From the very beginning, the word ‘arbitrariness’ had featured in Article 14 judgements. In Chiranjit Lal Chowdhury, Justice Fazl Ali, in his concurring opinion, observed that ‘any classification which is arbitrary and which is made without any basis is no classification’.48 This was echoed in the majority opinion and in subsequent judgements.49 In E.P. Royappa v. State of Tamil Nadu, however, the Supreme Court decoupled arbitrariness from reasonable classification, and set it up as a free-standing Article 14 test for testing the validity of executive action:
Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed cabined and confined’ [sic] within traditional and doctrinaire limits … equality is antithetic to arbitrariness.50
Scholars have hailed Royappa as the decision that freed Article 14 from the ‘traditional and doctrinaire’ classification test, and inaugurated an era of ‘substantive equality’.51 The serious problem with Royappa, however, is that the word ‘arbitrariness’, as defined by the Court in the passage excerpted above, is neither self-evident nor self-interpreting;52 and in the thirty-seven years after Royappa, the Court has never clarified what, precisely, is meant by the word.53 In recent years, the constitutional status of the arbitrariness standard itself has been contested,54 and apart from a brief attempt by a concurring opinion in 2017, there has been no serious effort by the Court to clarify its content.55
C. ‘Illegitimate’ Purpose and Its Incoherence
In Dipak Sibal v. Punjab University,56 a State university limited admission to its evening law classes only to employees of government and semi-government institutions. This exclusion was challenged by rejected private-employee applicants on the basis of Article 14. The State produced multiple arguments in defence, such as the problem of bogus certificates and the possibility of wasted seats, all of which, the Court held, failed the test of rational scrutiny. Then, finally, the State argued that its goal was exactly what its classification was: to provide legal education to government and semi-government employees. After observing that it failed to see what specific public interest was served by imparting legal education to government employees, the Court went on to note:
If the objective [of the classification] be illogical, unfair, and unjust, necessarily the classification will have to be held as unreasonable.57
In other words, after having run out of arguments, the State could not simply contend that it drew a legislative distinction in favour of government employees because it wished to benefit government employees. In the context of public education, this objective was itself an illegitimate one.
As Tussman and tenBroek had recognized, adjudicating legislative purpose is an inevitable part of the classification test, in order to prevent the State from simply restating classification as its purpose.58 Faced with such a situation, a court could do one of two things. It could reject the State’s restatement of classification as purpose, go behind the law, and reconstruct the most convincing legislative purpose in the circumstances, which it could then subject to the test of rational scrutiny.59 Or it could hold that the purpose, as stated, was invalid because, for example, it was motivated by ‘hostile intent’ towards a class of people.60 This would apply in a hypothetical case where a law sentencing all brown-haired people to prison was justified by the State on the basis that it disliked brown-haired people and wished to imprison them.61
In Dipak Sibal, the Court took the latter option. In doing so, however, it did not specify the legal basis upon which it was sitting in judgement over the State’s legislative policy of preferring government employees for admission into law classes. The adjectives ‘illogical’, ‘unfair’, and ‘unjust’ only beg the question. There is nothing ‘illogical’ about the State preferring government employees; and ‘unfairness’ and ‘injustice’, without further elaboration, remain expressions of subjective judgement. Unless the Court could locate its finding of ‘unfairness’ and ‘injustice’ in a deeper legal or constitutional principle, the question of legal basis would remain unanswered. To date, it awaits clarification.62
III. Naz Foundation and the Reimagination of Equality
Consequently, when Naz Foundation came to be heard by the Delhi High Court in 2009, constitutional equality jurisprudence was in a deeply unsatisfactory state. The traditional rational classification test had been carrying on unaltered since 1950. However, it had long been recognized that it was simply unequipped to cope with situations of complex inequalities. Nonetheless, the alternatives—arbitrariness and illegitimate purpose—were scarcely better. The former was applied untethered from any discernible constitutional principle, while the latter faced serious doubts about its very legitimacy. If Naz Foundation, then, was to find that Section 377 of the IPC violated Article 14, it would first have to refashion the fundamentals of constitutional equality, while maintaining fidelity to Supreme Court precedent.
