Vikram's interesting and excellent posts covered many questions of importance in Naz Foundation. Reading reports of the hearings offered a great deal of insight (and I thank Arun and Tarunabh for bringing this to attention) into the court's thinking and its eventual outcome was a long foregone conclusion. The whole exercise though had a tragicomic element to it as the proceedings featured quite an unequal contest between the petitioners who came extremely well prepared with a masterful narrative woven out of facts of questionable relevance facing off against a poorly prepared and with due respect, prejudiced and a somewhat ignorant ASG.The judgment is a historic development by any stretch but what has been surprising given the intensity of media interest is the absence of any critical analysis of its reasoning in the mainstream media. I found that it raises more questions than it answers.

Firstly, we are told that homosexuality is ‘not a disease or a disorder and is just another expression of sexuality’ based on the removal of homosexuality from the category of mental disorders both from the Diagnostic and Statistical Manual (DSM) in 1973 and in the ICD-10 (paras 67 and 70). I am unable to comprehend the relevance of this fact. Both the DSM and the ICD-10 are intended primarily to aid clinical practice and research by providing precise definitions useful for both diagnosis and epidemiological purposes (data analysis and collection). The classifications are therefore entirely patient-centric, not people-centric being based on reports of what symptoms patients present with at clinics, how useful a particular diagnosis is from a therapeutic standpoint, etc. The term used throughout is ‘disorder’, not ‘disease’ and its definition too, not surprisingly, is based on whether the condition manifests as a dysfunction in an individual. ICD-10, for example, defines the term ‘to imply the existence of a clinically recognizable set of symptoms or behavior associated in most cases with distress and with interference with personal functions’ (page 11). The DSM definition is similar. Whether an individual confronts a dysfunction at a personal level is entirely different and distinct from how the state or society perceives or ought to perceive the individual. There are numerous disorders in the DSM and ICD-10 that are not criminalized and likewise, criminalized conducts such as adultery find no mention therein. I am also unclear what the Court means by ‘just another expression of sexuality’. Of course, every form of sexual preference - paraphilias included and some of them are criminalized as well (exhibitionism, fetishism, frotteurism, pedophilia, sexual sadism, sexual masochism, voyeurism, etc.) - would count as just other expressions of sexuality. Lastly, going by the court’s reasoning about the need for protecting the interests of marginalized groups, one would expect that having a disorder would imply greater disadvantage and hence the need for greater sensitivity and state support. Surely, all of these other groups with various sexual preferences must then have a stronger case for lifting criminal sanctions against them.

The court also says (para 68) that homosexuality is innate and cannot be cured. This is generally correct though as for the treatment, it would be unwise to be so categorical - the APA has no formal position upon this question though it does note that studies have generally shown this to be the case (there are however a few case reports to the contrary). For the same reason mentioned earlier, I am however once again unclear of its relevance. Secondly, this would be equally true of the paraphilias as well. There too, the tendency itself cannot be treated or cured in any meaningful sense and the purpose of treatment - usually counseling - is meant to assist the individual in not acting upon his/her urges. Failing that, in some cases as for pedophiles, castration may be done but this is a sledgehammer approach to deprive the individual of the sexual urge itself that would work as well for heterosexuals and homosexuals. Of late, there is a growing body of evidence that the tendency towards adultery/polygamy, namely the desire to seek multiple sexual partners, is innate as well - a recent study showed how individuals with this trait are twice as likely as those without it to suffer marital crises. Again, this is not curable either in any real sense. There are numerous other behaviors that are innate and not curable either; indeed, virtually any phenomenon that can be behaviorally profiled would satisfy this requirement.

I would certainly like to think that enforcement of morality is not a compelling state interest but the presence of a morality exception to fundamental rights in several provisions under Part III suggests that the framers intended otherwise. The court also does not actually repudiate it anywhere; it merely insists that in this particular instance, it is not reasonable. In para 91, the court says that consensual sex between adults does not harm anybody. Here again, I am persuaded that Dworkin's argument of how where morality is concerned, there are different degrees of harm and it need not be material or physical alone is a better reflection of the Indian legal position. Just as the harm done by a person masturbating in a public place watching passers-by would be the harm of sight (which is why we have laws against obscenity), what we have here is the harm of knowledge. The mere fact that the public knows that such an act is taking place is sufficient to perceive it.

