The Lawrence of India (Pt 2) (the Supreme Court Sequel)

In a recent post (7/5/09), I reported and commented on the decision of the Delhi High Court in NAZ Foundation v. Government of NCT of Delhi & Ors, reading down 377 of the Indian Criminal Code, so as to apply only to “nonconsensual penile non-vaginal sex and penile non-vaginal sex involving minors” – a decision I suggested may come to be regarded as the “Lawrence of India”.

Since then, an appeal has been lodged against the decision by an individual astrologer named Suresh Kumar Kaushal (http://tinyurl.com/mkotbf) and the Supreme Court has voted to accept his petition to hear the matter –see http://tinyurl.com/nr6vs6

The identity of the appellant leaves open the possibility that, unless the government actively intervenes (on the likelihood of this, see http://tinyurl.com/nwf6ve), the Supreme Court might ultimately decide to dismiss the appeal on procedural grounds, or grounds of lack of jurisdiction, as, for example, the High Court of Australia did in Re McBain (2002) 209 CLR 372 (a case in which the Catholic Archbishops sought to appeal against a federal court ruling granting access to state-funded IVF services to single women and implicitly also lesbians) – see http://tinyurl.com/mxmoc9

Such a route certainly seems possible, given the willingness of the Indian Court, despite generally very broad standing rules, to use the requirements of standing as the basis for avoiding issues of great political sensitivity, such as whether the Indian government is required to preserve certain mosques (the Gyanvapi Masjid) or temples, such as the Vsihwanath temple at Varanasi or Krishna temple at Mathura.

However, the Court’s eagerness to hear the matter in a timely way (the hearing is set-down for next week), makes it seem more likely that it does intend to weigh in on the merits.
If that is right, despite strong religious sentiment on the issue in India, global trends (see my last post) predict that is likely to uphold the High Court’s judgment, or possibly even give the result reached by the High Court a more direct Constitutional basis, by striking-down and severing part of s 377. (Striking down the provision in its entirety seems less likely, given the gap it could create in the Code’s prohibition of certain non-consensual sexual activity.)

Lawrence itself also suggests that the Court might use the occasion to emphasize that Constitutional recognition of sexual freedom for gays and lesbians does not directly or inexorably require – or imply – the legal recognition of same-sex marriage. (There has seemingly been some attempt by advocates of gay marriage to make such a link in India, as a practical matter: see http://tinyurl.com/lu7xm9)

However one looks at it, the Supreme Court sequel is bound to be interesting – because astrologers aside, few of us can confidently predict how at least a semi-randomly drawn bench of 3 out of 31 justices will decide.

–Rosalind Dixon (with thanks to both Ambika Singh and Rishad Chowdry for helpful comments on the issues raised by the case.)