, lesbian, bisexual and hijra people as human rights in future complaints which would inevitably come before it.

Thanking you,

Sd/-

( Some of the students, faculty and researchers of NLSIU, Bangalore) (pp. 79-81)

Supreme Court declines immediate stay on Delhi High Court's Naz Foundation judgment

The hearing on the SLP against Delhi HC's July 2 judgment on Naz Foundation v. UOI (Suresh Kumar Kaushal v. Naz Foundation) began at 12.35 p.m. and ended at 12.50 p.m. at Court No.1 before CJI and Justice Sathasivam. I am posting a quick summary of the proceedings, subject to corrections. The Court declined to accept petitioner's plea for an immediate stay on the HC's judgment, without hearing the UOI. The A-G said the Government has a definite stand, but wanted more time to formulate it, since three ministers were involved. He did not support the plea for an immediate stay. The Court then granted the Government eight more weeks to file its reply to the notice.

At the outset, the Petitioner's counsel drew to the Court's attention, the A-G's view that S.377 was not invoked against consenting adults in private even once. But the impact of the Delhi High Court's judgment, he suggested, is such that consenting adult sex between two males is legalised, whereas commercial sex between male and female continues to be illegal. Another counsel also brought the question of locus, saying petitioner in this case was not a party before the High Court, but the CJI immediately dismissed the objection, saying it is a PIL matter.

The petitioner's counsel then referred to the R v. Brown case in support of his plea for an immediate stay on the judgment. At this point, Anil Divan, on behalf of the NGO, Voices, argued that the HC judgment is in line with the UN Resolutions, and WHO guidelines. Secondly, he said many countries including Fiji, South Africa, Canada, whole of Europe, South Africa ,Hong Kong have decriminalised the same sex conduct.

CJI at this point intervened to say that our civilization is different from European civilization. Anil Divan replied saying that our culture also includes Khajuraho, and Kamasutra.

The petitioners' counsel then referred to Mahatma Gandhi's criticism of gay sex behaviour. As editor of the journal Young India, Mahatma Gandhi wrote in 1929 about the 'unnatural vice' in boys' school.

The Petitioner's counsel then suggested that things would not turn upside down if the SC stayed the HC judgment, and let the Government take its own time to take a definite stand. He also pointed out that AIDS spreads eight times faster through same sex conduct than through hetero sex behaviour. He argued that there had been no conviction under S.377, and therefore, a stay on HC judgment would not make any difference.

When the Petitioner's counsel referred to the possibility of a rise in gay marriages following the judgment, the CJI said such marriages are prohibited under the Personal Laws, and the judgment did not legalise gay marriages. When the Petitioner's counsel argued that 70 per cent of population lives in villages, and people mostly don't understand that the HC order legalised sexual conduct, and not marriages between two consenting same sex adults, the CJI said that cannot be a ground for the stay, but a reason to educate the people about the HC's judgment.

Q&A on Naz Foundation judgment

I found Vikram Raghavan's three posts analysing the Naz Foundation judgment extremely useful to understand its significance. What I attempt in this post is to answer some of his concerns, as well as that of others, not necessarily in the order of their importance.

Q.1: Was it necessary for the Bench to use 20 pages of its judgment to sum up the arguments?

A: As someone who has not followed the arguments during the hearing of the case, I found this summing up very useful to know who, among the parties to the case, said what.

Q.2: Should the Bench have gone into the legal and legislative history of S.377?

A: In my view, it is not necessary to know why it had been enacted in order to understand why it is no longer relevant. Though it would have been an interesting academic background to know why and how it was enacted, it was not necessary for the Bench to digress into this issue. It was obvious that S.377, even at the time of its enactment, did not reflect the then prevailing Indian conception of morality. Still, it could be enacted without resistance because people thought it did not concern them. [the same unconcern which characterises some sections even today; I refer to those who wonder what is this huge controversy all about. On the contrary, those who actively oppose the judgment do so for imaginary reasons]. In other words, S.377 was not relevant then when it was enacted, and hardly relevant even now.

Q.3: Is there a taxonomical confusion?

A: Although the judgment uses different terms under homosexuals synonymously, there appears to be no confusion with regard to its reasoning. The use of different terms in different paragraphs is justified according to their contexts.

Q.4: Did the Court rely on certain principles of International Law which are less authentic, because it has been adopted by very few States?

A: The Yogyakarta Principles, drawn in 2007, and the London Declaration of Principles on Equality (2008) and referred to in the judgment, have persuasive value as of now, for they have been adopted by very few States. I don't see any harm if a Court cites these to buttress its reasoning. The Court did not say we ought to follow these principles because they are binding.

Q.5: In Paragraph 35 of the Judgment, did the Court make a sweeping assertion that the Supreme Court in Kharak Singh held that the right to privacy was part of the right to life in Art.21? Was it correct to do so after noting that the majority in that judgment did not go into the question whether the police domiciliary visits violated the right to privacy?

A: If you read Kharak Singh carefully, (esp. the judg. By Ayyangar) it is clear that the Court was concerned with the question whether the U.P.Regulations authorise the police to make domiciliary visits. Therefore, it was not necessary for the Court to examine whether the police actually made those visits, because the police denied that they did. Ayyangar makes this distinction clear.

Q.6: Is Paragraph 47 confusing? What is its practical meaning?

A: By declaring that a person cannot leave behind his sense of gender or sexual orientation at home, the Court makes it clear that it sees homosexuality as a trait, rather than as a disorder and that a homosexual does not become a homosexual by choice. The HC relies on the weight of medical opinion for this. This is also buttressed by the responses of homosexuals themselves, who might say: “We are not attracted by the opposite sex; what do we do? Why criminalise us calling it unnatural?”. The following statement that “privacy allows persons to develop human relations without interference from the outside community or from the State” is consistent with this understanding.

Q.7: Does Paragraph 132 undercut the Bench’s finding that S.377 violates the fundamental right to privacy?

A: In Paragraph 132, the Bench bars the applicability of S.377 to consensual sexual acts in private between same sex persons. Does it mean that the section may still be freely applied to prosecute “non-private” conduct in a public place? Public Display of Affection (PDA) -whether between same sex or hetero sex couple – is covered under anti-obscenity provisions, namely, S.294(a) IPC. The Bench may be justified in avoiding a discussion on obscenity in order to confine its focus on S.377. PDA must be understood differently from that of carnal intercourse mentioned in S.377. Yes, if there is a carnal intercourse between same sex couple at a public place, even with consent, they must be prosecuted under S.377 even after this judgment. A hetero sex couple indulging in a similar act at a public place cannot be prosecuted under S.377, but under S.294(a).

I agree there is an anomaly even after this judgment in that the Court implicitly agrees that the S.377’s use of expression ‘against the order of nature’ is correct and that same sex carnal intercourse is against the order of nature, if it is at a public place. This inference is unfortunate because the Court questions the underlying assumption of S.377 – in terms of its application – that same sex intercourse is against the order of nature.

The Court could have avoided this contradiction by suggesting that consensual same sex intercourse in public could be prosecuted under S.294(a), rather than under S.377.

The Court was obviously confronted with two kinds of information:

A. There is no evidence of S.377 being used against same sex couple indulging in carnal intercourse with consent in private. Most of the trial court cases go unreported, and we don’t know whether there are indeed such cases. It is plausible that there are such cases, and the Court’s judgment must be seen as an answer to such situations. If the police indeed did not invoke S.377 against consenting same sex adults in private, then why have this provision which applies to them and which is a source of much harassment– this is what the court is suggesting in Naz Foundation.
B. The Court was also confronted with several actual cases of harassment by the police against homosexuals by abusing S.377.

Obviously, A & B are not contradictory, and the judgment seeks to address both the claims. The parsimonious finding regarding applicability of S.377 is due to lack of data with regard to trial court cases. But that need not have deterred the Bench from reaching its conclusion.

