Naz and Notional Equality: Aman


 A guest post by Aman finds fault with the Supreme Court’s reasoning on equality

In Suresh Kumar Koushal and another v. Naz Foundation and others (Naz), the Supreme Court notes that, ‘It is relevant to mention here that the Section 377 IPC does not criminalize 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.’ By concentrating on the acts and not people, it is perhaps tries to convince us (and perhaps itself) that this is not a debate about homosexuality. However, the short-sightedness of the Supreme Court in discounting how these ‘acts’ are so fundamentally connected to a group’s orientation/identity is clear; it does exactly what it says it’s not doing (i.e. criminalize a particular people or identity or orientation).

The text of section 377 is facially neutral and applies to all people but it is not very difficult to see that the provision impacts homosexuals. As mentioned earlier, the so called ‘unnatural acts’ are the only ways homosexuals can have sex. This obviously implies that it is the homosexuals who have to continue bearing the stigma of being a criminal. The symbolic effect of branding homosexuals as criminals was evinced by the Delhi High Court when it said that provisions like these add to the reasons for homosexuality being treated as bent, queer, repugnant, deviant and perverse, leading to further marginalisation of the homosexuals. What could have been an attempt by the Indian judiciary to bring down one of the obstructions for integration, has become an enforcement of a dominant notion of ‘natural’ sex which will naturally lead to concealment of true identity of many people who are anyway struggling in the society to prove that they are normal.

The harm is just not symbolic. By affirming the constitutionality of section 377, the Supreme Court has affirmed the existence of another tool of exploitation. The Constitutional Court of South Africa in National Coalition for Gay and Lesbian Equality v Minister of Justice (talking in relation to laws that criminalised all sexual acts between men) succinctly points this problem when it says ‘But the harm imposed by the criminal law is far more than symbolic. Just as apartheid legislation rendered the lives of couples of different racial groups perpetually at risk, the sodomy offence builds insecurity and vulnerability into the daily lives of gay men.’ The dangers of such a threat have become far too evident with the talks about invoking Section 377 to book American diplomats who have declared that they had same-sex relationships. The Supreme Court cannot wish such a threat away by callously noting that in their opinion, ‘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.’

The impact of declaring section 377 of the Indian Penal Court as constitutional by the Supreme Court in Naz indeed touches all people and it would be incorrect to not criticize the decision for its disregard of factors like age and consent in reaching its conclusion. However, it is naïve to ignore that fact that it is the homosexuals, for reasons discussed above, who are the biggest stakeholders here. In failing to recognise this stake, the Supreme Court also fails to protect the homosexuals by giving due respect to their sexual preferences– something that equality under Article 14 demands. In fact, understanding the need to protect the homosexuals would have been a sufficient reason to read down a provision that fails to integrate homosexuals in the society.

The problem, however, is not just with cases related to discrimination on the ground of sexual orientation but a more fundamental one with the notion of equality. In our assessment of and our remedy for inequality, we often ignore or do not give sufficient focus to the fact that inequalities in society revolving around issues of caste, sexual orientation, gender, religion etc. are systemic issues of subordination (of the minority/historically vulnerable) and dominance (by the majority/powerful). In other words, an effective assessment and remedy of such systemic issues of subordination includes an identification of the powerful and the vulnerable groups; and understanding the ways in which dominance manifests/subordination impacts. In this light, it is also important to note that dominance is not necessarily exercised through direct actions and laws but can operate through practices, notions and ideas of the powerful/majority. This aspect of social reality must not escape us. For instance – in relation to gender equality, it is obviously not without a reason why one of the most progressive instruments – the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) chose to go beyond the concept of discrimination used in many national and international legal standards and norms. Such norms/standards just prohibited discrimination on the grounds of sex and protected both men and women from treatment based on arbitrary, unfair and/or unjustifiable distinctions. On the other hand, with a view closer to social realities, ‘the Convention focuses on discrimination against women, emphasizing that woman have suffered, and continue to suffer from various forms of discrimination because they are women.’ (General Recommendation 25)

Neutrally worded laws such as section 377 can possibly have a disparate impact and the application of such law can actually conceal the bias/ support the dominant culture. In this way, neutral application can perpetuate the prejudice. Like in the case of homosexuals discussed above, ignoring extra burdens on a minority/oppressed group thus, can take us away from ‘the real issues’ as feminists like MacKinnon argue. Though I have focused on the issue of disparate impact through neutral application of laws, the problems of not recognising inequality on grounds of caste, sex, orientation, disability etc. as issues of subordination and dominance is not just limited to such cases; it equally manifests itself in relation to i) affirmative action cases (where uneven race and caste attributes in society are ignored by judges under the pretext of colour-blindness and caste-blindness) or ii) identification of problems unique to the vulnerable sections even in direct discrimination cases (for example, non-recognition of discrimination on grounds of pregnancy as an aspect of gender discriminations for a very long time).

It is interesting to note that the SC has, in the past, has understood discrimination as a systemic issue of dominance/subordination. For instance, it had identified who the disadvantaged groups are in Indra Sawhney v Union of India and Ashok Thakur v Union of India by concluding that caste is a dominant factor for determining backwardness. Similarly, in Anuj Garg & Ors v Hotel Association of India & Ors, the Supreme Court talking in relation to a provision that prohibited women from working in any part of such premises in which liquor or intoxicating drug was consumed, noted that dominance can manifest through ‘traditional cultural norms as also the state of general ambience in the society which women have to face while opting for an employment which is otherwise completely innocuous for the male counterpart’ and concluded that the impugned provision perpetuated this problem. However, the Supreme Court with Naz has gone back to a notion of equality that is fine with symmetrical application of the law that turns its back on the concerns/impact of the vulnerable sections. It has been this very notion that has over the ages led to the further imposition of inequalities. The danger lies in following the approach in this case in future cases i.e. in assessing/remedying inequality without consciously undertaking an exercise to assess how societal inequality operates. It is imperative for any court of law to keep this in mind since it is only the courts that are supposed to protect the interests of a minority in any majoritarian system. The Supreme Court on 11th December 2013 failed miserably in discharging this duty and one can just hope that another 11th December is not repeated.

