The Unbearable Wrongness of Koushal vs Naz Foundation

If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations… Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination. This was the ‘spirit behind the Resolution’ of which Nehru spoke so passionately.”

– Naz Foundation v NCT, Delhi High Court, July 2009

Today, in Koushal v Naz, the Supreme Court decides that the above paragraph is constitutionally untenable. It holds that S. 377, IPC is constitutional, and that homosexuality is a criminal offense in India. In so doing, it overturns a closely-reasoned Delhi High Court judgment from 2009, from which the State did not even appeal. The Supreme Court tells us that our Constitution, whose Preamble proclaims a commitment to equality and justice for all, whose Bill of Rights has three specific Articles dedicated to equality and nondiscrimination, nonetheless relegates Indians to second-class citizenship on the basis of their sexual orientation. And in so doing, it flies in the face of international law, the dicta of respected human rights instruments such as the ICCPR and the Universal Declaration of Human Rights, and puts India in the company of countries such as Somalia, South Sudan, Yemen and Saudi Arabia. It also upholds a law that was passed by a British colonial legislator seeking to enforce Victorian-era morality upon a subject population that had no say in it. And it perversely tells a minority to take the case for protecting its rights to the most majoritarian institution of government, the parliament.

All of which might be justifiable if it was even remotely supported by constitutional reasons. It is not. The result is a travesty, and the reasoning is farcical. Before getting into that, however, it’s important to clear up a fundamental point: this judgment is likely to be presented – and discussed – as an issue of judicial restraint and separation of powers, because it holds the matter ought to be decided by Parliament. That, however, is a smokescreen for the real issue: does the Constitution – in particular, Articles 14, 15 and 21 – prohibit discrimination on the basis of sexual orientation? If the Constitution does do so, then S. 377 is unconstitutional, and there is no question  of judicial restraint, and no space for arguments that the legislative forum is the appropriate sphere for this. Article 13(2) of the Constitution could not make this clearer:

“The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”

For example, if the Parliament made a law today that banned all newspapers from reporting on political issues, no Court would ever hold that that was “a matter for Parliament to decide.” They would strike it down for violating a Constitutional right  – Article 19(1)(a). The basic issue, therefore, is about the existence of a constitutional right that protects homosexuals from discriminatory legislation. To frame this as an issue of “restraint”, and argue that the Court was operating on the principle of judicial restraint is deeply misleading.

The right at issue can be found in at least three articles.

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” (Article 14)

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” (Article 15)

“No person shall be deprived of his life or personal liberty except according to procedure established by law.” (Article 21)

Let us briefly recall the reasons that the Delhi High Court had given in its judgment. Article 14 permits class legislation only if there is an intelligible differentia between the classes, a rational nexus with the objective of the legislation, and the constitutional validity of the objective itself. The State’s reasons for retaining the law were health – it would prevent the spread of AIDS – and enforcing public morality. The Delhi High Court found on fact that there was no connection between homosexuality and public health (in fact, quite the opposite), and it held that the only morality that the State was permitted to enforce was found within the four corners of the Constitution – Constitutional morality, derived from the text, the structure and the philosophy of the Constitution itself. On Article 15, the Court held that “sexual orientation” was a protected category, contained within the term “sex“. And on Article 21, the Court held that the right to privacy – incontestably an aspect of personal liberty, as upheld by a string of decisions – could only be restricted by showing a compelling state interest. Here, the State had shown none.

What does the Supreme Court say about this? The answer is, very little. The core of the reasoning of the Court is found in paragraphs 42 and 43:

“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 later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. 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 provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty. Therefore, the High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution.

While reading down Section 377 IPC, 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 and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.”

Pause for a moment and take this in. First, the Court says – without an iota of evidence – that there are two classes of persons – those who engage in sexual intercourse in the “ordinary course”, and those who don’t. What is ordinary course? Presumably, heterosexuality. Why is this ordinary course? Perhaps because there are more heterosexuals than homosexuals around, although the Court gives no evidence for that. Well, there are also more black-haired people in India than brown-haired people. Is sex with a brown-haired person against the order of nature because it happens less often? But forget that. Where is the rational nexus? What is the legitimate governmental objective? Even if we accept that there is an intelligible differentia here, on what basis do you criminalize – and thus deny equal protection of laws – to one class of persons? The Court gives no answer. Alternatively, “ordinary sex” is penal-vaginal, and every other kind of sex is “against the ordinary course of nature”. Again, no evidence to back that claim up apart from the say-so of the judge. There is only one possible justification, which the Learned Judge briefly cites before – that in defining an offense, the Court is not indulging in class legislation at all, but only in prohibiting action (presumably to get around Article 15), but here he has already rejected that argument by admitting that there is class involved. And if there is class involved, then the government needs to show rational nexus and legitimate objective! 

The Court then makes a truly bizarre observation, holding that because only 200 people have been prosecuted, there is no discrimination. Two hundred people. Suppose the State randomly catches hold of 200 people and shoots them dead. This, according to the learned Judge, would not be an Article 21 violation because, well, it’s just 200 people. Our Constitution does value human life – but only when it’s more than 200 people. Remember that.

