The recent judgment of the Delhi High Court in the Naz Foundation case has attracted a great

deal of attention in the lay press. Daily reports of the hearings published online by Lawyers
Collective and the Alternate Law Forum offered a great deal of insight 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 Additional Solicitor General (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.

The notion that the enforcement of morality ought not to be a compelling state interest is a
popular one but the presence of a morality exception to fundamental rights in several provisions
under Part III of the Constitution 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' fundamental rights
of dignity and privacy' (para 86) and promoting HIV prevention a paramount 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 v. Hardwick 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, 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, 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. Colonial habits clearly die
hard.

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, there are serious problems with 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 in this case 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 new movements emerge and 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.