On Wednesday the Supreme Court of India ruled that section 377 of the Indian Penal Code, which makes provision for “unnatural offences”, is compatible with the Constitution of India. The Supreme Court reversed the judgment of the High Court of Delhi, which had ruled section 377 unconstitutional and inapplicable to sex between consenting adults.

The Supreme Court’s judgment is surprising – and not just for its outcome, which has disappointed many Indians. What’s surprising to me is how poorly reasoned the judgment is, particularly in comparison with the High Court ruling it sets aside.

The Indian Penal Code was drafted by the British in 1860. It’s odd that British rulers did this for India, when the criminal law of England and Wales, at least, has never been codified (in spite of the Law Commission’s having drafted a code). And, just as we take pride in the contribution of British lawyers to the drafting of the European Convention on Human Rights, perhaps the British can also take some pride in the fact that this legacy of the Raj has continued to serve India so long after independence.

But the IPC is a product of its time – and nowhere is this more obvious than in section 377, which few Brits are likely to feel proud of today:

Unnatural offences Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

What exactly constitutes carnal intercourse has varied and developed over the years; but it seems clear now that it criminalises consensual oral and anal penetrative sex. That’s why the Naz Foundation went to the courts to challenge it under the Constitution – specifically article 21, which protects life and personal liberty, article 14 which guarantees equality before the law and article 15 which outlaws sex discrimination.

Initially the case was thrown out in 2004 by the High Court of Delhi as an academic, hypothetical challenge, since the Naz Foundation was not itself threatened with prosecution under section 377. But in 2006 the Supreme Court reversed that ruling and sent it back.

Chief Justice Shah and Justice Muralidhar gave judgment in the High Court of Delhi in 2009 – and a pretty impressive judgment it is.

From paragraph 29 onwards, the Delhi judges analysed how a right to privacy (though not explicitly guaranteed in the US Constitution) has developed in America since Justice Brandeis’s dissent in Olmstead v United States in 1928, through to Griswold v Connecticut and Roe v Wade in the sixties and seventiesThe judgment traced a similar development in India from Kharak Singh v State of Uttar Pradesh through Gobind v State of Madhya Pradesh to more recent cases in which a right to privacy has been seen as implicit in the article 21 right to liberty .

From there, the High Court considered international human rights case law on privacy and homosexuality, in particular the judgments of the European Court of Human Rights in Dudgeon v UK and Norris v Ireland in the 1980s (paragraph 53 of the Delhi judgment), the Toonen v Australia complaint to the UN Human Rights Committee and the judgment of the Constitutional Court of South Africa in National Coalition for Gay & Lesbian Equality v Minister of Justice in the 1990s (paragraphs 55-56) and the US Supreme Court’s judgment in 2003 in Lawrence v Texas. In all of those cases, penalties for homosexual acts were ruled in breach of explicit or implicit privacy rights.

At paragraphs 75 and 70 of its judgment, the High Court of Delhi ruled that neither the enforcement of morals nor public disapproval is a compelling state interest capable of justifying an interference with privacy. At paragraph 80 it concluded that criminalising homosexuality was contrary to the morality of the Constitution of India. There is no evidence from any country that legalising homosexual acts would “open the floodgates” of deliquency, it said (paragraph 86) and so, the High Court concluded (paragraph 87), section 377 is unnecessary and in breach of article 21 of the Constitution.

As far as the equal protection of law is concerned, guaranteed by article 14 of the Constitution of India, the High Court said criminalising consenting sex between adults in private without evidence of serious harm is arbitrary and unreasonable (paragraph 92) and that, although on its face section 377 applies to a lot of straight sex, in its operation it ends up unfairly targeting homosexuals (paragraph 94). The inevitable conclusion, the High Court said, was that section 377 unfairly discriminates, and so breaches article 14.

In the least convincingly reasoned aspect of its judgment, the High Court ruled without much reliance on international case law (paragraphs 99-104) that although sexual orientation is not expressly prohibited by article 15 of the Constitution, it’s a ground of discrimination analogous to sex, and therefore not permitted.

The High Court said (para. 108) that it had to strictly scrutinise the policy reasons advanced in justification of the discrimination, in accordance with Anuj Garg v Hotel Association of India. But on any standard of review (para. 113), singling out the gay community for criminalisation based on moral disapproval breaches the article 15 sex equality guarantee.

Finally the High Court considered the need to defer to the democratic legislature (para. 118) but said the degree of deference must depend on the subject matter in any case. In matters of high constitutional importance or where fundamental rights are breached, less deference is appropriate. This is just such a case, the Court said (para. 123).

