Today, December 11, a two-judge panel from the Supreme Court of India found “legally unsustainable” the 2009 ruling by the Delhi High Court that had struck down India’s colonial-era sodomy law, Section 377. Justices G.S. Singhvi and Sudhansu Jyoti Mukhopadhaya issued an opinion that drew immediate protests from progressive elements of society in India, and provoked street demonstrations against the ruling in several cities. The attitude of the justices was most clearly expressed near the end of the lengthy opinion, when they referred to “the so-called rights of LGBT persons.”
Press reports anticipating the ruling had all assumed that it was going the other way, affirming the Delhi High Court, and the decision sent shock-waves through the LGBT community in India. An application for reconsideration will be filed, and since Justice Singhvi retired from the Court after the opinion was announced, such a rehearing would not involve him.
Although the justices produced a lengthy document, they actually had little to say directly about the grounds on which they were reversing the Delhi High Court. The opinion is inflated with lengthy quotations from legislative history of the nation’s sodomy law and prior decisions by the Indian courts, some of which, read on their own, would seem to have supported the lower court’s ruling. However, it was clear that the justices believed that the question whether consensual adult sex should be a crime was a political matter, not a legal question for the court.
The government had reacted to the 2009 ruling by deciding, after extensive cabinet debate, not to appeal it and to comply by refraining from prosecutions of private consensual adult sexual activity. But conservative sectors of Indian society, and especially some religious organizations, were outraged by the decision and mounted their own appeal, as seems to be permissible under Indian law. Oddly, by comparison to the “standing” issues raised by the U.S. Supreme Court in its recent consideration of Proposition 8 and the Defense of Marriage Act, in this case the only concern about standing given consideration was in whether the NAZ Foundation, an HIV prevention group that had filed this case in 2001, had appropriate standing to do so. Legal maneuvering around that question took up several years, until the Supreme Court ruled in 2004 that the courts should address this case on the merits and returned the matter to the Delhi High Court, which then took 5 years until it rendered its decision.
As to the merits, the court adopted arguments advanced by the defenders of the sodomy law claiming that the law itself was non-discriminatory and, that if it had been abused by prosecutors or unfairly applied in the past, that was not a problem inherent in the law itself. NAZ Foundation’s leading argument had been that the sodomy law was an impediment to effective governmental and non-governmental efforts to stem the spread of HIV, deterring gay men from cooperating with public health efforts and leading local law enforcement officials to interfere with efforts to distribute condoms and promote safer-sex practices. The other main arguments raised the kinds of issues that had persuaded appellate courts in other countries to strike down sodomy laws, such as the right of privacy, human dignity, and equal protection of the laws. NAZ Foundation argued that the sodomy law rendered gay men presumptive criminals in the eyes of society, targets for discriminatory treatment, harassment, and persecution by the police, and that this violated principles of human dignity that Indian courts had found inherent in provisions of the nation’s constitution.
Another key part of the argument was that the statute, adopted in its present form by the British colonial administration in 1860 and not altered when it was adopted as part of the Indian Penal Code after independence, was not an authentic expression of Indian culture but rather a ban imposed by occupying authority, as British rulers did throughout the Empire during the 19th century, and is inconsistent with modern conceptions of individual rights. The United Kingdom decriminalized consensual adult sex in 1967, and it was subsequently decriminalized by legislation or court order in the major English-speaking nations of the Commonwealth: Canada, Australia, and New Zealand. South Africa’s Constitutional Court struck down that nation’s sodomy law as inconsistent with the post-Apartheid Constitution’s protection for individual rights, including its specific ban on sexual orientation discrimination. Thus, NAZ argued, the law was an anachronism. Court opinions on its application in actual cases focus almost entirely on situations involving lack of consent or minors, bolstering the argument that there is no policy justification for retaining criminal penalties for private, consensual adult sex.
