Tag Archives: homosexuality

Guest Post: Sex, Sexual Orientation, and the Courts

(In this guest post, Vansh Gupta explores a recent ruling of the US Equal Opportunity Commission that speaks directly to the Indian debate over the constitutionality of s. 377)

The U.S. Equal Employment Opportunity Commission recently issued a ruling (available here) recognising discrimination on the basis of sexual orientation as discrimination on the basis of sex. Its immediate impact is that employees can invoke the Civil Rights Act (Title VII) when they are discriminated against on the basis of their sexual orientation, even though sexual orientation is not an explicitly prohibited basis for making employment decisions. As an interpretive exercise, however, the decision has wide-ranging ramifications. It affirms the position that ‘sex’ can be read to include ‘sexual orientation’ in statutory material.

The Commission considers that sexual orientation cannot be defined or understood without reference to sex (a gay man is gay precisely because he attracted to males). The Commission finds that there is ‘an inescapable link’ between sexual orientation discrimination and sex discrimination as discrimination on the basis of orientation is premised on ‘sex-based preferences, assumptions, expectations, stereotypes or norms’. It describes this link in the following 3 ways-

  • Sexual orientation discrimination is sex discrimination because it will require a person’s sex to be taken into account, for instance when a lesbian woman is reprimanded for speaking about her female partner in the workplace, but a straight man isn’t.

The treatment of the person is different precisely because the employee’s sex is different. The equivalence therefore that is drawn here is not between gay men and lesbian women (i.e. both would be reprimanded for demonstrating same-sex affection), but rather between a woman (who happens to be lesbian) and a man, for engaging in the same conduct (speaking about a female affectionately).

  • There is also the understanding that sexual orientation discrimination is associational discrimination on the basis of sex (sex must be taken into account when an employee is treated differently for associating with a person of the same sex). This follows from a line of rulings concerning interracial marriage or friendship. (A white man being punished for marrying a black woman, necessarily takes into account his race), but the EEOC expands the reasoning to apply to sex discrimination as well.
  • And finally, the third rationale is that sexual orientation discrimination is sex discrimination because it involves discrimination on the basis of gender stereotypes, which has already been held to prohibited by the term ‘sex’ in the Civil Rights Act. Courts have already held that claims against gender stereotyping can be brought by lesbian, gay and bisexual individuals if they are treated adversely for being inadequately ‘masculine’/’feminine’, based on their appearance, mannerisms or conduct. The EEOC also recognises however that discrimination of LGB individuals on the basis of gender stereotypes is about more than assumptions about what behaviour is masculine or feminine; there is also an element of enforcing ‘heterosexually defined gender norms’. Real men are not just masculine, but also straight.

India does not have an omnibus Civil Rights Act as in the US or an Equality Act as in the UK, but reference to the principle of sex(ual?) equality is found in statute (see S.4 and 5 of the Equal Remuneration Act) and A. 15 of the Constitution prohibits discrimination which is only on the basis of sex.

Readers will recall that the Delhi High Court had invoked A. 15 in its analysis while deciding the now-overturned Naz petition. Although the court read down S. 377 of the IPC on the basis of a web of reasoning concerning A. 14 (equal protection of laws), 15 and 21 (privacy), the intent and the result insofar as A. 15 is clear: the term ‘sex’ in A. 15 must be read to include ‘sexual orientation’.

“104. We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. Further, Article 15(2) incorporates the notion of horizontal application of rights.”

While the Court has dealt with A. 14 and 21 extensively, its A. 15 analysis is limited to the a few paragraphs, relying primarily only on the conclusions of a number of foreign judgements. The High Court does however make an effort at explaining how an unenumerated ground can be the basis for holding discrimination. (“There will be discrimination on an unspecified ground if it is based on an attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings, or to affect them adversely in a comparably serious manner”, following from the South African constitutional Court’s decision in Harksen v. Lane.”)

The difference between the treatment of the matter by the Delhi High Court and the EEOC is that the EEOC relies on an understanding and interpretation of ‘sex’ to determine that sexual orientation discrimination is sex discrimination, whereas the High Court considers discrimination on the basis of sexual orientation to be analogous to sex discrimination.