Its conclusion was not to strike down section 377 in its entirety. As well as consensual sex between adults, section 377 also criminalises anal and oral sex with children – and with adults without consent – so the High Court preferred to “read down” the provision, interpreting it as only applying in those cases only.

If you’ve read this blog much in the past you’ll know I’m a fan of Parliamentary sovereignty, and would not want the UK Supreme Court to be able to strike down Acts of Parliament through this sort of judicial review of legislation. I think major social change, and human rights progress, is best achieved through the political process – and most likely to endure that way.

But India, like many of the world’s great democracies, does have judicial review in that sense; and the Delhi High Court’s judgment was an example of constitutional judicial review done well. It analysed section 377 rigorously in terms of Indian case law and the now considerable body of genuinely analogous decisions from Europe, America and the Commonwealth. Each step in the Court’s analysis was reasoned, and step by step the Court’s approach became more persuasive. At times the Court’s language turned a little grand – perhaps even became moving, according to your taste – but that’s fair enough in a landmark human rights judgment. Its ultimate conclusion is hard to argue with.

No judgment’s perfect of course, and few legal conclusions are completely beyond debate. I’ve already mentioned one part of the reasoning that I think was weak, and those with greater knowledge of Indian constitutional law may see other flaws. So perhaps someone could construct a respectable legal case against the Delhi judgment as a whole.

You won’t find that case, though, in the Supreme Court ruling setting the Delhi judgment aside.

The meat of the judgment begins with the need for judicial restraint, or deference. Both before (para. 26) and after (para. 28) quoting a number of cases all of which stress the power to strike down legislation in an appropriate case (para. 27), Justices Singhvi and Mukhopadhaya simply state the principle that all legislation should be presumed constitutional. On this basis they say (para. 32) they must exercise self restraint in considering section 377 because

the Legislature has chosen not to amend the law or revisit it … Parliament has not thought proper to delete the provision.

and that (para. 33)

unless a clear constitutional violation is proved, this Court is not empowered to strike down a law merely by virtue of its falling into disuse or the perception of society having changed as regards the legitimacy of its purpose and its need.

Of course what’s at issue is not the striking down of section 377 at all, but whether it should be read in a limited way, as the Delhi court held.

There follows a long digression explaining the history and meaning of section 377, via a consideration of the history of English law in this area and Indian case law. From that, it’s worth just quoting this interesting passage from paragraph 38:

All the aforementioned cases refer to non consensual and markedly coercive situations and the keenness of the court in bringing justice to the victims who were either women or children cannot be discounted while analyzing the manner in which the section has been interpreted. We are apprehensive of whether the Court would rule similarly in a case of proved consensual intercourse between adults. Hence it is difficult to prepare a list of acts which would be covered by the section. Nonetheless in light of the plain meaning and legislative history of the section, we hold that Section 377 IPC would apply irrespective of age and consent.

So the Supreme Court Justices seemed to doubt whether s377 covers consensual sex anyway – in which case, the Delhi High Court’s interpretation of it must have been correct. Yet they manage to conclude it has a “plain meaning” that’s much wider. After that the Supreme Court announces somewhat suddenly (para. 39)

We shall now consider the question whether the High Court was justified in entertaining challenge to Section 377 IPC despite the fact that [the Naz Foundation] has not laid factual foundation to support its challenge.

Interestingly the Supreme Court then refers to two cases in which challenges were unsuccessful because of insufficient pleadings and grounds having been advanced – which is not necessarily the same thing as an insufficient “factual foundation” having been proven.

In the first of the two cases, Southern Petrochemical Industries v Electricity Inspector, the appellants were trying to raise a new issue they’d not even argued at the High Court stage. The Supreme Court found against them, saying (para. 71)

The issue that the 2003 Act in violation of the equality clause contained in Article 14 of the Constitution of India was not raised before the High Court … A ground taken, however, must be based on a factual foundation. For attracting Article 14, necessary facts were required to be pleaded. The foundational facts as to how Section 14 of the 2003 Act would be discriminatory in nature have not been stated at all.

Interestingly the Court in Southern Petrochemicals had gone on to say at paragraph 72, in words noticeably not quoted by Justices Singhvi and Mukhopadhaya:

such factual foundation, unless is apparent from the statute itself, cannot be permitted to be raised and that too for the first time before this Court.

The emphasis is mine. In contrast to Southern Petrochemicals, the Naz Foundation argued the entirety of its case thoroughly in the Delhi High Court – and in any event, the factual foundation for its appeal was apparent from section 377 itself (which, let’s not forget, the Justices themselves agreed had on its face a “plain meaning”).