Q.8. Does the Bench prescribe that every governmental action that violates a fundamental right must henceforth satisfy Menaka’s test of “just, fair and reasonable” as well as Gobind’s requirement of furthering a “compelling state interest”?

Ans: I think Vikram’s suggestion that it is a radical restatement of the law is quite correct. Therefore, the distinction which he subsequently draws between penumbral rights and textual rights for the purpose of applying Gobind+ Menaka to the former is, in my view, unnecessary.

Q.9: How do we understand Constitutional Morality?

A: When the Court is confronted with an issue concerning popular conception of morality, can its reliance on what constitutes constitutional morality provide the answer? There can be no dispute about what is Constitutional morality with regard to what the Constitution says the State cannot do. Thus we do have a huge debate about Constitutional morality with regard to affirmative action (What the State should do and how the State should go about it), but there is a consensus (which signifies constitutional morality) regarding non-discrimination, equality and right to life and liberty. The right to trade in liquor is, like affirmative action, to be understood with reference to the State’s duty to enforce Prohibition under Article 47. The debate and the courts’ dilemma on what constitutes constitutional morality with regard to this right is understandable.

Q.10: Since the High Court concedes that S.377 is facially neutral, its criticism that it targets homosexuals as a class has no basis.

A: Discriminatory enforcement of a neutral provision can be a ground for challenge. Lack of precedents alone need not make this ground vulnerable. The court clearly hints that indirect discrimination is also discrimination. The very definition of indirect discrimination is facially neutral provisions which apply disproportionately to one single class. Indirect discrimination is accepted the world over as an aspect of discrimination. Discrimination based on pregnancy, although facially neutral, is, for example, indirect discrimination on the ground of sex.

Q.11: If sexual orientation is now included as one of these prohibited grounds, several existing laws, including those that define marriage as being between a man and woman, are in constitutional jeopardy.

A: Correct. But could this be a ground to stay or reverse the High Court’s judgment? If other laws are challenged in the light of Naz Foundation, so be it, and let them be heard separately on merits.

Q.12: Can the HC’s observations on Article 15(2) be considered as obiter?

A: No. One has to read only paragraphs 20 and 50 wherein the Court shows that statutory discrimination leads to the general atmosphere of prejudice leading to discrimination against gays by private persons. This was one of the pleas of the petitioner and some respondents. The HC correctly took this into account.

Q.13 Did the HC needlessly import the American doctrines of strict scrutiny and compelling state interest to invalidate S.377?

A. It is true that this was not strictly necessary, given the court's findings under Articles 14 and 21. Yet, the court found it useful to rely on Anuj garg, as it was a directly relevant judgment on discrimination, given the confusion over the possible impact of Thakur on Anuj garg, the court had to clarify why it could validly rely on Anuj Garg. In fact, the court expressly disagrees with American precedents by suggesting that strict scrutiny does not apply to affirmative action. This is a very Indian position. If you look at the chronology, Anuj Garg was delivered in December 2007 after the hearings of Thakur concluded on November 1, 2007. The Thakur judgment was delivered on April 10, 2008. There is no mention of Anuj Garg in Thakur judgment. But the Judges of Thakur were aware of Anuj Garg. If Thakur wanted to overrule Anuj Garg, they could have done so. But Anuj Garg was not argued during the hearings of Thakur case. Therefore, it was reasonable for the Delhi High Court to attempt a harmonious construction of the two judgments.

Naz, minorities and personal laws

In this Telegraph piece, I have argued that given the innovations under Article 15 in Naz Foundation, all vulnerable groups now have unprecedented protection under law, and therefore all minorities, including religious minorities, should welcome it. Swapan Dasgupta interestingly argues that

If the criminal ban on homosexuality violates the fundamental rights and dignity of some individuals, it follows that all personal laws must be tested against this principle. If equality becomes the litmus test, can the existing Muslim personal laws relating to divorce and polygamy withstand impartial judicial scrutiny? Can the principle of inclusiveness extend to gays but not to Muslim women? Can the government enact Shah Bano-type legislation if it violates a fundamental right of the Constitution? The Supreme Court will have to consider these questions when it hears Baba Ramdev’s appeal against the high court verdict.

I agree that the reasoning is impeccable, but for a perverse ruling of the Bombay High Court in Narasu Appa Mali, and affirmed by the Supreme Court in Krishna Singh v Mathura Ahir, that personal laws are not 'law' under Article 13 and therefore need not satisfy the fundamental rights test. (I have discussed this jurisprudence here). Many aspects of personal laws will not even need this heightened scrutiny under Article 15. They are unconstitutional even under the more deferential Article 14 inquiry of reasonableness. So, Naz may only make a rhetorical (and political) difference to personal laws (though these can make a huge difference too). Legally, the Supreme Court needs to overrule Mali and Singh. How can any law be above the Constitution?

There is another legal aspect to this debate: are only uncodified personal laws barred by Article 13 or all personal laws? Supreme Court has often invoked constitutional guarantees against codified personal laws, but Narasu Appa Mali was also dealing with a codified law. Does it mean that Mali is impliedly overruled? What to make of Krishna Singh then?

Thanks to Sundeep Dougal for pointing this out.

Extraterritorial application of High Court judgments: A riposte to Shivprasad Swaminathan

Guest Blogger

Subramanian Natarajan

I have been following with quite some fascination what is probably the only purely theoretical question to have faced the Indian constitution since the much vexed question of its amendability. I would like to make certain points in relation to the post by Mr. Shivprasad Swaminathan. Certain points that express my initial disquiet regarding the bases of his arguments. This is more a hole picking exercise than a response. I would be exceedingly happy, with some time, to articulate my own thoughts in a more refined manner, if the editors of the blog give me the opportunity.

First, the easy comment. The example of conflicts of law is I feel confusing and irrelevant. Indian courts are bound by Indian private international law to give recognition to the judgment of the English court without looking into the basis of the judgment. In fact, the major exercise in Private International Law is to somehow prevent the enforcing court from going behind the order to be enforced (with a few narrow and nebulous exceptions of public policy and the like).

The parallel to this situation within India is not a difference in interpretation between two High Courts regarding a central law on a PIL, rather it is the Section in the CPC that deals with the execution of a decree transferred from another state. (Section 42 of the CPC read with the relevant provisions of Order 21). These rules upon careful (and painful!) consideration also embody a principle similar to private international law- that the issues in the case should not be re-agitated in the execution stage. This question has little to do with constitutionality, because the declaration of unconstitutionality is not the reasoning in the judgment. That is the judgment. This is even more the case in a PIL where the whole exercise is hypothetical in the sense that there is no actual person being prosecuted under Section 377. The prayer is for the declaration. Therefore, I believe that example is not entirely relevant.

Coming to the next point of Mr. Swaminathan. Interpretation of the Contract Act, is not the same as striking down parts of the Contract Act. In the former, the High Court addresses the subjects of the dispute (both or one of whom fall within its territorial jurisdiction) in guiding them in their behaviour with regard to certain portions of the Contract Act and another High court has every right to disagree with that interpretation. However, when the High court strikes down a part of the contract as void it not only speaks to the parties of the dispute or the subjects in its territory- it also speaks to the creator of the offending statute. This is why the Union is always a party in cases where constitutionality is in question.
This brings me to the final point.

I agree with Mr. Swaminathan that there needs to exist a relationship of authority between the rule maker and recipient.(In fact it is extremely hard to disagree with that!) I would only disagree with his identification of the recipients in this case. I would suggest that Union of India (by which both executive and Parliament is referred to) is a recipient in a case where a Central legislation is struck down. It is the simple meaning of judicial review, that the judiciary stands in judgement and in review over the other organs. So, in this case, the recipient is Parliament which has offended a higher Constitutional norm. It is not merely the hypothetical person prosecuted under 377, it is not merely the homosexuals of Delhi, it is not merely the Delhi government, it is not merely the Central Executive, but rather it also is the source of the offending rule – the Indian Parliament.