 

Aman is based at the Internationla Criminal Court at the Hague and can be contacted at amannlu@gmail.com

4 thoughts on “Naz and Notional Equality: Aman”

  1. On whether there is in fact an Art 14 violation, we’d need to take a couple of things into consideration here: (a) Unfortunately homosexuals are not recognised as a separate class within Indian society, for want of enough tangible and documentary evidence of their existence. So, in an adversarial system like ours, we cannot expect the court to presume what would otherwise seem ‘obvious’ to us: that they exist, and lead a certain lifestyle (without having an alternative that would not fall foul of section 377). The onus of recognising them as a class at this juncture lies mainly with the state and the state machinery, in absence of which, the judiciary would be pretty helpless. (b) Section 377 does in fact criminalise all types of ‘carnal’ intercourse between two individuals, other than the ‘conventional’ penal vaginal intercourse. So technically, it is not just homosexuals but also the heterosexuals engaging in ‘non-conventional’ forms of sexual activity who are criminalised by this provision. I remember reading somewhere that an intercourse between the thighs has been held to be unnatural! Again, it would have been impossible for the judiciary to conclude that the law selectively targets the lifestyle choices of ONE section of the society. (c) The limited number of convictions under this section show that the enforcement of this law hasn’t been of particular disadvantage to a particular group, and hence not violative of Art 14. The fact that this provision is used by the police to harass members of the LGBT community and perpetrate their brutality, is an issue connected to executive/state action, and is not a problem with the existence of the law itself (again, since these seldom end up in convictions). On the question of Art. 21, well, there exists a procedure established under law to enforce Section 377.

    Having said all this, and given that the executive or legislature will probably not take the initiative to decriminalise ‘unnatural carnal intercourse’ anytime soon, I wonder if a PIL could be filed for a writ of mandamus to prevent the selective, discriminatory and baseless harassment of individuals on a suspected violation of Section 377 (with another consenting adult)?

  2. Response to (a): I don’t quite appreciate your point that homosexuals do not form a separate class in India because of the lack of tangible evidence. Firstly, I do not think any material is needed to accept the fact there are gays in the Indian society. I really don’t think such obvious facts need to be established in the court. In fact, the reason why laws prohibiting sodomy in many places were enacted because such ‘unnatural’ men and women existed! Furthermore, its circular to argue what you are saying – considering the stigma attached obviously a lot of people don’t come out in the open and cant be a part of the tangible record. Knowing this vulnerability, one cant really expect thousands of people to come out! I presume its fair to expect that level of sensibility from the highest Court in the country. Secondly, I completely disagree that there is a quantitative requirement to prove something to be a ‘class’ or what would be, as you say, ‘enough’ tangible evidence. The Court took the same slippery slope when it said that people engaging in intercourse against the order of nature form a ‘minuscule’ part and hence do not need protection. This is completely antithetical to the issue of ‘minority protection’ (howsoever small they are) and inclusiveness our Constitution protects. [For more on this see Gautam Bhatia’s piece on Outlook (http://www.outlookindia.com/article.aspx?288823)%5D. Thirdly, even if we are to believe that the Supreme Court needs such things established, you are wrong to say that the Supreme Court had no records of homosexuality or the prejudice they suffer. See more on this by Menaka Guruswamy, representing Benegal in this matter. She says, “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. ” ( Indian Express: http://www.indianexpress.com/news/making-criminals-of-us-all/1207075/0). You could also have a look at the article by Danish Sheik and Siddharth Narrain in EPW discussing the evidence before the Court (http://www.epw.in/commentary/struggling-reason.html).
    Coming to (b) I agree with you that the law targets others besides homosexuals and the decision needs to be criticized on that front as well. The review, if one happens, must focus on the disregard the SC had shown to factors like age and consent. However, just because it targets everyone does not make it right! Furthermore, that does not dilute what I say. The entire point of my post was to show how 377 attacks ‘identity’ of gays and brands all gays as criminals over and above the harm done to all. They would have to grow up believing that they are “bent, queer, repugnant, deviant and perverse” and suffer psychological harms. I also talk about non-psychological harms like threat of prosecution that homosexuals have to face. If the court understood these specific problems- there would be a good enough reason to give space to such fundamental identity traits under art. 14 which demands “the equal protection of the laws”.
    In response to (c) -I don’t agree with that as well. The provision allows for a conviction to happen – and as long as it provides for that possibility, it violates the equality provisions. And I don’t understand why is there such a big focus on conviction. Will it be ok if the authorities (acting legitimately under 377) arrest, detain, have a trial against a homosexual? Doesn’t that violate the Constitution? If the law would have carved an exception for consensual adults – your argument would have merit. As of now, I fail to appreciate that my fundamental rights are at the ‘mercy’ of courts who ‘might’ not convict me.

  3. Further to Aman’s argument regarding (a), and very simplistically speaking, shouldn’t the de-recognition of the caste system have led to the de-recognition of caste based violence because they “are not recognized as a separate class in Indian society”?

    Regarding (b), as a class being discriminated against, I hope I do not have to go to court and prove the unconstitutional of a provision with respect to every “minuscule” group that such a provision discriminates against. I would hope that discrimination against my group would be sufficient for the Supreme Court.

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