Notable is the Court’s blanket refusal to consider Article 15. If there is class involved – and the Court admits there is – and if homosexuals necessarily engage in sexual intercourse against the order of nature – then by criminalizing that act, there is discrimination on the basis of sexual orientation. The question is whether that attracts Article 15. Article 15 prohibits discrimination on a number of grounds: religion, race, caste, sex and place of birth. With the possible and partial exception of religion, what unites these features is that they are all essential aspects of any individual’s private and public identity (by public personality, I mean a series of labels used by the society to identify her and differentiate her from others) that she is born into and is powerless to choose or change. To this we can add Article 16(2) (prohibition of discrimination in employment on similar categories); Article 17 (prohibition of untouchability – discrimination on the basis of birth); and Article 18 (abolition of titles – advantages (a form of discrimination), normally on the basis of birth). Let us – summarily – call this the “non-disrcimination principle”.

Now let us consider Articles 19 and 25. Article 19 guarantees the freedom of speech and expression, assembly, association, movement, residence and profession; each of these freedoms, it can hardly be disputed, are fundamental for two reasons: first, they are essential expressions of individual (and, for that matter, communitarian) personality; in the words of Justice Kennedy in Planned Parenthood v Casey:

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life…. people have organized intimate relationships and made choices that define their views of themselves and their places in society.”

Secondly, as Dworkin puts it, these freedoms ensure that every citizen of the polity is provided the opportunity to contribute towards shaping the moral, cultural and political environment that she finds herself in – and that that, in turn, is the very essence of government according equal respect and concern to all its citizens. To this we add Article 25, that guarantees the freedom of conscience and religion (and further, the entire scheme from Articles 26 to 30); and indeed, arguable the two most important freedoms within this set (speech and conscience) are not limited by public interest concerns. Let us summarily call this the “autonomy principle”.

We are now in a position to understand why not only the Delhi High Court’s reading of “sexual orientation” into “sex” was not only correct, but the only possible correct decision. Our Constitution is structurally committed to a two-pronged principled attitude towards individuals: freedom in those matters that are related to the most fundamental expression of one’s humanity and personality (autonomy principle); and no discrimination on the basis of aspects of private and public identity that a person is born with and into (non-discrimination principle). And these principles stem not from any one provision, but a combination of Articles 14, 15, 16, 17, 18, 19, 25 and 26 to 30.

Can anyone seriously deny that sexuality is integrally – and centrally – consistent with both these principles? Constitutionally, therefore, there is no warrant for the Supreme Court to interfere with the judgment of the Delhi High Court; a contrary opinion would imply that our Constitution is committed to the non-discrimination and respect principles (as discussed above) – but in an entirely insupportable, capricious, arbitrary and unprincipled fashion, withholds that commitment from homosexuals. That certainly cannot be the Constitution we live under, or the Constitution to which we owe our allegiance.

And lastly, Article 21 and the right to privacy, expressly upheld in Gobind to include family life, and in Kharak Singh to require a compelling State interest in case of interference. Search in the judgment for an analysis of Article 21. You will find none. This is not just bad constitutional law. This is no constitutional law. 

The Court tells us today that our Constitution guarantees all citizens the equal protection of laws – but withholds that protection from homosexuals. The Court tells us today that our Constitution prohibits discrimination if you’re born a certain gender, or a certain caste, or a certain religion – but not if you possess a certain sexual orientation. The Court tells us today that we all have a right to privacy in our personal lives – but not in our choice of whom to love. Is there any conceivable constitutional principle that justifies this, the unbearable wrongness of Koushal v Naz Foundation? 

Every once in a way, the highest Court in the land delivers a judgment that is both constitutionally preposterous, and morally egregious. Dred Scott v Sanford, where the American Supreme Court held that Blacks could never be citizens of the United States is a famous example. Plessey v Ferguson, where it held that segregated schools were constitutional, is another. In our own jurisdiction, Habeas Corpus, holding that fundamental rights – including the right to life – were inoperative during an Emergency, is a third. Yet we have seen that the arc of constitutional history has bent towards justice and equal citizenship; Dred Scott, Plessey and Habeas Corpus stand out as moments of deep national shame, blots on the judicial record, examples par excellence of judges at their very worst. And they have all been overruled. We can only hope that soon enough – whether by way of review or legislative action – Kaushal v Naz will join them upon the rubbish-heap of constitutional history.

50 thoughts on “The Unbearable Wrongness of Koushal vs Naz Foundation

  1. Very well written as usual Gautam.
    “In fact a constitutional duty has been cast upon this Court to test the laws of the land on the touchstone of the Constitution and provide appropriate remedy if and when called upon to do so”
    He says this and proceeds to contradict himself.

    Plus, he says that there is no ‘proof’ of persecution of the LGBT community. An action punishable by RI will not deter the LGBT community from approaching health authorities in cases of STIs and HIV? Threat of violation of rights is also included in Article 32. I could go on and on. The worst thing I have read in ages. Embarrassing. Anyway, since the decision is so badly written, there’s almost no point in even engaging with it. No law versus bad law as you rightly said.

