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ABSTRACT
The 2009 judgement of the Delhi High Court in the Naz Foundation vs NCT of Delhi, which decriminalized homosexuality, was widely celebrated; and the Indian Supreme Court’s reversal of that judgement in 2013 equally widely decried. Most of the analysis of the Delhi High Court’s judgement, however, tends to focus on its progressive outcome. In this essay, by reconstructing the judgement through focusing on parties’ submissions and arguments before the Court, I argue that the importance of Naz Foundation lies in how it advanced the Indian Constitution’s overarching vision of social transformation by radically re-imagining the Constitution’s promise that “the State shall not deny to any person equality before the law or the equal protection of law”. Moving away from a sterile equality jurisprudence based on rational classification and “arbitrariness”, Naz Foundation linked the Constitution’s equal protection and non-discrimination clauses to advance an alternative jurisprudence founded in ideas of inclusion, dignity, autonomy and remedying structural disadvantage. In doing so, I will argue, it presented a new vision of equality that is truer and more faithful to the Constitution’s transformative character, and opens up new possibilities for discrimination jurisprudence in the years to come.
Notes
1 Constituent Assembly Debates, 13 December 1946 (Speech of Pt. Jawaharlal Nehru); see also Tarunabh Khaitan, ‘Reading Swaraj into Article 15: A New Deal for the Minorities’ (2009) 2 NUJSLR 419.
2 Ibid.
3 Ibid.
4 Ibid.
5 Naz Foundation v NCT of Delhi, (2009) 160 DLT 277 (High Court of Delhi).
6 Indian Penal Code 1860, S. 377.
7 Naz Foundation, (n 5) [130–131].
8 The Constitution of India, Art 14.
9 Tarunabh Khaitan, ‘Equality: Legislative Review under Article 14’ in Mehta et al (eds), The Oxford Handbook for the Indian Constitution 699 (OUP 2016).
10 Douglas Sanders, ‘Section 377 and the Unnatural Afterlife of British Colonialism in Asia’ (2009) 4(1) AJCL 1, 7.
11 Alok Gupta, ‘Section 377 and the Dignity of Indian Homosexuals’ (18 November 2006) 41(46) EPW 4817.
12 Khanu v Emperor AIR 1925 Sind 286, [2].
13 Lohana Vasantlal Devchand v The State, (1968) 9 CLR 1052, affirmed in Brother John Anthony vs State, (1992) CLJ 818, which also held manual sex to fall within the scope of Section 377. Fellatio (albeit in a case of child sexual exploitation) was also held to constitute an offence in Childline India Foundation v Allan John Waters (2011) 2 SCC (Cri) 900.
14 Ibid., [12].
15 Ibid., [14].
16 Fazal Rab Choudhary v State of Bihar (1982) 3 SCC 9.
17 Naz Foundation, (n 5) Petition, 30 (on file with the author).
18 For example, in State of Kerala v Kundumkara Govindan, (1969) CLJ 818, the High Court of Kerala held that the (forcible) insertion of a man’s penis between a woman’s thighs constituted an offence under Section 377; in Calvin John Francis v State of Orissa, (1992) I OLR 316, the High Court of Orissa held that oral rape was an offence under Section 377; see also Brother John Anthony vs State, supra (that penalized manual sex, which need not be between two men).
19 Naz Foundation, (n 5) counter-affidavit of Respondent No. 5, BP Singhal, 15 (on file with the author).
20 Constitution of India, Art 14.
21 Constitution of the United States, Fourteenth Amendment, Section I.
22 See, e.g. Chiranjit Lal Choudhry vs Union of India, 1950 SCR 869.
23 See e.g. Tigner vs Texas, 310 U.S. 141 (1940) (Supreme Court of the United States). HM Seervai, Constitutional Law of India, Vol. 1, 453 (4th edn, Universal Law Publishing 2015).
24 Ibid.
25 State of West Bengal v Anwar Ali Sarkar 1952 SCR 284. PK Tripathi, Some Insights into Fundamental Rights 52–58 (University of Bombay 1971).
26 Joseph Tussman and Jacobus tenBroek, ‘The Equal Protection of Laws’ (1949) 37(3) TCLR 341. See also Cora Chan, ‘Proportionality and the Invariable Baseline Intensity of Review’ (2013) 33(1) LS 1.