This difference is not trivial. A. 15 specifically enumerates prohibited categories of discrimination. By including an analogous ground, the Court opened the way for A. 15 to be read expansively vis-à-vis other grounds as well. But the Civil Rights Act can only be used for the grounds that it specifies (necessitating Americans with Disabilities Act to be enacted to provide similar protections for persons with disabilities).

There is also the consideration that A. 15 is a constitutional provision, and is more amenable to expansive interpretation than a statutory term. EEOC-like reasoning would perhaps be necessary for interpreting ‘sex’ in statutory provisions such as S. 4 and 5 of the Indian Equal Remuneration Act.

Naz offered a promising start to a new way of dealing with A. 15 altogether in terms of both its method and result. Since its total reversal by Suresh Kumar Koushal, this possibility is now gone as Naz losing all its precedential value. It is another matter that in doing so the Supreme Court did not rule or comment on the High Court’s treatment of A. 15 at all, choosing to notice only that the High Court struck down S. 377 inter alia on the basis of 15, recording the contentions of the parties on its applicability, and after a (shoddy) analysis of only 14, concluding that the High Court was unjustified in finding S. 377 to be ultra vires both A. 14 and 15. The curatives pending before the Supreme Court highlight this glaring omission, but for the moment, sexual minorities remain a ‘miniscule fraction of the country’s population’ undeserving of the protection of their so-called rights.

(Vansh is a law researcher with Justice Ravindra Bhat at the High Court of Delhi)

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Foucault, Rubenfeld, Naz Foundation, and Article 15(1)

In Naz Foundation vs NCT, the Delhi High Court famously held that the word “sex” in Article 15 included “sexual orientation” as a prohibited ground of discrimination. Unlike the South African Constitution, there is no support for this proposition within the four corners of the text. What, then, justifies this interpretation? Clearly, it must be shown that sexual orientation is in some way analogous to the stipulated Article 15 grounds: religion, race, caste, sex and place of birth. One popular argument is that Article 15 – and, more broadly, Part III of the Constitution, through other provisions such as Article 25 – protects personhood: i.e., it stipulates that one’s equal moral membership in society (or, one’s right to be treated with equal concern and respect) must not be made contingent upon those characteristics most fundamental to one’s sense of personhood, or the most basic markers of one’s identity: religion, race, sexual orientation etc.

The argument from personhood is a popular one. In the United States, it was used to uphold abortion laws in Planned Parenthood vs Casey,  and subsequently invoked by Justice Kennedy in Lawrence vs Texas, the American Supreme Court case which held that criminalising homosexuality is unconstitutional:

“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

In National Coalition for Gay and Lesbian Equality vs Minister of Justice, the case which struck down South Africa’s sodomy law, the Constitutional Court – speaking through Ackermann J., held:

The group in question is discriminated against because of the one characteristic of sexual orientation. The measures that assail their personhood are clustered around this particular personal trait.”

There is, of course, something intuitively attractive about the personhood argument. It is, for one, closely connected with other, similarly attractive ideals, such as autonomy and dignity. The idea that there is a core set of beliefs, practices and world-views that define who a person is, and must therefore be held inviolable and subjected to no interference by the State, seems a powerful one, and speaks deeply to our conceptions about what freedom means.

There may, however, be good reasons not to advocate a personhood-based justification for Naz Foundation, or, for that matter, for the philosophy underlying Article 15 and/or Part III in too facile a manner. One set of arguments to this effect are grounded in the work of the philosopher Michel Foucault.

In his three-volume series, The History of Sexuality, Foucault argues against what he called the “repressive hypothesis”; i.e., the idea that, in the eighteenth and nineteenth centuries, sexuality was systematically “repressed” through a practice of official censorship, legal prohibition (including the criminalisation of sodomy), and the dull compulsion of social relations – and that this repression is only now beginning to be shaken off. Foucault contends, on the other hand, that a closer look at historical evidence demonstrates that the eighteenth and nineteenth centuries witnessed a proliferation of discourses about sexuality:

“Under the authority of a language that had been carefully expurgated so that it was no longer directly named, sex was taken charge of, tracked down as it were, by a discourse that aimed to allow it no obscurity, no respite… rather than a massive censorship, beginning with the verbal proprieties imposed by the Age of Reason, what was involved was a regulated and polymorphous incitement to discourse.”

