With the imprimatur of a five-judge bench of the Supreme Court, the transformative vision of gender equality articulated in this chapter has now attained a firm constitutional platform.
2
Equality Before Law: Naz Foundation and Equal Moral Membership
One important condition for the due maintenance of equality is that no restriction be placed in such matters on any human being on the grounds of sex, race, speech, creed, or colour. All these have in the past been used as excuses for exclusiveness, which must go if equality is to be real and effective for all persons.
K.T. Shah, ‘A Note on Fundamental Rights’ (December 1946)
Words are magic things … but even the magic of words sometimes cannot convey the magic of the human spirit.
Jawaharlal Nehru, speech on the Objectives Resolution (December 1946)
WHEN JAWAHARLAL NEHRU INTRODUCED the Objectives Resolution—the ‘outline of a plan’ for the Constitution—to the Constituent Assembly, he urged the framers not to examine its words ‘like lawyers … [which would] produce only a lifeless thing’.1 Yet, sixty-two years later, it was in a courtroom, amidst lawyers, that the Objectives Resolution found powerful utterance. In Naz Foundation v. NCT of Delhi,2 a division bench of the Delhi High Court held that the colonial-era Section 377 of the Indian Penal Code, popularly known as the ‘sodomy law’, which criminalized ‘carnal intercourse against the order of nature’,3 was unconstitutional to the extent that it penalized same-sex intercourse between consenting adults in private. At the end of a detailed analysis of how the sodomy law contravened the LGBT community’s right to equal treatment before the law (Article 14), right against discrimination on grounds of sex (Article 15[1]), and right to privacy (Article 21), the Court wove all its arguments together within the overarching web of the Objectives Resolution. ‘If there is one constitutional tenet that can be said to be [the] underlying theme of the Indian Constitution,’ wrote Chief Justice of the Delhi High Court A.P. Shah, ‘it is that of “inclusiveness” … this was the “spirit behind the Resolution” of which Nehru spoke so passionately. It cannot be forgotten that discrimination is [the] antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.’4
Inclusiveness. Discrimination. Equality. Dignity. These four words underpin the judgement of Chief Justice Shah and Justice Muralidhar in Naz Foundation v. NCT of Delhi. In this chapter, I will argue that Naz Foundation was a transformative judgement, not merely, or even primarily, because of its much-celebrated outcome (the decriminalizing of homosexuality), but because of its radical reimagination of the Constitution’s promise that ‘the State shall not deny to any person equality before the law or the equal protection of law’.5Naz Foundation moved away from a formalistic vision of equality, which only asked the State to ‘rationally justify’ the different treatment of individuals and classes, and which had crippled Indian constitutional equality jurisprudence since its very inception.6 Instead, it chose to ask a different question altogether: did not the roots of inequality and discrimination lie in the denial of full inclusiveness within the polity, and in the undermining of human dignity?
In reframing the question in this way, Naz Foundation initiated a rich and complex jurisprudence of equality, which was truer to the Indian Constitution’s transformative purposes than what had come before. Specifically, Naz Foundation understood that in promising non-discrimination and equal treatment before the law, the Constitution spoke to a past and a present, where certain personal characteristics had become the sites of exclusion, marginalization, disadvantage, and indignity. The jurisprudence of Naz Foundation was an attempt to fulfil the constitutional purpose of redressing this reality.
I begin by highlighting the origins of Section 377 of the Indian Penal Code, and the judicial interpretations that led up to the Delhi High Court’s 2009 judgement (I). I then outline the Indian Supreme Court’s dominant approach(es) towards understanding Article 14 of the Constitution—the ‘classification test’, the ‘arbitrariness test’ and the ‘legitimate purpose test’—and address their shortcomings (II). I go on to argue that while Naz Foundation did apply the classification and legitimate purpose tests, staying within the bounds of existing precedent, it nevertheless infused them with a novel, transformative content (III). I take a quick look at how the transformative potential of Naz Foundation was subsequently snuffed out by the Supreme Court, first in its reversal of the Delhi High Court judgement in Suresh Kumar Koushal v. Naz Foundation, and subsequently in its 2015 judgement in Rajbala v. State of Haryana. These two judgements present an alternative understanding of Article 14, but one that cannot be defended using the touchstone of transformative Constitution (IV). I conclude by examining what promise the Naz Foundation judgement holds for the future of Indian equality law (V).
I. ‘Carnal intercourse against the order of nature’: Colonial Antecedents, Postcolonial Interpretations
Any challenge to a law on grounds of unequal treatment must begin by identifying whom the law treats unequally. On its face, Section 377 does not single out a person, or a group of persons, for unequal treatment. It only criminalizes ‘carnal intercourse against the order of nature.’
