December 11, 2016 marked three years from the day on which the Supreme Court delivered amongst its most widely criticised judgments since the turn of the century: Koushal v. Naz Foundation.

With the stroke of a pen, India’s LGBT community was cast back into the shadows of illegality after a judgment of the Delhi High Court, Section 377 of the Indian Penal Code, was reversed in appeal. The process was as painful as the outcome, for the Supreme Court observed that the LGBT community was a “minuscule” minority that did not deserve the court’s time or protection.

Section 377, plainly read, punishes with imprisonment for life or for a term of up to 10 years any person who voluntarily has “carnal intercourse against the order of nature with any man, woman or animal”.

At its core, therefore, is an intention to enforce a decree against actions that are professed to be beyond the warrants of society’s moral compass. Only, that in the case of criminalising homosexuality, it is the outlawing of the act that is immoral, and not the act itself. This fundamental iniquity in Section 377 is, in fact, evident even from the notes of its drafter Lord Macaulay, who had specifically aimed to enforce Victorian morality through the criminal justice system. “We are unwilling to insert, either in the text, or in the notes, any thing which could give rise to public discussion on this revolting subject,” Macaulay wrote in his chapter on “unnatural offences”. “…We are decidedly of the opinion that the injury which would be done to the morals of the community by such discussion would far more than compensate for any benefits which might be derived from legislative measures framed with the greatest precision.”

Despite the court’s observations, there was little doubt about whether this judgment represented the collective view of the judiciary. In an article published in this newspaper two years ago, I explained that courts across the country had begun narrowing the impact of the decision in the months after it was made. The Gujarat High Court intelligently skirted the Supreme Court’s decision on Section 377, holding that the State government’s failure to grant a tax concession to a film depicting homosexuality was unconstitutional. In the National Legal Services Authority case (2014), the Supreme Court held that hijras and transgenders should be treated as a ‘third gender’ for accessing public services. Following on from this judgment, the Allahabad High Court decided that transgenders would be entitled to be treated as the “head of a household” under food security legislation. News reports indicate that these changes are being mainstreamed across government departments. A ‘third gender’ option is now available in railway reservation forms, ration card applications, passport applications, and Life Insurance Corporation proposal forms.

As Koushal has been gradually discredited in India, courts from around the world have followed. After the Koushal judgment, Indian lesbian and gay couples filed applications in different parts of the Commonwealth claiming refugee or protected status. These couples argued that requiring them to return to India would raise a well-founded fear of persecution and violate their human rights.

In two cases in Britain, lesbian couples from India claimed that they should not be deported home, for they would suffer a risk of persecution or serious harm if they revealed their identities to their families or local communities. The Koushaljudgment was cited as an example of the contemptuous attitude towards the LGBT community in India. The courts in both cases acknowledged that Koushaldid not accurately capture the state of the law in India. In one case, the Court of Appeal of England and Wales held that the judgment was under reconsideration, and a successful challenge “would result in the December 2013 Supreme Court judgment being set aside and remade by a different constitution of the Court”. It also observed that the National Legal Services Authority judgment — decided “just a few months” after Koushal — would likely be indicative of the approach that the Supreme Court would adopt in the future.

Similarly, in an Australian case decided in 2016, a gay man claimed that deportation to India would compel him to alter his behaviour in ways that would conflict with his sexual orientation.

Koushal was again cited in support of the claim. The Australian Administrative Appeals Tribunal held that while negative attitudes towards homosexuality persisted, there were “signs of increasing tolerance” towards the LGBT community in India.

Overruled in practice

On the one hand, these cases confirm that Koushal stands virtually overruled in practice, and will continue to be disregarded within, and outside, India. This is a valuable outcome and a demonstration of the rights-protecting role that courts can perform within the formal constraints of their constitutional authority.

On the other hand, however, a closer examination of the cases indicates that a formal overruling of the Koushal decision would further precipitate decisive shifts in social mores.

The British courts arrived at their decision in the knowledge that the lesbian couples were well educated, were in a position to sustain themselves without family support, and could relocate to Indian cities in which their identities would be more widely accepted.

Despite its finding that attitudes towards the LGBT community were changing in India, the Australian tribunal eventually disallowed the deportation of the gay man, on the basis that he was psychologically vulnerable, and would not be equipped to manage the fear of possible violence from police and local communities.

The Supreme Court should formally recognize what Indian courts, as well as courts from other parts of the Commonwealth, have implicitly acknowledged. No matter how well intentioned, courts are also capable of violating constitutional rights — and that the Supreme Court did just that on December 11, 2013.


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