This happened through numerous practices of surveillance, taxonomy, the re-classification of sins as medical aberrations, religions confessions, and so on (the complete argument may be found in chapters two and three of Volume 1). Foucault then lists four ways in which there was an “incitement” to sexualised discourse. In the second category, which he calls “a new specification of individuals”, he deals with homosexuality. In an extended passage, that deserves quoting, Foucault observes:

“As defined by the ancient civil or canonical codes, sodomy was a category of forbidden acts; their perpetrator was nothing more than the juridical subject of them. The nineteenth-century homosexual became a personage, a past, a case history, and a childhood, in addition to being a type of life, a life form, and a morphology, with an indiscreet anatomy and possibly a mysterious physiology. Nothing that went into his total composition was unaffected by his sexuality. It was everywhere present in him: at the root of all his actions because it was their insidious and indefinitely active principle; written immodestly on his face and body because it was a secret that always gave itself away. It was consubstantial with him, less as a habitual sin than as a singular nature. We must not forget that the psychological, psychiatric, medical category of homosexuality was constituted from the moment it was characterized – Westphal’s famous article of 1870 on “contrary sexual sensations” can stand as its date of birth – less by a type of sexual relations than by a certain quality of sexual sensibility, a certain way of inverting the masculine and the feminine in oneself. Homosexuality appeared as one of the forms of sexuality when it was transposed from the practice of sodomy onto a kind of interior androgyny, a hermaphrodism of the soul. The sodomite had been a temporary aberration; the homosexual was now a species.”

But this is precisely the personhood argument writ small. What Foucault is describing (and perhaps, at the same time, warning us against) is the dangers of allowing a set of acts or practices to become the full measure of human beings.

And because of this, Foucault goes on to write, “scattered sexualities rigidified, became stuck to an age, a place, a type of practice.” What is crucial to understand, ultimately, is that subordination must depend, primarily, upon classification and definition: and there is no more effective way of classifying than by holding that a certain set of actions define, or constitute, what a person is. Seen this way, personhood suddenly becomes less of an emancipatory tool, and more of a trap. It also, as Foucault points out, both ossifies and excludes: by holding that one, defined set of practices constitutes the core, immutable being of an individual, it denies the possibility of the practice itself being malleable (for instance, by excluding other forms and conceptions of sexuality) and open to change, as well as denying the same to the “individual”.

We may pause here to notice a moment of irony: in Koushal, when the Supreme Court overturned Naz Foundation, it rejected the Article 14 argument on the ground that S. 377 classified between acts and not between persons. This reasoning was excoriated on the ground that the Court simply ignored how central sexuality and sexual acts are to persons. But, as Foucault points out here, it is the acts-to-persons shift that is precisely what we should be wary about embracing too uncritically!

The application of the arguments in A History of Sexuality to personhood-based claims in constitutional law has not gone unnoticed. In a 1989 article called The Right of Privacy, Jed Rubenfeld subjected personhood-based definitions of privacy to a Foucauldian critique. As Rubenfeld reads Foucault:

“In Foucault’s description, the decision to give medical treatment to homosexuals, which became institutionalized medical practice in the nineteenth century, in fact created the “disease” of homosexuality. It generated a division be-tween homosexuals and heterosexuals that had never been absolute before, and at the same time created new institutional practices through which individuals would more and more sharply identify themselves, be identified, and be processed as homosexuals.

In a brilliant series of passages, Rubenfeld then explains the connection between classification and subordination, and how the personhood argument – by engaging in the former – undercuts its own emancipatory potential by facilitating the latter.

“Those who engage in homosexual sex may or may not perceive themselves as bearing a “homosexual identity.” Their homosexual relations may be a pleasure they take or an intimacy they value without constituting at least qua homosexual relations something definitive of their identity. At the heart of personhood’s analysis is the reliance upon a sharply demarcated “homosexual identity” to which a person is immediately consigned at the moment he seeks to engage in homosexual sex… thus, even as it argues for homosexual rights, personhood becomes yet another turn of the screw that has pinned those who engage in homosexual sex into a fixed identity specified by their difference from “heterosexuals.

