The 377 judgment is not about gay sex alone. It bans 'unnatural' sexual acts, irrespective of gender, age or consent.
The judgment in Suresh Kumar Kaushal vs Naz Foundation (Kaushal)
does not only criminalise "gay sex", as has been widely reported.
Undeniably, the judgment ignores the constitutional rights of millions
of LGBT Indian citizens (as opposed to what Justice Singhvi calls the
minuscule LGBT community and their "so-called rights"). However, Kaushal
criminalises certain sexual acts performed by same- and opposite-sex
couples that can be classified as "carnal intercourse against the order
of nature".
What are these acts, we may ask? According to the court, "the
acts which fall within the ambit of the section can only be determined
with reference to the act itself and the circumstances in which it is
executed". The court then refers to a series of cases that involved the
commission of these criminal acts. These include cases like R vs Jacobs
(1917), which deals with the commission of sodomy, and Khanu vs Emperor
(1934), which deals with carnal intercourse with a bullock. Further, the
judgment refers to a series of cases that relate to anal sex being
performed on young boys in Lohana vs the State (1968), Fazal Rab
Choudhary vs State of Bihar (1982) and Kedar Nath vs State of Rajasthan
(1985). Finally, the court referred to Calvin Francis vs Orissa (1992),
which involved forcing a six-year-old child to perform oral sex.
Justice Singhvi relies on these cases to conclude that the acts
that fall within the ambit of Section 377 "can be determined with
reference to the act itself and the circumstances in which it is
executed". The judges rightly reason that these cases all deal with
non-consensual and coercive situations. They observe that they "were
apprehensive whether the court would rule similarly in a case of proved
consensual intercourse between adults." However, they use this alleged
apprehension to conclude that it is difficult to prepare a list of acts
covered by the section. Strange, given that the precedent points to
coercive sex involving children or animals as being the problem, and not
simply acts of anal or oral sex.
However, it is not this flawed reasoning that is the biggest problem
in Kaushal. It is the next step that confounds. Despite accepting that
the cases pertain to coercive sex, the judge finds that Section 377 will
apply irrespective of age and consent. He goes on to say that the
section itself does not criminalise "a particular people or identity or
orientation. It merely identifies certain acts which if committed would
constitute an offence. Such a prohibition regulates sexual conduct
regardless of gender identity and orientation".
Kaushal has further missteps. The first pertains to
non-consideration of substantial and significant contentions made.
Justice Singhvi writes that the respondents did not furnish particulars
of harassment and assault of sexual minorities by public authorities.
This is a shocking lapse by the judge, since affidavits were filed by a
transgendered person, and a gay man from Delhi — both of whom were
gangraped by the police. These affidavits were read in a sombre
courtroom by senior counsel Ashok Desai. In addition, a reported
judgment, Jayalakshmi vs State (2007), which dealt with the rape of a
transgendered man by the police, was also part of the record. The Madras
High Court found that this was rape by the police, awarded compensation
of Rs 5 lakh and directed disciplinary action. Reports from civil
society actors that spoke to the harassment that gay and lesbian Indians
faced were also filed.
The interveners also filed compelling affidavits of parents of
LGBT children that spoke of the stigma and discrimination their children
faced in daily life. Justice Singhvi either neglected to consider the
evidence by way of affidavits that were adduced, or ignored them
altogether. Such non-consideration is a manifest error.
Then there is the judge's jurisprudential inconsistency. He
writes that the court must exercise self-restraint in judicial review
and that there should be a presumption of constitutionality of
legislation. The judge is right in citing these as general principles.
Yet, this has never been a barrier to finding unconstitutional that
which violates the protections afforded by our Constitution. This same
judge in Delhi Jal Board vs National Campaign for Dignity and Rights of
Sewerage and Allied Workers & Others, in 2011, declared that
"whenever the judiciary has issued directions for ensuring that the
right to equality, life and liberty no longer remains illusory... a
theoretical debate is started by raising the bogey of judicial activism
or judicial overreach". In this case, Justice Singhvi
upheld the Delhi High Court's orders providing free medical treatment,
compensation for occupational illnesses, provision of modern equipment,
soap and oil, restrooms, canteens and ex-gratia payments for deaths.
This judgment has other jurisprudential flaws, like a lack of
discussion of the violation of the rights to expression, life, liberty
and dignity. Its analysis of the violation of equality rights reflects a
poor understanding of the case law. It fails to engage any of the
contentions made by the respondents and the interveners.
Perhaps the Kaushal bench would have done well to remember
Jawaharlal Nehru's words of warning. In September 1949, speaking in the
Constituent Assembly, Nehru said that "unless and until the courts are
empowered and the courts are the final arbiters of the civil rights and
liberties of the people, I feel that if the legislatures alone are given
the power we are coming to a point where fiats of executive officers
will deny us our rights and this is very wrong".
By criminalising consensual sexual acts of adults in private
(which the Delhi High Court read out of the purview of Section 377), the
Kaushal bench did worse than what Nehru imagined. Instead of protecting
the rights of consenting adults, it chose to negate the decision of the
executive of not contesting the high court's judgment. The executive
stated that it saw no legal error in the decision and hence found no
reason to appeal against it. The attorney general categorically told the
court that his instructions were that the government has accepted the
decision of the high court. Strangely, the judgment ascribes to the
attorney general the role of amicus. This is blatantly wrong.
The final problem with Kaushal is that it is an exception to the
jurisprudence of the SC. From the banning of bonded labour in Bandhua
Mukti Morcha vs Union of India, to ensuring the right to healthcare for
suffering asbestos workers in CERC vs Union, to crafting guidelines
pertaining to arrest, custody and interrogation of the accused in D.K.
Basu vs State of West Bengal, the apex court has always expanded rights
and protected the historically disadvantaged and socially vulnerable.
Kaushal, by belittling the "so-called rights of LGBT persons", is the
exception to this jurisprudential trajectory.
But before Suresh Kumar Kaushal and his compatriots — the All India
Muslim Personal Law Board, Trust God Missionaries, Krantikari Manuwadi
Morcha and others — rejoice, they should be aware that this judgment
criminalises certain prospective acts of their members as well. It
criminalises all of us. It diminishes the constitutional promises of
equality, dignity and fraternity for and by all Indians.
The writer practices law at the Supreme Court of India. She represented filmmaker Shyam Benegal, an intervener, in this case.
