JURIST Guest Columnist Sujitha Subramanian of the Bristol University School of Law discusses the Indian Supreme Court’s decision to uphold the constitutional validity of a statute effectively criminalizing homosexual acts …

On December 11, 2013, ironically a day after the Human Rights Day, the Indian Supreme Court upheld the constitutional validity of Section 377 Indian Penal Code (IPC) that criminalizes anyone voluntarily having carnal intercourse against the order of nature with any man, woman or animal. In doing so, it struck down the 2009 Delhi High Court judgment [PDF] that had decriminalized consensual sex between adults in private.

Section 377 has been widely interpreted as specifically targeting the sexual orientation of lesbians, gays, bisexuals and trans-genders (LGBT) although it also applies to heterosexual couples engaging in non-procreative forms of sexual intercourse. Activists argue that the law forces homosexuals to live their lives in the “shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery.”

The law has its origins in 1860 in pre-colonial India. Though around 30 amendments have been made to the IPC since its adoption, Section 377 has remained unaltered despite the 172nd Law Commission Report (2000) recommending deletion of this provision. Indeed, the most recent IPC amendments were undertaken in 2013, following the infamous December 2012 Delhi gang rape case, but Section 377 was left untouched.

The first legal challenge to Section 377’s impact on homosexuals can be traced back to 1994, when the Delhi Tihar Jail authorities refused medical advice to supply condoms to its inmates in an effort to curb the spread of HIV/AIDS, allegedly because it had the potential to advance homosexual behaviour. In 2001, an NGO, Naz Foundation, approached the Delhi High Court seeking decriminalisation of consensual sex between adults because the legislation hampered HIV/AIDS awareness and prevention campaigns. The case was trigged by various incidents of arrest of homosexual persons, including activists of Naz Foundation that attracted negative media coverage exposing the conservative mind-set of the country.

The Delhi High Court delivered its verdict in 2009 decriminalising private sexual behaviour between consenting adults. The court held that Section 377 grossly violated the fundamental human rights to life and liberty that include the right to protection of one’s dignity, autonomy and privacy, as embodied in Article 21 of the Indian Constitution. The court found that though Section 377 appears to be gender neutral, it disproportionately impacts upon the homosexuals as a “class,” because it restricts homosexual orientation, which is an “innate and immutable characteristic” of a homosexual person. By criminalizing the identity of a person based wholly on the state’s moral disapproval of a specific class, the court held that the law violated, under “any standard of review,” the equality principles guaranteed under Articles 14 and 15 of the constitution.

The High Court rejected the rationale that Section 377 promoted majoritarian sexual morality as a “legitimate state interest” (Bowers v. Hardwick), and maintained that the law had originally sought to enforce Victorian notions of sexual morality that included only procreative sex. The court declared that the condemnation of non-procreative sex was no longer a legitimate state interest, as its objective was arbitrary and unreasonable, given that it criminalizes conduct that “fails to conform with the moral or religious view of a section of society.”

Hailed as a “well-researched and well-documented” verdict, the High Court order declared that “the sphere of privacy allows persons to develop human relations without interference from the outside community or from the State.” Seen as a verdict that stood out in the judicial annals of the country, the court declared that the Bill of Rights does not “confer” fundamental human rights, but merely “confirms” their existence.

In delivering this verdict, the court referred to global trends in the protection of privacy and dignity rights of homosexuals, enunciated by the jurisprudence of the US Supreme Court, the Canadian, European and other courts, literature and international principles (Yogyakarta Principles) relating to sexuality as a form of identity.

Though the then Law Minister did not assure amendment of Section 377, he clarified that the government would not appeal the Delhi High Court ruling on the basis that the pre-colonial legislation does not stand the “acid test” of the Indian Constitutional principles.