Now, the question arises, jurisdictionally is the High Court allowed to give such a ruling? One would be tempted to say yes – because of this in the Indian Constitution: Article 226A. [Constitutional validity of Central laws not to be considered in proceedings under article 226.-Rep. by the Constitution (Forty-third Amendment) Act, 1977, s. 8, w.e.f.13-4-1978].

So it is clear that the High Court can consider the constitutional validity of central acts. What is the scope of this power? Is there a territorial limit to this power? I believe the territorial limit to this power is only found in the territorial limit of the offending statute – all of India.

The problem with this is that somehow one cannot imagine the High Court issuing a writ against Parliament. That would be absurd. But the exercise of power need not be only through writs – Article 226 is not exhaustive in this regard. A mere declaration of unconstitutionality – rendering the section void – may be the power that the High Court wields against the parliament. And the scope of such power should be determined by the scope of power of the Parliament – which is India – for it to make institutional sense.

But there are problems – the text is not clear. Indeed the textual basis for my argument is almost nonexistent. I am only saved by the fact the textual basis of the converse argument is not great either. Article 226 does not seem to envision this situation. There is the theoretically problematic question of differing interpretations in High Courts. All these need to be answered in a longer – more well thought post. As I said this post is only to critique!

[The author works as a trainee legal advisor in London]

Guest Post: Extraterritorial application of HC judgment

It is my pleasure to post on behalf of Shivprasad Swaminathan [LLB (ILS , Pune) B.C.L (Oxford)]. He is a Doctoral Student studying jurisprudence at Balliol College , Oxford. He is working on The Normativity of the law and the nature of legal obligation. Previously he read in the chambers of N.H.Seervai in Bombay for 3 years.


Guest Post: The extent of a High Court’s Jurisdiction

When a high court declares a central law to be unconstitutional is the law invalid only in the state which it is a high court of or is it invalid in the rest of India? In practical terms, the question translates to whether the Delhi High Court’s judgment in Naz Foundation prevents a police official in any of the other states, from acting on Sec.377.

Article 226(1) provides that the writ of a High Court ordinarily runs only within the territorial limits of the state; Art 226(2) provides that the High Court has extra territorial reach over persons and authorities outside the state territory where the cause of action upon which the writ issues arises within its jurisdiction.

One line of thinking about the issue has it that when a High Court strikes down a central statute, it is unconstitutional for the whole of the legal system. One inclined to think in this fashion would be tempted to cite Art 226(2) in support of this proposition- as the Supreme Court did in Kusum Ingots - arguing that the unconstitutionality of the statute is a cause of action and by that token it is a cause of action arising in every state in India; thus each of the high courts are competent to declare the statute unconstitutional and that would be binding on all legal officials wherever they may be in India. The other line of thinking about the issue has it that the High Court can exercise jurisdiction only over authorities within its territories. This seems to be the view of the Supreme Court in Ambika Industries and Durgesh Sharma.

There is something odd about both lines of thinking . Surely, Art 226(2) permits the High Court to issue writs to persons and authorities outside its ordinary territorial state limits if the cause of action arises within its territory. After all when even a subordinate civil judge in Solapur has an analogous power under the Civil Procedure Court why deny it to a High Court? Therefore the second line of thinking which denies this extra territorial reach to a High Court in the face of the Art 226(2) is unacceptable. However , that need not lead us to accepting the first line of thinking- that just because a High Court can issue writs to authorities outside its jurisdiction its law is binding throughout India.

The error, in both lines of thinking is similar, namely, the assumption that the bindingness of an individual ruling of a high court is the same as the bindingness of the rule on which the ruling is based. However, as John Gardner points out in Types of Law there exists a world of difference between the ruling and the rule on which it is based. A rule is culled out of the ratio of the individual ruling.

The implications of the difference between a ruling and a rule would become clearer with this example from conflict of laws. If there is a contractual dispute between a plaintiff in England and a defendant in India and a part of the cause of action has arisen in England , an English court can pass a ruling against the Indian defendant, based on English Contract Law. By virtue of Indian rules of conflict of laws, the ruling of the English court is binding on the Indian party. But does that mean that the rule of English Contract law on which the ruling is based is applicable in India? None of us would have the least hesitation in denying that the rule of English law applies merely because the English court’s ruling is binding in India.

On a similar note ,none of us would have the least hesitation in agreeing that the Delhi High Court’s interpretation of a section of the Indian Contract Act would not have any force in Maharashtra. If the State of Maharashtra is a defendant in such a suit - and assuming a part of the cause of action arose in Delhi- we would maintain that of course the state of Maharashtra as a party is bound by the ruling and would have to satisfy the decree. However, we would not for a moment suggest that the Delhi High Court’s interpretation of the Contract Act on which the ruling was made becomes the law in the state of Maharashtra. We would not have the least hesitation in saying that a Civil Judge in Solapur is not bound by the Delhi High Court’s interpretation of the Indian Contract Act.

If we think in this fashion about a rule of contract law laid down by the Delhi High Court how does doubt creep in when we begin to talk about a declaration of unconstitutionality by the same court. Declaration of unconstitutionality is, for want of a better phrase, an exercise of negative law making power. In reality the striking down of a law amounts to the promulgation of a new rule calling upon the officials to not act upon the law which is being stuck down. The recipients of this rule are the legal officials. There is no reason why we should treat this any differently from how we would treat a rule laid down by Delhi High Court on contract law.

What we are then faced with is a classical conflict of laws situation, which is so common in other federal systems, but surprisingly finds little mention in Indian Constitutional jurisprudence. And at the heart of this problem lies the conflation of the ruling with a rule; a distinction which is fundamental in conflict of law situations.

In saying that a rule of law is binding- as Von Wright points out in Norm and Action - we mean that there exists a relationship of authority between the rule maker and the person to whom the rule is addressed. This authority is delineated by the Constitution by setting out territorial limits of each High Court’s jurisdiction in Art. 226(1). Thus the law laid down by the High Court is law only for its state. However because of Art 226(2) a High Court’s individual rulings can bind people beyond its territory just as the English Court’s ruling can bind a party in India. This also fits nicely with the legislative intent behind the constitutional amendment(1962) inserting Art 226(2). It was introduced to enable litigants in other states to seek relief against the central government , which was previously only subject to the jurisdiction of the Punjab High Court.

Hence the Delhi High Court’s declaration of unconstitutionality would be valid only for the territory of Delhi. Section 377 of the Indian Penal Code remains intact for the rest of India till the Supreme Court decides to strike it down.

Before signing off , I would like to quickly deal with one highly plausible solution to the problem previously suggested by Tarunabh , that reaches a result diametrically opposed to mine. The argument is that Art 13 renders this entire jurisdictional debate pointless because it provides that any law that infringes part III of the Constitution is unconstitutional and there is no territorial limitation to Art.13. Surely, this argument, if right, solves the puzzle in one stroke. Beneath the surface of this argument lies the assumption that a declaration of unconstitutionality ‘wipes out’ the law. But the law does not exist like other things in the physical world. The existence of a law is a relationship of authority between the law giver and the recipient. And a declaration of unconstitutionality is a fresh rule issued by a lawgiver not to act upon the law being struck down. Therefore the question returns to stare us in the face - over which persons does the lawgiver have authority to make such a rule? And that question cannot be answered by Art.13 . That question can only be answered by looking at the extent of the law givers jurisdiction. In case of the Supreme Court that is to be found in Art.141. In case of a High Court it is to be found in Art 226(1). Though I completely agree with Tarunabh’s point that a declaration of unconstitutionality is general in its nature, I disagree with the conclusions he draws from it because the question remains which officials are subject to the jurisdiction of the court issuing the rule declaring a law unconstitutional ? According to me Art 226(1) tell us that it is only officials in the state to which the High Court belongs that are subject to its jurisdiction.