    The only part in your note I have some reservations about is the part about being ‘powerless to choose or change’ sexual preferences. I know that this is the dominant medical and social position. However, I feel too much is made of the rigidity and innate and immutable nature of sexual preferences. Since I am not a doctor I suppose I cannot comment authoritatively on this. Admittedly there is valid medical literature that supports your view. My point is that even if sexuality is fluid (as some do argue it is, particularly with respect to bisexual individuals) it shouldn’t matter. It should still not leave individuals vulnerable to abuse because it is a choice and it can be changed. Even if sexual preferences are a choice, they are an extremely valuable choice and everyone should be free to make these choices. You do refer to this in the context of your autonomy argument. I sometimes worry that the notion of rigidity of sexual preferences does disservice to the LGBT cause. Anyway, that’s my two pence on this. Cheers.

    • So, I thought long and had before making that argument, and I finally decided to make it because it seemed to me that that was the principle the Constitution embodied. I agree with you entirely – identities, including sexual identities are fluid, and the best feminist legal thought always warns us to treat the like a continuum, and not like two hermetically sealed categories. And I also agree that ultimately, we need to move towards a society that dissolves these categories, instead of ossifying them. But I think that, paradoxically, the way to do that might just be actually using them as means to remedy historical injustices, achieve at least a certain kind of parity, and *then* work to dissolve them altogether.

      • It always irks me when anyone makes the point of sexual preferences being a choice. In my experience no LGBT person has asserted this. For if it truly were a ‘choice’ why would anyone choose to be so radically different, suffer prejudice and bigotry from adolescence onward, be denied of your basic human wants and needs, and consequently decide to live a lie- as most in this country still do? Sexual desire is something one does not have control over, for the most part. (I do know it is more nuanced than that, but this statement is generally accurate.) Men cannot willfully or consciously choose what arouses an erection in them, it is out of your control. I imagine women don’t have much of a choice in the matter either. As the first poster said plenty of studies support this view. Of course, desire must not be conflated with sexual behaviour and actions which often do change, and which oftentimes may not even correspond with veritable inner desires- for example, millions of Indian gay men marry women persisting in a closeted existence due to societal attitudes but their orientation remains homosexual even if they are able to perform- function-sexually with the opposite sex. Another reason I find the notion of choice problematic is that it can just as easily be flung back in your face by those on the political right to say that if it is indeed a ‘lifestyle choice’-which it is not; it is rather a lifestyle choice born of desires one cannot control-then make the choice to be heterosexual! This is why I feel definite political sexual identities are important in that they take a stand. I agree with Gautam that once that stand has made an actual dent on laws, and with the passage of time on majority attitudes, then you can debate aspects of fluidity et al, as has been the case in the evolution of gay rights in western countries.

        And yes, great article!

      • Sidhartha – for some reason, I’m unable to reply to you directly. Thanks for your comment – I confess that I hadn’t thought about how the choice argument could be used politically as a tool for repression by labeling it a “lifestyle choice”. And I agree that sexuality isn’t something you choose, like you would choose a pair of clothes. I guess my point was more along the lines of how sexuality is a blurred concept, much like race, and that our ultimate objective should be to celebrate that instead of cabining ourselves into heterosexuals, homosexuals and bisexuals (or LGBTQ+, for that matter). But that, I suppose, is a couple of centuries away, and there are many battles to be won before that, which can only be won by emphasizing – and not diluting – identity.

      • Thank you for your reply Gautam. While I am in broad agreement with you, I am availing of this opportunity for further debate on this point. This may come across as nitpicking, if tangentially relevant, but I feel it offers additional non-legal insight on the subject.

        1. Having read a lot on queer identity & having conducted interviews with many gay/bi men, it is my belief that male sexuality tends to be more rigid and hardwired than does its female counterpart. When we speak of sexual fluidity in the behaviours of men, what is really at work is not a real “change of orientation” but rather a late expression of hitherto suppressed and/or unexplored latent desires that were likely always present but not acted upon. (As to how different female sexuality is on this point I shall not venture to comment.) Delayed action on inner desires- regardless of where one’s desires falls on the Kinsey Scale spectrum- can, at least in part, be attributed to the internalization of societal norms and values which are invariably homophobic. Again, I stress on the importance of distinguishing desire and attraction from behaviours. For e.g.- Indian cities are teeming with seemingly hetero men who yet sleep with other men for money, even though they feel no real ‘attraction’ to the same sex. If the incentive of cash is taken away there is no reason for them to indulge in such acts. Sec. 377 would thus impact such hetero men only in so far as these liaisons furnish their incomes, but effects the very fundamental right of sexual expression and identity of true homosexuals and bisexuals. The same argument applies, albeit in a more blurred way, to cases of homosexual acts of ‘gratification’ between not-necessarily homosexual/bisexual men in boarding schools, prisons etc.)

