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 firstname.lastname@example.org