Guest Post: Because of Sex(uality) [and Gender]

[This is a guest post by Surya Rajkumar.]


Introduction

The United States Supreme Court last week delivered its opinion in Bostock v. Clayton County, where it held that protection against discrimination under Title VII of the U.S. Civil Rights Act, 1964 (‘Title VII’) was available to lesbian, gay and transgender individuals. This the court did using the ‘but for’ test to rule that discriminating against an individual for being lesbian, gay or transgender necessarily involved discrimination because of that individual’s sex––sex being a protected characteristic under Title VII. The decision has rightly been hailed as a victory for the gay rights movement especially in the backdrop of the fact that it was legal to fire employees for being lesbian/gay/transgender in more than half of the states in the U.S. However, as I shall argue in this piece, the logic employed by the court is inadequate to deal with discrimination based on gender identity and sexual orientation. As I will contend, the notions of gender and sexual orientation are fluid and as protected characteristics under anti-discrimination law, they will have to be treated distinctly and cannot be conflated with the notion of sex.

There are those who argue that the decision is not as broad in its scope as it left open the question of whether the right to religious freedom permitted individuals/organizations to circumvent their obligations under Title VII. This is of particular concern as the Court’s opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission, delivered two years ago, held that it was legal for a person to not offer his services to gay individuals citing his religious convictions. On the other hand, as I shall attempt to demonstrate, the decision’s limited scope stems from extending the notion of sex to include sexual orientation and gender identity, as such an extension is accompanied by the exclusion of sexual orientations and gender identities such as bisexual and intersex individuals. It may be true that the Court has created a loophole in leaving open the question of religious freedom coming in conflict with Title VII. This however is beyond the scope of this piece. I shall also discuss the Indian approach to extending constitutional protections to sexual minorities, and how this may provide a viable model to treating discrimination based on gender and sexual orientation.

The logic of the Court

Title VII of the Civil Rights Act (Section 703) makes it unlawful to discriminate against an individual because of (among other grounds) such individual’s sex. With reference to this, the Court in Bostock held that “[a]n employer who fires an individual merely for being gay or transgender violates Title VII.” According to the Court, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Court demonstrates this using two separate examples for homosexual and transgender individuals. In the context of homosexual individuals, the Court examines a situation where there are two employees, one female and one male, both attracted to men. Here, “[i]f the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.” Hence the employer discriminates against the male employee based on his sex. Similarly, for transgender individuals, the Court considers an example of “a transgender person who was identified as a male at birth but who now identifies as a female.” Here, “[i]f the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.” Therefore, discriminating against someone for being trans necessarily involves a differentiation based on sex. Based on these examples, the Court, while agreeing that “that homosexuality and transgender status are distinct concepts from sex” holds that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”

The inadequacies of the Court’s logic qua sexual orientation and gender identity

To the extent that Title VII extends to lesbian, gay and transgender individuals, the Bostock opinion is indeed correct and welcome. But it should occur to one that sexual orientation and gender identity are more than homosexuality and transgender status respectively. When we consider sexual orientations and gender identities other than the ones considered by the Court, the opinion in Bostock comes across as inadequate. Notably, the majority opinion makes no mention of bisexuality or intersex status which form part of sexual orientation and gender identity respectively. Unsurprisingly, if these categories were replaced in the examples proffered by the Court, one would reach radically different results, where discrimination based on such characteristic does not involve considerations of sex at all.

For instance, let’s say there are two employees, one female and one male, and that the female employee who is bisexual and is at present partnered to a member of the opposite sex, is discharged by her employer for being bisexual. Here, the bisexual employee is not being treated any differently based on sex, as the employer is not intolerant of her relationship with a person of the opposite sex but intolerant to her identification as a bisexual individual. The same could be said of an asexual person who isn’t attracted to any sex at all! Hence, in the context of sexual orientation, the example offered by the Court is insufficient in its coverage of alternate sexualities such as bisexuality and asexuality. Similarly, the example offered by the Court qua transgender individuals is also inadequate to address discrimination faced by individuals with other gender identities. For example, in the case of an intersex individual, there may be no comparable ‘sex’ in the male/female sense.

The point I am seeking to make is that discrimination faced inter alia by gay, lesbian, bisexual, transgender and intersex individuals is sourced not to their sex but their identity informed by sexual orientation and gender identity, however incidental such discrimination is to sex. The issue with conflating certain forms of sexual orientation and gender identity with sex is that it risks the exclusion of other such forms. The problem is compounded by the fact that sexual orientation and gender identity are fluid notions that are ill-suited to be treated alongside sex especially when the latter is viewed rigidly as a male-female dichotomy. That sex cannot extend to mean sexual orientation and gender identity formed a large part of Justice Samuel Alito’s dissent in Bostock. Yet this cannot seek to invalidate the majority opinion, as Alito J’s argument in his opinion only reinforces what I am seeking to argue here, namely that the majority judgment is not incorrect, but inadequate to combat discrimination based on certain forms sexual orientation and gender identity. The only way, I argue, to address this inadequacy is to treat sexual orientation and gender identity as protected characteristics in their own right under anti-discrimination law. In this regard the Indian approach offers a viable alternative in addressing discrimination based on sexual orientation and gender identity.

The Indian approach as a viable alternative

Implementing protection against discrimination based on sexual orientation and gender identity through explicit statutory recognition, is in my view, the most suitable way to address the inadequacies discussed above. Had there been such statutory recognition, cases like Bostock would never come to be. It is in the face of such legislative reluctance, that the Indian approach shows the way in expanding the word ‘sex’ to include sexual orientation and gender identity, while also treating the latter categories distinctly. Two decisions of the Indian Supreme Court become relevant in this regard. They are NALSA v. Union of India and Navtej Singh Johar v. Union of India.

Using Article 15 of the Indian Constitution, which prohibits discrimination inter alia on the ground of sex, the Court in NALSA and Navtej has extended protection under Article 15 to gender identity and sexual orientation respectively. Justice K.S. Radhakrishnan in NALSA held that “discrimination on the ground of ‘sex’ … includes discrimination on the ground of gender identity.” He justified this on the basis that it was in line with the intent of the architects of the Indian Constitution who “gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalizations of binary genders.”

Affirming the view mentioned above, Justice Indu Malhotra in Navtej held that ‘sex’ “is not merely restricted to the biological attributes of an individual, but also includes their “sexual identity and character”.” Given that sexual orientation is a ground analogous to ‘sex’ in light of the former’s immutable status and fundamental choice, Justice Malhotra held that the prohibition of discrimination based on sex encompasses “instances where such discrimination takes place on the basis of one’s sexual orientation.”

When compared to Bostock, one cannot overstate the amplitude of NALSA and Navtej in their coverage. Whereas Bostock extends anti-discrimination protection to gay, lesbian and transgender employees, NALSA and Navtej–using an evolutionary and emancipatory interpretation of constitutional text–extend such protection to gender identity and sexual orientation respectively as a whole. Consequently, those groups left out of Bostock’s ambit can claim protection under NALSA (ex: intersex individuals) and Navtej (ex: asexual and bisexual individuals).

Conclusion

The majority opinion in Bostock is remarkably precise in its conclusion that “[a]n employer who fires an individual merely for being gay or transgender defies the law.” For an employer who fires an individual for merely being bisexual or intersex or any other category of sexual orientation and gender identity excluding gays and transgenders, may not be defying the law. Therefore, it is not misplaced to say that Bostock only offers a limited protection from discrimination based on gender identity and sexual orientation. Instead, as we saw, the Indian approach in NALSA and Navtej offers a viable alternative to Bostock, as it treats gender identity and sexual orientation for what they are: not as incidental to sex but as distinct characteristics that merit seperate consideration however dependent they are on sex.

The Constitutional Challenge to the Transgender Act

On 5th December, the Transgender Persons (Protection of Rights) Act came into force. As is well-known, the Act – that had been in the pipeline for four years – was passed over sustained protests and objections by the trans and intersex community. Among other things, critiques of the Trans Bill (as it then was) focused upon its inadequate definitions, its reification of the gender binary, its failure to recognise different forms of sexual identity, the denial of the right to self-determination, its non-recognition of chosen families, the absence of affirmative action provisions, and so on.

Unsurprisingly, therefore, the Act has swiftly been challenged before the Supreme Court, by Assam’s first trans judge (Swati Bidhan Baruah). This post briefly examines the principal grounds of challenge. These can broadly be categorised into (a) the self-determination challenge (Article 21); (b) the equality challenge (Article 14); (c) the non-discrimination challenge (Article 14); (d) the affirmative action challenge (Article 16); and (e) the positive obligations challenge (Article 21).

The Self-Determination Challenge

Section 4 of the Act guarantees to transgender persons the “right to be recognised as such, in accordance with the provisions of this Act.” Section 5, however, stipulates that such recognition will be contingent upon application to a District Magistrate, “in such form and manner, and accompanied with such documents, as may be prescribed.” Section 6 requires the Magistrate to issue a “certificate of identity” following “such procedure … as may be prescribed.” It is only upon such recognition that the transgender person shall have the right to their “self-perceived gender identity” (Section 4(2)).

The petition challenges Sections 4 to 6 on the basis that making self-identification “subject to certification by the State” is unconstitutional. It relies primarily upon two judgments of the Supreme Court: NALSA v Union of India and Puttaswamy (I) v Union of India. In NALSA, the Supreme Court held that the right to gender identity was protected under Articles 19 and 21 of the Constitution. Puttaswamy held that the right to privacy protected the freedom to take intimate decisions regarding personhood and autonomy, decisions that brooked minimum interference from the State. The petition argues that certification process violates both rulings. It also violates the the proportionality standard laid down in Puttasawamy, by being neither suitable, nor necessary, for giving effect to the principle of self-identification.

Now of course, the State may argue in response that if it is to come out with schemes and policies to support the transgender community, some form of State-sanctioned ID is indispensable, as that will be the basis on which beneficiaries will be identified. In order to counter this argument on its own terms, the self-determination challenge may need to be supplemented with an excessive delegation challenge: Sections 4 to 6 make no mention of whether the Magistrate has any discretion to reject an application to be recognised as a trans person – and if so – what the scope of that discretion is. In compliance with NALSA and Puttaswamy, it would follow that the Magistrate has no substantive discretion in this regard, and the only documentation that can be required – at the highest – is a self-attested affidavit (anything more onerous would violate the principle of self-determination and self-identification). However, the Act is silent on that, leaving any such determination to rules “as may be prescribed” (see Section 22). As the matter concerns the fundamental rights of the transgender community, this clearly is an issue that cannot be “delegated” to the rule-making power of the executive.

The petition also challenges Section 7 of the Act, which provides that once a certificate of identity has been issued, and the transgender person wants to then change their gender, that is permissible only on submission of a certificate by the Chief Medical Officer of the institution where the applicant has undergone surgery. Here, again, the application must be made to the District Magistrate, who will then issue a “revised” certificate. As the petition correctly points out, this introduces a certification requirement specifically upon gender-affirming surgeries.

The Equality Challenge

Sections 4 to 7 are also challenged on the touchstone of equality. The first – straightforward – argument is that the Act imposes burdens upon transgender individuals (certification) that it does not upon non-trans individuals. While being straightforward, the argument is nonetheless a very important one, because it challenges the long-held assumption underlying our legal institutions, namely, that being cisgender is the “norm”, while being transgender is the “exception” (which, therefore, requires something additional to “prove”, such as a certification requirement). The assumptions, of course, run much deeper than merely in our legal institutions: the social norm of “assigning” a gender at birth is based on the assumption that there exists a “natural” gender that one is born into, and a transgender person is someone whose gender identity does not “match” that assignation (see, e.g., Section 2(k) of the Act, which defines “transgender person.”