Even if one were to disregard this view, one ought to recognize that with respect to the LGBT community at least, the India of today bears far more similarity to the United Kingdom of the 1950s than Western society of today. As the court itself acknowledges in para 62, the majority of gays are married and have children and legalization would, in a sense, amount to the tacit endorsement of adultery. This form of adultery may not be covered under the IPC but I doubt that it would make it any less moral simply owing to that fact. The court however simply glosses over this fact noting only the adverse health effects on the wife. But surely, a wife is concerned about the behavior of her husband more broadly for reasons having to do with more than merely its implications for her own physical health. Moreover, if the state can sanction, even if only in form, other forms of immoral conduct, why can it not do so in this case? I find no answer.

The harm standard would also be satisfied by other forms of 'unnatural' behavior. For example, no one to my knowledge has ever shown that animals actually suffer any harm from acts of bestiality. This might come as something of a surprise but that is an equally valid question with respect to sex with minors as well. The matter of evidence relating to harm to minors from sexual acts is a full post by itself. Without getting into all the details, I will simply note here that doubts have long been expressed about these claims since many of the reports and studies on this subject suffered from a variety of methodological flaws. Several studies in the last two decades led by Rind, Tromovitch and others have sought to discredit these claims and demonstrated that once incest and other forms of non-consensual (I do not use consent in the legal sense here) sex are excluded, consensual sex between a minor and an adult cause either no psychological harm or its extent is limited to a minority of individuals at best. The phrase 'child sexual abuse', they concluded, is overstating its case. Their conclusions have attracted ferocious criticism (including an unprecedented resolution by both houses of the U.S. Congress condemning its findings) but being methodologically rigorous, they have withstood academic challenge. Other forms of literature showing the prevalence of such 'intergenerational intimacy' in older civilizations as well as empirical data to this effect have also been accumulating in the last several years.

The petitioners no doubt insisted that they were only interested in the rights of individuals over fifteen and the government too reported that it only prosecuted those having sex with individuals under fifteen. In para 75, the court simply says that it is a compelling state interest to regulate by law the area for the protection of children and others incapable of giving valid consent (conclusion in para 132 reads similarly). The question was not thoroughly considered in this context but to the extent it did, this articulation of principle is not only inconsistent but a misreading of the issue of minors. The question is not so much whether children can or cannot consent; rather, it is whether the state can intervene on any occasion, even on behalf of children, absent a compelling interest. If the natural right to consent for an adult rests with him/herself, by implication, the natural right to consent for a child ought to lie if not with him/herself, then with his/her parent/guardian at least in our society. If the latter can, in the ordinary course, choose what his/her child eats, drinks, socializes with, whether he undergoes religious circumcision, etc. - matters that would not be considered to fall within the realm of governance - I do not quite see what compelling justification would exist for state intervention in sexual matters if the issue of harm is taken off the table.

Coming to the issue of health, the petitioners undoubtedly made a compelling case that criminalization of homosexuality retards rather than advances HIV prevention. The government's claim, as the court correctly pointed out both during the hearing and now in its judgment, that legalization will increase the incidence of HIV/AIDS is not supported by any past evidence. Likewise, the government's other claim that homosexual sodomy is associated with a higher incidence of anal cancer is factually true but is preventable with condom use which is exactly what NACO and the petitioners insisted needs to be advocated. But there are numerous other problems with this approach. NACO's intervention is no doubt vital but we were not told during the hearings how big an impact legalization could be expected to have knowing that there are other elements such as the education level of the participant which affect the rate of HIV infection and prevalence. Secondly, I am at a loss to understand why HIV/AIDS alone, important as it certainly is, ought to matter to the exclusion of all other diseases. Heightened promiscuity along with other factors such as the ease of acquiring partners in the age of the internet, acceptability of the gay lifestyle and declining mortality due to the easy availability and access to antiretroviral therapy for HIV have all been implicated as causes in an epidemic of sexually transmitted diseases in the gay community across Europe and America from the mid-1990s (The ASG presented evidence of greater promiscuity in the Western gay community but in doing so, I did not quite follow what he was driving at as there is no law against promiscuity). While it needs to be recognized that sexual practices are considerably influenced by socioeconomic conditions and these results may not readily apply in India, it also goes to show that a more aggressive effort to curb the spread of HIV need not necessarily result in a decline in the overall burden of disease if that is what the Court is thinking. Thirdly, the fundamental right to health cannot be the same thing as good public health policy. The former is concerned with the care an individual receives and the latter with the policy question of how the state chooses its strategies and prioritizes its resources. Fourthly, it would not be unreasonable for a government tasked with the twin goals of promoting public morals and public health to adopt a stance that is something of a compromise which fails to promote either objective fully.

