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Supreme Court of India Eloquently Rules for Gay Rights, Striking Criminal Penalties for Gay Sex

Posted on: September 6th, 2018 by Art Leonard No Comments

The Supreme Court of India ruled on September 6 that the Victorian-era Section 377 of the Indian Penal Code, the ban on “unnatural sex” that has been used to penalize same-sex activity, violates the fundamental rights of LGBT people. Building on a pioneering ruling by the Delhi High Court, and repudiating a decision by a two-judge panel of the Supreme Court that had reversed the High Court ruling, a five-judge panel of the 31-member Supreme Court, led by Chief Justice Dipak Misra, called upon the jurisprudence of numerous other countries to interpret the Constitution of India as a bastion for human rights, locating personal sexual freedom for LGBT people as a fundamental part of such rights.

As is customary in the high courts of British Commonwealth countries, the Supreme Court’s ruling is not embodied by any single opinion. In this case, the five-judge panel produced four substantial written opinions.  Chief Justice Misra’s 166-page opinion was joined in full by Justice A. M.  Khanwilkar.  Each of the other justices on the panel produced their own opinions, amounting in total to an extraordinary outpouring of human rights rhetoric, totaling 495 pages in the pdf file released by the Court.

India did not have any sex crimes statutes before the British colonization of the country beginning early in the19th century, imposing imperial rule atop the existing structure of local governments and eventually insisting that the India enact a Penal Code drafted by British lawyers, modeled on English penal law, itself derived from the sexual prohibitions imposed by the Catholic Church when it was the established English Church prior to the English Reformation during the reign of Henry VIII.

Section 377 of that colonial Code, enacted in 1860, was actually engrafting a foreign legal concept onto Indian society, making it ironic that the present-day defenders of Section 377, pointing to the decriminalization of gay sex in the great western democracies, now protest that the plaintiffs were attempting to impose foreign western concepts of individual sexual freedom on Indian society!

The road to the September 6 ruling was a long one. More than a decade ago, an non-profit AIDS services and advocacy organization, NAZ Foundation, filed a lawsuit in the Delhi High Court, making a powerful argument that the existing sodomy law was an impediment to confronting the AIDS crisis in India.  After lengthy proceedings and much deliberation, the High Court issued its ruling in 2009, finding that Section 377 was inconsistent with guarantees of liberty and privacy in the Indian Constitution.

Unlike the United States, where the right to appeal a trial court ruling is limited to the litigating parties, in India anybody affronted by a court decision can petition to appeal it. The Naz Foundation ruling, greeted by jubilant street demonstrations and waves of LGBT people “coming out” for the first time, provoked the forces of religious orthodoxy in India to file a petition with the Supreme Court.  Interestingly, the government, which had declined all efforts to repeal or modernize Section 377, did not seek the appeal, and was reluctantly dragged into the case.  The Supreme Court normally hears appeals in panels of just two judges.  The appeal seemed to take forever, but it resulted in a ruling in 2014, under the title Koushal v. NAZ Foundation, which reversed the lower court, refusing to invalidate what had become a venerable statute that the new state of India after World War II had deliberately decided to keep, while amending or repeal various other provisions of the colonial penal laws.  The court minimized the significance of what it was doing, by claiming that only a tiny portion of the population identified as gay, so the constitutional claim was trivial, almost beneath the attention of the court.

The ruling threw fear into the LGBT community, as many had come out in reaction to the trial decision, and were worried that they were now open to police harassment, employment and housing discrimination, shunning by their families, and violence on the streets. All of these fears were realized to some extent, but the massive celebrations and new openness of the LGBT community in the wake of the High Court opinion, which was generally well-received in the press, had begun to move public opinion toward more acceptance of LGBT rights.  In fact, the current government, much more conservative than its predecessors on many issues, has not made defending Section 377 a priority.  As attempts were made to get first the two-judge panel and then the larger court to reconsider the Koushal ruling, the government did not spring to defend.  There are various procedural devices in Indian law for seeking review of a Supreme Court ruling, and ultimately what succeeded was a deluge of petitions to the Court from various prestigious groups and famous individuals, putting their reputations on the line.