27 That is, if there were no arguments from either side, would the Court uphold or invalidate a particular legislative classification?
28 Tussman and tenBoek (n 26) 354.
29 Ibid., 356.
30 Ibid.
31 Ibid., 358. Tussman and tenBoek also proposed a fifth issue – whether the equal protection clause protected certain basic rights – which I do not deal with here.
32 Chiranjit Lal Choudhry (n 22), [67] (majority opinion by Mukherjea J); see also, [18] (concurring opinion of Fazl Ali J).
33 State of Gujarat vs Shri Ambica Mills, (1974) 4 SCC 656.
34 Supdt and Remembrancer of Legal Affairs vs Girish Kumar Navalakha, (1975) 4 SCC 754.
35 Chiranjit Lal Choudhry (n 22), [67]. Both dissenting opinions pointed out the absurdity of requiring the Petitioner to demonstrate something on the basis of information he could not possibly access.
36 State of Bombay vs FN Balsara, 1951 SCR 682, holding that an exemption for armed forces from a prohibition law passed the scrutiny of Article 14 (and reversing the High Court judgment on this point), on the simple assumption that interfering with the armed forces’ “unique way of life” might impact their morale; State of West Bengal vs Anwar Ali Sarkar, 1952 SCR 284, striking down a law that set up special courts for the purpose of “speedier trials of certain offences”, without any further stipulation on which offences; Kathi Raning Rawat vs State of Saurashtra, 1952 SCR 435, upholding a similar law where the purpose of special courts was to try crimes that affected public tranquillity and public order; Budhan Choudhry vs State of Bihar, 1955 SCR (1) 1045, upholding Section 30 of the Code of Criminal Procedure; Ram Krishna Dalmia vs SR Tendolkar, 1959 SCR 279, upholding the establishment of a Commission of Inquiry to investigate the affairs of certain companies.
37 For a restatement, see In re Special Courts Bill, (1979) 2 SCR 348. For a general defence of his approach in common law, see Julian Rivers, ‘Proportionality and Variable Intensity of Review’ (2006) 65(1) CLJ 174.
38 See, infra, S. II(c).
39 Constitution of India, Art 15(1).
40 Starting, of course, with the famous Brown v Board of Education 347 U.S. 483 (1954).
41 Kathi Raning Rawat (n 36), [7].
42 For the link between the two, see, e.g. HM Seervai, Constitutional Law of India, Vol. 1, 439 (4th edn, Universal Law Publishing 2015). Rajbala vs State of Haryana, (2016) 1 SCC 463.
43 Andrews vs Law Society of British Columbia, [1989] 1 SCR 143 (Supreme Court of Canada).
44 See, e.g. Susanne Baer, ‘Equality’ in Michael Rosenfeld and Andras Sajo (eds), The Oxford Handbook of Comparative Constitutional Law 982, 986 (OUP 2012).
45 This included “strict scrutiny” for racial classifications (Adarand Contractors vs Pena, 515 U.S. 200 (1995)), and “intermediate scrutiny” for sex-based classifications (United States vs Virginia, 518 U.S. 515 (1996).
46 Harksen vs Lane, 1997 (11) BCLR 1489 (Constitutional Court of South Africa).
47 Chiranjit Lal Choudhry (n 22), [9] (concurring opinion of Fazl Ali J).
48 State of West Bengal vs Anwar Ali Sarkar, (n 25) [44] (majority opinion of Mukherjea J) and [87] (concurring opinion of Aiyar J).
49 EP Royappa vs State of Tamil Nadu, 1974 SCR (2) 348.
50 Catherine A MacKinnon, ‘Sex Equality under the Constitution of India: Problems, prospects, and “personal laws”’ (2006) 4(2) IJCL 181, 188.
51 H.M. Seervai, Constitutional Law of India, Vol. 1, 437 (4th edn, Universal Law Publishing 2015). Ruma Pal, ‘Judicial Oversight or Overreach’ (2008) 7 SCCJ 9.
52 See, e.g. Maneka Gandhi vs Union of India, (1978) 2 SCR 621; Ajay Hasia vs Khalid Mujib, (1979) 3 SCR 1014; Air India vs Nargesh Mirza, (1982) SCR (1) 438.