Navigating the Noteworthy and the Nebulous in Naz Foundation -- Part III

This third, and final, post builds on posts of yesterday and the day before on the Naz Foundation Case. In today’s post, I discuss, among other things, the Delhi High Court’s use of “compelling state interest” as a standard for assessing fundamental rights infringements as well as its handling of the equality and equal protection issue.

1. Compelling State Interest and Morality. Paragraph 75 of Naz Foundation appears under the caption “morality as a ground of a restriction to fundamental rights.” This paragraph discusses restrictions on the conjoined fundamental right to privacy-dignity as well as the fundamental right to health. The bench begins by stating that a law infringing a fundamental privacy right must satisfy a “compelling state interest.” It correctly attributes this standard to Justice Mathew’s Gobind opinion. It then travels beyond Gobind to hold that the enforcement of public morality is not a compelling state interest to “justify invasion of the zone of privacy of adult homosexuals engaged in consensual sex in private.”

To paraphrase Justice Mathew’s own words in Keshavananda, “I have tried, like Jacob of the Old Testament, to wrestle all night with the angel,” namely, the use of the “compelling state interest” standard in Indian constitutional adjudication. I certainly have no quarrel with the general proposition that enforcement of morality is not a compelling state interest, much less an important or even a marginal interest. However, I believe that Naz Foundation’s use of the “compelling state interest” standard here is completely out of line with prevailing Indian precedents. It is true that Justice Mathew proposed and used the “compelling state interest” standard in Gobind to determine whether the regulations at issue in that case passed constitutional muster. I believe he was so greatly enamored with recent American decisions on contraception and abortion that he readily imported their teachings to India without adequate due diligence. It is one thing to refer to foreign precedents to expand the meaning of the fundamental rights, it is quite another to borrow standards for how those rights are to be restricted from jurisdictions with different analytical frameworks for constitutional questions.

It should be pointed out that the “compelling state interest” standard, which Justice Mathew enthusiastically adopted in Gobind, is part of the U.S. Supreme Court’s strict-scrutiny test to screen restrictions on fundamental rights. That test was judicially developed largely because the American Constitution provides little textual guidance on what restrictions can be imposed on fundamental rights. In India, the situation is rather different because our Constitution has “in-house” rules with specific grounds on which “reasonable” restrictions can be imposed on most fundamental rights (see, e.g., Article 19 (2)).

In fairness to the Naz Foundation bench, I should point out that Justice Mathew was a fairly consistent advocate for varying the applicable standard of judicial review depending on the subject involved. For instance, in Ambica Mills, he argued that laws regulating economic activity should “be viewed differently” from laws which concern freedom of speech and religion, voting, procreation, or criminal procedure. He would defer to legislative wisdom on economic laws and exercise greater vigilance in other areas (of course, his deference to economic laws was in the context of India’s flirtation with socialism during the 1970s!).

Aside from Gobind, I am hard pressed to find any major decision that either affirms or applies the “compelling state interest” standard. Rather, as Naz Foundation, itself, says in paragraph 25, after Menaka, any interference with life or personal liberty “must be right and just and fair and not arbitrary, fanciful, or oppressive.” This “just, fair, and reasonable” standard has been the generally applicable benchmark to assess governmental action for the past three decades now. One way to reconcile the apparent contradiction between paragraphs 25 and 75 in Naz Foundation would be to apply both standards together. In others words, every governmental action that violates a fundamental right must henceforth satisfy Menaka’s test of “just, fair, and reasonable” as well as Gobind’s requirement of furthering a “compelling state interest.” If this interpretation of Naz Foundation is correct, I’m afraid it is a rather radical restatement of the law.

Another way to resolve this conundrum would be to only apply the Gobind + Menaka formula to questions about penumbral or uncodified rights like privacy and health. Questions concerning codified rights would only have to meet the Menaka standard. But this solution would imply a higher constitutional bar for actions affecting penumbral rights than those actions affecting textual rights. This outcome would be irrational since penumbral rights are, in fact, derivatives of textual rights.

2. Substitution of Morality Standards. Let me turn now to the impressive manner in which Naz Foundation redefined the morality argument and turned it on its head. Rebutting the notion that public disapproval of homosexual conduct is an accurate barometer of morality, Naz Foundation brilliantly argues that it is “constitutional morality” rather than popular morality that ought to be the applicable yardstick. This aspect of Naz Foundation is, perhaps, what I like most about the case and underscores why I believe it is a landmark decision. The idea of a controlling “constitutional morality” is in, some sense, a continuation of the bench’s insistence on a secular approach in the judicial process case without risking a footfall into religious or sectarian ditches.

At the same time, I do not believe that Naz Foundation’s substitution of constitutional morality for popular morality is a silver bullet. Just consider the spaghetti bowl of inconsistent Supreme Court decisions on whether there is a constitutional right to trade in liquor or if it is res extra commercium. Some of our most enlightened justices have tied themselves up in knots over this issue because of their concern about its underlying moral implications. I should also point out that Naz Foundation does not imply that any morality-based legislation or governmental action is no longer permitted. Rather, it argues that mere public disapproval is an inadequate reason to restrict a fundamental right.

3. Implied Desuetude of Section 377. I want to end my discussion of morality in Naz Foundation by focusing on a most intriguiging sentence in paragraph 86, which reads:

In fact, the admitted case of the Union of India that Section 377 IPC has generally been used in cases of sexual abuse or child abuse, and conversely that it has hardly ever been used in cases of consenting adults, shows that criminalization of adult same-sex conduct does not serve any public interest.

In this passage, the court was referring to the Additional Solicitor General’s argument that Section 377 should be saved because it was not being enforced against homosexuals. The high court initially rejected this contention in paragraph 74 as contrary to evidence and testimony proffered by the petitioners. Yet, interestingly, the bench returns to this argument in paragraph 86, but only to turn tables on the government. It reasons that, if Section 377 has not been used to prosecute adult same-sex conduct, one can legitimately question whether such conduct should at all be criminally proscribed. In other words, if a statutory provision has fallen into disuse, why bother maintaining it?

Although Naz Foundation does not refer to it, there is, in fact, an old common-law doctrine called “desuetude” that supports this line of reasoning. This doctrine has, in fact, been recognized by the Indian Supreme Court in Municipal Corporation v. Bharat Forge, (1995) 3 S.C.C. 434, and it is a pity that it was not considered in this case. Perhaps, it was because petitioners were not confident that they could satisfy all the elements of the doctrine. For desuetude to set in, the statute in question must have been in disuse for a substantial period of time and some form of contrary practice must have evolved during this period.

4. The Equality Detour. As a threshold matter, I wonder why the bench even bothered addressing the equality argument. It had already resolved that Section 377 violated the penumbral fundamental right of equality-dignity, which was sufficient ammunition for its conclusion that Section 377 was unconstitutional. In fact, it is for this reason that the bench felt it was unnecessary to deal with the argument based on the fundamental freedoms in Article 19. Could not the same approach have been taken with respect to equality?

In my view, the equality section is Naz Foundation’s Achilles' heel. The discussion on equality begins with the bench conceding in paragraph 94 that Section 377 is facially neutral. Yet, the bench points out that the “sexual acts, which are criminalized are associated more closely with one class of persons, namely the homosexuals as a class” (emphasis mine). I’m afraid this part of the judgment is not completely watertight and may not convince an appellate court. As a textual matter, the section proscribes sexual acts involving carnal intercourse that are considered “unnatural” irrespective of whether they involve same-sex or opposite sex partners. Case law under the section shows that it has been used in prosecutions involving oral sex and anal sex. There is ample evidence to suggest that anal sex is not an exclusive homosexual preserve; many heterosexual couples routinely engage in it. And oral sex is commonly practiced by both same-sex and opposite sex partners. Therefore, this aspect of Naz Foundation could be particularly vulnerable on appeal.