As Albie Sachs pointed out once, however, the purpose of a Constitution is to transform “misfortunes to be endured” into “injustices to be remedied”. In recent judgments such as Johar, the Supreme Court has also engaged with how our unthinking affirmation of sedimented norms has the effect of entrenching and perpetuating existing patterns of discrimination. And if we take seriously NALSA‘s affirmation that gender identity is a fundamental choice protected by Articles 19 and 21, it is clear that at least as far as the Constitution goes, cis- and trans-identities are to be treated on an equal footing.

Now of course, the State may once again argue that Sections 4 to 6 are not about identity, but merely about setting out a form of identification that can then be utilised to determine beneficiaries for welfare schemes. Such an argument, however, is belied by the wording of Section 4(2), which states clearly that it is only after recognition under the provisions of the Act, that a transgender person shall have the right to their “self-perceived identity”. In other words, therefore, the Act makes identity conditional upon identificationinstead of the other way round (which is what was prescribed in NALSA). It should therefore be evident that the scheme of Sections 4 through 7 is constitutionally flawed.

The Non-Discrimination Challenge

Section 3 of the Act sets out the non-discrimination provisions; it prohibits discrimination against transgender individuals in various domains, such as provision of services, education, healthcare, housing etc. Strangely, however, the Act provides no penalty – or remedy – for breach of these provisions. As the Petition correctly points out, a right without a remedy is meaningless – and, indeed, is not a right at all. This argument is buttressed by the fact that two of the crucial “horizontal rights” provisions in the Constitution itself – Articles 17 (“untouchability”) and Article 23 (“forced labour”) specifically envisage that laws will be implemented to make breaches punishable. Thus, the Constitution understands that where you impose obligations upon private individuals to behave in certain (non-discriminatory) ways against other private individuals, there must exist an enforcement mechanism to make those obligations meaningful.

A second set of challenges flows from Section 18 of the Act, which prescribes punishment of upto two years imprisonment for a series of offences against transgender individuals, such as forced labour, denial of access to public spaces, abuse, and so on. As the petition points out, similar offences in other contexts (such as bonded labour in general, or rape) have much more severe penalties, in order to achieve deterrence. As the transgender community is already particularly vulnerable to these forms of coercion and violence, it is outrightly discriminatory to make the punishment lighter under this Act. The petition also impugns this Section on grounds of vagueness and arbitrariness.

The Affirmative Action Challenge

In NALSA, the Supreme Court made it clear that the transgender community was to be treated as a “socially and educationally backward class”, for the purpose of availing of reservation schemes under Articles 15 and 16 of the Constitution. Predictably, the government never acted on this, and under the Act, there is no mention of affirmative action.

Does the Act, therefore, breach Articles 15 and 16? The petition argues that it does, as reservation is a “facet of equality.” In other words – to explain further – once it is established that the transgender community is not on an equal footing with others, there exists a right to affirmative action under Articles 15 and 16, as the very meaning of substantive equality will be defeated by maintaining an unequal status quo.

Such an argument would flow naturally from the judgment of the Supreme Court in N.M. Thomas, where it was indeed held that reservations are a “facet” of equality (and not exceptions to it). In other words, reservations under Article 16(4) are specific manifestations of the right to equality of opportunity under Article 16(1). Continuing with this logic, reservations – then – are not simply something the government may do, but indeed, is obligated to do after identifying relevant sections of society that stand in need of them (the “power plus duty” reading of Article 16, that we have discussed before on this blog). And in NALSA, the Court did a part of the government’s job by identifying the transgender community as a beneficiary class; bringing them under Article 16, then, is a necessary consequence.

While I agree with this argument as a matter of constitutional logic, it is also important to note that the pitch has been muddied somewhat in recent years, and the promise of N.M. Thomas has never entirely been fulfilled. The Court has refused to affirmatively hold that Article 16 imposes both a power and a duty upon the government, and the government itself filed clarification petitions on this point after NALSA. It is quite likely, therefore, that the government will resist the demand for affirmative action, and the Court will have to issue a ruling on whether NALSA was correct on this point (I believe it was).

The Positive Obligations Challenge

The final set of grounds hold that the beneficial provisions of the Act are insufficient to realise the fundamental rights of the transgender community. Section 15, for example, speaks of an insurance scheme, which – the petition argues – is insufficient to guarantee the right to health. This argument will test the limits to which the Court is prepared to go when it comes to enforcing positive obligations upon the government; to what extent will the Court be willing to substitute its judgment for the government’s on which measures are adequate to address positive obligations such as the right to health?

One way of framing the issue might be that had no legislation existed, and a challenge had been filed, then the Court could well have reprised its judgment in Vishaka, and laid down guidelines to fill in the legislative vacuum. While I retain my skepticism about what the Court did in Vishaka, one principle that flows from that judgment is that even in the case of positive obligations, there exist clear and judicially manageable standards, often drawn from principles of international law. Therefore, if there is an Act, the Court can certainly examine whether its implementational measures adequately provide for the effective fulfilment of a positive right (such as the right to health), or whether they fall short; and if they fall demonstrably short, to fashion an appropriate remedy.

Conclusion 

Swati Bidhan Baruah’s petition raises a series of crucial constitutional questions about the Transgender Act. As I have shown above, while some of the challenges are straightforward, others are more subtle and nuanced – and will require the Court, in particular, to engage with some of the more progressive stands of its jurisprudence in recent years. Such an engagement, however, also presents an opportunity – an opportunity to cement and even build upon that progressive jurisprudence, in the domain of social rights.

Notes from a Foreign Field: “The Time has Come” – the Botswana High Court and the decriminalisation of homosexuality

Sodomy laws … deserve archival mummification, or better still, a museum peg, shelf or cabinet for archival display.” – Letsweletse Motshidiemang v Attorney General, High Court of Botswana, para 209

Two weeks ago, the High Court of Kenya handed down a disappointing judgment upholding the constitutional validity of the Kenyan sodomy law. Yesterday, however, confronted with almost identical legal provisions, the High Court of Botswana went the other way, decriminalising same-sex relations on the touchstone of the constitutional rights to privacy, liberty, equality, and dignity. The judgment in Letsweletse Motshidiemang v Attorney General makes for fascinating reading. This is because of its austere – but clear – reasoning, but also because it marks the fall of yet another progeny of what began life as Section 377 of the Indian Penal Code, and then proliferated through the British colonies: the prohibition of “carnal intercourse/knowledge against the order of nature.”

As I mentioned in my analysis of the Kenyan High Court’s judgment, the constitutional arguments against the sodomy law are familiar ones, whetted by years of litigation in constitutional courts across the world. What is striking, however, is the diametrically opposite view that the Botswana High Court took from its Kenyan counterpart, in responding to virtually identical arguments, within the space of two weeks. What is also striking is the similarities between the overall approach adopted by the Botswana High Court on the one hand, and the Delhi High Court in Naz Foundation and the Indian Supreme Court in Johar, on the other. Both are issues that I shall discuss.

As a preliminary point, the judgment stands out for its clear endorsement of the value of pluralism, which made its first appearance in the second paragraph. Pluralism – and the necessity of respecting diverse ways of being and life choices, which the Court defined as inclusiveness – form, in a sense, the intellectual scaffolding that allowed it to build and develop its substantive rights-based arguments. Tellingly, “pluralism” and “inclusiveness” were also two words that were at the heart of the Delhi High Court’s 2009 judgment in Naz Foundation; and perhaps equally tellingly, the Kenyan High Court’s judgment did not have a similar, framing value that would help to contextualise the constitutional challenge. Within that framework, let us now examine the judgment.

Vagueness

After a brief account of the Christian – and later, colonial – origins of anti-sodomy laws, the Court considered the first substantive challenge – that of vagueness. Like the Kenyan High Court – and unlike the situation in India, where judicial interpretation of Section 377 had been inconsistent – the Court found that there existed binding court judgments explaining what “carnal knowledge … against the order of nature” meant: in Botswana, it had been defined as anal sex. For this reason, the impugned sections – 164(a), (c) and 165 – of the Penal Code were not vague; and the question then became, did the blanket criminalisation of anal sex violate the Constitution of Botswana? (paragraph 96)

Acts and Identities: Liberty, Dignity, Equality

This, in turn, allowed the State to set up that old and familiar argument, which makes an appearance in every litigation around this family of legal provisions: that ultimately, the sodomy law only criminalised a certain kind of “sexual act.” It did not criminalise homosexuality – or homosexuals – per se, and therefore, none of the constitutional values of equality, dignity, or liberty, were relevant. As the Court recorded the Attorney General’s submissions:

In answer thereto, the Attorney General has submitted that the applicant is a “cry baby” and that he is free to engage in sexual activity as long as it is not sexual intercourse per anus. It is the respondent’s position that Sections 164 (a) and (c) are not discriminatory as they are of equal application to all sexual preferences, and that Section 15 of the Constitution provides limitations on the enjoyment of fundamental rights. (paragraphs 136 – 7)

Recall that this classification of sodomy laws as targeting only “acts” was accepted both by the Indian Supreme Court in Koushal and by the Kenyan High Court, and formed an important part of these Courts’ reasoning in upholding the laws. It was, however, rejected by the Indian Supreme Court in Johar, and the High Court of Botswana similarly gave it short shrift. At a very basic level, the Court noted that while the section may have been neutrally worded, it nonetheless targeted a form of sexual expression that, in effect, targeted homosexuals, because they could not – by definition – engage in penile/vaginal sex. (paragraph 144) This being the case, the section clearly denied to homosexuals the right to sexual autonomy and the right to a choice of a sexual partner, choices that fell squarely within the domain of individual liberty; it also denied them the right to sexual expression, which was a violation of individual dignity. (paragraph 151) As the High Court colourfully noted, “the impugned provisions force him [the individual] to engage in private sexual expression not according to his orientation; but according to statutory dictates.” (paragraph 144)

The Court then made a deeper argument about equality and discrimination. Section 15(3) of the Constitution of Botswana defines discrimination as “affording different treatment to different persons, attributable wholly or mainly to their respective descriptions by race, tribe, place of origin, political opinions, colour, creed or sex.” Like Article 15(1) of the Indian Constitution, this is a “closed list.” Unlike Canada or South Africa, It does not use words like “including” or “among others” before “race, tribe…” etc., and therefore, textually, precludes a Court from adding in entirely new grounds into the Section.

However, working within these constraints, and citing the previous judgment of Attorney-General v Dow, the High Court noted that:

I do not think that the framers of the Constitution intended to declare in 1966, that all potentially vulnerable groups and classes, who would be affected for all time by discriminatory treatment, have been identified and mentioned in the definition in section 15(3). I do not think that they intended to declare that the categories mentioned in that definition were forever closed. In the nature of things, as farsighted people trying to look into the future, they would have contemplated that, with the passage of time, not only groups or classes which had caused concern at the time of writing the Constitution but other groups or classes needing protection would arise. (paragraph 158, citing Dow)

As I have argued elsewhere, this is exactly the approach that should be adopted towards an anti-discrimination provision. Assessing discrimination is always a contextual enquiry, and the groups that are identified and persecuted by virtue of their group identity can – and do – change from time to time. For this reason, ideally, an anti-discrimination provision should lay down the principle, set out the groups that are salient at the time of drafting, and remain open-ended (as in Canada or South Africa). However, where it isn’t, a Court should at least be able to interpret the existing grounds flexibly, even if it can’t add new ones. And this is precisely what the High Court did, following comparative jurisprudence to hold (like the Delhi High Court in Naz), that sex included “sexual orientation”, as “sex and sexual orientation, are associable signifiers of a similar scope and content.” (paragraph 161) Interestingly, the Court buttressed this finding by noting that the Employment Act already prohibited discrimination on grounds of sexual orientation in the workplace; like the case of the 2017 Mental Healthcare Act in India, a poignant example of the first meaningful legal change coming through a statute.