Of course, it might be argued that there is no necessary connection between classification and subordination, and that identities, if put to emancipatory purposes, need not become the trap that Foucault describes them to be. To that, Rubenfeld says:

These two “moments,” [of classification and subordination] however, are not really distinct. Or rather, if we call them distinct, the impulse toward hierarchy actually precedes and produces the differentiation in identities. Obviously, differences of sexuality, gender, and race exist among us. These are not, however, differences in identity until we make them so. Moreover, it is the desire to count oneself “superior” to another, or even to count oneself “normal,” that converts such differences into those specified identities in opposition to which we define ourselves. To protect the rights of “the homosexual” would of course be a victory; doing so, however, because homosexuality is essential to a person’s identity is no liberation, but simply the flip side of the same rigidification of sexual identities by which our society simultaneously inculcates sexual roles, normalizes sexual conduct, and vilifies “faggots.” Thus personhood, at the instant it proclaims a freedom of self-definition, reproduces the very constraints on identity that it purports to resist. Homosexuality is but one instance of this phenomenon. The same flaw can be shown in the context of interracial marriage: once again, for the parties directly involved, to say that the challenged conduct defines their identity, and therefore should be protected, as-sumes that marrying out of one’s race is in some way the cataclysmic event its opponents pretend; it thus repeats the same impulse toward rigid classification presupposing the discrimination sought to be undone. Interracial marriage should be protected because it is no different from intraracial marriage, not because it is so different.”

A caveat is perhaps important here: this is not, by any means, an argument for “colour-blindness” – i.e., a legal system that ignores socially-constructed markers of identity altogether. Whether we like it or not, it is a simple truism that sexual orientation, race, caste, religion, sex and so on have been historical (and present) sites of oppression and subordination; and that subordination cannot be resolved by now ignoring their existence altogether. This is a well-worn argument in the affirmative action debate in the United States: the key, in reading Foucault, however, is the insight that in attempting to philosophically ground our anti-discrimination law in a manner that is sensitive to historical, group-based injustices, we should not fall into the trap of using “personhood” in a way that only entrenches and rigidifies group markers which – in the last analysis – cannot ultimately be the tools of emancipation.

If personhood is not the basis of Article 15, or other aspects of Part III, then what is? In his article, Rubenfeld advances what he calls the “anti-totalitarian argument“. Continuing within the broad, Foucauldian framework, he argues:

“The distinctive and singular characteristic of the laws against which the right to privacy has been applied lies in their productive or affirmative consequences. There are perhaps no legal proscriptions with more profound, more extensive, or more persistent affirmative effects on individual lives than the laws struck down as violations of the right to privacy. Anti-abortion laws, anti-miscegenation laws, and compulsory education laws all involve the forcing of lives into well-defined and highly confined institutional layers. At the simplest, most quotidian level, such laws tend to take over the lives of the persons involved: they occupy and preoccupy. They affirmatively and very substantially shape a person’s life; they direct a life’s development along a particular avenue. These laws do not simply proscribe one act or remove one liberty; they inform the totality of a person’s life.

Anti-totalitarianism, as a grounding for a right to privacy, is an interesting suggestion; for non-discrimination, it might not work so well. Another option – broadly on the lines of the South African Equality Act, is to simply identify the historic sites of discrimination, and prohibit practices that perpetuate such discrimination (South African hate speech law is expressly based on this premise), without any further assumptions about personhood. In this context, it might also be interesting to see what the Constitutional Assembly Debates have to say about historically-oppressive markers of identity, such as caste and sex, and their remedies for amelioration.

In any event, given the central place occupied by the idea of “personhood” in judicial decisions world-over (including India), this is a debate that will continue; nor is it a purely academic concern, because the philosophical ground if rights is, ultimately, what determines their reach and their limitations.

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NALSA v. UoI and Koushal v. Naz: Acts against the order of nature?

In the last post, I argued that after NALSA v. UoIKoushal v. Naz ought to be reconsidered, since in rejecting the distinction between sexual conduct and sexual identity, NALSA removes the intellectual foundation upon which the entire Koushal decision was based. In conversation with Danish since then, it seems to me that we might not even need to go that far. Here is how.

While Koushal v. Naz is commonly understood to have recriminalized homosexual intercourse in India, it did not actually do quite that. The Delhi High Court, in Naz Foundation v. NCT, held that insofar as S. 377 criminalizes same-sex intercourse between consenting adults, it is unconstitutional. Recall, however, that S. 377 does not criminalize homosexual intercourse in so many words. It criminalizes “carnal intercourse against the order of nature.” The conceptual middle-step, of course, requires associating homosexual intercourse with carnal intercourse against the order of nature.