To bolster its reasoning that Section 377 is hostile to gays, the bench cites Justice O’Connor’s opinion in Lawrence in which she held that the underlying statute in question targets homosexuals as a class. But what it fails to mention is that the Lawrence statute only targeted homosexual conduct; it was even called the “Texas Homosexual Conduct Statute.” This made it convenient for Justice O’Connor to find it violated the U.S. Constitution's equal protection clause. It is for this reason, that Justice O'Connor was able to file a concurring opinion in Lawrence (Justice Kennedy's majority opinion in that case was completely silent about equal protection). In fact, O'Connor remained unrepentant for her previous opinion in the Bowers Case, where the underlying statute, like Section 377, applied to both same-sex and opposite-sex conduct.

I entirely agree with Naz Foundation that, in implementation, Section 377 “does end up unfairly targeting a particular community.” However, I'm skeptical about whether the Supreme Court will accept this argument. There do not appear to be many cases in which a facially neutral law has been successfully challenged on the ground that it is enforced in a discriminatory manner. Perhaps, I'm influenced by what happened in Rathinam with respect to Section 309 of the Penal Code, which criminalizes an attempt to commit a suicide. Initially, the Bombay High Court struck down Section 309 on the ground of equal protection. It found that the provision did not provide adequate guidance and was susceptible to arbitrary application. However, the Andhra Pradesh High Court took a contrary view. The Supreme Court agreed with the Andhra Pradesh High Court, both in Rathinam as well as in Gian Kaur (which overruled Rathinam). Justices in both cases rejected the challenge to Section 309 on equal protection grounds. Don’t get me wrong; I strongly believe that Section 377 has a disparate and invidious impact on gays. I just don't think that this argument could be a winning one under prevailing Indian jurisprudence. I'll be very happy to be proved wrong.

5. The Dynamite of Non-Discrimination. I am still trying to unravel the true meaning of the high court’s holding on Article 15 (1). However, I must applaud the bench's precedent-setting conclusion that sexual orientation is a valid anti-discrimination marker under Article 15 (1). In fact, this aspect of Naz Foundation is sheer dynamite! If this holding is sustained on appeal by the Supreme Court, it has the potential to fundamentally reorder the Indian legal system. Just think about it. Article 15 (1) makes it illegal for the State to discriminate on various grounds, such as sex, place of birth, race, caste, or religion. If sexual orientation is now included as one of these prohibited grounds, several existing laws, including those that define marriage as being between a man and woman, are in constitutional jeopardy. Regretably, on this issue, the homophobic appellants before the Supreme Court do have a point.

6. Obiter on Horizontal Discrimination. In my view, the bench went on a “frolic of its own” by declaring in paragraph 104 that Article 15 (2), the Constitution's public-access provision, proscribes “horizontal discrimination” on the ground of sexual orientation. This was a completely unnecessary observation that had nothing to do with the underlying case. The writ petition did not contain any allegation about private discrimination against gays, and there does not appear to have been any substantial discussion of this issue during oral arguments. Therefore, I can only conclude that the bench misdirected itself to address this non-issue. Accordingly, I believe that the bench’s observations regarding Article 15 (2) are only in the nature of obiter.

7. Strict Scrutiny. Just as I take issue with Naz Foundation’s use of the “compelling state interest” standard under Article 21, I have serious reservations about its wisdom in needlessly importing the American doctrine of strict scrutiny to invalidate Section 377. As the bench admits in paragraph 110, the use of strict scrutiny has been decisively rejected by the Supreme Court in Ashok Kumar Thakur. Yet, Naz Foundation insisted that it could still use strict scrutiny based on the Supreme Court’s decision in Anuj Garg. The bench reasoned that, upon a “harmonious construction” of the two Supreme Court judgments, strict scrutiny would not apply to affirmative action, while it would to apply to disadvantaging measures targeting a vulnerable group based on personal characteristics.

I’m afraid I find the high court’s reasoning on this issue to be rather disingenuous for several reasons. First, Anuj Garg was a decision of a two-judge bench while Ashok Kumar Thakur was a constitution bench decision. Second, Ashok Kumar Thakur was the later decision, handed down several months after Anuj Garg; and ordinarily the subsequent larger bench decision should carry more weight than an earlier decision from a smaller bench. Third, there is nothing in Ashok Kumar Thakur to indicate that its refusal to apply strict scrutiny was only confined to affirmative action. Fourth, how do we reconcile the high court’s cute reasoning with the Supreme Court’s 2003 decision in John Vallamattom. The case involved the constitutionality of Section 118 of the Indian Succession Act (affecting the right of Indian Christians to make so-called death-bed charitable dispositions. It was not an affirmative action decision by any stretch. Yet, in it, Justice Khare said he was skeptical about the application of strict scrutiny in India.

I have the same concerns about using strict scrutiny to evaluate equality and equal protection claims under our Constitution as I do about using the “compelling state interest” standard to assessing fundamental rights violations under Article 21. The two American doctrines are, in a sense, two sides of the same coin. Strict scrutiny was invented to scrutinize classifications because the U.S. Constitution does not contain anti-discrimination provisions, such Articles 15 and 16, of our Constitution, and it requires a showing of a compelling state interest in order for a suspect classification to be upheld.

In India, our Supreme Court has generally applied rational-basis review to evaluate most classifications. From a tactical perspective, the bench could have applied this long-standing test and concluded, based on the evidence, that Section 377 flunked it. This would have been a better strategy, in my view, than subjecting Section 377 to a more stringent test, whose application is likely to be challenged before the Supreme Court.

8. Concluding Observations. Naz Foundation’s use of the severability-in-application doctrine is certainly a creative extension of the Supreme Court’s decision in Chamarbaugwala (ironically, that case advocated caution in the use of American precedents). However, I should note that the Supreme Court’s observations on severability, which Naz Foundation relied upon, were made in the context of legislative competence to enact a statute based on the division of powers between the centre and the states in the Seventh Schedule. They did not involve a statute that was found unconstitutional for violating fundamental rights. Be that as it may, Naz Foundation effectively used Chamarbaugwala to retain Section 377 on the statute book even though it was found to be unconstitutional on several grounds. I have some concerns about this Solomonic solution, but I respect the high court’s pragmatic decision under the circumstances.

Finally, my friend and classmate, Ramaswamy, offers an interesting alternative road that the high court could have taken in resolving this matter. According to him, the case could have been presented as a matter of statutory interpretation rather than constitutional law focusing on the phrase “carnal intercourse against the order of nature” in Section 377. The high court could have ruled that sex between consenting same-sex adults was not “carnal intercourse against the order of nature.” I leave it to you, our readers, to tell us what you think of this idea.

Navigating the Noteworthy and Nebulous in Naz Foundation -- Part II

Having celebrated Naz Foundation’s glorious ramparts yesterday, I turn now to critically appraise the decision’s side streets and alleys. I thought I would be able to complete that task in a single post today. However, after further meditating on Naz Foundation’s meaning, I think I need another post to do full justice to the case (and to save you from the exhaustion of reading). There are several disparate elements of the judgment that I discuss in today’s post. But I'm especially interested in the court's privacy analysis and consequential holding. In tomorrow’s post, I will focus on Naz Foundation’s discussion of the “compelling state interest” standard as well as its handling of the equality and equality protection issue.

Before I resume my analysis of the judgment, I want to pay special tribute to petitioners’ counsel (and their many advisers) for their superb litigation strategy in this case. They did an exceptionally good job of marshaling and submitting a complex mélange of arguments backed by solid and first-class research. The written pleadings and oral arguments reflect considerable hard work, much internal discussion and organization, and careful planning. I’m especially impressed by petitioners’ decision not to ask the high court to strike down Section 377. It was a potentially risky decision. But it was a responsible one that helped ensure a successful outcome. Now back to Naz Foundation.