A panel of the Supreme Court headed by Chief Justice Misra heard arguments in January 2018 about whether to convene an enlarged panel of judges to reconsider the Koushal decision. They were spurred on by other recent developments, including important Supreme Court decisions recognizing the equality rights of transgender people and the privacy rights of all Indians that were put in danger by the government’s adoption of new technology to track the identity of India’s 1.3 billion people.  The privacy decision, by a super-large nine-judge panel of the court, had included biting comments by several of the judges who criticized the Koushal decision as inconsistent with basic precepts of the Indian Constitution.

It was not surprising, when Chief Justice Misra appointed himself to head a new five-judge panel to hear this case, now titled Navtej Singh Johar & Others v. Union of India, that commentators all agreed that the court would definitely overrule Koushal and strike down the application of Section 377 to private, consensual adult sex, and such was the case. The only suspense, after gleeful press reports of the oral arguments held in July, was how wide-ranging the opinion would be.  Indeed, the government pleaded with the court to limit its ruling narrowly to the application of Section 377 to sexual acts, and to refrain from making any rulings about other kinds of anti-LGBT discrimination or same-sex marriage.

It is impossible in the scope of this article to provide extensive discussion of the four opinions. Chief Justice Misra’s opinion is like to be the most quoted and influential, for obvious reasons. Much of it is taken up with a philosophical treatment of the nature of the Constitution of India and theories of constitutional interpretation.  Misra fervently rejects any contention that a Constitution is a static document with a meaning and reach fixed at the time of its adoption.  In sometimes flowery language, he asserts a dynamic approach to constitutional interpretation that requires the courts to take account of changing knowledge and social attitudes, extending the broadly phrased principles of freedom, liberty and equality to ensure maximum protection for individual rights.

He sounds at times like recently-retired U.S. Supreme Court Justice Anthony Kennedy, quoting extensively from the Obergefell (marriage equality) and Lawrence (gay sex) decisions of the Supreme Court, and embracing Justice Kennedy’s favorite term for interpreting the liberty guaranteed by the U.S. Constitution: human dignity. Just as the word “dignity” recurs frequently in Kennedy’s gay rights opinions, Misra uses the term frequently.  For example, he wrote, “we have no hesitation to say that Section 377 IPC, in its present form, abridges both human dignity as well as the fundamental right to privacy and choice of the citizenry, howsoever small.  As sexual orientation is an essential and innate facet of privacy, the right to privacy takes within its sweep the right of every individual, including that of the LGBT, to express their choices in terms of sexual inclination without the fear of persecution or criminal prosecution.”

Misra emphasizes the theme of individual autonomy, just as Justice Kennedy did in striking down the Texas sodomy law in 2003. “The sexual autonomy of an individual to choose his/her sexual partner is an important pillar and an insegregable facet of individual liberty,” he wrote.  “When the liberty of even a single person of the society is smothered under some vague and archival stipulation that it is against the order of nature or under the perception that the majority population is peeved when such an individual exercises his/her liberty despite the fact that the exercise of such liberty is within the confines of his/her private space, then the signature of life melts and the living becomes a bare subsistence and resultantly, the fundamental right of liberty of such an individual is abridged.”

The judge took special note of how Section 377 has been oppressive to the transgender community. “We must realize that different hues and colours together make the painting of humanity beautiful and this beauty is the essence of humanity.  We need to respect the strength of our diversity so as to sustain our unity as a cohesive unit of free citizens by fostering tolerance and respect for each others’ rights, thereby progressing towards harmonious and peaceful co-existence in the supreme bond of humanity.  Attitudes and mentality have to change to accept the distinct identity of individuals and respect them for who they are rather than compelling them to ‘become’ who they are not.  All human beings possess the equal right to be themselves instead of transitioning or conditioning themselves as per the perceived dogmatic notions of a group of people.  To change the societal bias and root out the weed, it is the foremost duty of each one of us to ‘stand up and speak up’ against the slightest form of discrimination against transgenders that we come across. Let us move from darkness to light, from bigotry to tolerance and from the winter of mere survival to the spring of life – as the herald of a New India – to a more inclusive society.”