53 Rajbala vs State of Haryana, (n 42).
54 Harsora vs Harsora, (2016) 10 SCC 165.
55 Dipak Sibal vs Punjab University, 1989 (2) SCC 145.
56 Ibid., [20].
57 See, e.g. Seervai’s critique of Kathi Raning Rawat: Seervai, Constitutional Law of India, (n 23), 516.
58 See e.g. Dr. Pradeep Jain vs Union of India, (1984) 3 SCC 654, where the Court examined affirmative action policies under Article 14 on the assumption that the default purpose of any admission policy was “merit.”
59 See, e.g. Nagpur Improvement Trust vs Vithal Rao, 1973 SCR (3) 39.
60 In Anwar Ali Sarkar, Das J pointed out that “the object by itself cannot be the basis of the classification” (State of West Bengal vs Anwar Ali Sarkar (n 25), [62] (partially concurring and partially dissenting opinion of Das J).
61 Subramanian Swamy vs Director, CBI, (2014) 8 SCC 682.
62 Ibid., [68].
63 As the Court noted, a strange feature of the case was that two Ministries – the Ministry of Home Affairs and the Ministry of Health and Welfare – took opposite stands on the issue.
64 Naz Foundation, (n 5), [24]. See also, Written Submissions of the Union of India, 15–21 (on file with the author).
65 Naz Foundation, (n 5), Written Submissions of the Union of India, 81–86 (on file with the author).
66 Naz Foundation, (n 5), [61–74].
67 See, e.g. Counter-Affidavit of Respondent No. 8 (Voices Against 377), Annexure R6 (2006 Delhi Declaration), on file with the author.
68 Naz Foundation, (n 5) [62–66].
69 Naz Foundation, (n 5), [69].
70 Naz Foundation, (n 5), [70].
71 Naz Foundation, (n 5), [71].
72 Naz Foundation, (n 5), [73].
73 Naz Foundation, (n 5), [72].
74 Naz Foundation, (n 5), [92].
75 See, e.g. Bernhard Schlink, ‘Proportionality’ in Michael Rosenfeld and Andres Sajo (eds), The Oxford Handbook of Comparative Constitutional Law 718 (OUP 2012).
76 See, e.g. the equality doctrine of the Federal Constitutional Court of Germany, discussed in Susanne Baer, ‘Equality: The Jurisprudence of the German Constitutional Court’ (1998–1999) 5 CJEL 249, 263; see also Alekseyev vs Russia, Application Nos. 4916/07, 25924/08 and 14599/09, European Court of Human Rights).
77 R v Oakes, [1986] 1 SCR 103 (Supreme Court of Canada).
78 S v Makwanyane, 1995 (3) SA 391 (Constitutional Court of South Africa).
79 Teri Oat Estates vs UT Chandigarh, (2004) 2 SCC 130; see also Tarunabh Khaitan, ‘Beyond Reasonableness: A Rigorous Standard of Review for Article 15 Infringement’ (2008) 50(2) JILI 180.
80 Aharon Barak, ‘Proportionality (2)’ in The Oxford Handbook of Comparative Constitutional Law, supra, 738–48.
81 See, e.g. Schlink, ‘Proportionality’ (n 75), 734. For a detailed, conceptual analysis of how the standard may be applied in human rights cases, see Cora Chan, (n 26).
82 Anuj Garg vs Hotel Association, AIR 2008 SC 663.
83 The proposition is, however, controversial. For a survey of the literature, see Tarunabh Khaitan, ‘Beyond Reasonableness’ (n 79), 180.
84 Naz Foundation, (n 5), [107].
85 Following the same method, the Court of Appeal of Hong Kong said it would “scrutinize with intensity whether the difference in treatment is justified.” Secretary for Justice vs Yau Yuk Ling Zigo, FACC No. 12 of 2006 (Court of Final Appeal of the Hong Kong Special Administrative Region).
86 Naz Foundation, (n 5), [111].
87 For a more detailed exploration of “personal autonomy”, see Tarunabh Khaitan, ‘Reading Swaraj into Article 15’ (n 1), 422–423.