        2. While labels of sexual identity such as gay, bi, straight or queer are undoubtedly relatively recent and western constructs, these avatars have been so readily adopted because they serve a purpose: they protect those who most closely identify and relate to these labels by combining strength under a wider umbrella, bestowing a collective group identity. They encourage other like-minded folk to ‘come out’ and join the group, building a socio-political base for themselves, not least a sense of commonality and brotherhood that ultimately, deep down, stems from an all too real ‘difference’ from the mainstream. And that difference needs protection, highlighting and emphasis, not obscurantist theories on fluidity which can be used to undermine the celebration of diversity in sexuality.


        So this article is the most recent article I have read about the fluidity of sexual preferences. I find it problematic when one says ‘why would someone chose to be gay?’ This implies that the LGBT lifestyle is in someway inferior merely because it is not majoritarian. Admittedly, it is a difficult lifestyle in the context of a conservative culture but that is not the indicia of the value, worth and beauty of a lifestyle. It would be tantamount to saying ‘Oh why would you chose to not marry (and instead have a long term sexual relationship) when most people marry?’ or ‘Why would you chose to not have children when most people do and you biologically can?’ Both the choice to not marry or the choice to not have children is also a denigrated choice in some conservative societies. Nonetheless, these are valid choices about how to live one’s life and one needn’t assert their innateness to make these choices acceptable to society. In any event the law has no reason to criminalize these choices. I suppose Siddharth’s argument is that a ‘lifestyle’ choice implies that it is in some ways frivolous or inconsequential. I would disagree. As Dworkin has stated, some foundational beliefs that individuals hold about how to lead their lives are extremely important even if they are ‘choices’. For example, vegetarianism and Pacifism are also lifestyle choices but that doesn’t make them any less important to an individual and the State has no business interfering with these valid and often valuable choices. In fact the State actively protects these choices as in the case of conscientious objectors etc.

        There is also an interesting movement of non assimilation of gay culture into majoritarian heterosexual culture. I have gay friends who resent gay marriage because it assimilates their gay culture to the heterosexual normative standard. It constrains them to accept a form of monogamous union with their gay partner to assert the ‘success’ of their marriage despite the fact that some gay movements have accepted a more polyamorous approach to sexual relationships. Therefore, as to the question of what is the best ‘strategy’ to adopt to have the right wing parties accept LGBT individuals, I find this disingenuous. Who cares that it may be easier for conservatives to ‘accept’ homosexuality if the LGBT community asserts it had no choice in its sexuality? It is not the burden of the LGBT community to have their sexuality accepted by heterosexuals by couching it in terms most acceptable to heterosexuals and conservative sections of society. Perhaps sexuality is innate and not a choice, perhaps it is (and this isn’t a preposterous argument since there is evidence along these lines too), it shouldn’t matter either way. I remember Raz on the value of plurality, there is great worth to different lifestyles in a democracy.

        (Sorry for a very long and somewhat rambling comment by the way. Long day and all that. :))

      • Neha’s latest reply on this thread has thrown up the very problems I previously alluded to. The irony is that she’s extremely broadminded and progressive. (However- I feel, given the socio-political reality, over-broad mindedness is also unhelpful as it can unhinge you from the hard reality of majority socio-political attitudes on sexuality, not least the ‘innateness’ of homosexual desires for the vast majority of those who self-identify as gay or bi.)

        The fact is the overwhelming, vast, vast majority of LGBTQ+ people-myself included- don’t “choose” their lifestyle; it is innate and intrinsic to who and what they are. It is as much a part of our person, our essence, and as out of their control, as being born with blue eyes is for a blue-eyed boy. Studies on brain structure and hormonal effects during fetal development have been shown to bear a strong correlation/influence to the incidence of homosexual orientation. While environmental factors have also been put forward as causes, these usually rest on shaky ground and are often contradictory. I concede the flaw in my argument is the lack of incontrovertible scientific evidence supporting my stance. I can only hope that that day is near too as it will only assist in the global fight for gay/bi rights.

        I can understand where you’re coming from Neha. I don’t deny that fluidity exists, much less bisexuality. I also appreciate the view that sexuality is too rich and blurred a field to slot up into neat brackets- albeit for “some people”. I say some people, seeing as what we refer to as fluidity is more often than not a delayed expression of desires that were likely already present but not acted upon as the external environment was inhibiting (as I said in my previous post). What you seem not to appreciate is that by stressing on fluidity you’re unwittingly minimizing how ‘primal’ and real homosexuality-as a desire and identity-is to the overwhelming majority of people who self-identify as gay/bi, both men and women.

        You know there is a reason that gay teenagers commit suicide. It is because they are unable to reconcile their inner selves with their family’s and peer’s expectations of them. They are sick of the fear and bullying, of the total inability and impotence to conform to society’s expectations of them. Nearly all gay people-no matter where they are-have at some point, if not throughout their lives, had to maintain the charade of attraction to the opposite sex with both friends and family. Of living a lie- for short period or whole lives, day in and day out. Of living dual lives-one for public consumption and one for yourself. Of hiding who and what you are for fear of the ramifications, which can sometimes be deadly. Of being on constant guard of what you say, how you say, and to whom you say for fear that someone will call you a fag or out you. These are only some of the multifarious and numerous factors that propelled the LGBT rights to gather themselves in a political base and identity stemming from their real ‘difference.’ I don’t blame you for not fully understanding this as you’re not gay yourself. If you were you would not be saying some of the things you have.