Armed with this interpretation of Section 15(3), the Court returned to the question of acts and identities. Relying upon both comparative law and evidence (including evidence provided by the Applicant, a gay man), to hold that sodomy laws – whatever their wording – had the effect of stigmatising the LGBTQ population, “render[ing] the[m] … a criminal, or an “unapprehended felon”, always on tenterhooks, waiting to be arrested.” (paragraph 169) This, in turn, meant that the sections were discriminatory in effect (an argument similar to that made by Chandrachud J. in Johar) – a conclusion that was aided by the fact that the Constitution of Botswana explicitly prohibited indirect discrimination. Here again, the High Court’s approach was in stark contrast to that of its Kenyan counterpart: while the Kenyan High Court – like Koushal in India – found that there was no “evidence” for any of this, and that simply “pleading” rights violations in affidavits was insufficient, the High Court of Botswana took seriously the account of discrimination recounted by the Applicant, as well as relying upon scholarly studies for the stigmatic effect of sodomy provisions.

Privacy

The High Court also engaged in an interesting discussion of the right to privacy. Like the American Constitution, the Constitution of Botswana – through Sections 3(c) and 9 – frames “privacy” in its classical sense, as pertaining to spaces – the home, property, freedom from an unreasonable search, and so on. Specifically acknowledging this (para 116), the Court nonetheless refused to limit privacy to the merely spatial, instead – in line with comparative jurisprudence – extending it to include decisional autonomy and the privacy of intimate choice, free from State control. (para 122)

The State’s Arguments

Interestingly, this was not the first time that the constitutionality of sodomy laws was being litigated. In 2003, in a case called Kanane, the Botswana Court of Appeal had held that it “was not yet time” to decriminalise same-sex relations. Much like Johar in India, therefore, and Lawrence in the United States, the Court was faced with a recent decision that had gone the other way. The High Court of Botswana, however, was quick to get around this, noting that no expert evidence had been presented in Kanane, and that the Court had not even dealt with the arguments on privacy, dignity, and indirect discrimination. (paragraph 171)

The State then argued that the purpose of the law was to protect and advance public morality and public interest. – another familiar argument. Applying the proportionality standard, the Court responded by noting that these were merely “bare assertions and or speculations that sexual anal penetration is contrary to public morality or public interest.” (paragraph 180). However, none of this had been demonstrated, it had not been shown that criminalisation was the least restrictive method of achieving the State’s goal (even of advancing public morality), and evidence of the harm caused to the LGBTQ community had not been rebutted. (paragraph 181). But in any event, the Court noted, public morality was relevant in a constitutional claim, but not dispositive. (paragraph 185) In this case, for the reasons advanced above, it fell well short of the proportionality standard; the same was true for the public interest justification, as criminalisation:

… disproportionally impacts on the lives and dignity of LGBT persons. It perpetuates stigma and shame against homosexuals and renders them recluse and outcasts. There is no victim within consensual same sex intercourse inter se adults. (paragraph 189).

The only other possible justification, the Court noted, was the Victorian, “Judeo-Christian” idea of the purpose of sex being for procreation. That premise, evidently, had long ceased being valid. (paragraph 208). The Court therefore struck down the provisions prohibiting carnal knowledge against the order of nature, and read down the provision criminalising “gross indecency” (Section 167) by severing and excluding acts done in private.

Points of Critique

The judgment of the High Court of Botswana is a powerful and eloquent defence of the rights of privacy, dignity, freedom, and equality; its clear and unequivocal holding, which decriminalises same-sex relations, is to be welcomed and applauded. However, while most of the judgment is a study in excellent rights-reasoning by a constitutional court, there are three discordant notes, which also need to be highlighted.

First, from time to time, the High Court got sucked into the question of whether sexual orientation was “innate” (paragraph 142); towards the end of its judgment, it held that sexual orientation is an “innate attribute that [people] have no control over.” (paragraph 190) As I pointed out in my analysis of the Kenyan High Court judgment, however, the “born this way” argument is controversial even within LGBTQ circles, but more importantly, it is a red herring. The question of whether sexual orientation is innate or not is irrelevant to issues of group discrimination (where, as the South African Constitutional Court pointed out, a homosexual identity is first “constructed”, and then subject to persecution), and to questions of decisional autonomy and individual freedom in making intimate choices.

Secondly, as part of its substantive reasoning, the High Court drops the odd claim that homosexuals can “only” have anal sex (and that’s why Ss. 164 and 165 take away sexual freedom). Now, it’s unclear where the High Court gets this from, but in any event, this also misses the point: the struggle around getting sodomy laws removed is not – and has never been – about legalising a particular sexual act, but about bringing down a range of discriminatory practices that deny to the LGBTQ community equal moral membership in society.

Thirdly – and again, this comes at the end of its judgment – the High Court’s stress on the “private” sits ill at ease with its excellent analysis of freedom, equality, and discrimination. In Johar, the Indian Supreme Court was careful not to go down the Delhi High Court’s path and qualify decriminalisation by adding the words “in private.” Like Johar, the Botswana High Court also does not add any such qualification while striking down Ss. 164 and 165, but it does so in its analysis of S. 167 (gross indecency), where it strikes out “private”, and leaves the criminalisation of “gross public indecency” intact. But what is “public indecency” if not the same kind of socially-perceived “deviant” behaviour that the Court is otherwise so concerned to protect under the Constitution? Without a clearer definition, that is the only use it will ever be put to.

It is important to note, however, that none of these three points are central to the core of the decision; the decision would remain even if we jettisoned them. The High Court’s arguments on freedom, equality, and dignity, and its ringing endorsement of diversity, plurality and the protection of the marginalised, does not require it to commit to the “born this way” theory of sexual orientation; it does not require any holding on the mechanics of anal sex; and it does not need a re-entrenchment of the public/private divide. It is to be hoped, therefore, that in future, it is the rights-expanding, liberty-protecting aspects of the judgment that will stand the test of time, while these odd discordant notes will, ultimately, fade away.

Conclusion

Coming two weeks after the intense disappointment of the Kenyan High Court’s judgment, Letsweletse Motshidiemang marks a welcome reversion to form: across the world, the fact that sodomy laws have no place in liberal democracies is increasingly becoming part of judicial common sense. Arguments from “public morality” and “deference”, which once held powerful sway over the minds of judges, are losing their purchase. The Botswana High Court’s clear, powerful, and unambiguous judgment gives us hope that what happened two weeks ago was a brief aberration, which will be swiftly set right by the Kenyan appellate courts; in the meantime, there is another judgment to celebrate.

Notes from a Foreign Field: A Critique of the Kenyan High Court’s Homosexuality Judgment

In a judgment delivered last week (EG v Attorney-General), the High Court of Kenya upheld the criminalisation of same-sex relations under the Kenyan Constitution. At issue was the constitutionality of Sections 162 and 165 of the Kenyan Penal Code. Section 162 prohibits having “carnal knowledge of any person against the order of nature.” Section 165 criminalises acts of “gross indecency” between two male persons. In arguments that, by now, have attained a ring of familiarity, these provisions were challenged on the bases that they violated the rights to equality and non-discrimination, privacy and dignity, and health under the Kenyan Constitution, as well as being vague and over-broad.

In criticising the judgment of another country’s court, one must proceed with a degree of circumspection. Every nation’s constitutional jurisprudence is specific and unique, and the assumptions that one brings from a study of one’s own legal system may simply not hold. That said, however, on a reading of the judgment, the arguments advanced before the Kenyan High Court, and the manner in which the Court engaged with them have, by now, attained an almost universalistic cast: they have been litigated across a range of countries, and in supra-national forums, over many decades. It would, therefore, be almost remiss if one didn’t point out the ways in which the Kenyan High Court, with respect, appears to have delivered a seriously flawed judgment.

The Argument from Vagueness

It was argued before the Court that the phrases “carnal knowledge”, “against the order of nature”, and “gross indecency”, were impermissibly vague. This is, of course, a familiar argument, and readers will recall that in Kaushal, the Indian Supreme Court had dodged it entirely by recounting conflicting precedent, and then claiming that the question could be determined on a case-to-case basis. The Kenyan High Court, however, did a little better. Relying on precedent, it defined “carnal knowledge” as “sexual intercourse” (paragraph 270), “against the order of nature” as “anal sex” (paragraph 271), and “gross indecency” as contact between genital organs, or the breast and buttocks. (paragraph 273) Having defined each of these terms, the Court then held the two provisions were specific enough to pass constitutional muster.

That is fair enough in its own right, but notice that, having defined Section 162 in terms of a specific and particular sexual act, the implications of what that meant for the constitutionality of the statute could not, later, be dodged. However, when it came to the constitutional argument, this – as we shall see – was exactly what the Court did.

The Argument from Equality and Non-Discrimination

Article 27 of the Kenyan Constitution guarantees equality before law, and prohibits direct and indirect discrimination on a host of specified grounds, including race, sex, pregnancy, marital status, and so on. While interpreting the provision, the Kenyan High Court borrowed from the ECHR and South African jurisprudence, to (correctly) note that “unfair discrimination” occurs when a law “treats some people as inferior or less deserving of respect than others. It also occurs when a law or conduct perpetuates or does nothing to remedy existing disadvantages and marginalization.” (para 288) However, after stating the position of law, the Court went on to hold in paras 295 and 296 that Sections 162 and 165 did not violate the Constitution, because:

The substance of the Petitioners’ complaint is that the impugned provisions target the LGBTIQ community only. If we understood them correctly, their contestation is that the impugned provisions do not apply against heterosexuals … [O]ur reading of the challenged provisions suggests otherwise. The language of section 162 is clear. It   uses the words “Any person.” A natural and literal construction of these words leaves us with no doubt that the section does not target any particular group of persons.

Readers will recall that this is a very old and very familiar argument, which was also employed by the Supreme Court in Kaushal: the supposed distinction between “acts” and “identities”. According to this argument, anti-sodomy laws only target a specific set of sexual acts (in the present case, as defined by the Kenyan High Court, the act of anal sex), which could – in theory – be committed by heterosexuals or homosexuals. They do not target same-sex relations and, therefore, do not attract equality and non-discrimination provisions.

However, as old as this argument is, its basic flaws have also been pointed out multiple times. For example, as the US Supreme Court pointed out in Lawrence v Texas, when the act that is criminalised “is closely correlated with being homosexual … there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.” Likewise, in National Coalition, the South African Constitutional Court noted that “it is not the act of sodomy that is denounced by the law, but the so called sodomite who performs it.” The point, in other words, is that by criminalising a specific set of acts, anti-sodomy laws effectively construct the homosexual identity as legally salient, and go on to persecute it – a point that has, by now, been made in reams of scholarly literature. That point cannot be understood, however, if the statute is examined only on its own terms, and in the absence of the social context within which it is embedded and operates. And indeed, the text of Article 27 of the Kenyan Constitution does require the latter approach: by prohibiting both direct and indirect discrimination, it requires a court to examine the effect of a law (an enquiry that needs to be contextual), and not merely its formal language (which is what the Court limited itself to in the above paragraph).

In fact, when faced with Section 165, even the Court’s formal analysis began to border on the illogical. Section 165, it held, used the term “any male person”, and therefore targeted male persons in general, and not male persons of any particular sexual orientation. The Court seemed to miss the second half the provision, however, which uses the term “with another male person”! Now, when a statute criminalises “acts of gross indecency” only between two male persons, we don’t even need to go into questions of indirect discrimination – on its face, the statute clearly targets gay men.

