It is important to understand precisely what the Supreme Court has held – and not held – in Koushal Naz FoundationThe Supreme Court states that it has reversed the High Court’s judgment reading down S. 377 to exclude consensual same-sex intercourse. Yet as even a cursory reading of both judgments reveals, the Supreme Court simply hasn’t engaged with a number of critical arguments made by Justice Shah in the High Court, which were the foundations of the decision. Therefore, some careful analysis is required to understand what the position of law is after Koushal, what parts of the High Court’s analysis stand, and which do not.

At the risk of being tedious, let us recall again what the High Court held, and place the Supreme Court’s arguments beside it. The Delhi High Court examined the constitutionality of S. 377 on the touchstone of three articles: 14 (equality), 15 (non-discrimination) and 21 (privacy).

1. Article 14: To survive an Article 14 challenge, a classification must meet three requirements: intelligible differentia, and rational nexus [to] legitimate objective.The Delhi High Court held:

(a) the classification that S. 377 made was between heterosexuals and homosexuals (intelligible differentia). [Paras 86 – 89]

(a1) this point is specifically reversed by the Supreme Court, which holds that there is an intelligible differentia between sexual acts in accordance with the order of nature, and sexual acts against the order of nature. The Supreme Court is desperately unclear about what constitutes a sexual act against the order of nature. On page 70, it seems to argue that the orifice of the mouth is not meant for sexual intercourse, but on closer investigation, the Court is simply citing from a previous High Court case without inserting the required quotation marks (p. 70). When the Court does finally speak in its own voice, it simply observes that no uniform test emerges out of all the cases.  It holds:

In our opinion 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. All the aforementioned cases refer to non consensual and markedly coercive situations and the keenness of the court in bringing justice to the victims who were either women or children cannot be discounted while analyzing the manner in which the section has been interpreted. We are apprehensive of whether the Court would rule similarly in a case of proved consensual intercourse between adults. Hence it is difficult to prepare a list of acts which would be covered by the section. Nonetheless in light of the plain meaning and legislative history of the section, we hold that Section 377 IPC would apply irrespective of age and consent. It is relevant to mention here that the Section 377 IPC does not criminalize 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.” (p. 77)

This is extraordinary. The criminal act is one “against the order of nature“, but the Court flatly refuses to provide any guidelines for determining what manner of act is against the order of nature. It is “apprehensive” about whether consensual intercourse between adults falls within S. 377, but it also expressly overrules the High Court decision which held precisely that they don’t! Now, if there is a lodestar of our criminal law jurisprudence, it is surely this: citizens must know in advance what acts are going to be criminal. Article 20(1) of the Constitution bans ex post facto criminal laws – is this any different? The Court is essentially arrogating to itself the power to make up offenses as it goes along, without prior warning. And more importantly, how on earth will the police implement this with any degree of consistency? This runs contrary to basic criminal law, and certainly runs contrary to the Constitution.

And notice how a judgment that portrays itself to be a model of judicial restraint, and is already being portrayed as such in the national debate, on probing, reveals itself to be stunningly activistic: the judge decides, in each case, based on the facts, whether a sexual act is against the course of nature, without any legislative supervision. That is not restraint. That is unbridled activism. 

(b) rational nexus with a legitimate purpose: the Delhi High Court examined the two objectives the State presented – preventing AIDS and enforcing morals – and rejected the first as false on facts (no rational nexus), and the second as constitutionally illegitimate. (Paras 91 – 98)

(b1) remarkably, the Supreme Court does not – to my knowledge – address rational nexus and legitimate objective. This is surprising, because there was no dearth of objectives presented by the petitioners, as the Court’s own summary of arguments demonstrates. This, then, is what we have: an intelligible differentia that has been used to criminalize one class, but deafening silence on what the objective is. It might be argued that the objective is precisely to legislate criminal law, but that surely isn’t good enough, because it needs to be shown what function of criminal law is begin fulfilled here. Consider the following hypothetical: the legislature passes a law imprisoning all blue-eyed persons. There is an intelligible differentia (eye colour), but no conceivable purpose, and this law will be promptly struck down on 14 grounds. Unless the Court can show us the second limb of the 14 analysis, the equality argument remains radically incomplete. This incompleteness, I suggest, is more than enough grounds for referring this judgment to a higher bench for review.

2. Article 15: Article 15 prohibits discrimination on grounds of, inter alia, sex.

(a) The Delhi High Court read “sexual orientation” into “sex”. (I am not concerned here with the correctness of this interpretation, although I believe it is correct). [Para 99 – 125]

(a1) The Supreme Court refused to engage with this argument. It held – or appeared to hold – instead, that because S. 377 criminalized actions (sex against the order of nature), and not persons (homosexuals), it did not, after all, discriminate on the basis of sexual orientation. Two conclusions arise from this:

(i) The Delhi High Court’s ruling on sexual orientation being a protected ground has not been overruled, and stands.