1. Format and Style. Let me start with some structural quibbles. First, many readers complain that the judgment is 105 pages. I suspect that, after it is edited for publication in the law reports, the page count will go down considerably. I am disappointed, however, that the bench chose to adopt the tedious, standard template for Indian judgments. That template requires a detailed, and mostly superfluous, summary of arguments before a discussion of the issues. Consequently, pages 6 to 25 of Naz Foundation are a rambling regurgitation of the arguments presented by both sides. If this section had been considerably reduced or even eliminated, the judgment could have been considerably abbreviated.

Second, although the text is divided into convenient headings to facilitate easy reading, each of the headings has the same font with no numbering scheme or outline to indicate how they relate to each other. This makes it difficult to identify the boundaries between major parts of the decisions. Third, text is so evenly formatted that it is difficult to determine, in many instances, whether a certain sentence is the bench’s observation or a verbatim quote from one of the many authorities cited in the judgment.

2. Legal and Legislative History. The judgment has a very brief section on the legal history of Section 377. This section appears largely to rely on the account presented in Naz Foundation’s original writ petition. However, that reliance is incomplete for the judgment omits a critical paragraph in the writ petition, which explains how the introduction of Section 377 “was contrary to then existing Indian traditions, which did not treat sodomy as a crime.” It is unclear why the judges chose to ignore this paragraph borrowed from an important collection of essays on same-sex attraction. Perhaps, they felt that this issue would take them down the slippery road of interpreting religious and spiritual sources -- a journey fraught with potential for controversy, as Chief Justice Chandrachud discovered after his Shah Bano decision. It would have also required the judges to accept, deny, or at least comment on the petitioners’ loaded submission that Section 377 was based on “traditional Judeo-Christian moral and ethical standards.” Accepting such a submission, even if substantiated by historical evidence, could have made the judgment appear unnecessarily divisive.

Laconically observing that the “Penal Code was drafted by Lord Macaulay and introduced in 1861 in British India,” the judgment fails to mention anything about the statute’s colourful legislative history (“travaux preparatoires”). For instance, it could have referred to Macaulay’s decision to refrain from appending any guidance notes or illustrations to Section 377 (contrary to the practice for other parts of the Penal Code) motivated by his puritanical belief that the provision involved “an odious class of offences [about which] as little as possible should be said.” It could have mentioned, if the bench was so inclined, other historical nuggets, such as the fact that early offenders under this section could receive a whipping, in lieu of imprisonment, under the Whipping Act of 1864. In this respect, Naz Foundation is a bit of a disappointment, as I had fully expected it to discuss the statute’s Victorian background and why it had been enacted in order to understand why it is no longer relevant. In this respect, Naz Foundation is in stark contrast to the extensive discussion of legal history in the case it cites so extensively, Lawrence v. Texas.

3. Review of Section 377 Caselaw. I find Naz Foundation’s discussion on Section 377’s case-law incomplete. Although the judgment refers to several leading cases (many from obscure and hard-to-find law reports), it does not tell us whether all or any of these cases involved same-sex conduct. Instead, after discussing the underlying holdings in each case, Naz Foundation argues that the “tests” for attracting Section 377 have changed from “the non procreative to imitative to sexual perversity.” If the judges intended to use “tests” as a moniker for “standards,” I’m afraid that the cases they cite offer them very little support. Those cases appear to have been discussing the object or intent of Section 377 (which varied from case to case) instead of the ingredients of the offence or the standards for sustaining a conviction under it.

4. What Should We Call "Them?" The decision suffers from some taxonomical confusion about what to call those with same sex attraction given the diverse nature of groups involved. Discussing the petitioners’ standing in paragraph 6, the judgment refers to Naz Foundation’s work with the “gay community or individuals described as “‘men who have sex with men.’” It then states that, “for sake of convenient reference, they would hereinafter be referred to as ‘homosexuals’ or ‘gay persons’ or gay community.” Now, it does not seem particularly convenient to use three terms as a substitute for two. And where do these definitions leave lesbians, bisexuals, and transgendered persons? Are they subsumed within “homosexuals” or “gay persons”? What about those men who aren’t conventionally bisexual or homosexual but aren’t straight either because they have sex with men? Are they also homosexuals or gay persons under paragraph 6?

The confusion over nomenclature is further compounded in subsequent paragraphs of the judgment because either the judges forget about the definition in paragraph 6 or simply decided against using it. Paragraph 50 refers to the “MSM and [the] gay community” (emphasis mine). But paragraph 52 mentions “MSM,” “lesbians,” and “transgenders.” And paragraph 61 reverts to the phrase “MSM and [the] gay community.”

5. Government's Legal Representation. In paragraph 11, the bench notes that a “rather peculiar feature” of the case involved the Home Ministry and Health Ministry filing separate and contradictory affidavits about Section 377. Yet, the judgment goes on to accept the Home Ministry’s affidavit and arguments as the Union of India’s position without providing any explanation. The choice may have been obvious to the court, but it is not for a bystander like me.

As a related matter, it is worth mentioning that, at various points in the judgment, the bench justifiably rejects the bizarre and absurd submissions made by the Additional Solicitor General (who appeared on the Union of India’s behalf) and castigates him for making them (see especially paragraphs 70-72). It even offers him a little civics primer when he questions the court's competence to exercise judicial review. It is amazing that the government’s position was presented so poorly and crudely in such an important case.

Among the Additional Solicitor General’s arguments, which the bench rebuked, was his contention that Section 377 is not “prone to misuse as it is not enforced against homosexuals.” Now, besides the high court’s cogent reasons for rejecting this unsubstantiated statement, there was an additional justification for not accepting it. Under our federal scheme of governance, it is the state governments who control police and law-enforcement agencies. The Central Government has very little direct role in determining whether or not to prosecute a case under Section 377. Thus, it would have not been appropriate for the high court to have relied on the Additional Solicitor General’s statement on Section 377 prosecutions because he was not representing any of the states (they were not even parties to the proceedings).

6. The Christmas Tree Effect. Reflecting the growing cosmopolitanism of the Indian judiciary, the case cites a large number of international and comparative constitutional sources. But unlike other contemporary decisions, the foreign citations in Naz Foundation are not mere ornaments or serial lights to make the decision sparkle. The case is among a handful of decisions in which judges rely on foreign precedents to actually shape an imaginative domestic outcome. References to Hong Kong, Fiji, and Nepal decisions in Naz Foundation are particularly important because they remind the reader that gay rights aren’t some luxurious western construct. The dates of many citations reveal that the bench continued to research the case long after it had been reserved for judgment.

Yet, precisely because it includes so much material, Naz Foundation is like an over-decked Christmas tree with decorations obscuring virtually every bit of green. In some parts, the decision seems like the work of magpies: no shred of information seems to be too obscure for inclusion in its great kitchen sink of ideas. It is surely the Indian first case to actually cite a webcast!

Furthermore, Naz Foundation is among the first cases that I’m aware of in which statements of the prime minister, health minister, and solicitor general are used as “unilateral declarations” (in the sense of the International Court of Justice’s 1974 Nuclear Tests Case) of the government’s position on Section 377 and attitudes towards men having sex with men. I suppose the court intended to formulate something like an estoppel doctrine using statements of high constitutional functionaries.

Naz Foundation also relies on several international “soft-law” sources, such as the “Yogyakarta Principles,” and the “London Declaration of Principles on Equality” to argue that there is an emerging norm of international law on sexual orientation. As appealing as these principles might be, they hardly qualify as authentic sources of international law for they have been adopted by very few states. They are not general principles of international law, much less customary international law.