88 Ibid., [113].
89 See e.g. Tarunabh Khaitan, ‘Beyond Reasonableness’ (n 79), 203.
90 Naz Foundation, (n 5), [13].
91 Law Commission of India, 42nd Report, ¶16.126 (1971); Subsequently, in its 172nd Report, the Law Commission recommended the repeal of Section 377.
92 Norris vs Ireland, [1988] ECHR 22 (26 October 1988).
93 National Coalition for Gay and Lesbian Equality vs The Minister of Justice, 1999 (1) SA 6 (CC).
94 Lawrence vs Texas, 539 U.S. 558 (2003); note, however, that Lawrence turned upon the fact that what was at stake was a “fundamental liberty interest” of the Petitioner.
95 Naz Foundation, (n 5), Additional Written Submissions on Behalf of Petitioner, 1 (on file with the author). The petitioners made this argument in the context of the right to privacy, but – as the Court’s judgment shows – the form of the argument largely overlaps with Article 14.
96 Ibid., 2. The other judgments that the Petitioner relied upon were all in the context of a broader proportionality enquiry.
97 In Dudgeon vs The United Kingdom, (1982) 4 EHRR 149, the European Court of Human Rights held that giving effect to public morality was a legitimate State purpose, although in the circumstances of the case, it was overridden.
98 See, e.g. Naz Foundation, (n 5), Affidavit of the Union of India (on file with the author).
99 Naz Foundation, (n 5), [92].
100 Naz Foundation, (n 5), [80]. The reasoning echoed that of the High Court of Fiji, which had struck down Fiji’s anti-sodomy law as unconstitutional: Dhirendra Nadan vs State, HAA 85&86 of 2005.
101 The argument was made by Voices Against 377, relying upon the Constitutional Court of South Africa. Naz Foundation, (n 5), Outline of Arguments of Respondent No. 8, 9 (on file with the author).
102 Naz Foundation, (n 5), [80].
103 R v M (C), 41 C.R. (4th) 134 (1995).
104 Naz Foundation, (n 5), [79].
105 The Constitution of India, Art 25(1).
106 The Constitution of India, Art 29.
107 The Constitution of India 1949, Arts 19(1)–19(3).
108 See, e.g. Bernhard Schlink, ‘Proportionality’ (n 75), 723.
109 Lawrence vs Texas, 539 U.S. 558 (2003).
110 National Coalition for Gay and Lesbian Equality vs Minister of Justice, 1998 (12) BCLR 1517, [108].
111 See, e.g. Edwin Cameron, ‘Sexual Orientation and the Constitution: A Test Case for Human Rights’ (1993) 110 SALJ 450, 452.
112 Ryan Goodman, ‘Beyond the Enforcement Principle: Sodomy Laws, Social Norms, and Social Panoptics’ (2001) 89(3) CLR 643; cited in Naz Foundation (n 5), [49].
113 Naz Foundation (n 5), Affidavits placed before the High Court by Respondent No. 8 (on file with the author); discussed in [21–22] of the judgment.
114 Naz Foundation (n 5), [94].
115 Khandige Sham Bhat vs The Agricultural Income Tax Officer, 1963 SCR (3) 809.
116 Susanne Baer, ‘Equality: The Jurisprudence of the German Constitutional Court’ (1998–1999) 5 CJEL 249, 253.
117 Andrews vs Law Society of British Columbia, [1989] 1 SCR 143 (Supreme Court of Canada); Harksen vs Lane, 1997 (11) BCLR 1489 (Constitutional Court of South Africa).
118 Naz Foundation (n 5), Written Submissions of the Petitioner, [119] (on file with the author).
119 See, e.g. State of Kerala vs NM Thomas, 1976 SCR (1) 906.
120 For instance, in his landmark book, PK Tripathi calls Articles 15 to 18 the “supporting provisions” for Article 14. PK Tripathi, Some Insights into Fundamental Rights (n 25), 50.
121 It is scarcely surprising that Articles 14 and 15 were considered together by the Court.
122 Constitution of the United States of America, Fourteenth Amendment, Section I.
123 See, e.g. Nebbia vs New York, 291 U.S. 502 (1934): “And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.” Ibid., 526. See also United States vs Carolene Products, 304 U.S. 144 (1938).