One could go on at great length, quoting inspiring language by Misra and his colleagues in their three opinions, but the point is made. This five-judge panel unanimously agrees that constitutional concepts of privacy, autonomy, human dignity and equality are inconsistent with Section 377 as it applies to private, adult consensual activity.  Justice Misra explained that other sections of the penal law, include some recently enacted as part of a more general law reform, have combined to ensure that sexual activity falling outside this protected sphere could be still be prosecuted, especially noting provisions protecting minors from sexual exploitation and clarifying the application of the rape law in a wide range of non-consensual cases than had previously been covered.  Although the court refrained, as requested by the government, from ranging beyond the direct question presented to it, there was language in the opinion which might be exploited later to attached anti-LGBT discrimination and bans on same-sex marriage.

This ruling may have profound consequences well beyond India, which is the world’s second largest county by population after China (which repealed its laws against gay sex in 1997) and until September 6, 2018, was the largest democracy to maintain criminal penalties for gay sex. As a result of this ruling, 18% of the world’s LGBT population has in one giant leap been liberated from criminalization of their sexuality.

The persistence of Section 377 or provisions derived from it as part of the penal codes imposed by Britain on its far-flung 19th century colonial empire continue to haunt the lives of LGBT people in many former British colonies.  The Indian Supreme Court’s action, relying on phrases and concepts that are common in the post-colonial constitutions of many of these countries, may prove a powerful example leading to similar rulings elsewhere. In the meantime, of course, new celebrations broke out in India as word of the decision quickly spread.

Foreign and International Courts Issue a Burst of LGBT Rights Rulings

Posted on: January 11th, 2018 by Art Leonard No Comments

 

Over the course of just four days, January 8 through 11, 2018, major courts on three continents have issued rulings that will affect the rights of tens of millions of LGBT people. On January 8, the Supreme Court of India ordered reconsideration of the 2014 decision that had restored the country’s law against gay sex, in an Order that quoted extensively from prior rulings critical of the 2014 decision.  On January 9, the Inter-American Court of Human Rights advised Costa Rica – and thus also sixteen other countries in Central and South America that are bound by the American Convention of Human Rights and do not yet have marriage equality – that same-sex couples are entitled to marry and that transgender people are entitled to get legal name changes without having to undergo sex reassignment surgery.  And on January 11, one of the Advocates General of the European Court of Justice (ECJ), responding to a request for a preliminary ruling from the Constitutional Court of Romania, advised the ECJ that same-sex spouses of the citizens of member nations must be treated the same as different-sex spouses under the European Union Directive governing movement between states.

 

India has the second largest population of any country, over 1.3 billion people by the latest estimate. The European Union member countries have more than 500 million residents, and the combined countries within the Inter-American Union have close to a billion people, although some large countries, including Canada and the United States, are not subject to the Inter-American court’s ruling.  But, of course, both Canada and the United States have marriage equality and don’t criminalize consensual gay sex among adults.   This means that within the space of four days courts have potentially expanded LGBTQ rights to an extraordinary proportion of the world’s population, which is currently estimated at about 7.6 billion people, and marriage equality may soon become the norm throughout the Western Hemisphere, with only a few holdouts among states that do not recognize the jurisdiction of the Inter-American court.

 

The India ruling is yet another step in a complicated and long-running story. In 1860, under British Administration, the Indian Penal Code was adopted including what is now Section 377, providing, “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.”  This colonial enactment was carried over into national law when India became independent and self-governing after World War II.  It has been interpreted to outlaw all same-sex oral and anal intercourse. Although infrequently enforced, it has had the same stigmatizing effect as anti-sodomy laws in western societies before the slow process of decriminalization got under way during the second half of the 20th century.

 

Many LGBTQ people in India rejoiced and went heavily public in celebratory demonstrations in 2009 when the Delhi High Court, responding to a lawsuit filed by the NAZ Foundation, an HIV/AIDS advocacy non-governmental agency, ruled that Section 377 was unconstitutional as applied to private consensual adult same-sex intercourse. NAZ Foundation v. Government of NCT of Delhi, 111 DRJ 1 (2009). As the government did not initiate an appeal, many saw the lengthy, scholarly ruling as final and definitive.