  2. Amazing analysis, and very lucidly written. I have only one suggestion. While I understand that the categories in Article 15 can be generalised as those that a person is ‘born with’, in order to read Articles 14 and 15 to constitute the ‘non-discrimination’ principle, shouldn’t the basis of prohibited discrimination be wider than what one is ‘born with’ and be what one ‘does not have a control over’ (which would include being born with something)? A probable example of a basis of discrimination which one might not be born with but possess without choice could be physical or mental disability.

    • That’s a great point. I do worry, though, about the textual hook for including disability within the contours of 15. I wonder if disability might be better understood as a question of 14…

      • Yes. I meant to include it within the ‘non-discrimination principle’ as you have discussed in your post. Not specifically within Article 15, because the textual limitations may even make the interpretation given by the Delhi HC of ‘sex’ as sexual orientation as arguable. However, as a matter of constitutional principle, Articles 14 and 15 in abstract form, may be understood in a way that I mentioned in my comment.

  3. I’m not sure what the normal approach is, within Indian jurisprudence, to the meaning of words within the constitution but I am somewhat surprised that Section 15 could be read as providing protection for homosexual couples.

    I’m also not sure what I think of the American tendency to invent general rights in the Constitution and then to apply them. It might be that it is a good way to promote social change, however I worry that it takes power away from the democratic branch of the government and instead focuses it in the judiciary.

    • Sorry, I just noticed this. Your point about textual fidelity is well-taken. I don’t think, however, that reading sexual orientation into sex is necessarily invention. It is a creative form of interpretation, no doubt, but as I’ve tried to argue, an interpretation that takes into account structure and history in addition to the text, would be able to justify it.

  4. Enjoyed reading both your posts. Still left with one niggling doubt though and I’m wondering why noone’s brought it up post judgment. How could the court have found jurisdiction under art. 136 in favour of private party appellants given its own view in Sadhanantham v. Arunachalam by a constitutional bench, no less? Besides, when the state (the exec in choosing not to appeal and the legislature in choosing not to legislate away the HC decision) concedes unconstitutionality, where’s the question of the presumption of constitutionality?

    Is there something I’m missing? The only thing I can think of is that the respondents Koushal didn’t advance submissions on standing (per the judgment at least) but some of the notes of the proceedings that are available indicate that the question was raised during arguments.

  5. (my second question was in recognition of the fact that BP Singhal and Joint Action Council were parties before the HC as well)

  6. I was reading this interesting debate that followed the article. And I loved all the comments. However, I disagree with Siddharth that by referring to sexual fluidity we weaken the case for LGBT community. Our stress should be on individual freedoms and rights. I am a gay man, a doctor, and have worked with LGBT community extensively, especially ones who are poorer and less educated. And I have come to understand that people exist on the whole spectrum of gender identity and sexual fluidity. What comes to the fore and the ones who argue most strongly are usually the ones who are one end of the spectrum. There is a selection bias there. So I wouldn’t discount men and women who go back and forth with who they ‘choose’ or like having sex or romantic alliances with. Again, our stress shouldn’t be on whether or not it is a choice but that the state or the society has no business interfering in an individual’s personal choice.

    • Varun, thanks for your comment. I think Gautam appreciated the import of my stance more than you and Neha have done. The reason those nearer the gay-end on the Kinsey scale come out most stridently is that they have been the most harshly and severely affected by prejudice, seeing as they are typically the most easily identifiable for their different countenance and demeanour. They are the minority within the minority. The conspicuous scapegoat who have the most to lose, and have been vilified the most- at times by other gay/bi people-closeted or not- who think of themselves as “straight acting”. People who are truly gay-i.e. at the end of the spectrum-can’t really “choose” to be attracted to the opposite sex as someone with more bi leanings can. (You I hope will agree with me on this point as you say you are gay yourself.) There is no choice. Like I said, it really is as innate as the colour of your hair or eyes. It is who and what you are.

      That, for some others, sexual desire is more fluid is neither here nor there since, as per your own views, the more sexually fluid individuals can always take cover under the more socially accepted hetero identity-as most invariably do in practice-thereby escaping the worst brunt of prejudice; leading dual, outwardly hetero, lives. Those who are genuinely bi and have not experienced being singled out and picked on for who and what they are, will have a lesser, or virtually no need or incentive to openly come out forging a group identity as would people who are unambiguously gay. (This is not just an Eastern/Western dichotomy; the Hijra community was created by those who happened to fall at the end of the gay spectrum.) The most definitely gay people are also the ones who have across the global spectrum organised themselves politically into full-fledged identities of gay, trans and with good reason- which is that there is a real commonality and a close affiliation arising from shared experiences and desires that reveal palpable ideological differences to mainstream heterosexual culture and identity, into which they cannot so seamlessly slip in and out of, as perhaps more bisexual oriented folk can and do. The birth and development of what we now commonly refer to as ‘gay culture’ in western countries is a product of the very freedom that the gay community has earned by coming together as just that- a community with a shared identity, and fought hard to preserve it. They don’t have the option of retreating into a closeted, unprotected identity projecting themselves to the world as heterosexuals for, again, they are the ones who have been bullied since childhood or puberty for being effeminate (in the case of boys), or masculine (in the case of girls), and so forth, and are unable to cope with the pressures and expectations of conforming to mainstream identities; also continually borne the worst form of bigotry from, frustratingly, people who can’t understand them and keep telling them to make the right “choice”. (Think of a scenario where a bi man married to a woman enjoys occasional dalliances with other men which he does not tell his wife of. Why would someone like that want to expose himself to any prejudice and inconvenience by coming out openly? In fact, I would argue, he has a bigger reason to remain closeted for the sake of his marriage and family life, which I am assuming he enjoys. These options are unavailable to those who are completely gay!)

