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Thursday, December 12, 2013

No really, WHAT is this unhealthy obsession with sex?

PRE-DISCLAIMER: I'm not really getting into the equity / gender rights / discrimination issues here, or what this says about society and morality. Try this piece from Bucky if you want to see more of that. This is meant as a plain assessment of the legal reasoning in the Supreme Court's judgment of 11 Dec 2013 overturning the Delhi High Court's 2009 judgment on Naz Foundation's PIL against Sec. 377 of the Indian Penal Code.

Clear? Okay, here we go. Turns out, the judgment (with thanks to Pranay Ahluwalia for the link) is worse than I thought. And it comes as a bolt from the blue, four years after we'd gotten used to living with the Delhi HC judgment as normal, so I really don't know what to make of it. Anyway, this post lists three reasons, in ascending order of severity, for why I object, before concluding with another disclaimer.

3. The Procedural Point: Para 32, page 61.
Justice D.Y. Chandrachud once lectured to us on the distinction between Niti (procedural justice) and Nyaya (substantive justice). His point was that we cannot have sustainable justice without incorporating both - a just outcome achieved through just means. The present judgment appears, however, to privilege the former over the latter - which achieves only a formalistic justification for an unjust outcome.

"The 172nd Law Commission Report specifically recommended deletion of that section and the issue has repeatedly come up for debate. However, the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India has not thought it proper to delete the provision. Such a conclusion is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in the law."

That's it? Parliament's inaction represents the will of the people? Even if we concede this - and I certainly don't, but - can that override Constitutional morality? (On that point, see #1)

It is a matter of historical record that this Parliament has been the most ineffective and disrupted in history, with the least legislative business transacted. A quick glance through this list will show how few Bills, relative to proposed ones, have been voted on since 2010. And that list does not reflect laws and changes proposed by the Law Commission, but not even introduced - including the suggestion that the Right to Privacy be codified as a Fundamental Right.

Very, very specious logic.

But wait, it gets worse.

2. How the section is construed: Para 38, Page 77. 
The Court holds that Sec. 377 criminalizes certain acts, not a class of people, because it is a prohibition that regulates sexual conduct regardless of gender identity and orientation (or even consent).

Sounds fair enough, until you think about it and realise that it's even more regressive than anyone had suggested before. Because, read with Sec. 375, it effectively says that the ONLY form of sex that is not an offence is penetration of the vagina by the penis with valid consent. I mean, forget about homosexuality - this makes foreplay illegal. (At this point, I'm not sure if I'm engaging in hyperbole or not. Really can't tell.)

Even if read per its historical interpretation - making only sodomy illegal - that DOES effectively criminalize the conduct of only a certain class of persons - MSM. They are not a discrete class, in that they may overlap with bisexuals, transgenders, and anyone who decided to get adventurous on a shopping trip in Amsterdam. (Or, you know, D.N. Road. Not that I would recommend that.) It also effectively indemnifies into perpetuity another class - lesbians, or to use the reciprocal acronym, WSW. Which is definitely an Art. 14 issue - but again, there's a bigger issue with that whole argument (My #1 issue, indeed).

And, to make it worse, the court not only refuses to actually define what those acts may be that are illegal, but even says that it is not possible to be sure. It only says that if they are against the order of nature, they are illegal - are you confused yet? For instance, the explanation to Sec. 377 clearly makes penetration necessary to establish intercourse, so manual stimulation between MSM is not such an act, right? Remember the joke about the Soviet Union? Whatever is not permitted is forbidden - the trick is to know which is which.