What kinds of carnal intercourse may be against the order of nature? For Thomas Macaulay, who drafted the first version of the Indian Penal Code in 1837, and for his colonial successors who based the final language of Section 377 on Edward Coke’s seventeenth-century compilation of English law,7 the issue was too disgusting to even permit an explanatory discussion.8 It was left to the courts to put their own gloss to the meaning of ‘carnal intercourse against the order of nature’. Naturally, differences arose. The High Court of Sind, in 1925, observed that ‘the natural object of carnal intercourse is that there should be the possibility of conception of human beings’.9 A few decades later, however, the Gujarat High Court drew a fine distinction between sexual acts of cunnilingus or fellatio that were performed to excite the sexual organs for coitus, and the same acts performed as substitutes for coitus. The Court classified the latter as ‘sexual perversions’ and against the order of nature.10 In the facts of the case, it held that a man inserting his penis into the mouth of another performed ‘an imitative act of sexual intercourse for the purpose of his satisfying the sexual appetite [sic]’.11 Since the ‘orifice of the mouth is not, according to nature, meant for sexual or carnal intercourse’,12 Section 377 was applied. The phrase ‘sexual perversity’ was repeated by the Supreme Court a few years later, although without any further elaboration.13
While the Delhi High Court in Naz Foundation found these decisions to be in conflict, and observed a ‘shift’ from a procreation-oriented view of Section 377 to a view focused on ‘sexual perversity’, what is clear is that at the heart of all these judgements was the view that the ‘natural’ way of conducting ‘carnal intercourse’ is through penetrative, penile-vaginal sex.14 Sexual acts that could reasonably be categorized as part of a prelude leading up to coitus would escape the sting of Section 377, but all ‘non-procreative sexual acts’15 would fall within its scope. On this reading of the Section, every sexual act performed by homosexual people would necessarily violate Section 377, since it could not possibly lead to penile-vaginal sexual intercourse.16 On the other hand, non-penile-vaginal sex acts between heterosexuals would be illegal only if they were intended to provide sexual satisfaction in their own right, rather than merely ‘excite’ the sexual organs for eventual coitus.17
Consequently, the legislative distinction drawn by Section 377 through the phrase ‘carnal intercourse against the order of nature’ did not precisely map onto a distinction between homosexuals and heterosexuals. Rather, it penalized some forms of sexual expression among heterosexuals,18 while necessarily prohibiting any sexual intimacy between homosexuals. The challenge to Section 377 on the grounds of Article 14, therefore, would have to address the point—as argued by those supporting its retention19—that Section 377 did not single out only h
omosexuals for burdensome and discriminatory treatment.
II. Article 14 : The Traditional Approaches
A. Classification and Its Discontents
Article 14 of the Constitution provides that ‘the State shall not deny to any person equality before the law or the equal protection of laws within the territory of India’.20 At the dawn of Indian constitutionalism, when the early Supreme Court was faced with the task of interpreting the equal protection clause for the very first time, it noted that the first part of Article 14 (equality before the law) was borrowed from the Irish Constitution, while the second part (equal protection of laws) was identical to the US Constitution’s Fourteenth Amendment.21 Consequently, relying heavily upon the US precedent,22 the Supreme Court commenced its Article 14 journey by holding that equality required similar treatment of those who were similarly situated, while allowing for differential treatment between those who were different ‘in fact’.23 In other words, the equality guarantee prohibited ‘class legislation’, but permitted ‘reasonable classification’.24
What did this mean? It meant that legislative classification would have to be tested on two grounds: First, was there an ‘intelligible differentia’ between the things brought within the scope of the legislation and those left out? And second, was there a ‘rational nexus’ between the intelligible differentia and the legislative goal?25 However, this basic test leaves many questions unanswered. And in highlighting some of them, the Supreme Court has relied upon a highly influential article written in 1949 (coincidentally, only a few months before it handed down the first of its Article 14 decisions) by the American scholars Joseph Tussman and Jacobus tenBroek.26
Tussman and tenBroek outlined four issues that a court would have to address while applying the standard to concrete legal problems.27 The first was the problem of over-inclusiveness and under-inclusiveness. The world was too complex a place, and language too imperfect an instrument, for there to be perfect correspondence between the legislative goal and the legislative classification (the ‘intelligible differentia’). There could be no divine exactitude in the drawing of a line: some persons would always find themselves on the wrong side. The court would have to decide how much slack to allow the State before a ‘rational nexus’ became irrational.28
Second, while deciding the question of rationality, the court would also have to decide the extent of deference that it would accord to the legislature. This question of deference, in turn, had two components. Which of the parties—the individual challenging the law, or the State defending the law—bore the burden of convincing the court that a particular classification was irrational (or unreasonable)?29 Also, could the court independently scrutinize the legislature’s claim that there existed facts that justified a rational nexus between the legislative goal and the law’s classification? Could the court go into the question of whether such facts existed, whether they were true, and if so, whether they justified the law?
Third, Tussman and tenBroek proposed that equality, by its very nature, excluded certain kinds of classifications from being invoked in defence of a particular legislative purpose: ‘the assertion of human equality is closely associated with the denial that differences in colour or creed, birth or status, are significant or relevant to the way in which men should be treated … [these] are some classifications which can never be made no matter how reasonably they may be related to a legitimate public purpose.’30 Or, if ‘never’ was too strong a word, at the very least, laws employing such traits for classification would be ‘presumptively unconstitutional’,31 and would need to pass ‘rigid judicial scrutiny’32 (as opposed to the more relaxed ‘rational review’ standard).