 

However, Indian jurisprudence allows for anybody who is offended by a court ruling to ask the nation’s Supreme Court to review it, and a group of religious and social conservatives, led by Suresh Kumar Koushal, a Hindu astrologist, brought their case to the Supreme Court, where a two-judge bench reversed the High Court ruling in 2014, holding that the Constitution of India did not impede the government from maintaining the existing law, and rejecting the High Court’s citation of decisions from other countries (such as the U.S. Supreme Court’s 2003 Lawrence v. Texas ruling) to support its decision. Koushal v. NAZ Foundation, 1 SCC 1 (2014).  The Supreme Court panel minimized the significance of the issue, claiming that because there were very few homosexuals as a proportion of the population, it was not a matter of great importance.  It also opined that the question of what sexual conduct to outlaw was for the legislature, not the courts, to decide.

 

Obtaining further review from a larger panel of the Court (which has 26 judges overall) is a time-consuming process, requiring filing “corrective petitions” and persuading a panel of the Court that the issue should be taken up anew. This process has been ongoing at the instance of NAZ Foundation and its supporters, but a new group of plaintiffs emerged in 2016 and initiated a petition directly with the Supreme Court, arguing that recent rulings in other cases by the Court, most notably a later 2014 ruling on the rights of transgender people, National Legal Service Authority v. Union of India 5 SCC 438 (2014), had cast significant doubt on the reasoning of the Koushal decision.  This argument was bolstered last year when a nine-member panel of the Court, ruling on a challenge to a new national genetic identification system, Puttaswamy v. Union of India, 10 SCC 1 (2017), specifically discussed and disparaged the Koushal decision’s treatment of constitutional privacy and the rights of LGBTQ people.

 

The Court’s January 8 Order in Johar v. Union of India Ministry of Law and Justice, Writ Petition No. 76/2016, by a three-judge panel including Chief Justice Dipak Misra, provided an extensive summary of the arguments against the constitutionality of Section 377, quoting extensively from the 2014 transgender and 2017 privacy rulings, particularly those passages critical of the Koushal decision, and granted the petitioners’ request that a larger panel of the Court be convened to reconsider that decision. Interestingly, only the Petitioners were present at the Court’s hearing on January 8, with the argument being presented by Senior Advocate Arvind Datar.  Nobody appeared from the government to oppose the request for reconsideration.  The Order emerged immediately after the hearing.

 

While the Order does not specifically state that all of the Petitioners’ arguments are correct, after concluding its summary of the arguments and what the Petitioners are seeking, the Court stated, “Taking all the aspects in a cumulative manner, we are of the view, the decision in Suresh Kumar Koushal’s case requires re-consideration. As the question relates to constitutional issues, we think it appropriate to refer the matter to a larger Bench.”

 

A different Bench of the Court is presently considering the curative petition that was filed by the NAZ Foundation, so there was some speculation in the Indian press that the two cases could be combined before that larger panel. “In the meantime,” wrote the Court, “a copy of the petition be served on the Central Agency so that the Union of India can be represented in the instant matter.  Let the matter be placed before Honorable the Chief Justice of India, on the administrative side, for consideration of the appropriate larger Bench.”

 

Indian jurisprudence is famous for its slow motion, but there was some optimistic speculation that an opinion from a larger Bench of the Court may emerge later this year. In light of the serious criticisms of the Koushal decision by other Benches of the Court, commentators were optimistic that the Delhi High Court’s original ruling striking down criminalization of consensual gay sex will ultimately prevail, and gay sex will become legal in the world’s second largest country.