That said, the Court did go on to consider questions of selective enforcement. After noting petitioners’ affidavits that set out various instances of discrimination and violence, the Court noted that “a party pleading violation of constitutional rights is at the very least expected to give credible evidence of the said violation and that it is not enough to merely plead and particularize a  violation.” In this case, “save for the allegations made in the Petition and the affidavits, no tangible evidence was given to support the allegations.” (paragraph 299)

But this is a bewildering argument. It is in the nature of social discrimination and prejudice that it is experiential: it takes the form of discrimination in access to services, taunts in public and private, physical violence, and so on. The only “tangible evidence” that can be produced in such cases is in the nature of the testimony of those affected by it – all of which was before the Court. And this is also the reason why there exist detailed sociological studies (see here) that discuss the interface between anti-sodomy laws and social norms. It is therefore unclear what kind of evidence the Court would have found satisfactory in this case (it did not specify).

The Argument from Privacy and Dignity

After moving quickly through some other arguments such as the right to health (I have refrained from analysing the Court’s analysis of this, because it appears to require access to the pleadings), the Court came to the final argument: that the provisions violated the rights to privacy and dignity. The Court made two arguments to reject this claim. First, it held that there was no conclusive evidence to support the proposition that homosexuals were “born that way.” (paragraph 393) And secondly, it held that the question of legalising same-sex marriage had been explicitly raised during the drafting of the Kenyan Constitution, and it had been answered in the negative, with Article 45 of the Constitution specifying that “every adult has the right to marry a person of the opposite sex.” According to the Court, allowing same-sex relations would “indirectly open the door for unions among persons of the same sex”, something that would conflict with Article 45. (para 397)

Let us take both arguments in turn. On the first issue, the Court is right that there exists some scholarly debate on the issue of whether sexual orientation is “innate” or whether it is a product of biological and social factors. Where the Court is wrong, however, is on the question of whether that matters at all. As this piece puts the point: “Why should gay rights depend on being born this way?” Indeed, the question of whether sexual orientation is innate or not is irrelevant to a privacy/dignity claim, where one of the core elements is that of decisional autonomy, and, in particular, the right to make intimate choices in freedom and without State coercion. Therefore, wherever upon the innate/choice spectrum sexuality may lie, its position upon that spectrum does not change the fact that it is protected by the constitutional rights to privacy and dignity.

The second argument is even more difficult to parse. Article 45 uses the specific term “marry“, and in the absence of a claim for same-sex marriage, it is difficult to see where the conflict is. The Court attempted to get around this by observing that Section 3(1) of the Marriage Act defined “marriage” as the “voluntary union between of a man and a woman.” For the second time in the judgment, however, the Court appears to have engaged in a spot of selective reading. Section 3(1), in full, reads: “Marriage is the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with this Act.” This means that the Court’s attempts to equate “marriage” and “unions” when it says that legalising same-sex relations would “indirectly open the door for unions among persons of the same sex” is a piece of casuistry: by its very terms, a same-sex union would not amount to a marriage unless it is registered under the Marriage Act; and therefore, there is absolutely no conflict with Article 45 of the Kenyan Constitution.

It is also impossible to ignore the Court’s own shifts in meaning through the judgment: while considering the equality and non-discrimination claim, the Court held that Sections 162 an 165 only criminalised certain “acts”, and not persons. But when it came to the privacy and dignity claims, the Court switched tack, and found a seeming conflict with Article 45 of the Kenyan Constitution on the assumption that what Sections 162 and 165 did do was to outlaw same-sex relations, and not simply anal sex.

Conclusion

Article 27 of the Kenyan Constitution is a striking provision. It outlaws both direct and indirect discrimination. It provides a host of grounds: race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language, or birth. And it uses the word “including” just after “ground”, signifying that the definition is open-ended. This makes it one of the most progressive anti-discrimination provisions in any Constitution, anywhere in the world.

It would seem the easiest and most natural of analytical feats to hold that sexual orientation falls within Article 27. The multiple grounds in connection are united by two things: they are either “personal characteristics”, or the products of personal and intimate choices. And they are united, further, by one overarching theme: they have been the historical and continuing sites of discrimination, used in order to identify and single out groups of people, and then target and attack them. On every conceivable understanding of this provision, therefore, sexual orientation clearly comes within its terms.

Why then did the judgment of the Kenyan High Court come out the way that it did? Reading it, I was in fact struck by the similarities that it had with Kaushal: both judgments are characterised by a similar unwillingness – an unwillingness not to justify or to defend discrimination, but simply to acknowledge that it even exists. This is what explains the fact that in both Koushal and in EG, ultimately, the Court dodged the hard questions by holding that the equality and non-discrimination provisions of the respective Constitutions didn’t even apply, because, after all, the only thing prohibited was a set of acts. The contextual analysis that was required to link these apparent “acts” to the stigmatisation and persecution of sexual minorities was the missing step that the Courts seemed either unwilling – or unable – to take.

But the future of Kaushal perhaps give hope that in Kenya as well, this is an error that shall soon be rectified.

Civil Rights at the High Courts: Sedition and Transgender Identity

This month has seen two important civil rights judgments come out of the High Courts. The Kerala High Court reaffirmed the narrow scope of sedition, while the Madras High Court reaffirmed the right of self-determining one’s gender identity. Neither judgment broke new ground; but affirming – and entrenching – existing jurisprudence is often equally important, especially in circumstances where the possibility of erosion is ever-present.

The Kerala High Court, Sedition, and the UAPA

In Union of India v Shameer and Ors, a group of men were convicted of sedition (along with other provisions under the IPC and the UAPA). The gravamen of the offence, according to the Prosecution, was that in 2006, the accused organised a meeting where seditious pamphlets (of the banned SIMI organisation) were distributed, and seditious speeches were made. Two of the accused had stated that:

Indian army are killing Muslims who are doing jihad in Kashmir. Other Muslims are being tortured with oppressive laws like TADA, NSA etc., against which all of us should fight under the leadership of SIMI.

Present India was made by Britishers. Earlier, we were ruled by Nizams and Mughals. We should go back to that Old India for which we should fight through SIMI and no one else can destroy SIMI.

On the basis of this, the NIA Court convicted five out of the seventeen accused, of both sedition as well as membership of a banned organisation [SIMI] under the UAPA, and acquitted the rest. Both the convicted men, as well as the State, appealed. The Kerala High Court began by noting that if at all anyone had committed an offence, it was the two speakers – Accused No. 2 and 3. There was no evidence to demonstrate a larger conspiracy involving the people who had booked the hall, and therefore, at the threshold, the other convictions could not stand.

What this left, it will be seen, was a pure speech offence: the convictions of accused nos. 2 and 3 were purely on the basis of what they had said at the meeting. In this context, the bench of Shaffique and Menon JJ. held, reading S. 124A narrowly, that the offence of sedition had not been made out because the speech did not target the government established by law in India. The Court read the references to the Nizam and to the Mughals as expressing discontent with the way that India was governed, but that this, in itself, did not rise to the level of sedition. On the question of the UAPA, the Court held, following Arup Bhuyan, that the mere fact of holding a meeting – and even clapping and applauding through it – did not constitute the offence of “membership” of a terrorist organisation.

The High Court’s narrow reading of the substantive part of the definition – of both sedition and the UAPA – is welcome. Indeed, there has been very little judicial analysis of what, precisely, “government established by law” means in the context of S. 124A, and the High Court’s narrow interpretation does well by Article 19(1)(a) of the Constitution. To this we can add one further point: even if the Court had found, in this case, that the speech in question was against the “government established by law” (S. 124A), and that the accused did come to the meeting with the intention of “propagating SIMI ideology”, it would still not constitute either the offence of sedition, or of membership under S. 10 UAPA. After Shreya Singhal and Arup Bhuyan, it is clear beyond cavil that the appropriate legal standard to apply in these cases is that of “incitement to violence”; mere speech – including advocacy of revolutionary ideas – does not make out either offence. In this case, the High Court did not need to address that issue because of its findings on the content of the speeches, as well as on the nature of the meeting, but we should not lose sight of that larger point.

The Madras High Court and Transgender Identity 

Meanwhile, in Arunkumar & Sreeja v The Inspector-General of Registration, the High Court of Madras was called upon to decide whether a marriage between a man and a transwoman could be validly solemnised under the Hindu Marriage Act. G.R. Swaminathan J. held that it could, correctly noting that “by holding so, this Court is not breaking any new ground. It is merely stating the obvious.”

The dispute arose when the Registrar of Marriages refused to register the marriage, on the basis that Sreeja, as a transwoman, did not count as a “bride” within the meaning of the Hindu Marriage Act, as the scope of that expression was limited to “woman”. The Madras High Court held, however, that the Registrar’s actions were contrary to the ruling in NALSA v Union of India (subsequently upheld in Puttaswamy and Navtej Johar); at the heart of the NALSA ruling was the principle of self-determination as to gender identity. Consequently:

… the second petitioner herein has chosen to express her gender identity as a woman. As held by the Hon’ble Supreme Court this falls within the domain of her personal autonomy and involves her right to privacy and dignity. It is not for the State authorities to question this self-determination. (paragraph 9)

In view of this, Swaminathan J. held, the word “bride” in the Hindu Marriage Act had to be interpreted with the times, and in light of the principle of self-determination of gender identity.

It would … include an intersex person/transgender person who identifies herself as a woman. The only consideration is how a person perceives herself. (paragraph 15)

Interestingly, the Court then also went on to note the existence of multiple genders beyond the male/female binary, as well as going on to ban sex re-assignment surgery for minors (i.e., below the age of consent). As the Court noted:

A person who is in the Third Category is entitled to remain beyond the duality of male/female or opt to identify oneself as male or female. It is entirely the choice of the individual concerned. (paragraph 24)

 

There are a few important points to be noted about this judgment. This is perhaps the first time after NALSA that a Court has interpreted existing legislation in order to bring it line with the principle of self-determination of gender identity. It is, therefore, a landmark moment where the NALSA dictum has finally been given some kind of teeth, and a precedent has been set for future disputes involving the need for updating our existing laws that remain stuck within the male/female binary. This judgment constitutes the blueprint for doing so. Secondly, it is a judgment that moves beyond the rhetoric of self-determination of gender identity, and applies it to a situation where real consequences follow from that recognition (in this case, the right to marry). Of course, unlike affirmative action, marriage is not a situation involving identity-targeted distribution of scarce benefits; it is, therefore, a relatively easy case in which to affirm the principle of self-determination (it remains to be seen how the courts will navigate situations where distribution of scarce benefits does turn upon gender identification).

Perhaps most importantly, however, by placing the self-determination of gender identity – as well as the choice to opt out of the gender binary – upon a constitutional pedestal, Swaminathan J.’s judgment casts serious doubt upon the constitutional validity of the much-criticised Transgender Bill. Recall that that bill denies rejects self-determination of gender identity, as well as maintaining the gender binary and denying the primacy of choice. With the Madras High Court’s judgment, however, locating both these principles within Part III of the Constitution, it is evident that in its exiting form, the Transgender Bill will fail constitutional scrutiny.

Conclusion

The last few years have seen an unfortunate, top-heavy shift towards the Supreme Court, when it comes to constitutional cases. This has led to a gradual erosion of the High Courts as important forums for developing and articulating important constitutional principles. While I believe this has been a mistake, there does remain an important task for the High Courts, even under status quo: and that is to ensure that constitutional principles are entrenched through repeated and consistent application. Without that, Supreme Court pronouncements remain mere words, and can be very swiftly eroded or forgotten. And this is why the judgments of the High Courts of Kerala and Madras are significant additions to the struggle for a progressive civil rights jurisprudence in India.

Guest Post: Notes from a Foreign Field – The US Supreme Court’s Masterpiece Cakeshop Case: A Skipped Opportunity

(This is a guest post by Aakanksha Saxena.)

