Orthodox in the Extreme: India’s Same-Sex Jurisprudence in Comparative Perspective

—Rehan Abeyratne (Jindal Global Law School) and Nilesh Sinha (Syracuse University)

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

While we agree with much of this criticism, our focus in this post is not on the substance of the judgment, but on a troubling aspect of the Court’s methodology. Unlike the Delhi High Court, which drew extensively on international and foreign legal sources, the Supreme Court was dismissive of the use of comparative materials. We will briefly overview the Delhi High Court and Supreme Court judgments before discussing their divergent approaches to comparative constitutional law. We will then compare the Naz Foundation judgment to jurisprudence on same-sex rights from the United States and South Africa.

The Delhi High Court opinion has been lauded by both constitutional law scholars and human rights activists for its doctrinal creativity and for recognizing Section 377’s perverse effects on the LGBT community. The High Court found that Section 377 had been widely misused by the police as a tool for detention, harassment and extortion of sexual minorities. This abuse drove underground the activities of gay men in particular, with severe consequences to their physical and psychological health. Citing NGO reports and academic studies, the High Court noted that Section 377 not only compromised HIV/AIDS prevention and treatment, but also damaged the self-esteem and dignity of gay men and other sexual minorities. The High Court found that by criminalizing private sexual acts that caused no injury, Section 377 was motivated not by any legitimate state purpose, but by animus, and that it targeted the LGBT community as a class. It therefore held that this provision, in its application to private acts between consenting adults, violated a number of fundamental rights guaranteed by the Constitution of India, including the right to privacy (implicit within the right to life under Article 21), the right to equality under Article 14, and the right against discrimination under Article 15. The High Court upheld Section 377’s criminal prohibitions on “non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.”

The Supreme Court reversed the High Court’s judgment, holding that Section 377 did not violate the fundamental rights of the LGBT community as a class or the rights of its individual members. The Court began by stressing the value of judicial restraint in a constitutional democracy; in particular, it discussed the presumption of constitutionality that attaches to any law enacted by Parliament. After establishing this deferential tone, the Court described Section 377 as merely identifying “certain acts which if committed would constitute an offence”, without discriminating against a particular gender or sexual orientation. It added that the LBGT community constitutes only a “miniscule fraction” of India’s population and that over the past 150 years fewer than 200 individuals have been prosecuted under Section 377. The Court did not explain why this unsubstantiated assertion was important, but the implication is that even if sexual minorities can be considered a class, it is too small and insignificant a class to warrant constitutional protection.  The Court then dismissed the claim that Section 377 violates Article 21’s implicit guarantees of privacy, autonomy and dignity on similarly shaky grounds. While conceding that the police have misused this provision, the Court went on to say that the “mere fact” of such abuse does not affect its constitutionality. Rather, in keeping with the theme of judicial restraint, the Court simply noted that this “might be a relevant factor for the Legislature to consider while judging the desirability of amending Section 377.”

The Court’s opinion ends with a sweeping conclusion that disparages both the LGBT community and the Delhi High Court’s use of comparative materials. It stated:

In its anxiety to protect the so-called rights of LGBT persons…the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.

This statement fundamentally misunderstands the Delhi High Court’s approach to comparative constitutional law. As Sujit Choudhry has pointed out, the High Court does not blindly borrow from foreign judgments but rather engages with a range of comparative materials (including human rights treaties and academic research) to reflect on the values and assumptions underlying the Indian Constitution.[1] This “dialogical” approach has been adopted by the Supreme Court in prior cases, most notably in Vishakha v. Rajasthan (1997), where the Court drew from international sources including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to develop guidelines on sexual harassment in the workplace. These guidelines formed the basis of a sexual harassment law recently passed by the Indian Parliament.

