Naz and Notional Equality

- Aman Bhattacharya*

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 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).

Impact on Homosexuals

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 thereby connecting the act to a fundamental aspect of their sexual identity. 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 marginalization 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 not just symbolic. There is a direct threat of potential prosecution. 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 criminalized 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 offense 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.

Some argue that the Supreme Court noting that courts might not convict those who engage in consensual intercourse is a sufficient safeguard. The fundamental flaw in this approach is evident as it seems to be fine with an arrest, detention or charge under the provision. Furthermore, the fact that the Supreme Court suggests that it is ‘apprehensive of whether the Court would [convict under 377] in a case of proved consensual intercourse between adults’ (emphasis supplied) is hardly an assurance. In fact, it is impossible to accept the correctness of such an observation that leads to one’s fundamental rights being at the mercy of courts that might not prosecute/convict someone since the prevalent understanding among courts and law enforcement authorities is that homosexual intercourse falls within the ambit of ‘carnal intercourse against the order of nature’ (see the discussion on ‘Article 14 and Section 377’ by Danish Sheikh and Siddharth Narrain). Moreover, the Supreme Court itself goes on to hold that ‘Section 377 IPC would apply irrespective of age and consent’ in light of the plain meaning and legislative history of the section.

A related defence stems from some quarters that suggests that the problem is not with section 377 but the way it is misused by the police and other enforcement authorities against homosexuals as noted by the Supreme Court (‘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’). However, as has been discussed above, the fact that the prevalent understanding of the provision (in light of the plain meaning and legislative history of the section which the Supreme Court endorses) provides a legitimate avenue for exploitation militates against such a conclusion. Even though the Supreme Court expresses its inability to ‘prepare a list of acts which would be covered by the section’ and notes that ‘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’ it should not have ruled out the fact that the section can and has been used to target homosexuals ,especially after having heard accounts of how the LGBT community is targeted (or accounts of how there exists a fear of being targeted) through the application of section 377 (see the discussion on ‘Article 14 and Section 377’ by Danish Sheikh and Siddharth Narrain).

By virtue of criminalizing a group on account of their sexual identity, there are also indirect harms that homosexuals have to face as a consequence of convictions that may happen under this provision. While discussing the legality of the Texas Sodomy laws, Judge O’Connor in her Separate Concurring Opinion points out the collateral effects of such a conviction manifest ‘in a variety of ways unrelated to the criminal law, including in the areas of employment, family issues, and housing.’ (Internal quotes omitted; emphasis supplied). This is another grave concern.

The impact of declaring section 377 of the IPC 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 the fact that it is homosexuals, for reasons discussed above, who are the biggest stakeholders here. In failing to recognize this stake, the Supreme Court also fails to protect homosexuals by giving due respect to their sexual preferences– something that equality under Article 14 demands. In fact, understanding the need to protect homosexuals would have been a sufficient reason to read down a provision that fails to integrate homosexuals in the society.

The Wider Problem

The problem, however, is not just with cases related to discrimination on the ground of sexual orientation but a more fundamental one i.e. with the notion of equality. In our assessment of and our remedy for inequality, we often ignore or do not give sufficient attention 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, notion, 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 women 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 Supreme Court has, in the past, 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 Ashoka 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 drugs were 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 of/impact on 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 this approach 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.

* A Shorter version of this piece has been published on www.kafila.org and can be accessed at http://kafila.org/2013/12/26/naz-and-notional-equality-aman/

** The author is a graduate from National Law University, Jodhpur and has completed his masters in law from the University of Oxford. Currently, he is clerking with a judge at the International Criminal Court in The Hague and can be reached at amannlu@gmail.com.

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