The jurisdiction of the United States Supreme Court [“SCOTUS”] is, unlike the Indian Supreme Court, extremely narrow. The Court grants certiorari in fewer than a hundred cases each term, giving nod to the several steps of constitutional adjudication that matters go through before reaching the Court. But in the area of same-sex couples and their legal rights, the Apex Court jurisprudence has been pioneering. The Supreme Court has been the first of the three federal wings of constitutional government to legalise consenting sexual intercourse, and a few years later, marriage, between two adults of the same gender. As a result, the case of a baker refusing to bake a wedding cake for a same-sex couple’s wedding gathered steam and appeared to set the stage for a further step in the direction of recognition of the rights of homosexual individuals and couples. Through this post, I shall attempt to unravel the judgement that SCOTUS finally rendered, addressing not the issue of homosexual rights under public anti-discrimination legislation, not the right to free exercise of religion – addressing really nothing at all.

Pared down, the facts of the case are this: a gay couple visited a renowned, “designer” bakery in Colorado [at a time when gay marriage was still unrecognised in the state] with the intention of procuring a unique and momentous cake for their upcoming nuptials. The owner of the bakery refused to design them a wedding cake, citing his faith as ground for refusing to make a statement in support of gay marriage; he directed the couple to other products he had ready for sale in his shop. The couple sought legal redress under the Colorado Anti-Discrimination Act [hereinafter, “CADA”], which prohibited inter alia sexual orientation-based discrimination in public places and were successful before the State authorities. The relevant provision that the bakers relied on is as under:

It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of … sexual orientation … the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation…

The case’s trajectory through the State judiciary gave it traction, and by the time it reached its ultimate pitstop, it was being touted as the most significant matter SCOTUS would hear this past term. Fittingly, a reading of the transcript of the SCOTUS oral arguments [duly sensationally reported in polarised media sources] reveals the Bench and the attorneys raising and debating several different aspects of the case, as well as jurisprudence on compelled speech. Several members of the Bench seemed to be performing a confused choreography around the issues, in order to appropriately articulate the questions they would approach.

 

At the Apex Court, from the exchange between the Justices, the attorney for the Petitioner-baker Jack Phillips, and the Solicitor General for the United States Department of Justice in support of the baker, there emerged three broad axes that the case seemed to turn upon several inter-linked questions: what comprises speech, and to that end, how much does it depend on who creates it? How would the case be different if the marriage being objected to was interracial, interreligious, or something else the baker found objectionable – or more simply, who can be refused service, and on what grounds? Lastly, does the nature of the message matter while refusing service?

Tying up these aspects with the First Amendment brought the conflict in the case down to the rights of the baker to free exercise of his religious beliefs and expression, which consequently protected him from being compelled to make speech, versus the rights of the gay couple Charlie Craig and David Mullins to service under public accommodation law, as recognised through years of evolution of hard-fought cases, which cases have now established jurisprudence and state legislations recognising the rights of same-sex couples to be wedded.

When the judgement was delivered, it contained a surprising, not-so-slim 7:2 verdict in favour of the Petitioner baker. Both prongs of the judgment were a surprise, considering SCOTUS follows a 5:4 voting trend on rights-based issues stemming from social equality [as I shall elaborate further shortly]; even more surprise arose from the Court’s decision to side with the baker and rule that his refusal to serve a homosexual couple was well within his constitutional rights. Peeling away the layers of the transcript and the five different opinions in the judgement, the surprise fades away and transmutes into confusion. Where is the decision on whether a cake, or other forms of artistic expression constitute speech [which issue was raised as a constitutional claim by the baker right up to his Supreme Court briefs]? Has this judgment helped furthering the legal cause of same-sex couples? What is the reason for the silence on how the Hurley case – which held that public anti-discrimination laws regulate conduct and not speech – is to be applied? Does the Court’s ruling in this case govern the baker’s cake i.e. his avowed “speech”, or the act of his refusal to make one? The answer to this last question would necessarily form precedent for further kinds of “speech” that could not be compelled.

Justice Kennedy (the Court’s perceived “swing vote”) writing for the majority (joined by Chief Justice Roberts, and Justices Breyer, Alito, Kagan, and Gorsuch) brought the focus on the standard of neutrality that the Colorado Commission, as the first branch of state adjudication ought to have afforded the Baker in its hearing, but didn’t. He therefore concluded that the Commission violated the Free Exercise Clause of the First Amendment. The opinion takes issue with the comments and questions posed by the Commissioners in their hearing of the case, deciding that the Commissioners brought prejudice and hostility against the Baker’s beliefs to the Bench, such that the Commission failed to meet the standard of neutrality that the State must afford in adjudication. In fact, Justice Kennedy even recognised that the Commissioners’ statements were ambiguous such that they could lend to two very starkly different interpretations – one of which was that “they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views.” I believe that this view is not only legally innocuous but also factually accurate. The majority has however taken the other view, holding that the Commissioners’ comments “might be seen as inappropriate and dismissive comments” and thus did not afford the Petitioner the due consideration for his free exercise rights.

The Court posed the question of the level and nature of the Commissioners’ bias to the attorney for the State of Colorado who, in his personal capacity, disavowed the statements while maintaining, for legal argument, that the level of bias was not such that permeated the entire judicial process so as to target the baker for his faith. The subordinate courts’ treatment of Phillips’ constitutional claims went unanswered, and the Court instead concluded on threadbare discussion and analysis that the Commission’s conduct in its treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.

The majority also failed to address Justice Ginsburg in dissent [Sotomayor joining], setting out the different levels of adjudication that the case went through, particularly the de novo review by the Colorado Court of Appeals, which served to negate the alleged “hostility” of one or two Commissioners at one of these levels. Justice Ginsburg also accurately pointed out the majority’s heavy yet misplaced reliance on one SCOTUS precedent on this point, Church of Lukumi Babalu Aye, Inc. v. Hialeah, which concerned governmental prejudice in only one decision-making, legislative body, a distinction that also went untreated by the majority. All opinions skimmed the standard of neutrality that a State or its agencies must afford when regulating or adjudicating, providing no analysis on the requirements that the Commission had to satisfy. Choosing to sidestep the issue of how a state anti-discrimination statute must harmoniously co-exist with First Amendment rights, the majority limited itself to the actual judicial application of the state statute in this case.

The Court also distinguished this treatment from the precedential manner in which the Commission decided what a fractured part of the majority deigned an analogous set of Colorado cases involving another Jack. Mr. William Jack requested three bakeries to bake cakes containing specific messages decrying homosexual persons based on biblical verses. He was refused at all 3, and the Colorado Commission ruled in favour of such refusal. The SCOTUS majority treated this as a buttress to its conclusion that the Commission was especially hostile to Phillips’ religion, and it did not address how the issues of speech and expression, or anti-discrimination were tackled by the Commission in either. Justice Kagan’s concurrence [joined by Justice Breyer] correctly distinguishes the treatment by the Commission in both cases – in refusing William Jack, the bakers treated him just as they would any other paying customer with the same order; in refusing Craig and Mullins, Phillips discriminated against them by refusing to provide what he ordinarily provide [a wedding cake] to other [heterosexual] couples.

This in essence is what the court was supposed to decide, as distilled by Justice Ginsburg – the Baker provided a service to heterosexual couples, that he refused to provide to the homosexual couple in this case, i.e. designing and baking a cake celebrating the wedding of Mullins and Craig; the Bench had to determine whether this refusal was constitutional. It is trite to say that the dissenters chose to uphold the decision of the Colorado Court of Appeals, but they too limited themselves to deciding this on the same basis as the majority, that is, finding that the level of alleged hostility displayed by the Commissioners did not amount to a violation of the Free Exercise clause.

On the merits of the issues raised by all parties in the case, the Justices’ opinions revealed loose threads that certainly ought to raise red flags for LGBTQ and other minority groups’ advocates, and indicate how a future case may be decided. Justice Gorsuch [concurring with the majority and joined by Justice Alito] seemed concerned about where SCOTUS must draw a line – if at all – in identifying which minorities were to be protected and what kinds of messages could be deemed expressive. To that end, perhaps his vote would, on the merits as well, go to the baker. Gorsuch, J., applying the tenets of secularism of state action found that there could be no difference of adjudication between the protection and the treatment to be afforded the avowed “secular” baker who refused to bake homophobic slurs into cakes, and Jack Phillips. Focusing therefore, on the message being “compelled”, rather than the group being protected, this opinion weighed heavier on the side of free religious exercise, as opposed to expansion of homosexual rights. Therefore, in the event a hypothetically 100% neutral commission was faced with the same facts on record, the refusal by the baker to deliver a “compelled” message that he did not agree with on the grounds of First Amendment Free Exercise, would in his eyes be considered constitutional. Gorsuch, J.’s views are cemented by his joining Justice Thomas’ partial concurrence. Justice Thomas took the baker’s case even further, by relying on precedents which had protected anti-gay sentiment under Free Speech claims. In his opinion, he therefore avoided dealing with the impact of the subsequent precedent categorically recognising gay marriage, and which required application in this case. In fact, the application of those precedents becomes unique in the context of Free Exercise which, arguably, is more at loggerheads with gay rights, than the Free Speech clause.

This line of reasoning is also at direct odds with Justice Kagan’s concurrence that sought firmly to distinguish between service providers that refuse to create “offensive” messages versus those that make identity-based refusals. These polar opposing opinions tied themselves to the majority decision only on the issue of the Commission’s treatment being an invalid exercise of State power. The two votes of Justices Kagan and Breyer would otherwise, as was considered foregone prior to the delivery of the opinion, have fallen neatly on the side of the homosexual couple. The conflict between the opinions authored by Justices Kagan and Gorsuch therefore presents the central, critical constitutional question that the Court deftly sidestepped.

Justice Kennedy’s opinion on behalf of the majority carved out the protection for religious exercise, leaving wide open the question of the give-and-take between the Free Exercise clause and a valid exercise of state power in enacting generally applicable anti-discrimination laws. Kennedy, J. highlighted the widespread concern that an exception granted to members of the clergy in choosing whether to perform gay marriage was liable to create a slippery slope fallacy for other kinds of religiously neutral service providers in the context of the wedding industry. Considering that SCOTUS judgements are traditionally devoid of any self-enforcing mechanism, it is reasonable to worry that the nature of this verdict may do even further damage to the tolerance that previous compositions of the Court was trying to propagate.

The State’s responsibility to afford secular treatment of all cases brought to its courts and tribunals is no small feature of United States democracy, and by no means must be blindsided – but was this the case to raise it, and was this the reason to side with Jack Phillips? Is it presumptuous to conclude that the current political climate in USA reined SCOTUS in, such that it chose explicitly to defer the contentious issues that were patently framed throughout the movement of this case through judicial mechanisms? Whatever being the Court’s motives, it remains to be seen what kind of lower court adjudication will ever reach the artificial standard of State neutrality that SCOTUS has banked on here, to enable a more comprehensive, nuanced decision that these exceptional and pressing issues certainly demand.

(The author practices at the High Court of Bombay.)

From Koushal to Navtej Johar: Round-Up

With the conclusion of the Section 377 litigation, here is a round-up of the ICLP essays, which have spanned the last five years.

A. Pre-Koushal

  1. Textualism v Structural Analysis – or why the Court ought to uphold Naz Foundation” (25 September, 2013).
  2. Is there an interpretive methodology for construing colonial era statutes?” (10 October, 2013).
  3. Naz Foundation and homosexuality: a humorous, historical aside” (10 December, 2013).

B. Koushal

  1. The Unbearable Wrongness of Koushal v Naz Foundation” (11 December, 2013)
  2. Koushal v Naz Foundation: Picking up the pieces and exploring the grounds of review” (12 December, 2013).
  3. Koushal v Naz: Issue-wise Round-up of commentaries” (13 December, 2013).