And, interestingly, that is a finding that the Supreme Court in Koushal never made. Let us go back to the notorious Paragraph 42:

“Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. What Section 377 does is merely to define the particular offence and prescribe punishment for the same which can be awarded if in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty. Therefore, the High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution.”

So there is nothing in Paragraph 42 that indicates what “carnal intercourse against the order of nature” is, and the Court makes no finding on the point. True, the Court refers to precedents on what constitutes “sodomy”, and so on, but it does not incorporate any prior definition into its verdict. Now consider Paragraph 51:

“Respondent No.1 attacked Section 377 IPC on the ground that the same has been used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community. In our opinion, this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section.”

Here again, it’s not so much as what is stated, but what is omitted, that is significant. The Court specifically refers to the LGBT community, and again refuses to rule on whether the LGBT community is covered by the ambit of 377.

Indeed, if there is one thing that emerges out of all the precedents that the Court cites, it is that there’s no consensus on what the term means. One case holds that all non-procreative sex is against the order of nature, while another holds that that particular theory is outdates. Another finds oral sex to fall within the ambit of 377. Indeed, in paragraph 36, the Court specifically observes:

“The understating of acts which fall within the ambit of Section 377 has changed from non-procreative (Khanu v. Emperor) to imitative of sexual intercourse (Lohana Vasantlal v. State AIR 1968 Guj 352) to sexual perversity (Fazal Rab v. State of Bihar AIR 1963, Mihir v. Orissa 1991 Cri LJ 488).”

So, is homosexuality “perverse”? Again, the Court refuses to make a finding on point.

Consequently, the upshot of Koushal v. Naz is that although it is no longer the case that S. 377 expressly excludes homosexuals, it is also not the case that S. 377 includes them. That judgment is one to be made by later courts.

NALSA v. UoI is the judgment that does so.

The NALSA Court understands this, because in paragraph 18, it holds that because of Koushal, it will not rule on the constitutionality of S. 377. That, however, leaves it entirely free to interpret 377.

Now, in paragraph 20, the NALSA Court notes:

Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom.”

Notice that this paragraph is not limited to transsexuals. It refers to sexual orientation as such (especially because it uses the phrase in conjunction with “gender identity”). Now if sexual orientation is integral to personality, and a basic aspect of self-determination (and nobody – presumably not even the Koushal bench – would deny that same-sex intercourse is expressive of sexual orientation) – in what sense can we say that expressing your personality and self-determination is “against the order of nature”?

The Court then cites a number of international conventions and legal instruments, all of which prohibit discrimination on the basis of gender identity as well as sexual orientation. In paragraph 55, it holds that discrimination on grounds of sexual orientation or gender identity violates the equal protection of laws. And in paragraph 77 – the last paragraph of Justice Radhakrishnan’s judgment, he holds that:

We, therefore, conclude that discrimination on the basis of
sexual orientation or gender identity includes any discrimination, 
exclusion, restriction or preference, which has the effect of
nullifying or transposing equality by the law or the equal protection
of laws guaranteed under our Constitution.”

Now admittedly, Justice Radhakrishnan makes it clear that the scope of his judgment is limited to the rights of transsexuals. But surely it defies logic to argue that discrimination on the basis of sexual orientation is prohibited in the case of transsexuals, but allowed in all other cases? In other words, the logic of the NALSA judgment seems to make it clear – even if it does not say so in express terms – the “sexual orientation”, per se, is a protected category. And once again, recall that Koushal made no finding on that specific point.

In this sense, NALSA v. UoI can be taken to be a clarification of KoushalKoushal holds that it is constitutional to criminalise carnal intercourse against the order of nature. NALSA holds that sexual acts that are characterised purely in terms of the sexual orientation are not acts against the order of nature. In effect, this is the same as the holding of the Delhi High Court. However, while the Delhi High Court held that 377 is unconstitutional insofar as it criminalises same-sex intercourse between consenting adults – the logic of NALSA requires the conclusion that 377 is constitutional only because it does not criminalise same-sex intercourse between consenting adults. In that case, then – because NALSA is not a case about homosexuals, and therefore not precedent on that point – perhaps the next step is to approach the Court for a judgment clarifying the scope of S. 377 as applied to homosexuals.