This continues a dangerous trend - seen most notably in the TMA Pai judgment - of actively refusing to resolve ambiguities in the law. Even when they are of such a magnitude as to sustain contradictory interpretations, and frustrate any efforts to actually enforce the law. Imagine, for a moment, how the next prosecution will play out:
Prosecutor: Accused is charged with fellatio. This is committing carnal intercourse against the order of nature, offence under Sec. 377 IPC.
Defense: Even if we concede that the acts alleged were committed, it cannot be shown that they were against the order of nature.
Prosecutor: Here is <evidence from Patanjali Yogpeeth> to show it is unnatural, unless performed on Baba Ramdev.
Defense: Here is <article in Journal of Reproductive Health> to show it is natural.
Prosecutor: In <whatever precedent>, the Hon'ble Court has held that such act was unnatural.
Defense: Ah, but in 2013 judgment, Hon'ble Supreme Court has held that it is not possible to know what acts are unnatural, and what are not. Each exists simultaneously, in an indeterminate and indeterminable state.
Prosecutor: Umm. Permission to ask Schrodinger?
Judge: ...
Flippancy aside: no matter how it is construed, this interpretation makes it deeply problematic to pursue a more accurate understanding of rape, as being more than an exclusively heterosexualized offence that can be committed only one way across the gender binary. Not that the Supreme Court could expand Sec. 375 of their own accord, but the answer cannot be to leave Sec. 377 vague!

It still gets worse.

1. Implications for Fundamental Rights: not actually considered.

Sometimes the Supreme Court ducks a question, or refuses a useful answer, on the grounds that it is the role of the legislature or the executive to answer that. Fair enough. No one wants the court to exceed its boundaries, and given the recent past, one would welcome a return to some form of restraint. (Remember the 2G licence case, Justice Singhvi?) But when the question is about Art. 14, 15 & 21, about the very concept of Liberty enshrined in the Preamble? What can we call this but the court abdicating its responsibility to interpret and protect the Constitution? What can we call it except a horrifying conflation of niti for nyaya, of procedural propriety for injustice in fact?!

The court spends a while considering whether Sec. 377 can be impugned under Art. 14. What is in question is NOT whether Sec. 377 creates a classification (it does - as even this judgment, per Para 42, seems to suggest, which is an internal contradiction when compared to Para 38.), nor whether that classification bears a rational nexus to the objective (which, to be fair, it does). What IS in question is whether THAT OBJECTIVE ITSELF is rational - or, more accurately, whether it does not by definition violate our Fundamental Rights.

Consider, for a moment, an analogy to how the common law sees contracts. A contract can be perfectly legal in procedural terms, but if the object of the contract itself is illegal or opposed to public policy, then no court will uphold it. If the contract requires someone to do something that is illegal, or opposed to public policy, to fulfill it - no court in India will enforce that obligation.

The relation between Articles 14, 19 & 21 is similar. The "due process" clause read into Indian law by the Maneka Gandhi case demands that a fair procedure be used - one which is not arbitrary (per Art. 14), and wherein any restrictions imposed on our freedoms are reasonable (per Art. 19) - to achieve an outcome that does not violate Fundamental Rights - in this case, Art. 15 & 21. This is the so-called "triple test" of Art. 14, 19 & 21.

Consider that - TRIPLE test - again. While the relationship between these rights can be stated as "what violates Art. 21 (or 15), must violate Art. 14" - yet even if it does not violate Art. 14, it must still satisfy the substantive test. EVEN by following a fair procedure, laid down by law, the State cannot derogate from Fundamental Rights, without meeting additional criteria that show it to be a permissible derogation. (Those criteria are Legitimate State Interest and Proportionality; to derogate from a Fundamental Right without meeting these tests is to violate the Basic Structure of the Constitution. Which, if anyone needed reminding, is NEVER within the legislative, executive or judiciary competence of the State.)

The objective of Sec. 377 is to regulate the sexual conduct of citizens. The rationale, at best, is an apprehension of harm to themselves or others, and at worst is some notion of morality and social propriety. How is this not a violation of our fundamental freedoms, and of our right to privacy? Whether it is upheld or enforced through procedural means, whether it makes a classification or not, and whether that classification is or is not arbitrary - all these questions are moot if it fails the test of Art. 21 in the first place.