C. NALSA

  1. NALSA v UoI: The Supreme Court on transsexuals, and the future of Koushal v Naz (15 April, 2014).
  2. Nalsa v UoI and Koushal v Naz: Acts against the order of nature?” (16 April, 2014).

D. The Interregnum

  1. Foucault, Rubenfeld, Naz Foundation, and Article 15″, (4 October, 2014).
  2. Guest post: Sex, sexual orientation, and the courts” (27 August, 2015) (by Vansh Gupta).
  3. Notes from a foreign field: The Supreme Court of Belize strikes down its anti-LGBT law” (13 August, 2016).

E. Puttaswamy

  1. The Supreme Court’s right to privacy judgment – III: Privacy, surveillance, and the human body” (29 August, 2017).
  2. The Supreme Court’s right to privacy judgment – V: Privacy and decisional autonomy” (31 August, 2017).

F. Navtej Johar 

  1. Section 377 referred to a Constitution Bench: Some Issues” (8 January, 2018).
  2. Guest Post: Inclusive pluralism or majoritarian nationalism: Article 15, Section 377, and who we really are” (9 July, 2018) (by Tarunabh Khaitan)
  3. Guest post: on the presumption of constitutionality for pre-constitutional laws” (11 July, 2018) (by Tarunabh Khaitan).
  4. Guest post: against natural rights – why the Supreme Court should NOT declare the right to intimacy as a natural right” (17 July, 2018) (by Tarunabh Khaitan).
  5. Civilisation has been brutal: Navtej Johar, Section 377, and the Supreme Court’s moment of atonement” (6 September, 2018).
  6. Guest Post: Navtej Johar v Union of India: Key highlights” (9 September, 2018) (by Abhinav Chandrachud).
  7. “Guest Post: Navtej Johar v Union of India: What remains of Section 377?” (10 September, 2018) (by Vanshaj Jain).
  8.  “Navtej Johar v Union of India: Rethinking Rajbala and the way forward” (15 September, 2018).

 

“Civilization has been brutal”: Navtej Johar, Section 377, and the Supreme Court’s Moment of Atonement

Last year, in Justice K.S. Puttaswamy v Union of India, the Supreme Court did a remarkable thing. While declaring that privacy was a fundamental right under the Indian Constitution, five out of nine judges also noted that the Court’s 2013 judgment in Suresh Kumar Koushal v Naz Foundation (an entirely unconnected proceeding) had been wrongly decided. In Koushal, the constitutionality of Section 377 of the Indian Penal Code – that criminalised “carnal intercourse against the order of nature” – had been upheld, and the 2009 Delhi High Court judgment reading it down to exclude consenting same-sex relations had been overturned. How deeply the Koushal Court had erred (in the view of the Puttaswamy bench) was evident from the fact that in his plurality opinion, Chandrachud J. singled it out as one of the two “discordant notes” in constitutional history (the other was the Emergency-era ADM Jabalpur judgment).

The privacy judgment made it clear that Koushal was living on borrowed time. That time came to an end today, when a Constitution Bench of the Court, in Navtej Johar v Union of India, formally overruled Koushal, effectively restored the Delhi High Court judgment in Naz Foundation, and unambiguously held that the LGTB+ community was entitled to equal rights under Articles 14, 15, 19, 21, and the rest of the Constitution’s fundamental rights chapter.

Four concurring judgments were delivered in Navtej Johar. While concurring on the outcome of the case – that Section 377 violated Article 14 (equal protection of laws), 15(1) (non-discrimination on grounds of sex), 19(1)(a) (freedom of expression) and 21 (right to life and personal liberty) – the judges came at the issues from different angles. In this essay, I shall discuss the different strands of constitutional reasoning that we find in Navtej Johar, and their implications for the future.

A. The Chief Justice and the Primacy of Choice 

The Chief Justice wrote for himself and Justice Khanwilkar. His is a wide-ranging judgment, but at its heart lies the idea of choice. This is not as straightforward an argument as it seems at first blush. Recall that there has been a long-standing debate about whether sexual orientation is “natural” and “immutable”, a question of choice, or somewhere in between upon a spectrum. It has always been intuitively tempting to argue that sexual orientation is simply a question of having been “born this way.” It is tempting because if sexual orientation is “natural”, and something beyond the individual’s power to alter, then criminalising it is ipso facto irrational. Our criminal law is based upon the idea of holding people to account for acts that they are responsible for. How then can you criminalise something that is inherent, and which cannot be controlled?

The “born this way” discourse, however, has been strongly criticised. As this article points out, for example:

If biology determines our expression, then there is no reason to think about making better or different worlds. It has all been decided, from the moment we became Homo sapiens. Yet if we recognise sexuality as constructed, we open up essential discussions about some of the most important aspects of life. Who are we sexually intimate with, and how? What do we do with the consequences of sexual intimacy (offspring and health)? Who is responsible for children’s lives, development and education in a society? The arrangement of sexual relations is the key social building block of society’s reproduction. Hence the importance of gay marriage. Yet we have a surprisingly limited way of engaging this conversation; indeed, biological determinism helps us avoid the issue altogether. A host of social issues are pressing down upon us, and we cannot effectively address them if we deny the reality of the human condition, including sexuality, and thereby close off discussions before they begin.

And, as the work of Foucault and other scholars has demonstrated, essentialising sexuality (and sexual orientation) runs the risk of trapping people in pre-constructed identities, in a manner that – in the long run – is anything but emancipatory.

To the judgment’s merit, it keeps both these propositions in an equilibrium, and refrains from choosing one over the other. So, in paragraph 9, the Chief Justice observes:

When we talk about identity from the constitutional spectrum, it cannot be pigeon-holed singularly to one‘s orientation that may be associated with his/her birth and the feelings he/she develops when he/she grows up. Such a narrow perception may initially sound to subserve the purpose of justice but on a studied scrutiny, it is soon realized that the limited recognition keeps the individual choice at bay.

“Natural orientation” and “choice” are discussed in a complementary manner throughout the judgment (see, e.g., paragraphs 109 and 148). Admittedly, at various points in the judgment, the Chief Justice comes close to slipping back into the former type of vocabulary, using words such as “inherent”, “innate”, “by birth”, and so on (paragraph 143 – 144). A holistic reading of the judgment, however, makes it clear that the concept of choice (that he also frames as individual self-determination) is as important to the exercise of constitutional rights as the “naturalness” of sexual orientation. Indeed, in paragraph 140, while defining the aspects sexual orientation, the Chief Justice refers both to “inherent orientation” and “demonstration of choice.”

And, perhaps most importantly, it is in the language of choice that the Chief Justice rejects Koushal’s argument (indeed, the only argument actually made in Koushal) that as Section 377 only criminalises “acts” and not “persons”, it does not violate constitutional guarantees:

… individuality of a person and the acceptance of identity invite advertence to some necessary concepts which eventually recognize the constitutional status of an individual that resultantly brushes aside the ―act‖ and respects the dignity and choice of the individual. (paragraph 81)

Additionally, the argument from dignity is also framed in the language of choice:

Dignity while expressive of choice is averse to creation of any dent. When biological expression, be it an orientation or optional expression of choice, is faced with impediment, albeit through any imposition of law, the individual‘s natural and constitutional right is dented. (paragraph 132)

This articulation of “choice” then becomes an important basis of the Chief Justice’s finding that Section 377 violates the Constitution. Because it disrespects individual choice, Section 377 is both irrational and “manifestly arbitrary”, and violates Article 14 (paragraph 240). This is, of course, in addition to the violation of expressive rights under Article 19(1)(a), and the right to privacy under Article 21 – which too is defined in terms of “intimacy in privacy as a matter of choice” (Conclusion X).

B. Justice Nariman and the Presumption of Constitutionality

Justice Nariman’s opinion shares many of the interpretive commitments of the Chief Justice. He too holds that Section 377 violates dignity (paragraph 79), and that it is “manifestly arbitrary” (paragraph 82). Nariman J. arrives at the second conclusion from a slightly different route. He examines the 2017 Mental Healthcare Act, which expressly prohibits discrimination on grounds of sexual orientation (in the domain of mental health). Combining this with scientific evidence, he notes that the natural/unnatural distinction that is at the heart of Section 377 has no rational basis, and consequently, violates Article 14 (paragraph 82).

By far the most interesting aspect of Nariman J.’s opinion, however, is his holding that pre-constitutional laws do not enjoy any presumption of constitutionality. He notes that:

The presumption of constitutionality of a statute is premised on the fact that Parliament understands the needs of the people, and that, as per the separation of powers doctrine, Parliament is aware of its limitations in enacting laws – it can only enact laws which do not fall within List II of Schedule VII of the Constitution of India, and cannot transgress the fundamental rights of the citizens and other constitutional provisions in doing so. Parliament is therefore deemed to be aware of the aforesaid constitutional limitations. Where, however, a pre-constitution law is made by either a foreign legislature or body, none of these parameters obtain. It is therefore clear that no such presumption attaches to a pre-constitutional statute like the Indian Penal Code.

While I believe this is a correct argument, it is nonetheless an incomplete argument. Nariman J. does not tackle one important objection: that Parliament’s failure to repeal a pre-constitutional law indicates an implicit acceptance. It also seems to prove too much (for example, could someone challenging the Indian Contract Act of 1872 argue that there is no presumption of constitutionality?). Consequently, I would suggest that Nariman J.’s argument requires to be slightly deepened: the reason why pre-Constitutional laws should not carry a presumption of constitutionality is because, insofar as they affect fundamental rights, they impose a double-burden upon the individuals they impact: first, these individuals had no say in the framing of these laws (since they were passed by a non-democratic colonial regime); and secondly, now that these laws exist, it is those who suffer their effects who have to mobilise and convince parliament to repeal them. It is this double-burden that is unacceptable, and therefore mandates that the presumption of constitutionality be withheld from those colonial laws that affect fundamental rights (I have made this argument in greater detail elsewhere).

C. Justice Chandrachud and Indirect Discrimination

For me, the most interesting – and complex – argument in the case was that Section 377 violates Article 15(1) (non-discrimination on grounds of sex), and a combined reading of Articles 15 (non-discrimination) and 14 (equality before law). In Chandrachud J.’s opinion, this argument receives detailed treatment. As a prelude, he begins with the following, critical observation:

Equating the content of equality with the reasonableness of a classification on which a law is based advances the cause of legal formalism. The problem with the classification test is that what constitutes a reasonable classification is reduced to a mere formula: the quest for an intelligible differentia and the rational nexus to the object sought to be achieved. In doing so, the test of classification risks elevating form over substance. The danger inherent in legal formalism lies in its inability to lay threadbare the values which guide the process of judging constitutional rights. (paragraph 27)

This is an important rebuke, not just to the Koushal Court, but also to the dominant strand of equality thinking on the Supreme Court, which – even in 2018 – continues to apply the “classification test” to judge equality violations (i.e., a law is unconstitutional if there is either an “unintelligible differentia” between the things that it classifies, or if the classification bears no rational nexus to the State goal).

Chandrachud J. goes on to note:

Article 14 has a substantive content on which, together with liberty and dignity, the edifice of the Constitution is built. Simply put, in that avatar, it reflects the quest for ensuring fair treatment of the individual in every aspect of human endeavor and in every facet of human existence.

