Koushal v Naz: Issue-wise Round-up of Commentaries

Here is a brief round-up of some commentaries on the judgment, based on themes.

a) Over at Kafila, Siddharth Narrain and Danish Sheikh separately take us through the salient features of the judgment. As I understand it, they make the point that the Court’s analysis of each of the three constitutional rights – 14, 15 and 21 – is fundamentally incomplete. 14 because of the absence rational nexus to legitimate objective; 15 because there’s no examination of the affect on homosexuals as a protected class; and 21 because there is no investigation of compelling state interest as a justification for infringing privacy. They also point out the absurdity of using 200 prosecutions to make a de minimis argument.

b) One of the crucial links in the Supreme Court’s reasoning was the contention that S. 377 criminalizes actions, and not persons. Although this gets very murky in the judgment, what the Court was probably trying to argue was that since only acts against the order of nature are criminalized, neither 14 nor 15 is implicated. On Livemint, Aparna Chandra argues that this distinction is spurious, and that S. 377 is indeed classifying persons. She says:

“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.”

c) A major talking-point about the judgment has been the Court’s decision to leave the matter of S. 377 to the Parliament. This is a question of separation of powers, and a question of the nature of the democratic process. Over at the Oxford Human Rights Hub, Shreya Atrey argues that it is undemocratic to require a minority group to displace a legal burden placed upon it by taking its case to a majoritarian forum (the parliament). The whole point of fundamental rights is precisely guaranteeing those basic rights to unpopular minorities that they can’t obtain through Parliament. She observes:

“A Court which fully appreciates the prohibition of certain devious distinctions, also understands what it has to do in regards those distinctions. Repeated reliance on footnote four of Carolene Products did little to aid the Court’s myopia where it should have ordinarily seen that ‘prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities’. By leaving it to the democratic procedures of the Parliament, the Court bypasses its own constitutional mandate of reinforcing democratic processes through judicial review. Instead, it abdicates the essential role of adjudicating upon a breach of fundamental rights, especially in relation to, ‘miniscule fraction of the country’s population’ (para 43), who have a right not to be discriminated against on the basis of their sexual orientation.”

Shreya also reminds us about the arguments in favour of revoking the presumption of constitutionality from colonial-era legislation, especially those laws that place a burden upon minority groups who had no say in its framing.

d) At the Times of India, Attorney General Vahanvati restates an important point that has not seen too much attention so far: the Government of India was itself of the opinion that the Delhi High Court’s decision reading down S. 377 was correct. When the government itself has agreed with a judicial decision interpreting its own law, some of the Court’s arguments about presumption of constitutionality look even weaker.

e) The Court’s standard – or lack thereof – of what constitutes “acts against the order of nature” leaves the law very uncertain. At the Indian Express, Menaka Guruswamy explains why that’s such a problem. She argues:

“Justice Singhvi relies on these cases to conclude that the acts that fall within the ambit of Section 377 “can be determined with reference to the act itself and the circumstances in which it is executed”. The judges rightly reason that these cases all deal with non-consensual and coercive situations. They observe that they “were apprehensive whether the court would rule similarly in a case of proved consensual intercourse between adults.” However, they use this alleged apprehension to conclude that it is difficult to prepare a list of acts covered by the section. Strange, given that the precedent points to coercive sex involving children or animals as being the problem, and not simply acts of anal or oral sex.”

f) Judicial restraint v judicial activism has been one way in which this judgment has been characterized. Again, at the Express, Pratap Bhanu Mehta explains why upholding the Delhi High Court’s judgment would not have been a case of activism, but one of judicial obligation – and by doing what it did, the Court abdicated its constitutional function. He observes:

“There is judicial overreach when the court interferes with policy, when it overrides expressly stated legislative intent without any constitutional warrant, when it interferes in day-to-day administration. There is no overreach when the court protects fundamental rights like liberty, when it upholds equality in the face of discrimination, when it upholds privacy in the face of encroachment by the state, when it protects the dignity of the individual against prejudice. This is the primary function of the court. If the court does not want to perform this function, it might as well pack up and go home. The core issue in this case is just this: Section 377, a relic of Victorian times, is by no stretch of the imagination compatible with constitutional principles. The fact that it has not been expressly repealed by Parliament, through a sin of omission, is neither here nor there. Even if it were upheld by Parliament, it would infringe on basic rights and possibly the basic structure. The court’s job is to take a stand on constitutionality. It did not do its job on the occasion that warranted it.”

Orinam’s website has a round-up of various critiques of the judgment. At Bar and Bench, Sahil Kher presents an interesting perspective on Justice Singhvi’s past record.

Feel free to add your own.

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6 Comments

Filed under Non-discrimination, Sexuality

6 responses to “Koushal v Naz: Issue-wise Round-up of Commentaries

  1. Vasujith Ram

    Naz and the Need to Rethink the Presumption of Constitutionality by Goutham Shivshankar – http://lawandotherthings.blogspot.in/2013/12/naz-and-need-to-rethink-presumption-of.html

    The Sentinel Who Will Not Protect by Raju Ramachandran – http://jilsblognujs.wordpress.com/2013/12/13/the-sentinel-who-will-not-protect/

    Koushal — An ADM Jabalpur moment for the Supreme Court by Manish – http://blog.mylaw.net/koushal-an-adm-jabalpur-moment/

  2. Irpinder Bhatia

    Thanks. An excellent forum.

  3. rahul

    kamartod likhte ho yaar!

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