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December 11, 2014 will mark one year from the day on which the Indian Supreme Court delivered one of its most heavily criticised judgments in recent history – Suresh Kumar Koushal v Naz Foundation (Koushal). The Court’s holdings in that case are only too well known by now. But briefly, it reversed a Delhi High Court judgment reading down section 377 of the Indian Penal Code (which criminalised ‘carnal intercourse against the order of nature’), effectively placing India’s LGBT community in the shadow of criminality and continued social stigmatisation. The judgment: (i) extended a rebuttable presumption of constitutionality to an almost conclusive presumption that legislation which is validly enacted cannot be struck down (ii) failed to consider whether the separate legislative treatment of ‘carnal intercourse against the order of nature’ was based on intelligible grounds (iii) seemed to ascribe a numerical de minimus for the enjoyment of fundamental rights (for those seeking a more detailed appraisal of the judgment, these pieces by Madhav Khosla and Tarunabh Khaitan are a good place to start).
Thus far, scholars have considered two options that are available to nullify Koushal: judicial reconsideration of the decision and the legislative repeal of section 377. As it stands, both of these seem difficult. In February 2014, the Indian Supreme Court dismissed a review petition seeking reconsideration of the judgment. A second review petition (called a ‘curative petition’) is pending, and placing bets on its outcome is a task best left to daredevils. Legislative repeal is a much bleaker prospect, given that the Bhartiya Janata Party-led government has sent mixed signals on the issue. It is also widely perceived that legislative repeal will jeopardise an important segment of the party’s conservative political constituency – a price that it is probably unwilling to pay. But there is a third, much more subtle, option on the table – narrowing the impact of Koushal through subsequent decisions.
Two judgments indicate that this option is silently underway. In NALSA v Union of India, the Indian Supreme Court was tasked with deciding whether the right to equality and other fundamental rights required state recognition of hijras (broadly, Indian male-to-female transgender groups) and transgenders as a third gender for the purposes of public health, welfare, reservations in education and employment, etc. In a remarkably broad ruling, the Court held that hijras should be treated as a third gender, and that transgenders should be given the right of gender self-identification. Without overruling Koushal, the Court undercut some of its findings. First, it observed that even though section 377 was facially gender neutral, it had a disproportionate impact on certain communities. Second, it rejected the numerical de minimus for the enjoyment of fundamental rights set up by Koushal, observing that transgenders, ‘even though insignificant in numbers’, enjoyed the same fundamental rights as everyone else.
In another scarcely reported, but no less significant, judgment (Kirankumar Devmani v State of Gujarat), the Gujarat High Court dealt similar setbacks to Koushal. The question before the High Court was whether the state was justified in refusing to grant tax concession for a vernacular film depicting the life of a homosexual. In a carefully reasoned judgment, the Court held that the state’s refusal violated the right to equality and the freedom of speech and expression. The Koushal judgment arose for the Court’s consideration, since the question then was whether the state was justified in refusing concessions to a film that encouraged an ‘illegal’ activity. The High Court’s observations, which stand in stark contrast to the Koushal prognosis, are worth quoting:
Even a person with homosexual preference as human being [sic] has right to life and liberty guaranteed under article 21 of the Constitution. Such right to life and liberty includes right to live life with dignity… In the constitutional scheme of things that we have adopted in our country, plurality of ideologies and different view points are accepted and respected. No single view point may be fully correct or fully incorrect and yet all of them can peacefully coexist.
The Court was, of course, conscious that judicial discipline demanded that the Koushal judgment be upheld. Quite masterfully, it acknowledged that ‘carnal intercourse’ was an offence, but did not go into the question of whether it was morally wrong and would ‘leave it at that’.
The High Court then capitalised on the poor reasoning of the judgment in Koushal to narrow its precedential value, holding that the Indian Supreme Court’s judgment rested significantly on the presumption of constitutionality and did not cast light on the ‘subject matter’ of homosexuality in general. It concluded by saying that although it neither ‘endorsed nor deprecated’ the ideas in the film, the state’s failure to grant the tax concession was unconstitutional.
These two judgments suggest that the imperfect legal reasoning adopted in Koushal makes it highly susceptible to narrowing. The silent disintegration of judgments – as an alternative to the more hard-edged options of judicial overruling or legislative repeal – is a common phenomenon. In the United Kingdom, the House of Lords gradually retreated from its controversial decision in Pepper v Hart (allowing parliamentary proceedings to be cited for the purposes of statutory interpretation). In the United States, the Roberts Court has narrowed precedents in many areas, including abortion, campaign finance and affirmative action. Richard Posner describes this as ‘boiling the frog’. The unpleasant analogy is that if you want to boil a frog, you put it in warm water and gradually turn up the heat – if you were to drop it in boiling water, it would jump out at you. Koushal’s emasculation has begun. The water may not be boiling – but it is warm.
Chintan Chandrachud is a PhD Candidate at Sidney Sussex College, University of Cambridge and India Correspondent for the UKCLA Blog.
Suggested citation: C. Chandrachud, ‘Koushal v Naz: The Third Way Out ’ UK Const. L. Blog (30th November 2014) (available at http://ukconstitutionallaw.org)