What does this “substantive content” of equality entail? This takes us to the heart of Chandrachud J.’s judgment, which his treatment of the Article 15(1) claim. As he notes, Indian courts have historically interpreted the statement “The State shall not discriminate on grounds … only of sex” in a highly formalistic manner, and have upheld laws that – in their language – use more than one or a differently worded ground (for example, in Koushal, the Court held that because Section 377 only criminalised “carnal intercourse against the order of nature”, there was no question of discriminating against identities). This, however, is flawed: what matters is the effect of law upon the exercise of fundamental rights. (paragraph 34)

The effect of law must be understood by taking into account the broader social context within which law is embedded. It must therefore take into account “the intersectional nature of sex discrimination, which cannot be said to operate in isolation of other identities, especially from the socio-political and economic context.” (paragraph 36) Drawing from progressive gender equality judgments such as Anuj Garg, Chandrachud J. concludes that:

A provision challenged as being ultra vires the prohibition of discrimination on the grounds only of sex under Article 15(1) is to be assessed not by the objects of the state in enacting it, but by the effect that the provision has on affected individuals and on their fundamental rights. Any ground of discrimination, direct or indirect, which is founded on a particular understanding of the role of the sex, would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex.

The words “direct or indirect” are crucial, since this is the first time that the Supreme Court has explicitly recognised the concept of indirect discrimination (i.e., where facially neutral laws – such as S. 377 – nonetheless have a disproportionate impact upon a segment of the population).

How must Section 377 be analysed within this constitutional framework? After recording the experiences of LGBT+ individuals subjected to the “shadow of criminality”, Chandrachud J. notes that “Section 377 criminalizes behaviour that does not conform to the heterosexual expectations of society. In doing so it perpetuates a symbiotic relationship between anti-homosexual legislation and traditional gender roles.” (paragraph 44) How does it do so? The answer comes immediately afterwords:

If individuals as well as society hold strong beliefs about gender roles – that men (to be characteristically reductive) are unemotional, socially dominant, breadwinners that are attracted to women and women are emotional, socially submissive, caretakers that are attracted to men – it is unlikely that such persons or society at large will accept that the idea that two men or two women could maintain a relationship. (paragraph 44)

It is in this manner that Chandrachud J. draws together the indirectly discriminatory character of the facially neutral S. 377, the effects test, the prohibition of “sex” discrimination under Article 15(1) in a case about “sexual orientation”, and the importance of social context to the enquiry.  Here is how the argument goes:

  1. Article 15(1) prohibits sex discrimination.
  2.  Discrimination on grounds of sex is premised upon stereotypes about appropriate gender roles, and the binary between “man” and “woman”.
  3. It is these stereotypes about gender roles that constitute the bases of criminalising same sex relations.
  4. Section 377 may be neutrally worded, but it’s effect is primarily – and disproportionately – upon the LGBT community. It is therefore indirectly discriminatory on grounds of sexual orientation.
  5. Since the basis of that indirect discrimination lies in stereotypes about gender roles (the background social context), S. 377 violates Article 15(1) of the Constitution.

Consequently, to sum up:

Statutes like Section 377 give people ammunition to say “this is what a man is” by giving them a law which says “this is what a man is not.” Thus, laws that affect non-heterosexuals rest upon a normative stereotype: “the bald conviction that certain behavior-for example, sex with women-is appropriate for members of one sex, but not for members of the other sex. (paragraph 51)

As Terry Eagleton wrote in Saint Oscar, his play about Oscar Wilde:

You hold that a man is a man and a woman is a woman. I hold that nothing is ever purely itself, and that the point where it becomes so is known as death. I therefore demand to be defended by metaphysicians rather than by lawyers, and that my jury should be composed of my peers – namely, poets, perverts, vagrants and geniuses.

I do not think it is an exaggeration to say that today represents the most advanced interpretation of Article 15(1) and non-discrimination that has come out of the Supreme Court thus far.

Chandrachud J.’s judgment then goes on to examine Article 19(1)(a), focusing on how S. 377 inhibits the sexual privacy of the LGBT+ community, by forcing them into the closet (paragraph 61). He is careful to notice perhaps the only shortcoming of the Delhi High Court judgment, which was to restrict the right to “private spaces.” Like his judgment in Puttaswamy, Chandrachud J. once again critiques the facile public/private binary, and notes that “the right to sexual privacy, founded on the right to autonomy of a free individual, must capture the right of persons of the community to navigate public places on their own terms, free from state interference.” (paragraph 62) He goes on to discuss the rights to privacy and autonomy (paragraph 65), holds that Article 21 also protects a right to intimacy (paragraph 67), and includes a detailed discussion on how Section 377 inhibits the right to health (including the right to mental health) (Part G). There is also an extended discussion of the limits of criminal law, which concludes with the now-familiar observation that harm to others is the only adequate ground for criminalisation. (paragraph 137)

D. Justice Malhotra and a Truer Vision of Equality  

Justice Malhotra penned a brief, concurring judgment, that discussed Articles 14, 15, 19(1)(a) and 21 in turn. Her judgment, however, takes immutability as the basis for the 14/15 violation. In her view, Section 377 violates Article 14 because:

[It] creates an artificial dichotomy. The natural or innate sexual orientation of a person cannot be a ground for discrimination. Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia. (paragraph 13)

In my analysis of the Chief Justice’s opinion, I have noted that this view is controversial. Here, however, I want to focus on something else: the second sentence. Malhotra J. argues that where a legislation discriminates on the basis of an “intrinsic or core trait”, it ipso facto fails Article 14; that is, it cannot be counted as a reasonable classification. However, there is nothing inherent about such discrimination that makes it an “unintelligible differentia”, or precludes it from having some “rational nexus” with a possible goal. Consequently, Malhotra J. actually advances a more radical reading: she argues that the very concept of equality under Article 14 rules out certain kinds of classifications at the threshold. In her view, legislation based on an “intrinsic or core trait” fails that threshold inquiry. I would put it slightly differently: legislation based on a core trait (related to personal autonomy), a trait that has been a historical or present site of systemic discrimination, is ruled out under Article 14. This is because, for the reasons given above, I believe that the language of “intrinsic” or “immutable” characteristics is a dangerous road to go down. That, however, is a minor point of difference: what is crucial is that Malhotra J.’s reasoning – in its own way, as Chandrachud J in his way – opens up the transformative potential of Article 14 and 15(1).

Malhotra J.’s argument is important for another reason. In Dipak Sibal, the Supreme Court held that in addition to intelligible differentia and rational nexus, Article 14 also required a “legitimate State purpose.” However, neither Dipak Sibal nor any subsequent case clarified what State purposes may be illegitimate. In Malhotra J.’s opinion, we now have an answer: whatever the differentia, and whatever the nexus, the State is not permitted, under Article 14, to disadvantage groups on the basis of an “intrinsic or core” trait.

E. Odds and Ends 

Malhotra J.’s transformative understanding of Article 14 is the best point for us to segue into some of the overarching themes of the judgment. Why is it that discriminating on the basis of an “intrinsic or core” trait is ruled out by the constitutional vision of equality? Two themes – present in all four judgments – answer the question: constitutional morality and transformative constitutionalism. The Chief Justice notes, for example:

Any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the society would violate the principle of constitutional morality. Devotion and fidelity to constitutional morality must not be equated with the popular sentiment prevalent at a particular point of time. (para 116)

Justice Nariman observes:

It must not be forgotten that Section 377 was the product of the Victorian era, with its attendant puritanical moral values. Victorian morality must give way to constitutional morality as has been recognized in many of our judgments. Constitutional morality is the soul of the Constitution, which is to be found in the Preamble of the Constitution, which declares its ideals and aspirations, and is also to be found in Part III of the Constitution, particularly with respect to those provisions which assure the dignity of the individual. (para 78)

And Chandrachud J.:

The Constitution envisaged a transformation in the order of relations not just between the state and the individual, but also between individuals: in a constitutional order characterized by the Rule of Law, the constitutional commitment to egalitarianism and an anti-discriminatory ethos permeates and infuses these relations. (para 52)

The wheel has turned full circle. It was the Delhi High Court, in Naz Foundation, which first introduced all of us to the grammar of “constitutional morality”, and linked it to the Objectives Resolution, and the qualities of inclusiveness and pluralism at the heart of the Constitution. And, nine years later, this vision of constitutional morality lies at the heart of the decriminalisation of same-sex relations. The reason why Malhotra J. is correct when she holds that legislation discriminating on the basis of “intrinsic or core” traits is ipso facto violative of equality, is because equality – viewed through the lens of constitutional morality – is defined by the values of pluralism and inclusiveness: different forms of life and different ways of being are guaranteed equal treatment, equal concern, and equal respect under the transformative Indian Constitution.

The Road Ahead 

What lies ahead? This was, after all, a limited case: it was a constitutional challenge to Section 377 of the IPC. But as the judges themselves acknowledge, there is much work to be done ahead. As the Chief Justice notes, in his judgment:

Equality does not only imply recognition of individual dignity but also includes within its sphere ensuring of equal opportunity to advance and develop their human potential and social, economic and legal interests of every individual and the process of transformative constitutionalism is dedicated to this purpose. (paragraph 104)

Chandrachud J. likewise notes, in his conclusion, “members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution.” This, clearly, indicates at a future beyond mere decriminalisation. It indicates towards civil rights, a guarantee against horizontal discrimination in the domains of housing, education, and access to services (under Article 15(2)), a potential right to affirmative action (on the lines of the NALSA v Union of India), and of course – eventually – equal marriage, if demanded. How rocky the road will be towards full and equal moral membership, of course, remains to be seen.

What of other domains? The judgments of Chandrachud J and Malhotra J, as I have argued above, open new windows for understanding and interpreting Articles 14 and 15(1). Will we see them play out in the future? Will Chandrachud J.’s observations about the limits of criminal law have an impact on litigations concerning bans upon dietary preferences? Will the salutary observations about transformative constitutionalism and the value of the individual percolate into other cases concerning State power and individual rights? In the coming months and years, these questions will be answered.

For today, it remains to be said: five years ago, the Supreme Court committed a grievous error in Koushal v Naz Foundation. Today, the Court has atoned. “Civilization“, observes Chandrachud J., “can be brutal.” That brutality was felt on 11th December 2013, and in the days and months that followed. But today is about the Constitution, and today is about emancipation and liberation.

Navtej Johar v Union of India is a judgment worthy of our transformative Constitution.

(Disclaimer: The author was one of the lawyers representing Voices against 377, a coalition of organisations challenging S. 377 before the Court.)

Guest Post: Against Natural Rights—Why the Supreme Court should NOT declare the right to intimacy as a natural right

(This is the third and final guest post by Professor Tarunabh Khaitan on the 377 Hearings, which concluded today.)

As the Supreme Court prepares to defang the provision of the Indian Penal Code that criminalises ‘carnal intercourse against the order of nature’, it might be tempted to rely on its recently-revived ‘natural rights’ jurisprudence in order to do so. It is not hard to imagine that some of the judges might be tempted to hold that the ‘right to intimacy’ is an inherent and irrevocable ‘natural right’ (or, simply, declare it to be a facet of the right to privacy, which in turn has been held to be a natural right—I do not doubt that intimacy is a facet of privacy, or that privacy is indeed a fundamental right—my only complaint is against their characterisation as natural rights).

The rhetorical implications of such a move could be significant—the Court would be saying that the ‘natural order’, far from condemning homosexuals, requires their protection. Unlike the two previous posts on these hearings (available here and here), which urged the Court to be expansive in its holdings, I will argue in this post that the Supreme Court should not rely upon the language of natural rights in its judgment in this case. In fact, it would do well to retreat from the expansive embrace of natural rights in Puttaswamy to the extent it is possible for a smaller bench to do so.