7. Dignity Dimension. I liked the bench’s discussion of “dignity,” in paragraph 26. But I felt that the judgment could have elaborated a bit more on the reference to the “dignity of the individual” in our Constitution’s preamble (borrowed word-for-word from the Irish Constitution). Moreover, it is very surprising that Naz Foundation did not cite Kharak Singh here. In paragraph 16 of Kharak Singh, Justice Ayyangar makes a direct link between privacy and individual dignity enshrined in the preamble. This paragraph was subsequently reproduced as a block quote in Gobind. Why Naz Foundation did not use the quote is a mystery to me especially since it was attempting to telescope privacy with dignity – a maneuver first undertaken in Kharak Singh, a six-judge-bench decision of the Supreme Court.

8. Privacy and Indian Constitutional Law. In yesterday’s post, I hailed Naz Foundation for expanding the doctrinal understanding of privacy. However, I believe that the bench’s analysis of privacy under our Constitution is far from adequate. Let us start with paragraph 35, which is located immediately below the caption “development of law of privacy in India.” This paragraph is devoted to a discussion of Kharak Singh (the largest Supreme Court bench to discuss privacy in any meaningful sense). In Kharak Singh, Justice Ayyangar, speaking for the majority, explicitly held that “the right to privacy is not a guaranteed right under our constitution.” However, he found that a state regulation, which permitted domiciliary visits by the police, was unconstitutional because it violated a “common law right to privacy.” He located this common-law right under the expression “personal liberty” under Article 21.

In a separate and concurring opinion, Justice Subba Rao went much further than Justice Ayyangar and affirmed that the Constitution protects a fundamental right to privacy. In discussing Kharak Singh, Naz Foundation notes that the majority “did not go into the question” whether the police domiciliary visits “violated the right to privacy.” Yet, after referring to Subba Rao’s concurring opinion, Naz Foundation blithely concludes: “in effect, all seven learned judges held that ‘right to privacy’ was part of the ‘right to life’ in Article 21.” The High Court does not explain the basis for this sweeping sentence. It appears to have simply lifted it -- without proper attribution -- from the Supreme Court’s opinion in Canara Bank. Canara Bank is an embarrassingly bad opinion for a number of reasons, including its completely unnecessary digression into American constitutional theory, Just read it and you’ll see what I’m talking about!

After Kharak Singh, Naz Foundation mentions Gobind (a somewhat maverick decision of Justice Mathew, which has been criticized for glossing over the majority holding in Kharak Singh) and Rajagopal (where Justice Jeevan Reddy largely followed Gobind on the privacy issue). In both decisions, the Supreme Court cautioned that privacy was not an absolute fundamental right and it would “necessarily have to go through a process of case-by-case development.” Yet, that admonition was conveniently forgotten by the Supreme Court in Canara Bank. As Naz Foundation accurately reports, Canara Bank concluded that the right to privacy has been accepted as “implicit in our Constitution.”

While I acknowledge that Canara Bank is binding precedent on the Delhi High Court, I believe that Naz Foundation could have undertaken a more rigorous privacy analysis without simply cutting and pasting from Canara Bank. This is not unreasonable to demand from a bench, which demonstrated great skill in cherry-picking among conflicting Supreme Court decisions on application of the strict scrutiny test.

Upon holding that there is a right to privacy under the Indian Constitution, Naz Foundation proceeds to articulate an untethered and delocalized understanding of privacy. Relying on that broad notion of privacy, paragraph 47 contains the poignant declaration that “[a] person cannot leave behind his sense of gender or sexual orientation at home.” It is unclear, however, whether this sentence is the high court’s own words or simply a quote from another source. Then, we stumble upon following statement (also in paragraph 47): “privacy allows persons to develop human relations without interference from the outside community or from the State (emphasis mine).” I’m tempted to stop and reflect further on the practical meaning of this remarkable observation, but I need to move on. So, I’ll defer to your comments about its wisdom.

9. Privacy and the Vires of Section 377. Naz Foundation’s substantive commentary on privacy ends with the observation that Section 377 denies a gay person a right to full-personhood, which is implicit under Article 21 of the Constitution. Presumably, this is because Section 377 violates the unarticulated fundamental right to privacy. Yet, the thickness of this important conclusion is substantially undercut by the decision’s actual findings on the merits in paragraph 132. That operative paragraph of the judgment states that Section 377 is unconstitutional “insofar as it criminalises consensual sexual acts of adults in private” (emphasis mine).

Based on the wording of paragraph 132, one cynical, but plausible, way to interpret Naz Foundation is that the new constitutional bar on Section 377 prosecutions applies only to sexual acts in a private dwelling or establishment. Under this interpretation, the section may still be freely applied to prosecute “non-private” conduct in a public place. Such a result would be particularly unfortunate because many documented instances of 377 harrassment have involved conduct in parks and other public places. They are quite unlike the police raid on John Lawrence’s bedroom, which was later declared a zone of privacy in the US decision, upon which Naz Foundation appears to have strongly relied.

In some sense, the substantial disconnect between Naz Foundation’s soaring rhetoric on the concept of privacy and its parsimonious finding regarding the applicability of Section 377 illustrates the limitations of using privacy as a legal theory to challenge morality-based legislation. At first blush, privacy is a convenient and tempting shield to prevent the government from intruding into gays’ bedrooms. But it does not protect them when they leave their homes and affirm their bonds (even in the most benign manner) in public. It can be especially problematic in the Indian context because the “private” of many Indian gays is usually in the long shadows or dark corners of public places, like parks or beaches. For them, paragraph 132 does not seem to be a particularly liberating and emancipating holding.

(This post, written entirely in my personal capacity, will be concluded tomorrow).

Navigating the Noteworthy and Nebulous in Naz Foundation-I

There have been few, if any, cases whose proceedings have been closely followed and judgment keenly awaited as Naz Foundation. The verdict was eagerly anticipated, not just by lawyers and court watchers, but also by activists and a broad cross-section of ordinary people. Acutely aware of their role in contemporary history, the judges on the Naz Foundation bench did not disappoint. Their conclusion that Section 377 is unconstitutional vis-à-vis consensual adult sex is set in the elegant tapestry of a carefully spun decision embroidered with copious citations. The judges display great courage and craftsmanship in fashioning a historic decision heard loud and clear, not only in India, but across the world.

I, for one, first got word about the decision from a friend in Dhaka who e-mailed her South Asian friends about the breaking news. It helped that the Delhi High Court immediately made the decision available on its website, and the BBC promptly posted a link spurring downloads across the globe. A friend called me from New York to say that he could not retrieve the judgment because the high court’s server was clearly overloaded. Over the weekend, the New York Times’ story on Naz Foundation was among the top ten most popular stories on the newspaper's website. Naz Foundation is likely to rival the mango this summer as India’s top export! I don't know of any other Indian case that has enjoyed this much fame.

The beauty of Naz Foundation is that it skillfully mixes originalism (rarely used by Indian judges anymore) with pragmatism in constitutional interpretation. It is a product of considerable strategizing, deep thinking, and extensive research. At the same time, the judges display great humanism, sensitivity, and empathy -- qualities rarely displayed in most Blackstonian judicial monasteries. The decision's artful prose, which sounds almost poetic in several places, is tempered by humility and modesty. Its cadences have the unmistakable stamp of Chinnappa Reddy's compassion and Bhagwati’s forensic reasoning without the distraction of Krishna Iyer's bombast.