A. Classification: Proportionality, Burden of Proof, Deference
Before the High Court, the State, through the Ministry of Home Affairs,63 justified the retention of Section 377 on two grounds. The first was public health. The State argued that the homosexual community was particularly susceptible to AIDS. Consequently, the criminalization of same-sex conduct through Section 377 was designed to protect and promote public health.64 Under the traditional classification test, coupled with the presumption of constitutionality, the Court would have been expected to defer to the State’s position on this question of fact, while also granting the State a substantial amount of leeway to tailor a remedy for it. And this was precisely what the State urged the Court to do.65
The Court, however, did nothing of the sort. Instead, through the course of fourteen detailed paragraphs,66 drawing upon material placed before it by the parties,67 it conducted its own assessment of the validity of the public health argument. From the point of view of Article 14, what is remarkable about these paragraphs is the degree to which the Court scrutinized the State’s public health defence and found it wanting. It cited comparative law; evidence supplied by the National AIDS Control Organization; the 2001 Declaration of Commitment on HIV/AIDS in the UN General Assembly’s special session; the (Indian) National Human Rights Commission’s National Conference on Human Rights and HIV/AIDS; and a UNAIDS Declaration—the import of all of which was that the real cause of the spike in AIDS rates among homosexuals was the criminalization of homosexuality, which drove persons underground and undermined safe sex practices.68 When the Additional Solicitor-General (ASG) cited his own sources, the Court rejected his arguments as being both scientifically incorrect (‘the understanding of homosexuality, as projected by [ASG] … is at odds with the current scientific and professional understanding’)69 and internally inconsistent (‘the submission of ASG … is in contrast to that of NACO [National Aids Control Organization], a specialized agency of the government entrusted with the duty to formulate and implement policies for prevention of spread of HIV/AIDS’).70
In sum, the Court marshalled comparative jurisprudence, the work of international bodies, and scholarly medical research to override the State’s public health justification for Section 377. The level of detail into which the Court went and its refusal to accord significant deference to the State’s position suggest a departure from the classical ‘rational review’ standard under Article 14, which was defined by its minimalism. What standard, then, did the Court advocate? An answer may be found towards the conclusion of its Article 14 analysis, where the Court observed:
The state interest ‘must be legitimate and relevant’ for the legislation to be non-arbitrary and must be proportionate towards achieving the state interest.71
This is a crucial statement. A relationship of ‘relevance’ between the legislative goal and the legislative classification is akin to a ‘rational review’ standard. It is the bare minimum required of the State, a demonstration that there exists some intelligible connection between what the legislation aims at accomplishing and how it seeks to go about accomplishing it.72
Was this the meaning of ‘proportionality’ that the Court meant to incorporate into Article 14? The High Court attempted to clarify its position further by citing the judgement of the Supreme Court in Anuj Garg80 (which we had discussed in the last chapter), to invoke ‘deeper judicial scrutiny’ of laws that encoded ‘oppressive cultural norms that especially target minorities and vulnerable groups’81 (call this ‘deeper scrutiny review’).82 The Court summed up Anuj Garg’s holding as requiring ‘a measure that disadvantages a vulnerable group defined on the basis of a characteristic that relates to personal autonomy must be subject to strict scrutiny’.83
Why ‘personal autonomy’? Because, the High Court held, it was the concept of personal autonomy that united the five ‘grounds’ stipulated under the provision adjacent to Article 14 in the Constitution—Article 15(1), which prohibited discrimination on the basis of religion, race, caste, sex, or place of birth.84 Drawing a link between Articles 14 (equality) and 15(1) (non-discrimination), the High Court then held:
The grounds that are not specified in Article 15 but are analogous to those specified therein, will be those which have the potential to impair the personal autonomy of an individual … Section 377 IPC in its application to sexual acts of consenting adults in privacy discriminates [against] a section of people solely on the grounds of their sexual orientation which is analogous to prohibited grounds of sex.85
Deeper scrutiny review, therefore, was justified on the basis that Section 377 brought into play grounds (sexual orientation) that were analogous to the five listed under Article 15(1), where analogousness was to be determined by their potential to impair an individual’s personal autonomy.86 In other words, the High Court advanced an interpretation of the Constitution that read the equality (Article 14) and non-discrimination (Article 15[1]) provisions together. It did so by incorporating the governing principles of the non-discrimination clause—which was more specific, but limited to a closed list of five ‘grounds’—into the equality clause, which was more abstract, but covered all potential instances of disadvantageous or discriminatory legislative classification.
B. Purpose: Constitutional Morality
The State’s second defence of Section 377 was even more straightforward. Public morality, it argued, was strongly opposed to homosexuality.87 Section 377 simply reflected this social reality. And the Court’s response was equally straightforward. It held that public morality, without anything more, could not constitute a ‘legitimate state purpose’ under Article 14.