 

The Inter-American Court’s ruling on January 9 came in response to a petition submitted two years ago by Luis Guillermo Solis, the President of Costa Rica, who had run for office on a pledge to expand LGBTQ rights in his Central American country. Opinion Consultiva, OC-24/17 (2017). In the face of legislative intransigence, Solis inquired whether Costa Rica was obligated under the American Convention on Human Rights to let same-sex couples marry.  He also inquired about transgender rights.  The Court, which actually sits in Costa Rica’s capital city, came back with a strong affirmation for LGBTQ rights.  The opinion is initially available only in Spanish. According to translations published in English-language media sources, the court said that governments subject to the Convention “must recognize and guarantee all the rights that are derived from a family bond between people of the same sex,” and that establishing a separate institution for same-sex couples, such as civil unions, was not adequate from the point of view of legal equality.  The governments must “guarantee access to all existing forms of domestic legal systems, including the right to marriage, in order to ensure the protection of all rights of families formed by same-sex couples without discrimination.”

 

However, recognizing the kind of legislative intransigence encountered in Costa Rica and many other Central and South American countries, where the Roman Catholic Church has a heavy influence on social policy, the court recommended that government pass “temporary decrees” while new legislation is considered.

 

The Inter-American Court, in common with the European Court of Human Rights, is not empowered directly to order a government to do anything. Compliance requires acquiescence, and sometimes the court has resorted to demanding that governments explain why they have not complied with its rulings.  For example, it took Costa Rica several years to come into compliance with a ruling by the Inter-American Court against bans on the use of in vitro fertilization.

 

President Solis reacted to the decision by calling for full compliance by the countries of the Inter-American Union. The Tico Times reported on January 10 that he told reporters, “Costa Rica and the other countries that have accepted the jurisdiction of the Inter-American Court must fully comply with the court’s opinion, respecting each country’s processing time, jurisdictional and administrative spaces.  Solis pointed out that Costa Rica’s compliance would require a “gradual process,” requiring consultation between the various branches of government and the political parties.

 

The Court also addressed a question of transgender rights, recognizing as a human right that transgender people should be able to register themselves using the name and sex with which they identify, thus lining up with those countries that have in recent years moved towards recognizing self-declared gender identity without interposing a requirement that the individual document surgical gender confirmation procedures.

 

Commented Solis, “The court’s opinion ratifies our commitment to guaranteeing people access to the rights they acquire through their personal relations, without any sort of discrimination.” In a formal press release, the government stated: “Love is a human condition that should be respected, without discrimination of any kind.  The State confirms its commitment to comply.”

 

The countries that are legally bound by rulings of the court include Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Surinam and Uruguay. Some of those countries still penalize gay sex, while others already have marriage equality: Colombia, Brazil, Uruguay and Argentina.  Litigation over marriage equality is pending in the Supreme Court of Panama.  In Mexico, same-sex couples can marry in several states and the capital district, and all of the states are required to recognize those marriages, while a Supreme Court ruling mandates that lower courts issue orders, called “amparos,” requiring local officials to allow particular same-sex couples (or groups of couples) who obtain the orders to marry.  The Inter-American Court’s ruling may hasten the spread of marriage equality to the remaining Mexican states.

 

Meanwhile, back in the European Union, Advocate General Melchior Wathelet’s preliminary ruling in the case of Relu Adrian Coman, a Romanian citizen who married Robert Clabourn Hamilton, an American citizen, in Brussels, Belgium, while Coman was living there and working for a European Union agency, may portend a significant advance for marriage equality in Europe. Coman v. Inspectorate General for Immigration, Case C-673/16 (January 11, 2018).  Coman sought to bring his spouse back home to Romania, but the Romanian government was unwilling to issue the kind of spousal visa that is routinely granted when Romanians contract different-sex marriages elsewhere in Europe.  Coman brought his case to the Constitutional Court of Romania, which referred the issue to the European Court of Justice for a determination of what obligation the country might have as a member of the Union.

 

Such matters are first presented to the office of the Advocate General (of which there are several), for an opinion advising the Court.  If the Court decides to follow the Advocate General’s recommendation, its ruling becomes law throughout the European Union.