The court rejected the notion that the colonial origins of the law counted against it, finding that it had been affirmatively enacted as part of the Indian Penal Code. “After the adoption of the IPC in 1950,” wrote the court, “around 30 amendments have been made to the statute, the most recent being in 2013 which specifically deals with sexual offences, a category to which Section 377 IPC belongs. The 172nd Law Commission Report specifically recommended deletion of that section and the issue has repeatedly come up for debate. However, the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India has not thought it proper to delete the provision. Such a conclusion is further strengthened by the fact that despite the decision of the Union of India [the federal government] to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in the law. While this does not make the law immune from constitutional challenge, it must nonetheless guide our understanding of character, scope, ambit and import.” Thus, in the eyes of the court, Section 377, despite its colonial origins, is a legislative expression of public policy by India’s Parliament.
The court insisted that it is not “empowered to strike down a law merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose or its need” unless there was shown to be a “clear constitutional violation,” and here the court did not find such a violation.
The court rejected the argument that the Victorian-era wording of the statute — prohibiting “carnal intercourse against the order of nature” — did not offend modern concepts of due process of law because it had been given meaning through court interpretations. Although the court found that “no uniform test can be culled out to classify acts as ‘carnal intercourse against the order of nature,'” nonetheless it concluded that the provision “would apply irrespective of age and consent” and the court clearly rejected the idea that the statute, on its face, was an anti-gay enactment, asserting: “It merely identifies certain acts which if committed would constitute an offense. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.” Defenders of the law had argued that it applied even to acts between a husband and wife, and thus was not singling out any particular group. NAZ responded with the kinds of arguments that had persuaded courts elsewhere as well as the Delhi High Court, that despite this wording the law was generally seen and experienced as a ban on gay sex and a source of stigma focused on gay sexual orientation and transgender people.
But this did not persuade the court, which took the view that the constitution’s requirement of equal protection was not offended by the statute because it applied broadly to all instances or anal or oral sex, regardless whether it was being applied to same-sex or different-sex couples. “What Section 377 does is merely to define the particular offence and prescribe punishment for the same which can be awarded if in the trial conducted in accordance with the provision of the Code of Criminal Procedure and other statutes of the same family the person is found guilty,” wrote the court.
Actually, the Delhi High Court had not declared Section 377 to be facially unconstitutional, but rather it had held the law unconstitutional as applied to private, consensual adult sex, a process referred to in judicial practice of many British commonwealth countries as “reading down” a statute to exclude some of its possible applications because of constitutional concerns. The Supreme Court held that this process was not warranted for several reasons. First, it pointed out, “the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC.” Second, as noted above, it rejected the problem of vagueness, insisting that “prior application of the law must be considered.” Responding to the High Court’s concern about legislating morality, the Court specifically noted the dissenting opinions in Lawrence v. Texas, the U.S. Supreme Court’s 2003 sodomy law ruling, by Justices Scalia and Thomas, which argued that the legislature had a right to enforce its moral views.
Turning to the due process arguments, the court provided extensive quotations from prior cases that might be read as supporting the claim that Section 377 violated the “right to live with dignity” that had been recognized in those cases, but then rejected NAZ Foundation’s argument that Section 377 had deprived gay people of this right because it was “used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community.” The court’s response was that “this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section. It might be a factor for the Legislature to consider while judging the desirability of amending Section 377 IPC.”
The court criticized the lower court for its reliance on judicial rulings from other jurisdictions. “In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.” The court bolstered this assertion with quotations from earlier decisions pointing out that the distinctive history and culture of India lessens the persuasive weight of judicial rulings from countries with different cultures.
The court concluded that “Section 377 IPC does not suffer from the vice of unconstitutionality” and held the lower court’s decision to be “legally unsustainable,” but made clear that “the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IP from the statute book or amend the same as per the suggestion made by the Attorney General.” However, initial press accounts about the ruling uniformly expressed the view that the Indian Parliament was unlikely to take any action in response to this case. National elections are imminent, and the current government is unlikely to act on any controversial matters while it is focused on beating back a serious challenge by the more conservative opposition, which is widely seen as likely to gain ground in the Parliament, perhaps to the extent of replacing the current government. Thus, the government that had decided not to appeal the lower court’s ruling may not be in power much longer.