None of this, of course, is an endorsement of anything in Koushal, or anything that Koushal stands for. The act/identity distinction in Koushal remains flawed and indispensable. Its cavalier treatment of the “so-called rights of a minuscule minority” remains indefensible. But insofar as we’re considering the present state of law, it is perhaps arguable that, reading Koushal and NALSA together, same-sex intercourse between consenting adults can no longer be criminal in India.

 

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Naz Foundation and Homosexuality: A humorous, historical aside (with a point)

The judgment in Naz Foundation, on appeal from the Delhi High Court, should be out either today or tomorrow – one and a half year after hearings concluded. As we wait to see whether the Supreme Court upholds the Constitution’s guarantee of equal citizenship to all persons regardless of their sexual orientation, here is a light-hearted diversion: a humorous record of homosexual practices in early sixteenth-century Rome, Florence and Northern Africa. This is an excerpt from Natalie Zemon DavisTrickster Travels, the account of a Muslim diplomat – Leo Africanus – from Fez, in the Maghreb, who was captured by pirates and brought to Rome, where he converted to Christianity and spent seven years. Over to Leo Africanus – or his Muslim name, “Yuhanna al-Asad”, then:

Both Aretino and Delicado [two famous scholars] mentioned in passing homosexual desire, Aretino recalling as inspiration an ancient marble statue in the garden of the banker Chigi: a satyr is attempting to penetrate a youth. Homoerotic practices were harshly condemned in Christian Italy as in Islamic societies, being considered sinful and now even diabolic, but they were carried on in various circles, with some caution and with more likelihood of actual surveillance and prosecution than in North Africa. During the very months al-Hasan al-Wazzan was being delivered to the Castel Sant’Angelo [in Rome], one papal court fined five men for “sodomy” in Rome, including a Spanish immigrant, a Jew, and a priest, and rewarded a sixth for providing information.

 Once released from prison, Yuhanna al-Asad would have readily discovered that the “beautiful boy”, the beardless youth, was an important figure in the male imagination in Italy as in North Africa. Among the humanist-clerical network in Rome, men were accused homosexual acts, including the bishop-historian Paolo Giovio, claimed in one learned poem to maintain a “cynaedus”, that is, a youth who was the passive partner. Castiglione, who redrafted his “Courtier” [a famous book] in Rome in the early 1520s, gave a playful exchange between two gentlemen visiting the city during Lent: one seeing some beautiful Roman women, quoted Ovid, “Your Rome has as many maidens [puellas] as the heaven has stars,” whereupon the other, seeing a group of young men, responded, “Your Rome has as many cinaedos as the meadows have lambs.” In 1524-25 Benvenuto Cellini [a famous sculptor] took on such a lad as his assistant while he was working on a vase for the bishop of Salamanca; so beautiful was this Paulino that Cellini was taken with love for him, played music for him just to see his beautiful and honest smile, and was “not at all surprised by those stories the Greeks wrote about their gods.”

 Meanwhile in Venice and Florence, whole groups of male adolescents had relations with older men as an expected initiation into sexuality. Some became young prostitutes, some sustained relations with men, many married women once they moved into adulthood. A web of languages, jokes, customs and meeting-places had sprung up around these practices, surviving despite surveillance, prosecution and punishment by the authorities and, in the case of Florence, despite Savanarola’s sweeping attack on “the abominable vice” during the republic of 1494-98. Long after the severe penalties for sodomy imposed during Savonarola’s years were softened, especially in regard to the young.  

 Linked as he was to Medici circles in Rome, Yuhanna al-Asad must have heard about his world. By the time he came to write his Lives and his Geography, he had picked up local words and turns of phase associated with homoerotic activities, the same words and phrases uttered to the Florentine Officers of the Night by participant-informers and found also in popular texts. For example, as Yuhanna al-Asad tells it, the youthful son of the current sultan of Tunis, sent by his father to administer the town of Constantine, was rebelled against by the townsfolk not only because he was “un cincedo et grande imbriaco” – that is, a youthful passive partner and coupler with men. Cross-dressing men in the Fez hostels “keep a man like a husband” as the older men in Florence talked of “keeping a boy like a woman.” The Fez populace wished death to such “giottoni”, Yuhanna al-Asad’s spelling for ghiotti, or gluttons. And in mentioning the “fregatrice” of Fez, he seems to have had a good ear for the popular words used at the time in Italy for erotic acts between women.”