Let us begin with Golaknath, that famous precursor to Kesavananda Bharati, where the Supreme Court held by a majority in 1967 that fundamental rights in the Constitution were unamendable:

“fundamental rights … are embodied in Part III of the Constitution and they may be classified thus : (i) right to equality, (ii) right to freedom, (iii) right against exploitation, (iv) right to freedom of religion, (v) cultural and educational rights, (vi) right to property, and (vii) right to constitutional remedies. … ‘Fundamental rights’ are the modern name for what have been traditionally known as ‘natural rights’. … Our Constitution, in addition to the well-known fundamental rights, also included the rights of the minorities, untouchables and other backward communities, in such rights.” [Paragraph 22, Justice Subbarao]

Even as Justice Subbarao equated fundamental rights with natural rights, he noted that although the right to property counted as a natural right, the rights of disadvantaged minorities against discrimination did not (although the more general right to equality did). This is the nub of the problem with the natural rights discourse—it has traditionally had a libertarian orientation which robustly protects the right to property (including, arguably, intellectual property) and the right to life of a foetus, but becomes faint-hearted when it comes to the enforcement of socially transformative rights like the right against discrimination or the right to employment. And it has had an intellectual history in recent Western thought that has been hostile to LGBTQ rights.

In Kesavananda Bharati, the Court spoke in multiple voices on all sorts of questions, including on the place of natural rights in the Constitution. The rightly-overruled judgment of the Supreme Court in ADM, Jabalpur conducts a superficial exegesis of what the majority actually held in Kesavananda with regard to natural rights, claiming that 7 judges on the Kesavananda bench rejected the natural rights thesis [at para 548]. This reading of Kesavananda is confirmed in another Emergency-era case called Bhanudas Gawde [para 41-2]. I must confess to not having checked myself whether this reading of the meandering and complicated judgment in Kesavananda is correct, ie whether a majority in that case did indeed hold that natural rights jurisprudence has no place in Indian law.

At least according to Justice Khanna, however, whose judgment came to be seen as the opinion of the Court in Kesavananda:

“It is up to the state to incorporate natural rights, or such of them as are deemed essential, and subject to such limitations as are considered appropriate, in the Constitution or the laws made by it. But independently of the Constitution and the laws of the state, natural rights can have no legal sanction and cannot be enforced.” [para 1509]

This must be seen as the correct position on natural rights in Kesavananda. Any other reading of the case would suggest that there are two independent, if overlapping, limits on the power of amendment—the basic structure of the constitution and some pre-constitutional, irrevocable, natural rights. Such a reading would entail that Kesavananda merely added a new ground for reviewing amendments to Golaknath. We know, however, that the Court in Kesavananda expressly overruled Golaknath. Thus, the only reading of Kesavananda’s position on natural rights that is compatible with the basic structure doctrine as the sole ground for limiting the amending power is the one articulated in Justice Khanna’s judgment.

Recent cases, however, have resurrected the natural rights discourse. In Basantibai Khetan, the Bombay High Court held in 1983 that the right to property was a natural right [para 19]. In NALSA, a 2-judge bench of the Supreme Court held that “Article 19(1) guarantees those great basic rights which are recognized and guaranteed as the natural rights inherent in the status of the citizen of a free country.” [para 62]. Perhaps most crucially, in Puttaswamy, several judges on the 9-judge bench of the Supreme Court—some selectively citing passages from Kesavananda Bharati—declared the right to privacy to be an inherent, inalienable natural right [Chandrachud J, para 40-46, 119; Justice Bobde, para 12, 16; Nariman, para 92]. Justice Chelameswar was the only judge on the Puttaswamy bench who did not join the natural rights bandwagon.

Whatever individual judges in Kesavananda might have said, if my argument above that Justice Khanna’s position on natural rights is the most coherent reading of the case on this point is correct, Indian courts are permitted to note that an express or implied fundamental right embodies or recognises some natural right (as the courts in Khetan and NALSA do), but are not permitted to directly enforce or recognise any natural rights without the mediation of the constitutional framework. To the extent that Puttaswamy does this, it would be bad in law (caveat: I believe that Puttaswamy rightly held that the right to privacy is an implied right that flows from other fundamental rights, my only challenge is to any additional justification for the ruling supplied by relying on privacy as a natural right).

Apart from being potentially in breach of stare decisis, the resurrection of the natural rights discourse in Puttaswamy is unfortunate and unnecessary. It is unnecessary because everything the Court needs doctrinally and normatively is already available in the constitutional provisions and values, its historical ethos, and its basic structure. These constitutional resources are sufficient to hold that habeas corpus cannot be suspended, that transgender persons have a fundamental right to equality, non-discrimination and liberty, and that the right to privacy is a fundamental, irrevocable, constitutional right. Seeking additional support from a dubious notion of natural rights does no good, and has the potential to do harm.

The resurgence of the natural rights jurisprudence—rooted in a conservative Christian ethos—is unfortunate because of its traditionally regressive role in promoting libertarian values, including its hostility to the right to abortion, homosexuality and material redistribution. It will be particularly galling for the Court to use a philosophical concept that whose main intellectual proponent, John Finnis, advocated for the continued criminalization of homosexual conduct.

Apart from its conservative roots, the natural rights discourse is too amorphous to be entirely safe in the hands of the courts. True, the basic structure doctrine is also amorphous, but our constitutional text and history place limits on what a court can find as part of the basic structure of our Constitution. The natural rights discourse places no such limit—what is to prevent a court from saying that my interest in a copyright or in hate speech is my natural right?

Lastly, LGBTQ activists have long challenged ideas of ‘naturalness’, a notion that has typically reflected values and mores of the powerful sections in a society. As noted queer theorist Judith Butler wrote in Gender Trouble, her “dogged effort to ‘denaturalize’ gender” emerged “from a strong desire … to uproot the pervasive assumptions about natural or presumptive heterosexuality that are informed by ordinary and academic discourses on sexuality.” It is hardly surprising that Butler sees denaturalization of gender and sexuality as a precondition for true liberation. The concept of a preordained natural order is, after all, status-quoist in its essence. Its naturalness is only evident to those who benefit from things as they are.

The petitioners have asked the Court to recognise their constitutional rights. The Court will do them a disfavour to insist that their rights are not just constitutional, but also somehow natural. The natural order of things has seemed unfair from the vantage point of those on its margins. Arguments invoking the natural order have a habit of getting in the way of things as they should be. Ours is a transformative rather than an acquiescent constitutional heritage. It is a tradition informed by voices from the margins of society, and not just its natural core. That is the tradition we need to invoke as we extend the ethos of inclusiveness to a long-excluded minority, rather than rely on an at-best elusive, at-worst reactionary, notion of natural rights.

(Dr Tarunabh Khaitan is an Associate Professor in Law at Oxford and Melbourne, and the General Editor of the Indian Law Review. The views expressed are his own, and not attributable to any of these institutions. I am grateful to Ira Chadha-Sridhar for her help with caselaw research.)

Guest Post: Inclusive Pluralism or Majoritarian Nationalism: Article 15, Section 377 and Who We Really Are

(This is a guest post by Tarunabh Khaitan, who is an Associate Professor of Law at the Universities of Oxford and Melbourne.)

The guarantee of non-discrimination under Article 15 of the Constitution is not an essential weapon to fight the criminalisation of victimless consensual sexual acts between adults under section 377 of the Indian Penal Code. The ridiculousness of such criminalisation is so patent that even a deferential quest for reasonableness under Article 14 of the Constitution will find the criminal provision wanting. Nor is the provision likely to pass muster with the guarantee of personal liberty and privacy under Article 21. Indeed, there is even a view that no constitutional provision needs to be invoked—that s. 377 can be defanged through a mere statutory reinterpretation in light of changes social facts.

Judicial minimalism (and, the related notion of constitutional avoidance)—the idea that if a case can be decided on narrower grounds, courts should avoid bringing the big guns out—is usually wise counsel. The case before the Supreme Court, however, is unusual. This is an instance where the Court has a constitutional obligation to unrelentingly apply the full moral force of the antidiscrimination principle embedded in Article 15 against s 377, in addition to the arguments mentioned above. There are at least two reasons why judicial minimalism will be unwarranted in this case.

The first reason is institutional. The Court needs to atone for its own institutional sin in recriminalising homosexual conduct by overruling the constitutionally sound judgment of the Delhi High Court. This is an opportunity for the Court to apologise to the Constitution, for its abject failure to defend its values. The Court also owes an apology to millions of innocent Indians who it rebranded as criminals in 2013. It much acknowledge, loudly and clearly, the violence its judgment visited on so many lives. It needs to recognise that it acted as an organ of a colonial state when it criminalised people based simply on who the were, and mocked their quest for justice as a claim for ‘so-called rights’. The Court inflicted a material injury and an expressive wrong on the LGBTQ people of India. The correction must go beyond the material too, and include an expressive remedy. The Court must make sure that its apology is full-throated, and not muted. One way to do so is to un-condemn and celebrate the difference of those it hurt and insulted under the pluralistic ambit of Article 15.

The second reason for an expansive reasoning is provided by the current political context. In most cases, the primary judicial objective is to reach a just outcome under law. But some cases come to acquire an expressive significance far beyond the remedy the court orders. The litigation over s 377 has shaped our political discourse over the last two decades in ways that would have been unimaginable for activists who first challenged the provision at the start of the century. Within fifteen years, the country moved from not talking publicly about homosexuality to a general election where major political parties promised decriminalisation in their election manifestos. What the Court says in this judgment is going to matter as much as what it does through its order.

But the expressive salience of a case on discrimination against a politically disempowered minority, based purely on the prejudices of a majority, goes beyond the issue of LGBTQ rights. Indian constitutional democracy today is at a crossroads. Its constitutional commitment to an inclusive, composite, secular ethos has never been challenged more seriously than it is today. At a time when sectarianism and majoritarian nationalism are seeking to exclude all sorts of minorities from public life and equal citizenship, the Court has a duty to emphasise the inclusive and pluralist rather than majoritarian character of our democracy. Inclusiveness and pluralism lie at the heart of Article 15, which can be the surest vehicle for the Court to lend its institutional authority to the salience of these ideas in our constitutional identity.

A robust development of the Article 15 jurisprudence, along the path showed by the Delhi High Court in 2008, is more urgent than ever. The Court owes a promise to Rohith Vemula that the judiciary would rigorously examine exclusionary and discriminatory practices. It has a duty to all those who have been lynched, harassed or persecuted for being different that Article 15’s promise of defending their personal autonomy and dignity is not empty rhetoric. It is true that the Court alone cannot deal with rampant discrimination. But its strong endorsement of the antidiscrimination principle could provide a boost for political efforts to enact a comprehensive antidiscrimination law, at least in some states to begin with.

It is true that judicial minimalism and constitutional avoidance are not typical features of the jurisprudence of the Indian Supreme Court. The Court has often been jurisprudentially expansive, while being remedially minimalist. But, in politically sensitive cases, it has found judicial minimalism to be strategically useful (its judgment in the triple talaq case, eschewing all mention of Article 15, is a case in point). Such strategic minimalism can often be important for preserving a court’s legitimacy. In the 377 case, however, it is not just judicial legitimacy that is at stake, but the very nature of our constitutional identity.

In his excellent book on constitutional identity, Gary Jacobsohn identifies the phenomenon of disharmony in constitutional identity (p 87): “Sometimes [disharmony] exists in the form of contradictions and imbalances internal to the constitution itself, and sometimes in the lack of agreement evident in the sharp continuities that frame the constitution’s relationship to the surrounding society.” An inclusive pluralism has, largely, been the dominant narrative in India’s constitutional identity. But seeds of disharmony have always existed—internally, in the form of the cow slaughter directive of the Constitution, and externally in the deeply inegalitarian and sectarian social structure the Constitution has tried to transform. As Jacobsohn argues, constitutional disharmony carries within it the seeds of constitutional change.

Make no mistake: the dominance of inclusive pluralism as the defining feature of our constitutional identity itself is at stake. Majoritarian nationalism is waging a spirited battle, not just for continued political relevance but for the very soul of our polity. It doesn’t just seek to win the game, it is trying to change the rules of the game. Which side the Court comes down on, and how robustly, may not determine, but will surely affect the outcome of this battle over defining who We, the people of India, really are.