      Refer to fluidity all you like in the academic sense, I have no problem, but by bringing it into the sphere of LGBT politics and rights which thus far is only in its fledgling stage, particularly in this country, you risk washing over and obfuscating hard-won labels of LGBT identity. Those identities came into being for the simple reason that these appropriately and adequately characterized the camp within which gay people living within it found and continue to find comfort. Those who choose to stay out of the camp should perhaps stay out, but don’t ruin it for the others on whom it bestows shelter and protection in this harsh, harsh world.

      • This is an excellent piece Gautam. I really enjoyed reading it.

        Initially even I was stuck at this point of jurisdiction. But I think that Vikram Raghavan’s incisive analysis on the issue of locus standi will not apply in this case.

        Recently, I had the opportunity to look into the nature of the jurisdiction exercised by the Supreme Court of India under Article 136 of the Constitution of India. I must admit that I was surprised by the wide ambit of this jurisdiction. There are some very interesting decisions of the Supreme Court on Article 136 of the Constitution of India.

        The first one is obviously Arunachalam Vs. PS.R. Sadhanantham, (1979) 2 SCC 297 where the only issue was whether a private party, as distinguished from the State, can invoke the jurisdiction of the SC under Article 136 of the Constitution of India to assail an order of acquittal passed by the High Court. The SC held as under:

        “Article 136 of the Constitution neither confers on anyone the right to invoke the jurisdiction of the Supreme Court nor inhibits anyone from invoking the Court’s jurisdiction. The power is vested in the Supreme Court but the right to invoke the Court’s jurisdiction is vested in no one. The exercise of the power of the Supreme Court is not circumscribed by any limitation as to who may invoke it.”

        Another very interesting decision is E.K. Chandrasenan Vs. State of Kerala, (1995) 2 SCC 99. The issue was whether the Supreme Court can issue a suo motu rule on enchancement of punishment to the SLP Petitioner when no separate appeal was preferred by the State for the same? The Court, replied in the affirmative, and held that the Court’s jurisdiction under Article 136 is plenary in nature. So, one can be worse-off by filing a Special Leave Petition in the Supreme Court in a criminal matter. Such is the extent of the Court’s jurisdiction under Article 136.

      • Shiven, in Sadhanantham vs Arunachalam, AIR 1980 SC 856, the petitioner challenged the holding in Arunachalam v. Sadhanantham under Art. 32, as regards the right to file a private appeal. Even though they dismissed the petition, the concurring judgment in that case had said that while standing under Art. 136 must be wide, the private party’s appeal must be heard if a) a question of public interest is at stake and b) the state has refrained from appealing on grounds lacking bona fides. These restrictions are necessary to keep in mind even as we understand Art. 136 to be a plenary power of the court.

      • Varun, Sidhartha and Neha – thanks a lot for this discussion – I’ve learnt tons already. I think, for me personally, the bottom line is this: whatever my own views on the issue, ultimately, empathy can take you only so far. As Lady Hale has said so often, both on the Court and off it – the last word must be left to those who have personal experience – that is, the LGBT community. And if there are disagreements within the LGBT community – as there must be within any diverse and heterogenous set – then that only goes to show that there is a thriving dialogue within. What we must do, I think, is to ensure that where the lines aren’t blurred – where something is clearly wrong and discriminatory, like Koushal vs Naz – we come out all guns blazing in support of the LGBT community. Beyond that, it is for them to define themselves in the manner they think is most conducive/principled.

  7. No lecture by Prof. Errabbi on whether judiciary is State under Article 12 of the Constitution was complete without a discussion on Sadhanantham vs Arunachalam, AIR 1980 SC 856. It is extremely interesting to note that despite Mirajkar’s decision being very unequivocal, the SC constituted a Bench of 5 judges to address an important point of constitutional law in Sadhanantham vs Arunachalam on whether the decision by the two-judge Bench led to a violation of fundamental rights!
    The judges who concurred (Pathak & Koshal JJ) held as under:
    “We think that the court should entertain a special leave petition filed by a private party, other than the complainant, in those cases only where it is convinced that the public interest justifies an appeal against the acquittal and that the State has refrained from petition for special leave for reasons which do not bear on the public interest but are prompted by private influence, want of bona fide and other extraneous considerations. We would restrict accordingly the right of a private party, other than the complainant, to petition for special leave against an order of acquittal. It is perhaps desirable to keep in mind that what follows from the grant of special leave is an appeal, and the jurisdiction must, therefore, be invoked by a petitioner possessing a locus standi recognised in law.”

