Tuesday, Dec 06, 2022

Making criminals of us all

The 377 judgment is not about gay sex alone. It bans ‘unnatural’ sexual acts,irrespective of gender,age or consent.

Menaka Guruswamy

The 377 judgment is not about gay sex alone. It bans ‘unnatural’ sexual acts,irrespective of gender,age or consent.

The judgment in Suresh Kumar Kaushal vs Naz Foundation (Kaushal) does not only criminalise “gay sex”,as has been widely reported. Undeniably,the judgment ignores the constitutional rights of millions of LGBT Indian citizens (as opposed to what Justice Singhvi calls the minuscule LGBT community and their “so-called rights”). However,Kaushal criminalises certain sexual acts performed by same- and opposite-sex couples that can be classified as “carnal intercourse against the order of nature”.

What are these acts,we may ask? According to the court,“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”. The court then refers to a series of cases that involved the commission of these criminal acts. These include cases like R vs Jacobs (1917),which deals with the commission of sodomy,and Khanu vs Emperor (1934),which deals with carnal intercourse with a bullock. Further,the judgment refers to a series of cases that relate to anal sex being performed on young boys in Lohana vs the State (1968),Fazal Rab Choudhary vs State of Bihar (1982) and Kedar Nath vs State of Rajasthan (1985). Finally,the court referred to Calvin Francis vs Orissa (1992),which involved forcing a six-year-old child to perform oral sex.

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Justice Singhvi relies on these cases to conclude that the acts that fall within the ambit of Section 377 “can be determined with reference to the act itself and the circumstances in which it is executed”. The judges rightly reason that these cases all deal with non-consensual and coercive situations. They observe that they “were apprehensive whether the court would rule similarly in a case of proved consensual intercourse between adults.” However,they use this alleged apprehension to conclude that it is difficult to prepare a list of acts covered by the section. Strange,given that the precedent points to coercive sex involving children or animals as being the problem,and not simply acts of anal or oral sex.

However,it is not this flawed reasoning that is the biggest problem in Kaushal. It is the next step that confounds. Despite accepting that the cases pertain to coercive sex,the judge finds that Section 377 will apply irrespective of age and consent. He goes on to say that the section itself does not criminalise “a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation”.

Kaushal has further missteps. The first pertains to non-consideration of substantial and significant contentions made. Justice Singhvi writes that the respondents did not furnish particulars of harassment and assault of sexual minorities by public authorities. This is a shocking lapse by the judge,since affidavits were filed by a transgendered person,and a gay man from Delhi — both of whom were gangraped by the police. These affidavits were read in a sombre courtroom by senior counsel Ashok Desai. In addition,a reported judgment,Jayalakshmi vs State (2007),which dealt with the rape of a transgendered man by the police,was also part of the record. The Madras High Court found that this was rape by the police,awarded compensation of Rs 5 lakh and directed disciplinary action. Reports from civil society actors that spoke to the harassment that gay and lesbian Indians faced were also filed.


The interveners also filed compelling affidavits of parents of LGBT children that spoke of the stigma and discrimination their children faced in daily life. Justice Singhvi either neglected to consider the evidence by way of affidavits that were adduced,or ignored them altogether. Such non-consideration is a manifest error.

Then there is the judge’s jurisprudential inconsistency. He writes that the court must exercise self-restraint in judicial review and that there should be a presumption of constitutionality of legislation. The judge is right in citing these as general principles. Yet,this has never been a barrier to finding unconstitutional that which violates the protections afforded by our Constitution. This same judge in Delhi Jal Board vs National Campaign for Dignity and Rights of Sewerage and Allied Workers & Others,in 2011,declared that “whenever the judiciary has issued directions for ensuring that the right to equality,life and liberty no longer remains illusory… a theoretical debate is started by raising the bogey of judicial activism or judicial overreach”. In this case, Justice Singhvi upheld the Delhi High Court’s orders providing free medical treatment,compensation for occupational illnesses,provision of modern equipment,soap and oil,restrooms,canteens and ex-gratia payments for deaths.

This judgment has other jurisprudential flaws,like a lack of discussion of the violation of the rights to expression,life,liberty and dignity. Its analysis of the violation of equality rights reflects a poor understanding of the case law. It fails to engage any of the contentions made by the respondents and the interveners.


Perhaps the Kaushal bench would have done well to remember Jawaharlal Nehru’s words of warning. In September 1949,speaking in the Constituent Assembly,Nehru said that “unless and until the courts are empowered and the courts are the final arbiters of the civil rights and liberties of the people,I feel that if the legislatures alone are given the power we are coming to a point where fiats of executive officers will deny us our rights and this is very wrong”.

By criminalising consensual sexual acts of adults in private (which the Delhi High Court read out of the purview of Section 377),the Kaushal bench did worse than what Nehru imagined. Instead of protecting the rights of consenting adults,it chose to negate the decision of the executive of not contesting the high court’s judgment. The executive stated that it saw no legal error in the decision and hence found no reason to appeal against it. The attorney general categorically told the court that his instructions were that the government has accepted the decision of the high court. Strangely,the judgment ascribes to the attorney general the role of amicus. This is blatantly wrong.

The final problem with Kaushal is that it is an exception to the jurisprudence of the SC. From the banning of bonded labour in Bandhua Mukti Morcha vs Union of India,to ensuring the right to healthcare for suffering asbestos workers in CERC vs Union,to crafting guidelines pertaining to arrest,custody and interrogation of the accused in D.K. Basu vs State of West Bengal,the apex court has always expanded rights and protected the historically disadvantaged and socially vulnerable. Kaushal,by belittling the “so-called rights of LGBT persons”,is the exception to this jurisprudential trajectory.

But before Suresh Kumar Kaushal and his compatriots — the All India Muslim Personal Law Board,Trust God Missionaries,Krantikari Manuwadi Morcha and others — rejoice,they should be aware that this judgment criminalises certain prospective acts of their members as well. It criminalises all of us. It diminishes the constitutional promises of equality,dignity and fraternity for and by all Indians.

The writer practices law at the Supreme Court of India. She represented filmmaker Shyam Benegal,an intervener,in this case.

First published on: 13-12-2013 at 12:23:35 am
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