Finally, the court is right that the government cannot cite the prevention of HIV as a compelling interest to retain this provision but its conclusion that 'public health measures are strengthened by the decriminalization of such activity so that they can be identified and better focused upon' (para 86) would hold equally for adults having sex with minors. There is considerable literature on how they too are a marginalized group living in the shadows, face even greater animus from a public that has little understanding or empathy for them, are much more poorly organized and have very few people or organizations to defend their interests in the public realm and their criminalization and inaccessibility renders them a threat to themselves and to the children to whom they may knowingly or unknowingly transmit their infections including HIV. If the psychological harm to a wife cheated on by her husband is less consequential than the prospect of her being infected with HIV, one is constrained to follow why the prospect of children being harmed by HIV infection ought not to outweigh any potential psychological effects they may face from sexually relating with an adult. Parental and familial incest which constitute a significant component of such offenses would likely come down as well if men who perpetrate them were openly accepted by the community and had the opportunity to find willing partners outside of their homes without having to worry about harassment from law enforcement. If 'moral indignation, howsoever strong, is not a valid basis for overriding individuals's fundamental rights of dignity and privacy' (para 86) and promoting HIV prevention an overriding consideration, I am not sure there exists a strong basis to criminally sanction this group either.

One must therefore conclude that the court's elevation of homosexual sodomy to a separate category deserving of special consideration not owed to other sexual minorities rests not so much on any logical principle but on its belief that India must follow global trends, a persistent and recurring theme throughout the opinion. I am not suggesting that this is a bad thing but one ought to realize that this is very much a product of the changing social mores and democratic preferences in the West. The position taken by several foreign court opinions, as they themselves state plainly, is based much more on popular preferences as implied by the state of laws in their respective jurisdictions than any successfully articulated freestanding legal doctrines that can be readily transposed to other countries. Other sexual minorities have not managed to elicit this level of support in these countries which explains why their interests find little consideration in these judgments.

The court cites Dudgeon v. United Kingdom and Norris v. Ireland, two opinions issued by the European Court of Human Rights (ECHR) in addition to a third Modinos v. Cyprus (mentioned separately). The standard was first laid down in Dudgeon and followed in the other cases. I did not see the Court actually adopt it or cite Indian precedents relevant to its application but it is worthwhile looking here at how the matter was dealt with. Here the ECHR said that for a restriction to be deemed necessary as required under Art.8 of the European Charter, it ought to be more than merely 'reasonable' (based on its view in Handyside v. United Kingdom), the state ought to demonstrate a 'pressing social need' and the measure ought to be proportionate to the offense. This is impressive until one looks at how the ECHR applied it which the court itself cites in para 77:

"In Northern Ireland itself, the authorities have refrained in recent years from enforcing the law in respect of private homosexual acts between consenting males over the age of 21 years capable of valid consent. No evidence has been adduced to show that this has been injurious to moral standards in Northern Ireland or that there has been any public demand for stricter enforcement of the law.

It cannot be maintained in these circumstances that there is a "pressing social need"..."

This two-line reasoning is remarkably specious. We are not told anywhere how one is to decide whether moral standards have risen or fallen nor is any indication given of how the Court summarily concluded that it has not been injurious. The possibility that enforcement of the law might actually improve the moral standard (whatever that may mean) is also not countenanced. In other words, if inability or failure to implement a law does not make matters worse than they already are and the public fails to protest, the restriction cannot be considered a 'pressing social need' and may be struck down. It is hard to exaggerate the absurdity of such an incomplete and subjective approach amenable to suitable modification subject to the vicissitudes of street anger not to mention its utterly unprincipled nature. This cavalier treatment however makes more sense when one notices that it is rooted not so much in any normative argument as in the contemporary state of popular European sentiment. The court itself makes this plain in an earlier observation also quoted in para 77:

"[I]n the great majority of the member States of the Council of Europe it is no longer considered to be necessary or appropriate to treat homosexual practices of the kind now in question as in themselves a matter to which the sanctions of the criminal law should be applied;the Court cannot overlook the marked changes which have occurred in this regard in the domestic law of the member States..." [emphasis added]

Justice Kennedy's opinion in Lawrence v. Texas followed this lead. Here again, as Justice Scalia correctly pointed out in his dissent, the court failed to distinguish sodomy from all the other proscribed forms of moral conduct but this again did not matter much because the majority made the altered American legal landscape since Bowers a centerpiece of its analysis: "Of the 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct."