In Naz Foundation, the Supreme Court diverges from these precedents and adopts what Choudhry would call a “particularist” view of the Indian Constitution. This view rejects engagement with foreign legal sources and seeks to interpret the Indian Constitution in a manner that is consistent with domestic cultural norms. Justice Singhvi, the author of the Koushal judgment, does not elaborate his view on how best to interpret the Constitution, but he cites a number of cases that suggest an anti-Western brand of particularism. He refers, for instance, to Jagmohan Singh v. State of U.P. (1973), which concerned the legality of a death sentence, and expressed “grave doubts about the expediency of transplanting Western experience in our country.” He also cites Sudendra Pal v. Saraswati Arora (1974), where the Court refused to follow the English approach to a family law dispute.

While such close-mindedness to developments in “Western” jurisdictions is in itself unfortunate, Justice Singhvi seems to have overlooked the important fact that the Delhi High Court’s judgment in Naz Foundation relies substantially on jurisprudence from the South African Constitutional Court. This is a non-Western source of law from a country whose experience with colonialism, discrimination and recent transition to constitutional democracy should be very instructive in the Indian context.

Indeed, the South African Constitutional Court in National Coalition for Gay and Lesbian Equality v. Minister of Justice (1998) unanimously held that the crime of sodomy was unconstitutional, as it violated rights to equality, dignity and privacy. In Minister of Home Affairs v. Fourie (2005), the South African Constitutional Court ruled that same sex couples have the constitutional right to marry. In order to strengthen the decision, to safeguard against charges of countermajoritarianism, and to increase public acceptance of the decision, the Constitutional Court set a deadline of a year for parliament to make a law remedying the Marriage Act. This led to the passage of the Civil Union Act in 2006, making South Africa one of the first countries to recognize same sex marriage. The South African experience therefore demonstrates, contra Justice Singhvi, that a Court can recognize the rights of sexual minorities while still respecting the separation of powers.

Similarly, the U.S. Supreme Court struck down a state law criminalizing sodomy in Lawrence v. Texas (2003). In the process, it overturned Bowers v. Harwick (1986), a decision similar to Koushal v. Naz Foundation. In Bowers, the U.S. Supreme Court upheld a Georgia statute that criminalized sodomy between consenting adults. While the Supreme Court in Bowers did not extend the right to privacy (recognized in Griswold v. Connecticut (1965)) to homosexual acts, it held in Lawrence that private sexual conduct was protected by the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. Recently, in United States v. Windsor (2013), the U.S. Supreme Court when one step further by holding that the federal law definitions of “marriage” and “spouse”, which excluded homosexual couples, were unconstitutional. In the context of the Defense of Marriage Act (DOMA), the Court held that these narrow definitions violated the guarantee of equal protection of the laws under the Fifth Amendment. Justice Kennedy, who authored the majority opinion in Windsor, recognized what the Indian Supreme Court in Naz Foundation did not: that the impugned law was motivated by animus towards the LGBT community, and not by any legitimate state interest.

Thus, while the apex courts of other major constitutional democracies have recognized various rights for same-sex couples and sexual minorities, the Supreme Court of India, in the largest democracy in the world, has lacked the courage, conviction, and integrity to do so. Going forward, we hope that the Indian Supreme Court rejects Justice Singhvi’s misleading and poorly articulated approach to comparative constitutional law in favor of a more open approach favoring engagement with foreign materials like that adopted by the Delhi High Court.

We conclude by observing an important structural aspect of the Indian Supreme Court. The Court comprises 31 justices, who generally hear cases in panels (“benches”) of 2-3 justices.[2] Justice Singhvi’s opinion in Naz Foundation, for instance, emerged from a two-judge bench. It therefore might not represent the views of his colleagues and, if Section 377 is later challenged before another bench, a very different – and hopefully more progressive – judgment might emerge.

Suggested Citation: Rehan Abeyratne & Nilesh Sinha, Orthodox in the Extreme: India’s Same-Sex Jurisprudence in Comparative Perspective, Int’l J. Const. L. Blog, Dec. 16, 2013, available at: http://www.iconnectblog.com/2013/12/orthodox-in-the-extreme-indias-same-sex-jurisprudence-in-comparative-perspective