 

In some respects, Wathelet’s opinion is narrow and technical, because it doesn’t address a broad question of rights, but rather the narrower question of interpreting the Directive that guarantees freedom of movement within the European Union, with an eye to breaking down nationality barriers that would inhibit the movement of labor across national lines.   Directive 2004/38 describes the “free movement of persons” as “one of the fundamental freedoms of the internal market.”  The Directive supports such freedom by requiring member states to grant freedom of movement to family members of their citizens, and of course a “spouse” is a family member, but the term “spouse” is not generally defined.  When the Directive was adopted in 2004, only two countries in Europe allowed same-sex marriage, but many others had registered partnerships for same-sex couples, so the Directive provides for free movement rights for such partners, but only “if the legislation of the host Member State treats registered partnerships as equivalent to marriage.”

 

In the case of Romania, not only is marriage defined as the union of a man and a woman, but the country’s marriage law specifies that same-sex couples may not marry, and the county provides no registered partnership status for same-sex couples. Thus, the question under EU law is whether the protection for family life and for spousal relationships would extend to same-sex spouses, overriding national law on the question of who is entitled to a residence visa (as opposed to the short-term entry visa of up to three months for tourists and business visitors).  The key to this, it proved, was the established practice both in this Court and the European Court of Human Rights to adjust the definitions of terms in reaction to social developments.

 

Wathelet quoted an earlier decision stating that “EU law must be interpreted ‘in the light of present day circumstances,’ that is to say, taking the ‘modern reality’ of the Union into account.” This is to avoid the law become static and placing a drag on economic and social development.  Wathelet noted that in a 2001 ruling, reflecting “present day circumstances” at that time, the Court had considered marriage to be “a union between persons of the opposite sex.”  But this does not reflect the “modern reality.”

 

“In fact,” he wrote, “while at the end of the year 2004 only two Member States allowed marriage between persons of the same sex, 11 more Member States have since amended their legislation to that effect and same-sex marriage will be possible in Austria, too, by 1 January 2019 at the latest. That legal recognition of same-sex marriage does no more than reflect a general development in society with regard to the question.  Statistical investigations confirm it; the authorization of marriage between persons of the same sex in a referendum in Ireland also serves as an illustration.  While different perspectives on the matter still remain, including within the Union, the development nonetheless forms part of a general movement.  In fact, this kind of marriage is now recognized in all continents.  It is not something associated with a specific culture or history; on the contrary, it corresponds to a universal recognition of the diversity of families.”

 

Wathelet also referred to decisions by the European Court of Human Rights, including those protecting the right of a national of a signatory state to the European Convention on Human Rights to bring a same-sex partner into the country. He also noted that European law now includes a ban on sexual orientation discrimination by Member States, and strong protection both under the European Union’s Charter and under the Human Rights Convention for “family life.”

 

He also contended that adopting a gender-neutral concept of spouse was consistent with the objective of the Directive, “to facilitate that primary and individual right to move and reside freely within the territory of the Member States which is directly conferred on citizens of the Union.” Freedom of movement would be impeded if lawfully married individuals could not bring the legal spouses with whom they have established a family relationship with them to return to live in their home country.

 

Thus, he recommended that the Court answer the questions posed by the Romanian Constitutional Court as follows: that “the term ‘spouse’ applies to a national of a third State of the same sex as the citizen of the European Union to whom he or she is married” for purposes of complying with Directive 2004/38 on freedom of movement.  As applied directly to Mr. Coman’s case, it means that his marriage to an American citizen while Coman was living in Belgium, a European Union country that allows same-sex marriages, gives his spouse a derivative right under the Directive to obtain, automatically, the same kind of spousal visa to enter and live in Romania that would be provided to a different-sex spouse.  Since Hamilton is not a citizen of any European Union Member State, his right is not direct and must be derived from the right of his husband to have Romania respect his marriage and family life, at least to the extent of allowing him to live together with his husband in his home country.

 

Reflecting the social divisions within the Union, several Eastern European nations – Latvia, Hungary, Poland and Romania – opposed this conclusion, while it was supported by submissions from the Netherlands and the European Commission.

