The Supreme Court should not–and need not–get into the question of what forms of sexual identity or orientation are ‘natural’ in order to find Section 377 IPC unconstitutional.
The Supreme Court of India is in the process of reconsidering its December 2013 judgment in the case of Suresh Kumar Koushal vs Naz Foundation, which had reversed the decision of the Delhi High Court to “read down” Sec. 377 of the Indian Penal Code (IPC). The Court now has another chance to decide whether this provision, widely read as criminalising homosexual intercourse, is constitutional or not.
This latest hearing is a welcome step; frankly, it is also devoid of suspense. Two judgments that the court has pronounced since 2013–in the NALSA case and the Puttaswamy (aka “Right to Privacy”) case–have thoroughly undermined the legal basis previously used in favour of Sec. 377. (The 2013 judgment would not have stood for long even without these developments; as I wrote on first reading that decision–drawing on this excellent analysis by Gautam Bhatia–it was based on a series of flaws so evident as to make its overruling only a matter of time. Once the Court recognised a fundamental right to privacy, finding Sec. 377 unconstitutional became a fait accompli.)
Unfortunately, there’s still a large pitfall that potentially lies ahead in this judgment. To understand why, let’s first read through the language of the IPC again:
Section 377: Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
(Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.)
The language of this section–wherein the offence consists of voluntarily having “carnal intercourse against the order of nature”–is similar to the language of England’s first civil anti-sodomy law, the anachronistically-named Buggery Act of 1533. There, “buggery” was defined as “carnal knowledge against the ordinance of the Creator, and order of nature.”
In 17th-century England, sodomy (“buggery”) wasn’t just a crime: it was considered “a detestable and abominable sin, among Christians not to be named.” Such was the prudery of British society at the time that mere description of the act was itself considered degrading. As in a trial for blasphemy, to describe the offence was to risk polluting oneself and the public morality: in one case from 1842, for instance, the defense objected that the charges against the accused were a string of adjectives that gave no indication of what the offending act actually was.
The UK repealed laws criminalising homosexual intercourse in 1967. In India, we have persisted with not only the law against sodomy, but also the prudery surrounding it. The law on rape (Sec. 375 IPC), which originally spoke only of “a man who… has sexual intercourse with a woman… against her will or without her consent“, has been amended to be far more explicit; as a result, it is far more precise, and protects against many more acts and circumstances. Sec. 377, however, never mentions the words “anal sex” or “penetration of the anus”; instead, we retain the archaic and vague criminalisation of sex “against the order of nature.”
The plaintiffs–or worse, the Court–may find themselves tempted to address this vagueness. After all, if homosexuality is natural–that is, if a lesbian, gay, or bisexual person is born with that sexual orientation–then how can the form of sexual intercourse they have be “against the order of nature?” This is a persuasive argument, and one I agree with as a matter of personal opinion. It is, however, an area that I strongly believe the Court should NOT address–especially because the Court does not have to look into this question at all to find that Sec. 377 is unconstitutional.
Is homosexuality–or, more broadly, any form of sexual identity, orientation, or preference–“natural”? To answer, one must first define the parameters that distinguish between natural and unnatural phenomena; these can include, for instance, whether the behaviour is innate or learned, whether it is observed in other species, and so on. This is precisely what the Court should avoid doing, because these questions lie entirely beyond the domain of the Court: they are questions for scientists to build and test theories around, not for the law to determine in some sort of definitive pronouncement.
This is especially the case because scientists, across a range of fields, have broadly agreed that all human behaviour is a product of both nature and nurture, genetics and environment. Given that consensus, it would be absurd for the court to hold that someone who “always knew they were homosexual” is naturally that way, but someone who “recently discovered they were homosexual” is performing a learned–rather than a natural–sexuality. More importantly, that distinction should be meaningless to their enjoyment of the right to privacy, and it would be unduly narrow–not to mention inconsistent–to suggest that a fundamental right is applicable to one of those persons, but not the other.
Following the recognition and articulation of this right in the Puttaswamy judgment, the Court has a rock-solid legal basis to find Sec. 377 unconstitutional. Consider the wording of Art. 13 of the Constitution:
Article 13:Laws inconsistent with or in derogation of fundamental rights: (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with [fundamental rights], shall to the extent of this inconsistency be void; (2) The state shall not make any law which takes away or abridges [fundamental rights], and any law made in contravention of this law shall, to the extent of the contravention, be void.
The state in India–an expression that covers all of its agents, such as the police or the courts–lacks the authority to take any action that amounts to or involves a violation of the fundamental rights of the citizens of India. The technical term for such actions is ultra vires–Latin for “outside (the) power”; since the State derives its authority from the Constitution, any act that is unconstitutional is by definition ultra vires.
In its 2013 judgment, the Court had held that Sec. 377 does not discriminate against a class of people – instead, it is only concerned with certain acts. Here’s the question: how would the State or its agents learn about the details of the sexual acts of any citizen? Assuming that these acts take place in private, any enquiry the state may make into such acts is a violation of those citizens’ privacy. In other words, the enforcement of Sec. 377 would require the State (police, courts, etc.) to violate a citizen’s right to privacy; since privacy is a part of the fundamental right to life, protected under Art. 21, such enquiry is ultra vires.
A second line of argument relates to Art. 14 and 15, which guarantee equality before the law and freedom from discrimination. A state that cannot lawfully enquire into the specifics of a sexual act may nonetheless assume that all sexual acts committed by a specific class of persons–homosexuals–are of a criminal nature. This, however, would mean that homosexuals are not receiving their rights under Art. 14 and 15, because everyone else is free to have sex as they prefer, but homosexuals are discriminated against and treated as criminals. Since the NALSA judgment treated transsexuals as a discrete group, entitled to the protection of Art. 15 just as persons of a given race, caste, religion etc. are, why would homosexuals not be entitled to the same protection?
This is also the strong statement of the right to privacy: that it protects the right of every citizen, regardless of their sexual identity or orientation, to have sexual intercourse in the privacy of their homes–or anywhere else where they have a reasonable expectation of privacy. The only questions the state can enquire into is whether all participants were above the age of consent, and whether they did consent.
On the one hand, this will likely not involve a violation of privacy because the enquiry will only arise when the non-consenting party seeks the aid of the State. On the other hand, even if it does involve a violation of privacy, this is lawful as long as it meets two criteria: it is done in pursuance of a legitimate state interest, and the infringement is proportionate and limited to the actions necessary to secure that interest. Clearly, the state has a legitimate and compelling interest in protecting citizens from the crime of rape, and the infringement is proportionate, since it is limited to a specific case where such a complaint has arisen.
Judges in India have a marked fondness for long, wide-ranging philosophical discussions; these frequently find their way into their judgments, albeit as what is known as obiter dicta – pronouncements made “by the way”, not central to the decision itself. It would be impolite to single out specific judges for indulging themselves in this way; suffice it to say that–given the composition of the bench in the current hearing–the record speaks for itself.
In the current case, the potential ramifications of such judicial pontification are cause for concern: they could open the door to the courts–or other organs of the State–to attempt to determine what is “natural” when it comes to gender, sex, or sexuality. To be clear: this would be a very bad thing, and it is to be hoped that the Court will avoid it in this and every future instance.
Besides, there is something profoundly liberating–and liberal–in a Constitution that accords equal rights and protection to all persons, irrespective of their sexual identities, orientations, or preferences, and indeed even independent of their prejudices on the question of sexual identity or preference, One hopes the honourable judges will be satisfied with the elegance of that conclusion, and restrain themselves to it strictly.