    But being just a concurring opinion, I wonder to what extent it would really hold the field. The way I look at Article 136 jurisdiction of the SC, it is essentially self-defined and untramelled.

    • Shivendra, thanks very much for the quote. I think – and correct me if I’m wrong – that *if* the concurrent opinion is good law, then that would make a private party SLP virtually impossible in such cases, because a Court doesn’t often accept the claim that the State has acted in a mala fide way – strong presumption of good faith.

      Were the concurring judges the only ones who commented on this?

      Shivendra, do you think that – whether or not the concurring opinion in Arunachalam is good law, it is possible to argue that by not even *referring* to Arunachalam, Koushal vs Naz is per incuriam? (Paradigm case of per incuriam – ignorance of controlling precedent) What do you think, Malavika?

      • Gautam, as I understand it, the majority opinion was reasoned thus: the right of a private appellant to invoke Art. 136 must be sourced in some fair procedure per Art. 21 because a) nobody should be denied their right to personal liberty under Art. 21 except by fair procedure b) a successful appeal could potentially deny the right of liberty of the parties to the case being appealed. (This reasoning was crucial because the context of the case was the potential reversal of an acquittal, and thus potential loss of liberty, by virtue of a potentially successful private appeal.)

        So, no, I don’t think the right of a private appellant is rendered virtually impossible across the board – perhaps just in cases where art. 21 could be denied if the appeal is successful.

        Second, the majority opinion also made a mention of looking at the motive of the private appellant at the point that it concludes that Art. 21 must be implicit in the procedure of invoking/finding jurisdiction under Art. 136. To quote:
        “It is fair to assume that while considering the petition under Art. 136 the court will pay attention to the question of liberty, the person who seeks such leave from the court, his motive and his locus standi and the weighty factors which persuade the court to grant special leave. When this conspectus of processual circumstances and criteria play upon the jurisdiction of the court under Art. 136, it is reasonable to conclude that the desideratum of fair procedure implied in Art. 21 is adequately answered. Once we hold that Art. 136 is a composite provision which vests a wide jurisdiction and, by the very fact of entrusting this unique jurisdiction in the Supreme Court, postulates, inarticulately though, the methodology of exercising that power… ”

        So I don’t think the concurring opinion is really that off the wall.

        Finally, I agree that regardless of whether the concurring opinion is good law, Sadhanantham is controlling precedent on this question. But I’m guessing (perhaps being too charitable to the court here) that Koushal didn’t rule on standing because no submissions were made/heard on the question. None seem to be recorded in the judgment, though as I mentioned earlier, has unofficial notes on the proceedings that indicate that Shyam Divan made the submission on behalf of Voices Against 377.

      • Thanks for an engaging discussion! I was wondering, on a related note, what your thoughts are on the court’s treatment of the presumption of constitutionality, Does the presumption subsist even when the government concedes unconstitutionality by not moving the court in appeal?

      • Malavika: my views on the presumption of constitutionality are that the Delhi High Court got this one spot on. I think it’s relevant – but not dispositive – that the government stated that the Delhi HC was right. Regardless of what the government’s take was, a presumption of constitutionality should not exist for colonial legislation that casts a burden upon minority groups.

        I draw upon John Hart Ely for this proposition – the argument is that at time t = 1, the British Dominion legislature passed laws upon which Indians had no say. At time t = 2, we gained independence, and under the Constitution, all laws not repealed are deemed to continue to be in force. That is fair enough. A presumption of constitutionality would exist because these laws have the imprimatur of the Constituent Assembly and subsequent legislatures. So, for example, the Indian Contract Act would benefit from the presumption of constitutionality. The idea is that if you need to change the ICA, you can do so through regular majoritarian procedures, i.e., the Parliament. BUT this presumption should not be extended to legislation that does burden minority groups, because they you’re placing them under a double burden: like all of us, they didn’t have a say in the original legislation; but UNLIKE all of us, they can’t really go through majoritarian channels now and get the laws repealed precisely because they are minorities.

        Ely makes this argument with respect to the constitutionality of abortion legislation after women got the right to vote, in a footnote on Page 169 in Democracy and Distrust. Akhil Amar expands the argument in a full chapter in “America’s Unwritten Constitution”, called “Remembering the Ladies”. My own take is here:

