Recriminalizing homosexuality—a requiem for NAZ

The Delhi high court judgment in 2009 on a petition by the Naz Foundation inaugurated a new constitutional discourse, populated with a vocabulary of inclusiveness, constitutional morality, a constitutional culture premised on human dignity and full moral citizenship, and an understanding of freedom and equality grounded in the lived experiences of citizens rather than on an uncritical acceptance of state rationality.

This discourse on freedom, equality, dignity and liberty compelled only one conclusion: criminalizing integral attributes of a person’s identity, such as their sexual orientation, was impermissible under a Constitution committed to ideas of equal human worth and personal autonomy.

The Supreme Court set aside this judgment on Wednesday, finding it to be legally unsustainable. The court reasoned thus: Section 377 of the Indian Penal Code prohibits “carnal intercourse against the order of nature”. This phrase has been interpreted by courts to include various types of sexual activities including consensual same-sex intercourse. Since the provision criminalizes more than same-sex intercourse (for example, it prohibits consensual oral sex between a man and a woman), the provision is not targeted at a particular identity or orientation. Therefore, it does not violate the right to equality of the LGBT (lesbian, gay, bisexual, and transgender) community.

At the same time, those who indulge in “carnal intercourse in the ordinary course” and those who do it “against the order of nature” are different classes. Treating different classes differently also does not violate equality. While Article 21 protects privacy and dignity, a provision cannot be held unconstitutional just because it is used to harass, abuse, stigmatize, discriminate against and perpetuate violence upon a “minuscule” minority.

Castigating the Delhi high court for its “anxiety to protect the so-called rights of LGBT persons,” the Supreme Court, in an uncharacteristic display of deference to Parliament, goes on to hold that while the law is constitutional, its desirability or propriety should be determined by the legislature.

The court gets the law completely wrong when it attempts to de-link discussions about the constitutionality of a law from questions about the law’s desirability or propriety. To pass the test of equality, it is not enough for the state to show that it has made a classification. Rather, the state has to demonstrate that the classification had some rational nexus to a legitimate object or purpose. Otherwise, for example, a law that classifies and excludes people from access to public services on the basis of their height or the colour of their eyes, would meet this very low threshold of equality.

The court engages in no discussion whatsoever on what is the object of this classification between persons who engage in “carnal intercourse in the ordinary course” and those who do it “against the order of nature.” No reflection takes place on the link between the classification and the purported object of the law, whatever that object might be.

Similarly, though the right to privacy and dignity may be overcome in case of compelling state interest, the court is completely silent on the state’s interest in criminalizing consensual sexual acts between adults. The court, therefore, creates a spurious dichotomy, going against six decades of its own constitutional history, when it pretends deference to Parliament on this issue. More importantly, it goes against its constitutional duty to protect rights expressly enshrined in Article 32 of the Constitution. Therefore, when the court passes the buck to Parliament, it is not exercising restraint, but abdicating constitutionally mandated responsibility.

More disturbingly, the reasoning of the court betrays the mindset of a ruling class intent on imposing its will on a subject people. Democracy is unworkable without accountability to citizens and without a culture of justification for exercises of state power. In presuming the constitutionality of all laws, even colonial legislation like the present one, state rationality is taken for granted, and the burden is on those who challenge the law to provide justification for questioning state power. The court never calls upon the state to explain its rationale for intrusions into the most intimate decisions of personal life.

On the other hand, it takes the petitioners to task for not providing enough evidence of the discrimination faced by LGBT people because of Section 377. Paradoxically, however, when such evidence is provided, the court dismisses the impact of the law on the everyday lives, experiences and realities of LGBT persons, and privileges instead the absence of any demonstrated discriminatory intent by the state, in deciding the question of constitutionality.

The court also holds that Section 377 only criminalizes discrete sexual acts and not the identities of LGBT persons. The court’s framing of the act versus identity dichotomy is so disconnected from the lives of those it seeks to regulate, that it fails to appreciate that a person’s sexual orientation is not just a series of discrete acts, but a way of being, an integral part of one’s identity.

In disregarding how the law is implemented and experienced, the court misses nuances of the politics of gender and sexuality that transform these individual acts into markers of social and political identity of the actor. In seeking to preserve the law through these specious distinctions between legality and legitimacy, and act and identity, the judgment reveals an impulse to protect the state against questioning by those it rules, rather than to safeguard citizens against excesses by the state.

The Delhi high court judgment affirmed the equal worth and dignity of each human being. The Supreme Court derides the high court for striking down a law that affects only a “minuscule fraction” of the population. Contrary to the apex court’s understanding, however, this is not a judgment about a minuscule minority. This is a judgment about the constitutional commitments of a billion plus people, and about the notions of equality, freedom and dignity that should inform our political and social lives. While presenting the draft constitution before the Constituent Assembly, B.R. Ambedkar remarked, “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic.” The Supreme Court has proved him right.

The author is an assistant professor at National Law University in Delhi.