(ii) The Court’s 15 argument is in tension with its 14 argument. In order to get around the intelligible differentia problem, it holds that S. 377 is indeed a class legislation, differentiating between a class of persons (see Para 42’s language of “those who indulge in...”). But seemingly wanting to avoid a corresponding 15 difficulty, it also holds that s. 377 is not a class legislation, but criminalizes action. Is there any way to reconcile these two positions?

It might be argued that the class that S. 377 criminalizes is not homosexuals, but those having sex against the order of nature. In this way, 14 is satisfied and 15 is not attracted. Three problems with this: first, 14 isn’t actually satisfied, because legitimate purpose still needs to be proven; secondly, the Court doesn’t actually make this argument. And thirdly, if you’re criminalizing sexual acts against the order of nature, and you also hold (as you appear to do, once you declare age and consent irrelevant to S. 377 and overrule the Delhi High Court) that homosexual acts are ipso facto against the order of nature, then only a hyper-hyper-formalistic interpretation would hold that this legislation does not discriminate on the basis of sexual orientation. This was precisely the point that Justice O’Connor made in Lawrence v Texas, that Justice Shah cited in the High Court judgment. It is indeed akin to saying, “we will imprison all people who are Black and below eight feet tall.” Well, all Blacks are going to be less than eight feet tall, so are you now going to argue that this legislation doesn’t actually discriminate on the basis of colour, because it only imprisons those people of colour who are more than eight feet tall? If that reasoning is specious, then so is this. But specious or not, the Court – again – simply refuses to address it. So we simply don’t know what the Court’s final stance is – is s. 377 a class legislation or isn’t it? And if it is a class legislation, what is the argument against the fact that it captures all homosexual actions by definition, and therefore does indeed discriminate on the basis of orientation – which leads us to the critical question of whether orientation is protected under Article 15? The Court leaves these fundamental questions unanswered, and surely this makes this case a fit case for review.

3. Article 21: Article 21 protects personal liberty, entailing – per Gobind and a consistent line of cases – a right to privacy. This right can be curtailed only by demonstrating a compelling State interest.

(a) The Delhi High Court went into a detailed analysis of India’s privacy law jurisprudence. Examining the entire line of cases starting with Kharak Singh, and going on through Gobind and Rajgopal, (and this makes the Supreme Court’s bald assertion that the High Court looked only at foreign precedent in the context of privacy entirely false at best, and deliberately – and misleadingly – maligning, at worst), the Delhi High Court found that the right to privacy was a right of persons, not places. It held that:

“Section 377 IPC denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution. As it stands, Section 377 IPC denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution.” (para 48)

Again, examining our own jurisprudence – that is, Indian privacy law jurisprudence – it went on to hold that a compelling State interest was required to justify privacy infringement. The State argued that there were two sets of compelling interests – protection of morality and public health. The High Court – as we have explained above, after detailed analysis that repays close scrutiny – rejected the latter on fact, and the former as a constitutionally illegitimate purpose.

(a1) The Supreme Court simply does not address this. It acknowledges that there is a right to privacy. But it does not say whether there is a compelling State interest, whether that State interest overrides the right to privacy, if so, how, and so on. The Supreme Court, in order to uphold 377 as it stands, would have to overrule the Delhi HC on this point. It does not even begin to explain how, and it does not tell us what compelling state interest it is relying upon to override the acknowledged infringement of privacy.

Thus, we have the following questions left open:

(a) Is S. 377 a class legislation?

(b) If it is not, how does it survive Article 14?

(c) If it is, what is the intelligible differentia – actions or persons – and rational nexus, and what is the legitimate purpose?

(d) What is “against the order of nature”?

(d1) If “against the order of nature” refers to non-penile-vaginal sex, or at least includes within its ambit homosexual intercourse, then how is this not a discrimination on the basis of sexual orientation even if homosexual intercourse is not the only kind of sex act captured by the term?

(d1a) If it is discrimination on the basis of sexual orientation, then what happens to the Delhi HC ‘s argument reading sexual orientation into Article 15?

(d2) If “against the order of nature” refers to an individual enquiry on a case-t0-case basis, what standards are Courts and legislatures and the police to use?

(e) Given that there is an admitted privacy infringement, what is the compelling state interest at issue?

(e1) If there is a compelling interest, on what grounds does the balance shift against privacy?

Given that all these questions are unanswered, this judgment is simply much too vague to be treated as binding law. It tells us nothing about the operation of S. 377 and the implications of the rights involved. It does not tell us what “against the order of nature” means. It does not allow citizens to plan their lives around the criminal law with any degree of certitude. It cannot avoid applying itself retrospectively. It leaves untouched arguments that it would logically have to analyze to arrive at the decision it arrives at. And worst of all, it contradicts itself.

In short, it is an utterly misconceived judgment, and must be reviewed.