Finally, Tussman and tenBroek argued that not only ought certain kinds of classifications be excluded under an equal protection enquiry, but so ought certain legislative purposes. In particular, laws motivated by ‘hostility’ or ‘discriminatory intent’ towards specific groups had been stated by the courts to be illegal.33 Tussman and tenBroek proposed a wider set of ‘legislative purposes’ that might also be illegal, while cautioning against the inevitable dangers that such an approach carried, in particular involving the judiciary in impermissible policy-oriented assessments of legislative purpose.
Within this four-pronged conceptual universe, the Indian Supreme Court’s equality jurisprudence, as it evolved in the first decade after Indian independence, can be best characterized as minimalistic. In the very first Article 14 case before it, viz., Chiranjit Lal Chowdhury v. Union of India, the Court announced that the legislature was to be accorded substantial leeway in challenges of over-inclusiveness and under-inclusiveness. Upholding a law that authorized government takeover of a factory on grounds of mismanagement, the Court rejected the petitioner’s argument that there were numerous other factories that were also mismanaged, which the law had not targeted (classic under-inclusiveness). Citing American precedent, a majority of the Supreme Court held that ‘the Legislature is free to recognise degrees of harm and it may confine its restrictions to those cases where the need is deemed to be the clearest’34 (and that if there were any factories in an identical situation, the petitioner bore the burden of proving it). In subsequent judgements, the Court justified under-inclusiveness by stating that it would be wrong to force the legislature to ‘choose between inaction and perfection’.35 It also invoked ‘administrative necessity’.36
This approach to Article 14 allowed the State great leeway when it came to the ‘fit’ between legislative purpose and legislative distinction. It also placed the burden of proof on the petitioner while deferring to legislative judgement. It was consolidated by the Supreme Court in succeeding judgements,37 and continues to be accepted law today.38
At the same time, Tussman and tenBroek’s third and fourth constraints, viz., impermissible grounds of classification and impermissible purposes, did not feature on the Court’s radar at all. While impermissible purpose would find its way into Article 14 jurisprudence decades later,39 the Constitution’s structure presented an immediate, intuitive barrier towards incorporating impermissible grounds into Article 14. This barrier was Article 15(1) of the Constitution, which prohibits the State from discriminating on grounds only of ‘religion, race, caste, sex, place or birth, or any of them’.40 Tussman and tenBroek’s ‘suspect grounds’, which would have to be developed in the United States through incremental judicial interpretation,41 seemed to have been already codified in the Indian Constitution under Article 15(1). This precluded the addition of further ‘grounds’ under Article 14. Although the Court did not have an occasion to address this question directly, Chief Justice Patanjali Shastri hinted at such a reading in his majority judgement in Kathi Raning Rawat, where he observed:
The expression ‘discriminate against’ is used in Article 15(1) and Article 16(2) … [and] involves an element of unfavourable bias … if such bias is disclosed and is based on any of the grounds mentioned in Articles 15 and 16, it may well be that the statute will, without more, incur condemnation as violating a specific constitutional prohibition … but the position under Article 14 is different. Equal protection claims under that article are examined with the presumption that the State action is reasonable and justified. This presumption of constitutionality stems from the wide power of classification which the legislature must, of necessity, possess…42
On this reading of the Constitution’s Equality Code, Article 15(1) provided a closed list of five grounds, which could not serve as the basis for any unfavourable or unequal classification. For all other bases of classification, Article 14’s rational review test would apply.43
B. The Arbitrariness of ‘Arbitrariness’
In 1989, the Canadian Supreme Court handed down its first judgement under Section 15, the equality and non-discrimination clause of the recently enacted Charter of Rights and Freedoms. The Court explicitly rejected the reasonable classification formula for adjudicating equality claims.44 Labelling the test ‘seriously deficient’ because of its mechanistic formal
ism, its reduction of equality to a ‘categorization game’, and its blindness to systemic disadvantage, the Supreme Court focused its enquiry, instead, on the universal right to ‘equal concern and respect’.
Canada was not alone. Through the last three decades of the twentieth century, various jurisdictions understood that the traditional classification test was insufficiently sensitive to social context and to the very purpose of equality law.45 For instance, the United States responded by developing a system of ‘tiered scrutiny’ under the Fourteenth Amendment, where certain ‘grounds’ of classification (such as race) would automatically place a more rigorous duty of justification upon the State than rational review.46 In the late 1990s, the South African Constitutional Court followed the Canadian example, and made ‘dignity’ the basis of equality and non-discrimination jurisprudence under its new Constitution.47
Meanwhile, the Indian Supreme Court fashioned its own judicial response to the inadequacy of the rational classification test, and called it ‘arbitrariness’.
The Transformative Constitution Page 8