The other case the Court relies on, Seema Silk and Sarees v Director of Enforcement, was a hopelessly argued case in which the appellants hadn’t even put before the court their own “writ petition” whose rejection they were appealing against. That was the total lack of foundation the judges complained about.

Nonetheless, on the basis of that very dubious authority the Supreme Court found (para. 40) that the Naz Foundation’s 107 page submissions were

singularly laconic

and that it had

miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the State agencies towards sexual minorities and consequential denial of basic human rights to them.

Justices Singhvi and Mukhopadhaya see the very width of section 377 as justifying it (para. 38)

Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.

In ruling that it does not breach the equal protection (article 14) and sex equality (article 15) guarantees in the Constitution, the Justices say (para. 42)

Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. What Section 377 does is merely to define the particular offence and prescribe punishment for the same … Therefore, the High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution.

This is an extraordinary piece of reasoning. It’s common in discrimination law to ask whether two classes of people really are in analogous situations to each other. For instance, it’s not obvious that an unmarried couple are in an analogous situation to a married couple and must therefore always be treated in the same way. Discrimination law is only about treating like cases alike.

But given the wide “plain meaning” of section 377 (which, by the way, the Justices concluded outlaws quite a bit of non-penetrative penile sexual activity) it seems extraordinary to see people who stay within the strict bounds of this law as in a different class from others such that they’re not comparable to them. On this view, the Kama Sutra is a guide for the criminal class. It’s astonishing that this is the Supreme Court of India’s conclusion on the equal protection and sex discrimination aspects of the case.

Yet if anything, things get worse from there. At paragraph 43, in their first mention of the right to liberty and privacy, the Justices say

a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.

I’m not sure this amounts to much more, in legal terms, than saying that not many people’s rights can have been breached, so they can’t have been breached at all.

The Supreme Court’s only other reasoning on the privacy aspect of the case comes at paragraph 51, when the Justices discuss the claim that section 377 is used to harrass gay people:

this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section.

The Justices then purport to support what they say by referring to S. K. Sharma v Union of India. But even the passage they quote makes it clear Sharma merely said that legislation which is in principle constitutional cannot be rendered invalid by the mere possibility that it could be abused:

a contention was raised that a provision of law may not be discriminatory but it may land itself to abuse bringing about discrimination between the persons similarly situated. This court repelled the contention …

… if a statutory provision is otherwise intra-vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable …

… The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity.

But the Naz Foundation never argued that. Their case isn’t that section 377 is okay in principle, but might be misused. What they say that gay people are actually harassed, and that this is because section 377 breaches rights in principle. Again, the Justices seem to have based an important conclusion on the dubious use of precedent. Nor, by the way, do the Justices explain what they think would be a proper, non-harassing use of section 377.

In the climax of their judgment (para. 52), Justices Singhvi and Mukhopadhaya dismiss the relevance of international human rights case law in this area:

In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.

The Justices go on to cite three cases in which foreign experience was said not to be relevant to Indian conditions – two of them about the retention of capital punishment, the other, Surendra Pal v Saraswati Arora, about undue influence and marriage. The Justices cite a long extract from the Surendra Pal case, including this passage

We have had occasion to point out the danger of … statements of law enunciated and propounded for meeting the conditions existing in the countries in which they are applicable from being blindly followed in this country without a critical examination of those principles and their applicability to the conditions, social norms and attitudes existing in this country.

and this one (in which the Court was actually quoting from Jagmohan Singh v State of Uttar Pradesh):

No doubt an objective and rational deduction of a principle, if it emerges from a decision of foreign country, rendered on pari materia legislative provisions and which-can be applicable to the conditions prevailing in this country will assist the Court in arriving at a proper conclusion. While we should seek light from whatever source we can get, we should however guard against being blinded by it.

But Justices Singhvi and Mukhopadhaya simply reject the principles laid down in American, Commonwealth and European cases on privacy and criminalising homosexuality. They don’t explain why the Delhi High Court applied them “blindfold”, or provide any

critical examination of those principles and their applicability to the conditions, social norms and attitudes existing in this country

Nor do they consider whether or not the cases deal with directly analogous (in pari materia) provisions, or why those principles can’t be applied in Indian conditions. The Justices dare not explain why they think Indian society can’t withstand the Delhi High Court’s conclusions.

Judicial restraint is a virtue in a court whose rulings can overrule an elected parliament. But even restraint can be excessive. When bad reasoning on spurious authority justifies stubborn inactivism in the face of a compelling claim, “restraint” has become the vice of judicial reaction.

I hope this judgment is reviewed under article 137 of the Constitution of India, and that the Delhi High Court’s approach is vindicated.