  8. Gautam, I think we need to look at the first principles here. Article 136 of the Constitution of India states:
    Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
    So, Article 136 is silent on the issue of locus standi.
    I would like to illustrate my opinion with an example. Last year in November, the AP High Court held that the BCCI’s life-ban on Md. Azharuddin was unsustainable and set it aside. Md. Azhauruddin won in the 2009 General Elections from Moradabad as a Congress candidate. BCCI’s nexus with Congress is evidently clear. One of its MoS (Rajeev Shukla) was till very recently the Chairman of the IPL. BCCI didn’t file any SLP against the AP High Court order stating that its legal team was of the opinion that no challenge should be preferred as the player has retired and is well above 40 now. Suppose I, as a fan of the game, had filed a SLP against the AP High Court order, would that be maintainable? I think it would be highly unfair for the Court to expect that I should prove that the BCCI acted in a mala fide manner and because of Azharuddin’s nexus with Congress did not prefer the SLP. In most of the cases, this will be a very difficult threshold to cross for someone who feels ‘aggrieved’ by such an order.
    Similarly, the Arunachalam opinion is just a general enunication of the law by the SC in this regard that the SLP by a private party is maintainable even when the State has not challenged the order of acquittal.
    It cannot, and should not be, rigidly applied in my opinion. It is like the SC’s opinion in Bachan Singh. The Court is the best arbiter whether the mitigating circumstances outweighed the aggravating circumstances or vice versa. Similarly, the SC is the best judge whether leave ought to be granted or not. Justice Singhvi’s judgment is mischievous on merits but I think that the Court’s discretion to grant leave is unfetterred irrespective of what was held by the majority/concurring judges in Sadhanantham vs Arunachalam, AIR 1980 SC 856.

    • Shivendra – I take your point about the text and first principles of 136, and I agree with your Azharuddin example. I guess my position is that the SC should come up with a set of standards – interpreting 136 – that constrain its own discretion on this issue through – to use the language of Bake vs Carr – “judicially discoverable and manageable standards.” Otherwise, it becomes the proverbial political thicket – the SC allows appeals when it wants to overturn a High Court ruling it doesn’t fancy, and vice versa. Maybe I’m wrong about this, but Koushal vs Naz seems to me to be a classic case of when the SC *oughtn’t* to accept an appeal, and I’d like some standards or guidelines on this point, framed by the SC itself.

  9. Totally agree with you Gautam. In fact, a Bench of 3 judges of the SC in Kunhayammed Vs. State of Kerala, (2000) 6 SCC 359 has held as under (Para. 13):
    “The appellate jurisdiction exercised by the Supreme Court is conferred by Article 132 to 136 of the Constitution. Articles 132, 133 and 134 provide when an appeal thereunder would lie and when not. Article 136 of the Constitution is a special jurisdiction conferred on the Supreme Court which is sweeping in its nature. It is a residuary power in the sense that it confers an appellate jurisdiction on the Supreme Court subject to the special leave being granted in such matters as may not be covered by the preceding articles. It is an overriding provision conferring a special jurisdiction providing for invoking of the appellate jurisdiction of Supreme Court not fettered by the sweep of preceding articles. Article 136 opens with a non-obstante clause and conveys a message that even in the field covered by the preceding articles, jurisdiction conferred by Article 136 is available to be exercised in an appropriate case. It is an untrammelled reservoir of power incapable of being confined to definitional bounds; the discretion conferred on the Supreme Court being subjected to only one limitation, that is, the wisdom and good sense or sense of justice of the Judges. No right of appeal is conferred upon any party; only a discretion is vested in the Supreme Court to interfere by granting leave to an applicant to enter in its appellate jurisdiction not open otherwise and as of right.”

    No wonder it is said that Article 136 makes our Supreme Court the most powerful Supreme Court in the world.

    Interestingly, in Kunhayammed Vs. State of Kerala, the SC also held as under (para. 40):
    “A petition seeking grant of special leave to appeal may be rejected for several reasons. For example, it may be rejected (i) as barred by time, or (ii) being a defective presentation, (iii) the petitioner having no locus standi to file the petition, (iv) the conduct of the petitioner disentitling him to any indulgence by the court, (v) the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with by the Apex Court of the country and so on.”

    I think what you and Malavika are suggesting that in Koshal, special leave ought to have been rejected under ground (iii) or ground (iv). But the problem is that the “wisdom and good sense or sense of justice of the Mr Justice Singhvi and Mr Justice Mukhopadhyaya (the only limitation according to Kunhayammed)” thought otherwise. And that is indeed very unfortunate.

  10. […] Last week, the Indian Supreme Court issued a controversial ruling in Koushal v. Naz Foundation. It upheld the constitutionality of Section 377 of the Indian Penal Code, which criminalizes “carnal intercourse against the order of nature.” In so doing, it reversed a 2009 Delhi High Court judgment holding this provision unconstitutional in its application to consensual, private sexual acts among adults, including homosexual intercourse. The Supreme Court’s judgment has already been analyzed (and criticized) in depth, with commentators noting its doctrinal flaws and muddled reasoning (See here, here, and here.) […]

  11. […] In the past, the world has witnessed judgments such as Dred Scott v Sanford [In this case the American Supreme Court held that Blacks could never be considered as citizens of the United States], Plessey v Ferguson [In this case the American Apex Court had held that segregated schools were constitutional], Suresh Koushal v Naz Foundation [In this case the Indian Apex Court refused to decriminalize homosexuality] and many more which have stood out as moments of deep national shame, blots on a judicial record and examples par excellence of judges at their very worst. However, at the end of the day they all have been overruled. […]

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