As an aside, as Vikram pointed out, there were other differences as well between Lawrence and the present case. The Texas anti-sodomy statute, in contrast to early American anti-sodomy laws, targeted only homosexuals and its origin, like other prevailing anti-sodomy laws, was of recent vintage. Further, proscription of homosexuality, he said, is not a deeply rooted tradition. This, of course, is not true in the Indian context where sec.377 which is analogous to ‘the early American anti-sodomy law’ continues to hold sway more than a hundred and fifty years after its enactment. (In this regard, given that the present day Indian legal system is what the British left behind, it is not unreasonable to suggest that our laws owe much to their values which are grounded in many respects in the Judeo-Christian tradition. If the contrary becomes true, as 'Gus' in his comment argued, numerous social laws against child marriage, female feticide, even widow remarriage and the prohibition of Sati, some of which are of colonial vintage may all be vulnerable to challenge on substantive due process grounds. Indeed, Granville Austin’s compelling thesis of the Constitution as a social document could end up neutralized on the ground of fundamental liberty interests deeply rooted in ancient Indian tradition. Ancient Indian traditions, as the petitioners contended, can therefore have no relevance to a law enacted in the 19th century.) Also, he distinguishes present day law from past laws on the ground that this is not facially neutral owing to its specific reference to a person having ‘deviant sexual intercourse with another individual of the same sex’. This again is not the case in India as the court itself acknowledges in para 94.

Getting back to the issue of popular approbation, the same thing is true in Toonen v. Australia where the Human Rights Committee noted (in 8.6) that 'with the exception of Tasmania, all laws criminalizing homosexuality have been repealed throughout Australia...' In Canada as well, parliament had already legalized sodomy by the time Vriends v. Alberta was decided. As the court itself stated in para 101, the 'emerging consensus among legislatures' was a factor in the Canadian Supreme Court's decision. Amongst the foreign court opinions which the Court cites in detail, the South African decision is probably the only one which does not refer to domestic sentiment so far as its privacy holding is concerned but the fact that its constitution explicitly recognizes sexual orientation may provide something of a justification for this. The Indian Constitution, on the other hand, does not mention this category.

Under this approach taken by the European and American courts, sometimes euphemistically termed 'democratic constitutionalism', the standard is defined by the current state of the majority of laws within their respective jurisdictions; if they advance liberty, the hold-outs are forced to fall in line through judicial fiat. Even according to this view reflected in John Vallamattom that the constitution ought to be interpreted, to quote Earl Warren's famous (or infamous) words in Trop v. Dulles, in line with the 'evolving standards of decency that mark the progress of a maturing society', the Delhi High Court would have had to show that there is some degree of domestic legislative support for such a case in India. Unfortunately, it fails to point to a single instance of any Indian state even seeking to change the law. Instead we are told that public opinion does not matter because if there is any type of morality that can pass the test of compelling state interest, it must be constitutional morality and not public morality (para 79). Even Dudgeon, Toonen, Vriends and Lawrence did not go this far. It is hard not to notice this fawning embrace of foreign public opinion while treating domestic Indian sentiment (which as the LGBT movement and this case show is already beginning to change) with such marked contempt.

Finally, how far reaching the implications of such an approach will be is an open question. Social laws as a rule either do not work or work poorly. For example, the Child Marriage Restraint Act, 1978 has not had much impact on child marriages, the PNDT Act, 1994 with all its subsequent amendments has not had much success with ending female feticide, kidney rackets continue notwithstanding the Human Organ Transplantation Act, 1994 and commercial sex thrives despite the Immoral Traffic Act, 1956. All of these legislations impinge on important dignity and privacy concerns - the freedom to marry, reproduce, prolong one's life, seek sexual gratification, the right to privacy in matters of one's own healthcare and reproductive choices, etc. Some of these laws have been on the books for a while and it is doubtful that keeping them active indefinitely would actually change anything. Not all of these are innate conditions but many certainly involve deeply ingrained beliefs and must therefore be considered immutable which also explains why laws do not have much of an impact on them (Indeed a recent study came to the broader conclusion that criminal laws have no clear correlation with the incidence of crime). The main result of the threat of legal action has not been to abolish these acts but to drive them and the associated actors underground. If the validity of their purpose alone is not sufficient to justify their existence as a compelling state interest, one is left to wonder how many of them can actually survive legal scrutiny if their worthiness is questioned on grounds of practical implementation.