Symbolically as well as substantively, Naz Foundation marks a radical change in our Republic’s constitutional jurisprudence. It fundamentally alters the relationship between a large disenfranchised, yet mostly silent and dispersed, minority and the hegemonic Indian state. For that reason, I believe it genuinely qualifies for that often gratuitously misused epithet of legal writing: "a landmark judgment." Yet, like all landmark judgments, Naz Foundation has its strengths, weaknesses, and penchant for controversy. To crudely adopt local imagery, the decision has the grandeur of the Red Fort's majestic ramparts as well as the confusion of Old Delhi's maze of bazaars, crowded streets, and alleys. In assessing this bewildering landscape, I’ll celebrate today the judgment's impressive monuments that display great judicial architecture and craftsmanship. In tomorrow’s post, I will deal with Naz Foundation’s not-so glamorous dimensions.

1. At its core, Naz Foundation is an emphatic reiteration of the vision of our Republic’s Founders to establish a just, inclusive, and tolerant India. Mindful of the bitter and shameful legacies of our history, our Founders were especially unwilling to countenance any form of social exclusion. This is evident in, among other things, Article 17’s unprecedented constitutional prohibition on “untouchability” -- a term deliberately left undefined in the Constitution. Naz Foundation extends the command of Article 17 to abolish new avatars of disability based on sexual identity or orientation. The decision is also a reminder (not so much to India, but other less-enthusiastic jurisdictions) that a constitution is a living document, and its protections must be dynamically interpreted to apply to new situations and challenges.

2. In affirming privacy as a fundamental right under Article 21 (the Constitution’s guarantee of life and personal liberty) and invoking it to partially invalidate Section 377, Naz Foundation constitutes a bold revival of substantive due process reasoning that has been rarely used by Indian courts. Perhaps, in this respect, Naz is the Son or Daughter of Menaka because the former is an unmistakable progeny of the latter. (A better child than Varun Gandhi at any rate). For it was in Menaka Gandhi that the Supreme Court, fighting the real and imagined ghosts of Gopalan, endorsed the use of substantive due process to embellish the Constitution’s fundamental rights and freedoms.

In the thirty-two years since Menaka Gandhi was handed down, the Supreme Court has expanded the scope of Article 21 to discover a whole host of new rights, such as education, health, and shelter, in cases such as Unnikrishnan. However, most of those “new” rights are socio-economic in nature and are recognized in the Constitution’s Directive Principles. Moreover, the underlying cases (with the exception of Unnikrishnan) in which these rights were “discovered” did not require the courts to set aside or invalidate any central or state statutes.

If Naz Foundation remains undisturbed or is affirmed by the Supreme Court, it will be only third time -- by my reckoning -- that an Indian court has used substantive due process to discover a new civil and political right (privacy) and invalidate a statute for transgressing that right. The only other decisions to use substantive due process in this manner are Mithu, where the Supreme Court struck down Section 303 of the Penal Code for prescribing mandatory death sentences for life convicts who commit murder and Canara Bank, where the Court invalidated an Andhra Pradesh revenue law that compromised confidential banking information of customers. Rathinam, in which the Court invalidated criminal sanctions under Section 309 of the Penal Code for suicide attempts, also used substantive due process reasoning. But, as we all know, Rathinam was subsequently overruled by a constitution bench in Gian Kaur.

3. Naz Foundation abandons the Supreme Court's reticence about privacy in Kharak Singh, Gobind, and Rajagopal and forcefully asserts that there is such a right in Article 21's guarantee of life and liberty. While that itself is a noteworthy constitutional milestone, the Delhi High Court has gone even further by arguing that privacy concerns focus on “persons” rather than places. In so doing, the High Court articulates a unique non-spatial and portable understanding of privacy. This understanding seeks to liberate privacy from its traditional focus on protecting the sanctity of the home, bedroom, (or, perhaps, in this case, the closet). This subtle, but skillfully reasoned, aspect of Naz Foundation is its most attractive constitutional feature. I suspect that it is this feature that will ensure the case is cited for many years to come in courts and classrooms. I should say, however, that tomorrow I will quarrel with the high court’s reasoning and actual conclusion on this issue. So, this is only qualified praise.

4. I am especially struck by Naz Foundation's insistence on a strictly secular approach in adjudicating constitutional claims. It wisely avoids any reference to religious or moral dimensions, even though petitioners explicitly touched upon them in oral and written submissions (they argued that Section 377 was based on "Judeo-Christian" values). In this respect, Naz Foundation is strikingly different from other substantive due-process cases, such as Rathinam, its closest relative in some respects. In his rambling opinion in Rathinam, Justice Hansaria quoted extensively from religious and spiritual sources to support his thesis that the Constitution protects a right to die. By contrast, Naz Foundation is content with citing only the secular icons of our past, Nehru and Ambedkar. Their personal views on homosexuality remain publicly unknown, but their political philosophy would appear to tolerate it.

5. Unlike any other decision before it, Naz Foundation has the unique potential to diminish popular, but irrational, moral condemnation of stigmatized groups. Witness the headlines in the Indian press reporting the decision “It is ok to be Gay,” “Sexual Equality,” “Gay and Finally Legal,” and “Sexual revolution in India.” It is for this reason, perhaps, that my good friend, Lawrence Liang argues that Naz Foundation is India’s Roe moment. Indeed, the mass publicity and fanfare heralding the decision presents a rare opportunity for activists to reshape public opinion and influence a wider social debate about gay rights. This is especially important, as in the long run, gays and other disaffected groups cannot only rely on courts to advance their civil rights agenda. They must build new political coalitions and engage the legislative process.

6. Naz Foundation gives new meaning to identity politics in India. Dominant political and legal conceptions of identity focus on groups traditionally knitted together by religious, caste, or linguistic ties. By acknowledging the distinct status of persons, whose only common bond is sexual orientation, and addressing them as a collective (actually using the phrase "LGBT"), Naz Foundation recognizes the emergence of new social identities while carefully sidestepping lingering concerns about their elite roots and urban biases.

7. Finally, the decision bolsters the Delhi High Court's reputation for being India's most important constitutional court apart from the Supreme Court. In recent years, the High Court has produced some innovative decisions that push the boundaries of our constitutional jurisprudence. Two notable gems are Maqbool Fida Hussain v Raj Kumar Pandey, 2008 (6) Del. 533 (decrying misuse of obcenity prosecutions) Justice and Parents Forum for Meaningful Education v. Union of India, A.I.R. 2001 Del. 212 (affirming constitutional rights of children and outlawing corporal punishment in Delhi schools). Naz Foundation is the latest milestone in the Delhi High Court's impressive track record, and a demonstration that one does not always need to depend on the Supreme Court for constitutional salvation.

(This post, written entirely in my personal capacity, will be continued tomorrow).

Implications of Naz Foundation judgment

Today's newspapers have variously interpreted the Naz Foundation judgment. Among the analyses, at least two deserve mention. Manoj Mitta has suggested in his piece that the judgment will be applicable outside Delhi too, in view of the Supreme Court's judgment in Kusum Ingots v.Union of India case in 2004. The Court said in this case:

"A parliamentary legislation when receives the assent of the President of India and published in an Official Gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country. It is not so done because a cause of action will arise only when the provisions of the Act or some of them which were implemented shall give rise to civil or evil consequences to the petitioner. A writ court, it is well settled would not determine a constitutional question in vacuum.

"The court must have the requisite territorial jurisdiction. An order passed on writ petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act."


I hope Tarunabh will throw light on this issue, and whether he supports Manoj Mitta's interpretation. Specifically, I am curious to know what was the cause of action which arose in the Naz Foundation case, to confer territorial jurisdiction on the Delhi High Court.

The other viewpoint is, of course, that of Tarunabh in Economic Times under the section Face-off (Ironically both Tarunabh and Pramada Menon defend the judgment). Some of Tarunabh's ideas, I notice, have already been debated in the comments section of his previous post.

Update:: There are two more judgments after Kusum Ingots, and they appear to suggest that High Court's judgment cannot apply beyond its jurisdiction. These are:
Ambika Industries v. Commissioner, Central Excise
Durgesh Sharma v. Jayshree. Readers are welcome to further reflect on this vexed question.