The Supreme Court of India’s Shockingly Bad Gay-Rights Decision

The law, lawyers, and the court.
Dec. 13 2013 11:15 AM

The Supreme Court of India’s Shockingly Bad Gay-Rights Decision

A surprising disappointment from judges with a progressive record.

Gay Rights, New Delhi, India
Gay-rights activists protest in New Delhi on Dec. 11, 2013.

Photo by Anindito Mukherjee/Reuters

Here’s the logic of this week’s profoundly disappointing gay-rights decision by the Supreme Court of India. The majority passes a law that the minority believes discriminates against it. The minority goes to court seeking relief from the majority. But because the minority group constitutes a “minuscule fraction of the country’s population,” the court will defer to the will of the legislature—that is, to the will of the majority.

That, in short, is how the court wrapped itself in the flag of judicial restraint and overturned a lower court decision that had struck down the country’s sodomy laws as unconstitutional.

Kaushal v. Naz Foundation was supposed to be India’s Lawrence v. Texas, the U.S. Supreme Court’s path-breaking decision striking down state anti-sodomy laws. Instead Kaushal is already being described in the Indian press as the country’s Dred Scott or Plessy v. Ferguson: “moments of deep national shame, blots on the judicial record, examples par excellence of judges at their very worst,” as one op-ed put it.

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The Indian Supreme Court’s hands-off approach is especially surprising given its long record of advancing progressive values in the face of a perennially gridlocked parliament. For the last 13 years, for example, the court has directed nationwide food distribution to the poor while it mulls whether India’s constitution guarantees a right to food. The court also thrilled environmentalists in 1997 when it ordered auto-rickshaws convert to natural gas and in 2011 when it halted iron ore mining in parts of the country. And just earlier this week, Justice G.S. Singhvi, the author of the Kaushal decision, had no trouble banning most government officials from using flashing red lights and sirens on their cars. Their ubiquitous use, he said, was “reflective of [a British] Raj mentality and is antithesis of the concept of a Republic.”

Section 377 of the Indian Penal Code, the law at issue in Kaushal, criminalizes “carnal intercourse against the order of nature.” According to the BBC, “the law has rarely—if ever—been used to prosecute anyone for consensual sex, it has often been used by the police to harass homosexuals.” As the dated language suggests, the 1860 provision is a relic of the British Colonial era. Lord Macaulay, the inspiration behind colonial criminal codes stretching from Zimbabwe to Singapore, refused to elaborate upon the offence in his legislative notes because he deemed it “odious” and “revolting.”

The Indian government initially defended the law before the Delhi High Court, but when it lost in 2009, the government declined to appeal. In explaining that decision, the Attorney General said the law “was imposed upon Indian society due to the moral views of the British rulers.” Several religious groups were able to appeal the decision, however, because of India’s liberal rules about who has standing to bring a case to court. Among them was Baba Ramdev, a Pat Robertson-esque TV star who once promised that “We will prove through clinical tests that yoga can cure AIDS.”

The groups appealing the decision relied in part on Justice Scalia’s dissent in Lawrence, where he famously accused his colleagues in the majority of imposing “foreign moods, fads, or fashions on Americans.” Borrowing from the Scalia script, Justice Singvhi, in his opinion, faulted the Delhi High Court for being so anxious “to protect the so-called rights of LGBT persons” that it “extensively relied upon the judgments of other jurisdictions.” These foreign cases, Singhvi concluded, “cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.”

Of course, any court must be careful in drawing on foreign law. And, in fact, the Delhi High Court was careful, spending many pages in its reasons comparing Indian and foreign legal principles. But the court did not stop there, saying this about an emphatically Indian constitutional value:

If there is one constitutional tenet that can be said to be [the] underlying theme of the Indian Constitution, it is that of “inclusiveness”. This Court believes that [the] Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as “deviants” or “different” are not on that score excluded or ostracised.

Regrettably, this week’s decision tells us that the Supreme Court of India doesn’t agree.

Correction, Dec. 13, 2013: This article originally misspelled Plessy in Plessy v. Ferguson.

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