124 B Shiva Rao, The Framing of India’s Constitution: Select Documents, Vol. II, 118 (Universal Law Publishing 2015).
125 Ibid., 171.
126 Ibid., 173.
127 Ibid., 41.
128 Ibid., 89.
129 Constitution of India 1949, Article 17. For an analysis, see Gautam Bhatia, ‘Freedom from Community: Individual Rights, Group Life, State Authority, and Religious Freedom under the Indian Constitution’ (2016) 5(3) GC 351.
130 Parliament of India, Constituent Assembly Debates, Vol. III (30 April 1947); Vol. VII (30 November 1948).
131 Parliament of India, Constituent Assembly Debates, Vol. III, 29 April 1947 (speech of Shri SC Bannerjee, on untouchability: “all people must enjoy equal social conditions”; Vol. VII, 29 November 1948 (speech of Shri VI Muniswamy Pillai (on untouchability); Vol. VII, 29 November 1948 (speech of Shri Santanu Kumar Das: “[the untouchability clause] is intended to abolish social inequity… social stigma… and social disabilities.”)
132 Bankim Chandra Chattopadhyay, Samya (Bibek Debroy tr, Liberty Institute 2002) <http://www.networkforafreesociety.org/wp-content/uploads/2015/04/76_chattopadhyay_equality.pdf> visited 12 June 2017.
133 Ibid.
134 E.g. the Constitution of India Bill, 1895; The Commonwealth of India Bill, 1925‘ The Nehru Report, 1928, c.f. B Shiva Rao, The Framing of India’s Constitution, Vol. 1 (n 125), 58.
135 The Karachi Resolution, 1931.
136 Ibid.
137 Government of India Act 1935, S. 298.
138 See, e.g. Gail Omvedt, Seeking Begumpura: The Social Vision of Anticaste Intellectuals (2008); Jyotirao Phule, ‘Ghulamgiri’ (‘Slavery’) in GP Deshpande (ed), The Selected Writings of Jotirao Phule (LeftWord Books 2002); Mukta Salve, ‘About the Grief of the Mangs and the Mahars (1855)’ in Braj Ranjan Mani (ed), A Forgotten Liberator: The Life and Struggle of Savitribhai Phule (Mountain Peak 2008); BR Ambedkar, The Annihilation of Caste (Navayana 2014).
139 The story of sexual orientation is just such a story.
140 Lawrence vs Texas, 539 U.S. 558, 579–580 (2003).
141 Ronald Dworkin, ‘Constitutional Cases’ in Taking Rights Seriously 163–185 (Harvard University Press 1977).
142 Canadian Charter of Rights and Freedoms 1985, S. 15.
143 For an account, see e.g. Joshua Sealy-Harrington, ‘Assessing Analogous Grounds: The Doctrinal and Normative Superiority of a Multi-Variable Approach’ (2013) 10 JLE 37.
144 Constitution of South Africa 1996, S. 9(1).
145 Constitution of South Africa 1996, S. 9(3).
146 See, e.g. Chris McConnachie, ‘What is Unfair Discrimination? A Study of the South African Constitutional Court’s Unfair Discrimination Jurisprudence’ (DPhil. thesis, University of Oxford 2014) (on file with the author).
147 R vs Kapp, 2008 SCC 41 (Supreme Court of Canada); Egan vs Canada, [1995] 2 S.C.R. 513.
148 Chris McConnachie, ‘Human Dignity, ‘Unfair Discrimination’ and Guidance’ (2014) 34(3) OJLS 609.
149 For a version of this argument, see Jed Rubenfeld, ‘The Right of Privacy’ (1989) 102 HLR 737.
150 Chris McConnachie, ‘Human Dignity, ‘Unfair Discrimination’ and Guidance’ (n 148).
151 For a similar – although less detailed – analysis, see the judgment of the High Court of Fiji in Dhirendra Nadan v State, supra.