Coming to its Article 15 analysis, I fully share Vikram's concerns about importing the doctrine of strict scrutiny. The text of Art.15 also suggests that this harmonious construction is simply untenable. Art. 15(3) allows the state to make any special provision for women and children as against 15(4) which allows the state to make any special provision for the advancement of socially and educationally backward classes et cetera. The key distinction is the absence of requirement of a purpose in 15(3) which renders the exception much wider as compared to 15(4). If strict scrutiny cannot apply to the more narrowly worded 15(4) in light of Ashok Kumar Thakur, applying it to 15(3) would nullify the purpose of a broader exception.

Para 49 of Anuj Garg which the court quotes (in paras 108, 112) that discrimination on the basis of sex, race, caste or any other like basis also is devoid of any foundation - nowhere did Justice Sinha explain in that judgment what the basis of such a view could be when Art. 15(1) explicitly states that the state shall not discriminate only on grounds of religion, race, caste, sex, place of birth or any of them. The words 'any other like basis' or an equivalent phrase finds no mention. The Court's use of Canadian (paras 101, 102) and South African (para 103) court opinions also fails to help its case as the text there is worded differently. Art. 15(1) of the Canadian charter says '...equal benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability' indicating a level of generality which allowed the Canadian Supreme court, in Andrews v. Law Society of British Columbia,to extend protection to other analogous grounds. Again in contrast to the Indian document, art. 9(3) of the South African constitution lists sexual orientation as a category for non-discrimination.

The court's approach to severability also does not appear to be in concordance with the principles laid down in Chamarbaugwalla. Justice Venkatrama Aiyer, in his excellent opinion, laid down that 'in determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid.' There is no dispute that Macaulay did not intend to separate the offenses nor is there any doubt that if the valid parts alone were to be enacted, the all-inclusive word 'unnatural' would not have been used. He also said that 'if the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become unenforceable. Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole.' Not only are separate categories not distinguished, all forms of non-procreative sexual activity were clubbed together under the term 'unnatural' and form a complete code. Therefore, under the intended scheme, removal of any one part would render the rest incomplete and inconsistent with its intent. Finally, he also noted that 'if after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation.' The court here has had to make various modifications by adding the limitation of age (below versus above eighteen), location (private versus public) and gender (men with men and others) to save the statute. This clearly amounts to judicial legislation and the proper course, if determined to be unconstitutional, would have been to void the statute in its entirety.

In conclusion, as the origins of human behavior become better understood and their meaning and implications permeate public consciousness, there will be many more minority groups in the coming decades seeking changes in laws to better recognize their needs and demonstrate sensitivity to their concerns. While gays, pregnant women, the physically and mentally disabled and religious minorities are well known today and may have legitimate claims to special concessions, individuals with mid-life crises, the terminally ill, those with heritable diseases and the altruistically challenged may emerge as groups deserving special consideration tomorrow. The nature of their disability/distinctiveness may not be similar in every case and the extent to which society ought to deviate from a pre-existing norm to accommodate every group would have to be determined taking into account various factors including the broader public's understanding, empathy, implications to its own well-being, definition of the group and responsiveness of the behavior to external factors including susceptibility to change. In all of this, like in every other policy matter, public perception is reality that policymakers have to invariably contend with. Compromise, nuance and incremental change are central to such a process all of which would be adversely affected by writing everything into the constitution bypassing the public and ignoring the popular will.

With the greatest respect to the court, this judgment is patently undemocratic, devoid of any principled foundation and threatens to permanently subjugate the constitutional validity of our laws to the subjective preferences of foreign societies. By obviating the need for popular acceptance, it distances the public from the laws that govern us and hinders rather than promotes a debate on this subject. None of this is to suggest that gays do not have a compelling case but there is no good reason not to take recourse to the ordinary course of democratic debate and seek legislative approval. The Supreme Court would do well to reverse.