A two-judge panel from the Supreme Court of India has ruled that a 2009 decision from the Delhi High Court striking down that nation’s colonial-era sodomy law is “legally unsustainable.”
The December 11 ruling from Justices G.S. Singhvi and Sudhansu Jyoti Mukhopadhaya drew immediate protests from progressive elements of Indian society and provoked street demonstrations in several cities.
The attitude of the justices was most clearly expressed near the end of their lengthy opinion when they referred to “the so-called rights of LGBT persons.”
Defending the right to legislate morality, justices point to arguments by Antonin Scalia, Clarence Thomas
Press reports anticipating the ruling had all assumed it would go the other way, affirming the Delhi High Court, and the decision sent shock-waves through India’s LGBT community. An application for reconsideration will be filed, and since 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 the sodomy law’s legislative history and prior decisions by Indian courts, some of which –– read on their own –– lend support to the lower court’s ruling.
It was clear the justices believed the question of whether consensual adult sex should be a crime was a political matter, not a legal question for the court.
The new ruling upsets a political accommodation to the 2009 Delhi High Court ruling, after which the government decided –– on the heels of extensive cabinet debate –– not to appeal. Instead, officials complied with the ruling by refraining from prosecutions of private, consensual, adult sexual activity.
Conservative sectors of Indian society, particularly some religious organizations, however, were outraged by the decision and mounted their own appeal. Oddly, their legal standing to do so was not at issue in the case, even though the standing of an HIV prevention group, the NAZ Foundation, to mount the original 2001 challenge to the sodomy law was considered. That delayed the case until 2004, when the Supreme Court found the judiciary should take the case and sent it to the Delhi High Court, which spent five years reaching its verdict.
On the merits, the two Supreme Court justices adopted arguments made by the sodomy law’s defenders that it was not discriminatory. If prosecutors applied the law in a discriminatory fashion in targeting gays, they concluded, that was not a problem inherent in the law itself.
The NAZ Foundation’s leading argument was that the statute impeded efforts to stem the spread of HIV by deterring gay men from cooperating with public health efforts and by motivating law enforcement officials to interfere with condom distribution and other safe-sex campaigns.
The other principal arguments made against the sodomy law invoked the privacy, human dignity, and equal protection rights that have proved persuasive in other countries. The NAZ Foundation argued the sodomy law made gay men presumptive criminals in the eyes of society, targets for discriminatory treatment, harassment, and persecution by the police. This, NAZ argued, violated principles of human dignity Indian courts had found inherent in the nation’s constitution.
Because the sodomy statute was adopted by the British colonial administration in 1860 and has been unchanged since then, its opponents also argued it was not an authentic expression of Indian culture and is now inconsistent with modern conceptions of individual rights.
The United Kingdom decriminalized consensual adult sex in 1967, and it was subsequently decriminalized in other major English-speaking countries within the Commonwealth of Nations, including Canada, Australia, and New Zealand. South Africa’s Constitutional Court struck down its 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.
The court rejected the notion that the law’s colonial origins counted against it, noting that post-independence India affirmatively enacted it as part of its penal code. Pointing to past efforts to repeal the law, the justices wrote that “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.”
The court insisted 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.”
The court found that the law’s Victorian-era wording — prohibiting “carnal intercourse against the order of nature” — did not offend modern due process principles in light of its vagueness since court interpretations had given it meaning. Though “no uniform test can be culled out to classify acts as ‘carnal intercourse against the order of nature,’” the justice conceded, the law nonetheless “would apply irrespective of age and consent.”
Rejecting the argument that the law amounted to anti-gay discrimination, the justices wrote, “It merely identifies certain acts which if committed would constitute an offense. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.”
In response to arguments from the sodomy law’s defenders that it applied even to behavior between a husband and wife, NAZ pointed out that it was generally seen and implemented as a ban on gay sex and a source of stigma focused on LGBT people.
The justices rejected any equal protection argument since the law, on its face, applies broadly to all instances or anal or oral sex by same-sex and different-sex couples.
The Delhi High Court’s 2009 decision did not find the sodomy law unconstitutional on its face, but rather as it was applied to private, consensual adult sex. The Supreme Court justices found that looking to the law’s application was unwarranted since “a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals, or transgenders and in the last more than 150 years less than 200 persons have been prosecuted” for violating it.
In answering the Delhi High Court’s concern about legislating morality, the Supreme Court justices pointed to the dissents made by US Supreme Court Justices Antonin Scalia and Clarence Thomas in the 2003 Texas sodomy case in which they argued government has a right to enforce its moral views.
Answering arguments from the NAZ Foundation that the law violates gay people’s due process “right to live with dignity” since it is “used to perpetrate harassment, blackmail, and torture on certain persons, especially those belonging to the LGBT community,” the court found 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” does not render it unconstitutional.
The Supreme Court also criticized the Delhi High Court for relying on judicial rulings from outside India.
“In its anxiety to protect the so-called rights of LGBT persons and to declare [the sodomy law] 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 distinctive history and culture of India lessens the persuasive weight of judicial rulings from other countries, the justices concluded, pointing to other Supreme Court rulings.
Finding the Delhi High Court ruling “legally unsustainable,” the Supreme Court justices said Parliament is free to amend or repeal the sodomy law.
Initial press accounts about the ruling uniformly indicated 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 focused on beating back a serious challenge by the conservative opposition, widely seen as likely to gain ground in the Parliament. In fact, the government that earlier decided not to appeal the Delhi High Court’s ruling may not be in power much longer. Getting rid of the sodomy law might in the world’s most populous democracy might prove a long-term project.