152 It must be acknowledged, at this point, that paragraphs 99–104 of Naz Foundation are drafted very ambiguously. On one possible reading, the High Court held that “sexual orientation” was a ground analogous to “sex”, and was – for this reason – protected by Article 15(1). On another possible reading, the High Court held that sexual orientation was analogous to sex in a way that discrimination on grounds of sexual orientation was, in effect, nothing more than discrimination on grounds of sex. In my view, the first reading of Article 15(1) is incorrect, because the text of Article 15(1) is unambiguous in defining a closed list of grounds. I think there is something to be said for the second reading. In this essay, however, I have not engaged in this debate, because my focus has been on the High Court’s treatment of Article 14, and its reading in of Article 15(1)’s standards into Article 14 – and not upon that part of its reasoning where it held that Section 377 violated Article 15(1) proper.
153 Suresh Kumar Koushal vs Naz Foundation, (2014) 1 SCC 1.
154 See e.g. Tarunabh Khaitan, ‘Koushal vs Naz: Judges Vote to Recriminalize Homosexuality’ (2015) 78(4) TMLR 672.
155 Koushal vs Naz (n 5), [42].
156 See e.g. Baker vs Carr, 369 U.S. 186 (1962).
157 Rajbala vs State of Haryana (n 42).
158 ibid., [85].
159 State of West Bengal vs Anwar Ali Sarkar [n 25], [92] (concurring opinion of Bose J).
160 Naz Foundation vs NCT of Delhi (n 5), Written Submissions of the Union of India, 56 (on file with the author).
161 Although, in view of serious scholarship arguing for treating obesity as an “analogous ground” under Section 15 of the Canadian Charter, perhaps no claim can be simply dismissed out of hand. See, e.g. Emily Luther, ‘Justice for all Shapes and Sizes: Combating Weight Discrimination in Canada’ (2010) 48(1) ALR 167.
162 See Law Commission of India, Report No. 256: Eliminating Discrimination against Persons Affected by Leprosy (April 2015) <http://lawcommissionofindia.nic.in/reports/Report256.pdf> accessed 13 June 2017.
163 See e.g. Susanne Baer’s discussion of a German Federal Constitutional Court case involving legislative differentiation of compulsory notice period for blue collar and white collar workers. Susanne Baer, ‘Equality’ (n 76).
164 State of Maharashtra vs Indian Hotel & Restaurants Association, (2013) 8 SCC 519.
165 Ibid., [112–113].
166 Ibid., cited in [121].
167 This line from Charles Evan Hughes was quoted by Khanna J. in his dissenting opinion in ADM Jabalpur vs Shivakant Shukla, AIR 1976 SC 1207.
168 On 24 August 2017, a nine-judge bench of the Supreme Court delivered its judgment in Justice KS Puttaswamy vs Union of India, Writ Petition (Civil) No. 494/2012 <http://supremecourtofindia.nic.in/supremecourt/2012/35071/35071_2012_Judgement_24-Aug-2017.pdf>. Puttaswamy was a reference from a smaller bench that asked whether the Indian Constitution guaranteed a fundamental right to privacy. The nine-judge bench unanimously answered the question in the affirmative. However, a plurality opinion (authored by Justice Chandrachud) and a separate opinion (authored by Justice Kaul) went further, and took the unusual step of singling out Koushal vs Naz Foundation, and stating that it was incorrectly decided. In light of the fact that the curative petitions in Koushal were pending, and because the issue was not directly before it, the Court in Puttaswamy did not expressly overrule it, but did everything short of that, leaving its overruling more or less a formality. See, e.g. Gautam Bhatia, ‘The Supreme Court’s Right to Privacy Judgment – V: Privacy and Decisional Autonomy’ The Indian Constitutional Law and Philosophy Blog <https://indconlawphil.wordpress.com/2017/08/31/the-supreme-courts-right-to-privacy-judgment-v-privacy-and-decisional-autonomy/> accessed 22 October 2017. What is important to note, however, is that Puttaswamy was dealing with the concept of privacy, and its critique of Koushal was necessarily limited to that point. Consequently, a lot will depend upon how the Curative Bench deals with Koushal in light of Puttaswamy: if it restricts itself to overruling Koushal on privacy grounds, then the status of the High Court’s reasoning on equality and discrimination will remain murky. However, the Supreme Court will be perfectly within its rights to reconsider Koushal as a whole, and resurrect the High Court’s reasoning on all counts, including Articles 14 and 15(1). Whether it does that, of course, remains to be seen.