 

 

 

Supreme Court of India Revives Sodomy Law

Posted on: December 11th, 2013 by Art Leonard No Comments

Today, December 11, a two-judge panel from the Supreme Court of India found “legally unsustainable” the 2009 ruling by the Delhi High Court that had struck down India’s colonial-era sodomy law, Section 377. Justices G.S. Singhvi and Sudhansu Jyoti Mukhopadhaya issued an opinion that drew immediate protests from progressive elements of society in India, and provoked street demonstrations against the ruling in several cities.  The attitude of the justices was most clearly expressed near the end of the lengthy opinion, when they referred to “the so-called rights of LGBT persons.”

Press reports anticipating the ruling had all assumed that it was going the other way, affirming the Delhi High Court, and the decision sent shock-waves through the LGBT community in India.  An application for reconsideration will be filed, and since Justice Singhvi retired from the Court after the opinion was announced, such a rehearing would not involve him.

Although the justices produced a lengthy document, they actually had little to say directly about the grounds on which they were reversing the Delhi High Court.  The opinion is inflated with lengthy quotations from legislative history of the nation’s sodomy law and prior decisions by the Indian courts, some of which, read on their own, would seem to have supported the lower court’s ruling.  However, it was clear that the justices believed that the question whether consensual adult sex should be a crime was a political matter, not a legal question for the court.

The government had reacted to the 2009 ruling by deciding, after extensive cabinet debate, not to appeal it and to comply by refraining from prosecutions of private consensual adult sexual activity.  But conservative sectors of Indian society, and especially some religious organizations, were outraged by the decision and mounted their own appeal, as seems to be permissible under Indian law.  Oddly, by comparison to the “standing” issues raised by the U.S. Supreme Court in its recent consideration of Proposition 8 and the Defense of Marriage Act, in this case the only concern about standing given consideration was in whether the NAZ Foundation, an HIV prevention group that had filed this case in 2001, had appropriate standing to do so.  Legal maneuvering around that question took up several years, until the Supreme Court ruled in 2004 that the courts should address this case on the merits and returned the matter to the Delhi High Court, which then took 5 years until it rendered its decision.

As to the merits, the court adopted arguments advanced by the defenders of the sodomy law claiming that the law itself was non-discriminatory and, that if it had been abused by prosecutors or unfairly applied in the past, that was not a problem inherent in the law itself.  NAZ Foundation’s leading argument had been that the sodomy law was an impediment to effective governmental and non-governmental efforts to stem the spread of HIV, deterring gay men from cooperating with public health efforts and leading local law enforcement officials to interfere with efforts to distribute condoms and promote safer-sex practices.  The other main arguments raised the kinds of issues that had persuaded appellate courts in other countries to strike down sodomy laws, such as the right of privacy, human dignity, and equal protection of the laws.  NAZ Foundation argued that the sodomy law rendered gay men presumptive criminals in the eyes of society, targets for discriminatory treatment, harassment, and persecution by the police, and that this violated principles of human dignity that Indian courts had found inherent in provisions of the nation’s constitution.

Another key part of the argument was that the statute, adopted in its present form by the British colonial administration in 1860 and not altered when it was adopted as part of the Indian Penal Code after independence, was not an authentic expression of Indian culture but rather a ban imposed by occupying authority, as British rulers did throughout the Empire during the 19th century, and is inconsistent with modern conceptions of individual rights.  The United Kingdom decriminalized consensual adult sex in 1967, and it was subsequently decriminalized by legislation or court order in the major English-speaking nations of the Commonwealth: Canada, Australia, and New Zealand.  South Africa’s Constitutional Court struck down that nation’s sodomy law as inconsistent with the post-Apartheid Constitution’s protection for individual rights, including its specific ban on sexual orientation discrimination.  Thus, NAZ argued, the law was an anachronism.  Court opinions on its application in actual cases focus almost entirely on situations involving lack of consent or minors, bolstering the argument that there is no policy justification for retaining criminal penalties for private, consensual adult sex.