It is important to qualify this point. Drawing from judgements of the European Court of Human Rights,88 the Constitutional Court of South Africa,89 and the US Supreme Court,90 the petitioners argued that ‘the desire to enforce a certain morality’91 cannot constitute ‘public interest’, and that criminal law cannot enforce ‘private morality’.92 Framed in this manner, the argument is clearly pitched too high. It can be nobody’s case that the State is per se barred from giving effect to its understanding of public morality through law.93 In fact, as the State correctly argued, criminal legal systems (and especially sentencing provisions) are, at least in part, based upon the legislature’s sense of public morality.94
The argument, therefore, could not have been that public morality was, by itself, an illegitimate purpose under Article 14. And indeed, this was not the Court’s argument. What was illegitimate was not the fact that the State was invoking public morality, but that public morality in this case was equated with bare hostility against the LGBT class, and severely affected its rights and interests. It was this form of public morality that was simply not a valid and defensible purpose that the State might be permitted to invoke.95 Why? Because, the Court held, it was directly contrary to the morality that was grounded within the Indian Constitution, which expressly ‘recognizes, protects, and celebrates diversity’.96 Stigmatizing homosexuals on the basis of their sexual identity violated ‘constitutional morality’,97 which was the only kind of morality that was relevant for constitutional adjudication.98
What is constitutional morality? Perhaps its clearest statement can be found in a judgement of the Ontario Court of Appeal, which noted, ‘When governments define the ambit of morality, as they do when they enunciate laws, they are obliged to do so in accordance with constitutional guarantees, not with unwarranted assumptions’.99 In similar terms, the Delhi High Court, drawing from both B.R. Ambedkar and the Constitutional Court of South Africa, defined constitutional morality as ‘morality derived from constitutional values’, distinct from ‘popular morality … [which is] based on shifting and subjective notions of right and wrong’.100
This, then, suggests another crucial conceptual advance under Indian equality jurisprudence. Legislation that justified inequality by invoking public hostility towards a class of people, based upon characteristics related to personal autonomy, and which had the effect of stigmatizing them and undermining their dignity, could not survive Article 14 scrutiny. This was because, and only because, its very purpose contravened constitutional morality’s requirement of inclusiveness and tolerance of diverse ways of living. The constitutional commitment to diversity, in turn, could be derived from multiple constitutional provisions such as the freedom of conscience and religion,101 the rights of minorities to preserve their culture,102 and the freedom of speech, association, and assembly.103 The legitimacy of purpose would be measured not on a sliding scale of the policy-based evaluation of a challenged law, without any judicial explanation of what made legislative purpose illegitimate, but would be firmly anchored to the Constitution.104
C. Impact and Effect
As pointed out earlier, Section 377 did not directly criminalize homosexual intercourse. What it did criminalize was carnal intercourse against the order of nature. Judicial interpretation indicated that the offence could be committed by both homosexual and heterosexual persons as long as they were engaging in non-penile-vaginal intercourse. Therefore, the petitioners had to cross a preliminary hurdle: if Section 377 only criminalized ‘conduct’, how was Article 14—which guaranteed equal protection to all persons—attracted in the first place?
The question had been raised before other Courts, and had been answered. In Lawrence v. Texas, the US Supreme Court had held that the ‘conduct’ in question ‘is closely correlated with being homosexual … there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal’.105 Likewise, the South African Constitutional Court held that ‘it is not the act of sodomy that is denounced by the law, but the so called sodomite who performs it’.106 While superficially similar, and leading to the same result, the two approaches are nonetheless very different. According to the US Supreme Court, a homosexual’s very identity is defined by the (same sex) sexual conduct that he chooses to engage in; according to the South African Constitutional Court, anti-sodomy laws construct a homosexual identity by criminalizing a set of acts.107
In Naz Foundation, the Delhi High Court selected the latter interpretation, but went one step further. Apart from citing scholarship about how anti-sodomy laws created a regime of surveillance and stigma centred aroun
d the homosexual identity,108 the Court also took on record affidavits filed by Voices Against 377 (Respondent No. 8) that chronicled the actual experiences of the victims of Section 377, experiences that included custodial rape and torture, social stigma, and incarceration.109 Using this evidence, the Court found that while, formally, Section 377 criminalized conduct, in effect it created a systemic pattern of disadvantage and indignity, the target of which was the LGBT community.110
As an analytical approach, the Court’s focus on the effect of a law, rather than on Parliament’s intent, was not novel.111 What was novel, however, was its argument that Article 14 was attracted because a law’s effect was to target and stigmatize a community, perpetuate its social exclusion, and rob it of its dignity. In other words, the focus of the Court’s preliminary enquiry determining the applicability of Article 14 shifted from examining the nature of the classification (whether it treated similarly situated persons similarly, and dissimilarly situated persons dissimilarly) to examining whether the law disadvantaged a group (or groups) based on their personal characteristics. Or, to use terms developed by the German scholar and constitutional court judge Susanne Baer, the Court shifted from viewing equality as an issue of ‘comparatability’, to viewing it as a ‘right against hierarchy’.112 And this interpretive shift was crucial, because, once again, by citing disadvantage and indignity, the Court brought the form, language, and import of Article 15(1)’s non-discrimination clause into Article 14’s equality clause.
D. In Defence of Naz: Equality as Inclusion and Dignity in the Transformative Constitution
I have argued that Naz Foundation changed course from the traditional classification test, and effectively read into an Article 14 (equality) enquiry a judicial approach that was normally reserved for Article 15(1) (non-discrimination). Where did this novel analysis come from? The answer is found in Naz Foundation’s own written submissions before the Court, paragraph 119 of which stated:
The Transformative Constitution Page 9