Humorous as these passages are, their lurks underneath them, I think, a serious point. Recall that one of the arguments in Naz Foundation turns upon whether or not homosexual intercourse goes against public morality and Indian culture. But let us reflect for a moment upon what we have just read. Does it make any sense to talk about the “public morality” of Rome, or of Florence, or of Fez? Do we take as the arbiters of public morality the churchmen and the holy books, and the laws of crime and punishment, or do we consider as well the thriving counter-culture, this “web of languages, jokes, customs and meeting-places“? Is there any basis in logic or justice for choosing to ignore the latter, simply because these are the submerged voices that are never heard until a historian like Natalie Zemon Davis comes along and resurrects them for us? Is it not, in fact, a double injustice that we are in danger of perpetrating – to submerge a second time the voices that have been submerged for centuries by denying their existence in the construction of this amorphous, shifting idea of “public morality”?

When we try to identify the public morality of a society, and look to historical sources to do so, we invariably privilege the voices of those who wrote the histories, and end up with a distorted picture. Perhaps we need a Davis to resurrect our own “Indian” past for us in the mould of Rome and Fez, but until that happens, at the very least, our judges should not continue to perpetrate willful suppression of those on the margins by denying them protection of law over and above denying them protection of “our culture”. That is not the conception of equal citizenship that our Constitution commits us, as a nation, to uphold and defend.

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Textualism vs Structural Analysis – or why the Court ought to Uphold Naz Foundation

In the previous post, we noted that the concept of the basic structure, in both India and Germany, takes its shape and form not from any one or multiple clauses of the Constitution, but from “overarching principles” that explain and justify the Constitution as a whole. This method of analysis, which we may call “structural analysis” (as opposed to “textual analysis”) has received some amount of judicial and scholarly attention in the United States.  In his dissenting opinion in Panama Refining Co v. Ryan, Justice Cardozo observed:

“… the meaning of a statute is to be looked for, not in any single section, but in all the parts together and in their relation to the end in view.”

One year later, in Duparquet Co v. Evans, this time writing for the Majority, he added:

“There is need to keep in view also the structure of the statute, and the relation, physical and logical, between its several parts.” 

This theme was taken up by the famous constitutional scholar, Charles Black (who, incidentally, authored the petitioners’ briefs in Brown v Board of Education). In a series of three lectures, brought together into a book titled Structure and Relationship in Constitutional Law, Black developed the basic thesis that constitutional analysis involves “inference from the structures and relationships created by the Constitution in all its parts or in some principal part.” In the book, he discussed a number of hypotheticals in which famous American cases like McCulloch v. MarylandCrandall v. Nevada, and Gitlow v. New York  would – he argued – have been decided in the same way even if the specific textual provisions that they relied upon did not exist – simply because of the inexorable logic of constitutional structure. In Crandall v. Nevada, for instance, Nevada’s imposition of a one-dollar tax upon leaving the State was held unconstitutional on the ground that the American constitutional structure, from the Preamble to the Supremacy Clause, clearly envisaged a unified people living in a unified nation, for which reason travel between states was a question of right, not of privilege.

This method is, of course, the exact antithesis of textualism. Textualism focuses on explicating the precise meaning of individual words at issue in important constitutional cases. It is a method championed by the American Supreme Court justice Antonin Scalia through various opinions from the bench, and in his book, A Matter of Interpretation. Broadly, Justice Scalia makes two arguments for preferring textualism over structural analysis: first, that structure affords much greater leeway for judicial discretion than does textualism; and secondly, textualism – in particular, Scalian textualism – that focuses on the original public meaning of disputed words – privileges the popular conception of these words, and is thus more faithful to democracy.

As to the first, the factual assertion is suspect, to say the least. District of Columbia v. Hellera case about the American Second Amendment right to bear arms, provides a classic example of textualism’s own interpretive uncertainties: in that case, using unimpeachable textualist methodology, marshaling a vast array of historical sources (much of which overlapped), Justices Scalia and Stevens nonetheless managed to come to exactly the opposite conclusion about the scope of the Second Amendment. The broader point – as Dworkin argues repeatedly, and as Professor William Eskridge examines in some detail here – is that it is a mistake to think that “meaning” exists external to and beyond the interpreter, that it simply exists to be discovered by an impartial interpreter; a more accurate way of understanding meaning is to acknowledge, in the spirit of hermeneutics, that it is constructed by interpreters who bring to the enquiry their own set of fore-understandings. Once this is acknowledged, the idea that texts operate as passive depositories of meaning that by virtue of themselves, limit and constrain the interpretive enquiry, dissolves.