The High Court judgment was however appealed by various conservative individuals and groups, predominately Christian and Muslim organizations. As the government had clarified its position that sexual activity between consenting adults in private must be excluded from the privy of the section, there was a general expectation that the Indian Supreme Court was merely going to rubber-stamp the High Court ruling. As such, the Supreme Court ruling that Section 377 does not suffer from “the vice of constitutional infirmity” came as a shock to many and represented a major setback to LGBT rights in India.

The Supreme Court made it clear that it was empowered to declare as void any law inconsistent with the constitution, but felt bound to exercise self-restraint as the decision of the legislature to maintain Section 377 is a “manifestation of the will of the people through the Parliament” and must be favored with the presumption of constitutionality. Though the presumption of constitutionality does not in itself make a law immune from constitutional challenge, the Supreme Court held that the legislative decision to retain Section 377 has guided its understanding of the ‘character, scope, ambit and import of the legislation.” Unless a “clear constitutional violation is proved,” the Supreme Court refused to strike down legislation merely because it has fallen into disuse or because of society’s changing perceptions.

The Supreme Court declared that “those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the latter category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification.” Strangely, the court gives no indication on what would constitute ‘ordinary course’ as opposed to ‘order of nature’ and merely draws the conclusion that since the legislation envisioned Section 377 to apply regardless of gender identity and orientation, it was non-discriminatory, in that it does not criminalize a particular set of people, identity or orientation. In other words, as Section 377 criminalizes the sexual activity of both homosexual and heterosexuals, regardless of age and consent, it does not violate the fundamental principle of equality.

The Supreme Court criticized the High Court for extensively relying on foreign judgments in its “anxiety” to protect the “so-called rights” of LGBT persons that represented only a “miniscule fraction” of the country’s population. It held that the low number of reported cases of prosecution against LGBT community does not justify declaring the section ultra vires of the Constitution, thus ruling against the High Court’s reliance on the European Court of Human Rights’s Modinos which maintained that even a “consistent policy” of not bringing prosecutions under the law was no substitute for full repeal.

A verbose judgment about 100 pages long, with extracts from various judgments, the Supreme Court ruling taken on the narrowest possible grounds does not provide any substantive normative position or legal reasoning for its decision. The ruling is full of gaps and appears as arbitrary, because it merely dabs in broad-based principles of constitutional rights without engaging with the issue and simply points to the legislature to do the needful.

The judgment marks a surprising departure from the “activist” disposition of the Indian judiciary that the courts had adopted since the post-emergency period (1977-78). The Indian judiciary has generally embraced procedural activism (letters written to judges treated as petitions; courts can themselves take suo moto cognizance; rules of locus standi relaxed to allow anyone to move court on behalf of victims) and substantive activism (expansive views of fundamental rights) as part of Public Interest Litigations (PIL) [PDF], with an intent to reach invisible victims of injustice. Indeed, the concept of justiciability has been extended to go over and beyond compelling the state to do/or not do what is legally provided, to a position that the courts can assume the functions of the executive and legislature by encroaching in the field of policy making (right to education, policy against child labor etc.) and good governance (clear air in Delhi). Seen within the context of judicial activism, the Supreme Court views on Section 377 is a reflection of pre-colonial mind-set that has reintroduced into India the crudest form of discrimination and exclusion of sexual minorities: the criminalization of their identity.

Post-Script: The mal-application of Section 377 is indicative within the context of the recent on-going diplomatic incident between India and US where a former finance minister and MP has called for the arrest of same-sex partners of US diplomats in India. On the positive side, the Indian government has submitted a review petition against the Supreme Court ruling on December 20, 2013.

Dr. Sujitha Subramanian is Lecturer in Law at the University of Bristol Law School in the UK. Dr. Subramanian’s research interests include intellectual property and its interaction with innovation policy, international trade law and competition law in the EU and US.

Suggested citation: Sujitha SubramanianIndian Supreme Court’s Departure from Judicial Activism, JURIST – Forum, December 22, 2013, http://jurist.org/forum/2013/12/sujitha-subramanian-india-departure.php