By Debopama Roy

In a case that made headlines, the Supreme Court of India in December 2013, handed down a decision in Suresh Kumar Koushal& Another v. NAZ Foundation & Others ([2014] 1 SCC 1), which alarmed many in the gay rights community worldwide. The Court reversed the Delhi High Court and held that Section 377 of the Indian Penal Code which criminalizes private, consensual gay sex does not suffer from any constitutional infirmity and that it was within the legislative, not judicial, sphere to amend or repeal the section. The Delhi High Court had held that Section 377 violated Articles 21 (right of privacy and dignity), 14 (right to life) and 15 (right of non-discrimination) of the Constitution.

The appellants, a non-profit group, had argued that Section 377 has been enacted to penalize sexual acts which are “against the order of nature” based on traditional Judeo-Christian moral and ethical standards and was being used to legalize discrimination against sexual minorities. They argued that the section had no justification in contemporary Indian society based on the historic and moral values concerning sexual relations. They cited a Law Commission report that had recommended repeal of Section 377 and on policy grounds including the detrimental effect it has on lives of people and the health effects on the lives of gay persons who cannot openly obtain health services including HIV/AIDS prevention and treatment.

The two-judge Supreme Court bench held that the law’s distinction between natural (procreative) and unnatural (non-procreative) sex, whether between members of the opposite sex or not, was not arbitrary and irrational. In reasoning that has been criticized in several quarters, the Supreme Court bench justified upholding the law on the ground that only a fraction of the population is gay and, in any case, few people have actually been prosecuted under Section 377 in the last 150 years. In upholding Section 377, the Court appears to have been heavily influenced by that aspect of the law that criminalizes non-consensual acts and acts with minors. Yet, the Delhi High Court had only held unconstitutional that part of the law that criminalized private consensual behavior. The Supreme Court bench focused on the non consensual aspects of the statute, and while appreciating that consensual acts could get caught in Section 377’s wide net, still upheld its constitutional validity.

The court observed that case law revealed “no uniform test [that] can be culled out to classify acts as ‘carnal intercourse against the order of nature.’ In our opinion the acts which fall within the ambit of the section can only be determined with reference to the act itself and the circumstances in which it is executed. All the … cases refer to non consensual and markedly coercive situations and the keenness of the court in bringing justice to the victims who were either women or children cannot be discounted while analyzing the manner in which the section has been interpreted. We are apprehensive of whether the Court would rule similarly in a case of proved consensual intercourse between adults. Hence it is difficult to prepare a list of acts which would be covered by the section. Nonetheless in light of the plain meaning and legislative history of the section, we hold that Section 377 IPC would apply irrespective of age and consent. It is relevant to mention here that the Section 377 IPC does not criminalize a particular people or identity or orientation.” In one of the more puzzling aspects of the decision the court noted that Section 377 “merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity or orientation.”The Court held, in effect, that under Section 377 IPC it is not a crime for persons to be gay so long as they do not do the one thing that makes them gay.

The Koushalcase stands out in stark contrast, however, to the April 2104 decision of another two-judge bench of the Supreme Court, which included the Chief Justice (National Legal Services Authority vs. Union of India and Ors.),that recognized transgendered persons as a third gender with equal rights as all other persons. The two cases intersected briefly when the bench in the transgender case referred to the gay rights case noting that Section 377 IPC “though associated with specific sexual acts, highlighted certain identities, including Hijras and was used as an instrument of harassment and physical abuse against Hijras and transgender persons. A Division Bench of this Court in Suresh Kumar Koushal and another v. Naz Foundation and others [(2014) 1 SCC 1] [the gay rights case]has already spoken on the constitutionality of Section 377 IPC and, hence, we express no opinion on it since we are in these cases concerned with an altogether different issue pertaining to the constitutional and other legal rights of the transgender community and their gender identity and sexual orientation.” The court in the the transgender case made no effort to reconcile the inherent contradiction between its decision to recognize equal rights for transgender persons regardless of their sexual orientation and the previous decision by a different bench of the same court that held that the criminalization of gay sex was not unconstitutional. Ironing out that inconsistency was implicitly left to another day. (Hijras are classified as neither male nor female. Generally, born male, they adopt women’s names, behavior and clothing and may or may not be eunuchs or they may adopt a gender role that is neither male nor female.)

While an initial application in January 2014 to reargue Koushalwas denied, in late April 2014, a four-judge bench of the Supreme Court granted petitioners leave to hear arguments on admitting a “curative petition” challenging the decision. Curative petitions are rarely granted and only where the court can be shown to have had the appearance of bias or violated principles of natural justice. The hearing was to have been held in early May 2014 to hear whether there is merit to petitioners’ argument that reargument should be permitted. If leave to reargue is granted, reargument is expected to be heard in late June 2014.

Debopama Roy graduated from Maurer School of Law, Indiana University with an L.L.M.in May 2014, focusing on financial and information security laws. She is admitted to the Bar in India and practiced law in New Delhi specializing in telcomregulatory law as an associate at Dhir&Dhir Associates in New Delhi, counsel for the Insurance Regulatory and Development Authority of India and as in-house counsel for the Organizing Committee, Commonwealth Games Delhi 2010. Debopama can be contacted at debopama@gmail.com.”