Further, it is a popular – yet invidious – mistake – to equate structural analysis to a free-wheeling moral enquiry that “ignores text”; no structuralist would deny that the constitutional text is the point of departure, that it informs any constitutional analysis – and indeed, structure itself supervenes over text; as Black himself stated:

… the structure and relations concerned are themselves created by the text, and inference drawn from them must surely be controlled by the text.”

Justice Scalia’s second argument – about democracy – holds even less water. As Professor Akhil Amar points out, the American Constitution was not ratified clause-by-clause, but as a whole – the decision was essentially in the form of “take-it-or-leave-it”. In such a scenario, it would actually be more faithful to popular democracy to interpret the Constitution as a coherent whole, with individual clauses taking their meaning from a sense of the whole, rather than the other way around.

In India, of course, the Constitution was never ratified, so the Scalia-Amar disputation is perhaps academic. Nonetheless, the speeches in the Assembly Debates (for instance, Nehru’s famous Objectives Resolution) do seem to reveal that our framers were well aware that they were drafting a document animated by certain fundamental purposes, and that individual clauses were designed to fulfill those purposes. To this we can add Dworkin’s argument, discussed in the last post, that principled consistency in law-making is an essential pre-requisite for political legitimacy.

These scattered observations are not meant – in any way – to serve as a full-blown defence of structural analysis in the Indian constitutional context; they are meant only to serve as a point of departure, and at the very least, establish it as a credible (and perhaps intuitively more desirable) alternative to textualism (and what often comes to be – but by no means necessarily is – its corollary, originalism). Let us now consider what structural analysis would  look like in practice.

As we all know, the Delhi High Court in Naz Foundation v. NCT decriminalised homosexuality, holding that insofar as S. 377 of the Indian Penal Code made sexual intercourse between consenting adults a crime, it was unconstitutional. This decision was appealed, heard by a two-judge bench in 2012, and the decision is due within the next three months. The Delhi High Court grounded its judgment in many constitutional provisions; specifically, let us consider its holding on Art. 15(1), which states:

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

The Court held that the word “sex” includes “sexual orientation”, and that therefore, discrimination on the basis of sexual orientation is impermissible.

Did the “public meaning” of the word “sex” in 1950 include sexual orientation? Perhaps not – that is, if the question makes any sense in a country where the majority didn’t even speak English. Did Nehru, Ambedkar, Patel and the rest contemplate that they were prohibiting discrimination on the basis of sexual orientation? Probably not – but then again, they probably didn’t think they were permitting it either – in all likelihood, the issue didn’t cross their minds. What would they have said if the question had been put to them? We don’t know – perhaps they would have gone with the dominant prevailing opinion that homosexuality was a form of disease (but perhaps not); what would they conceivably say if we could bring them back from the grave, put copies of the Wolfenden Committee Report, reams of medical evidence and the lead opinion of Lawrence v Texas before them – and ask them for their opinion? Again, we don’t know.  Textualism, originalism, original intent – these theories simply give us little to no purchase on the issue. Yet even if they did, their relevance would be limited at best – because as we have argued, the enquiry is not about determining the most accurate possible meaning of a given text.

So much for what we don’t know. Here is what we do know: Article 15 prohibits discrimination on a number of grounds: religion, race, caste, sex and place of birth. With the possible and partial exception of religion, what unites these features is that they are all essential aspects of any individual’s private and public identity (by public personality, I mean a series of labels used by the society to identify her and differentiate her from others) that she is born into and is powerless to choose or change. To this we can add Article 16(2) (prohibition of discrimination in employment on similar categories); Article 17 (prohibition of untouchability – discrimination on the basis of birth); and Article 18 (abolition of titles – advantages (a form of discrimination), normally on the basis of birth). Let us – summarily – call this the “non-disrcimination principle”.

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

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

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

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

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

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Filed under Constitutional interpretation, Non-discrimination, Sexuality, Structural analysis, Textualism