The court rejected the notion that the colonial origins of the law counted against it, finding that it had been affirmatively enacted as part of the Indian Penal Code.  “After the adoption of the IPC in 1950,” wrote the court, “around 30 amendments have been made to the statute, the most recent being in 2013 which specifically deals with sexual offences, a category to which Section 377 IPC belongs.  The 172nd Law Commission Report specifically recommended deletion of that section and the issue has repeatedly come up for debate.  However, the Legislature has chosen not to amend the law or revisit it.  This shows that Parliament, which is undisputedly the representative body of the people of India has not thought it proper to delete the provision.  Such a conclusion is further strengthened by the fact that despite the decision of the Union of India [the federal government] to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in the law.  While this does not make the law immune from constitutional challenge, it must nonetheless guide our understanding of character, scope, ambit and import.”  Thus, in the eyes of the court, Section 377, despite its colonial origins, is a legislative expression of public policy by India’s Parliament.

The court insisted that it is not “empowered to strike down a law merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose or its need” unless there was shown to be a “clear constitutional violation,” and here the court did not find such a violation.

The court rejected the argument that the Victorian-era wording of the statute — prohibiting “carnal intercourse against the order of nature” — did not offend modern concepts of due process of law because it had been given  meaning through court interpretations.  Although the court found that “no uniform test can be culled out to classify acts as ‘carnal intercourse against the order of nature,'” nonetheless it concluded that the provision “would apply irrespective of age and consent” and the court clearly rejected the idea that the statute, on its face, was an anti-gay enactment, asserting: “It merely identifies certain acts which if committed would constitute an offense.  Such a prohibition regulates sexual conduct regardless of gender identity and orientation.”  Defenders of the law had argued that it applied even to acts between a husband and wife, and thus was not singling out any particular group.  NAZ responded with the kinds of arguments that had persuaded courts elsewhere as well as the Delhi High Court, that despite this wording the law was generally seen and experienced as a ban on gay sex and a source of stigma focused on gay sexual orientation and transgender people.

But this did not persuade the court, which took the view that the constitution’s requirement of equal protection was not offended by the statute because it applied broadly to all instances or anal or oral sex, regardless whether it was being applied to same-sex or different-sex couples.  “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 provision of the Code of Criminal Procedure and other statutes of the same family the person is found guilty,” wrote the court.

Actually, the Delhi High Court had not declared Section 377 to be facially unconstitutional, but rather it had held the law unconstitutional as applied to private, consensual adult sex, a process referred to in judicial practice of many British commonwealth countries as “reading down” a statute to exclude some of its possible applications because of constitutional concerns.  The Supreme Court held that this process was not warranted for several reasons.  First, it pointed out, “the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC.”  Second, as noted above, it rejected the problem of vagueness, insisting that “prior application of the law must be considered.”   Responding to the High Court’s concern about legislating morality, the Court specifically noted the dissenting opinions in Lawrence v. Texas, the U.S. Supreme Court’s 2003 sodomy law ruling, by Justices Scalia and Thomas, which argued that the legislature had a right to enforce its moral views.

Turning to the due process arguments, the court provided extensive quotations from prior cases that might be read as supporting the claim that Section 377 violated the “right to live with dignity” that had been recognized in those cases, but then rejected NAZ Foundation’s argument that Section 377 had deprived gay people of this right because it was “used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community.”  The court’s response was that “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.  It might be a factor for the Legislature to consider while judging the desirability of amending Section 377 IPC.”

The court criticized the lower court for its reliance on judicial rulings from other jurisdictions.  “In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, 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.”  The court bolstered this assertion with quotations from earlier decisions pointing out that the distinctive history and culture of India lessens the persuasive weight of judicial rulings from countries with different cultures.

The court concluded that “Section 377 IPC does not suffer from the vice of unconstitutionality” and held the lower court’s decision to be “legally unsustainable,” but made clear that “the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IP from the statute book or amend the same as per the suggestion made by the Attorney General.”  However, initial press accounts about the ruling uniformly expressed the view that the Indian Parliament was unlikely to take any action in response to this case.  National elections are imminent, and the current government is unlikely to act on any controversial matters while it is focused on beating back a serious challenge by the more conservative opposition, which is widely seen as likely to gain ground in the Parliament, perhaps to the extent of replacing the current government.  Thus, the government that had decided not to appeal the lower court’s ruling may not be in power much longer.