Counter-arguments are as surreal as the list of parties opposed (and that's saying something. Why, pray tell, is the Delhi Commission for Protection of Child Rights opposing a move that NACO supports?!). Many point out that freedoms are subject to reasonable restrictions, and much is made of the mention of the phrases "decency and morality", "public order or morality" and "in the interest of the general public" as grounds for imposing reasonable restrictions on our freedoms in Art. 19(2)-(6). Surreal. Also, wrong. They are not generalised grounds for restrictions on any and every fundamental right - just the rights specified in Art. 19(1). If the court has interpreted the Maneka Gandhi case to support such an interpretation, then with all respect, that interpretation is bad in law, and even worse as precedent.

With Sec.377, what is in question is the individual's right (under Art. 21) to one's own body and agency. It is to prevent the violation of this right that we have laws against rape - and yet that is precisely the right the judgment, per para 38, appears to deny! Society/public order/decency no doubt demands a right to equal use of public spaces, including protection from obscenity in such spaces. Note, however, that even the IPC distinguishes between acts that may be deemed "obscene" when performed in private, as opposed to in public, and it has nothing to say about the former.

In other words, a law that says that two (or more) consenting adults cannot have sexual intercourse in any manner that they choose, where such manner does not itself infringe upon the Fundamental Rights of others, is self-evidently a violation of Art. 21. It denies a person agency over their own body, and in effect creates a State-mandated form of sexual intercourse. Which is - come on, it's absurd. It makes unfounded assumptions about the state of morality, which are not only archaic in their origin but were also inaccurate and imposed even in their own time. Whether or not such denial follows the form required by Art. 14 is moot!

The same issues of confusing "procedural" for "justified" crop up with the counter-argument to the charge of violation of privacy: that there are procedures prescribed under the Code of Criminal Procedure, and related statutes, which prescribe the conditions and manner in which privacy can be set aside. Interestingly, this argument is NO LONGER being made by the Ministry of Home Affairs, i.e. the only agency of the State that could actually exercise (or delegate) those powers under the Cr.P.C. My guess is that they read their old affidavits - which included such gems as "unleashing a flood of delinquents" - and realised that:
  • nothing of the kind had happened,
  • the High Court had already singled out such reasoning for harsh criticism,
  • they've endured all the mockery they care to take already, and
  • discretion is the better part of valour.

In any case, that argument is circular to the point of tautology, because it presumes that the act which has to be investigated / verified / established IS an offence. The question to be resolved here is whether or not the act can even be defined as an offence, because to criminalise it will BY DEFINITION violate privacy. If that is shown to be the case, then even an investigation that follows all the procedures will remain a violation of privacy, because the initial grounds for setting aside privacy - the alleged offence - will be an unconstitutional violation of privacy in the first place!

The third criticism comes from the judges, not the people opposing the HC judgment. Justice Singhvi writes (in para 41) that Naz Foundation's PIL was "singularly laconic", because it did not lead specific evidence of discrimination by law enforcement or authorities against MSM. Yet, on its own logic (in Para 51), the Court would have hesitated to overrule a provision, buttressed by the presumption of Constitutionality, simply because it was shown that its implementation was sometimes discriminatory. Which is not just an internal inconsistency, but also the by-now-familiar niti/nyaya confusion. To be clear: it is a very minor part of the objection that the law could lead, or has been known to sometimes lead, to discrimination. The greater objection is that the provision itself IS BY DEFINITION, discriminatory. This answers also the remarks in para 43, about how the LGBTQ community is a miniscule minority - never mind that the evidence about their numbers, status, difficulties and vulnerability to discrimination was all more than corroborated by NACO - because small numbers are no reason to accept violation of fundamental rights, and particularly Art. 21.

Okay. Consider that dead horse well-flogged. Now, what does the court actually say on Art. 21, including the Right to Privacy? Well, if you take it at face value, a lot. (Para 45, page 85 through Para 53, page 97).

Unfortunately, all those quotes seems to sum down to three things:
  • Art. 21 can be derogated from  by lawful procedure. (The "due process" or "Triple Test" rationale.)
  • The right to privacy and the right to sexual agency are based more on an expansive reading of foreign jurisprudence than on settled Indian cases.
  • Indian cases must be decided in accordance to Indian statutes and precedent in India - and this, quoted from a 1974 case, which starts by declaring arranged marriage the norm and parental consent the "desiderata" of a marriage.

  • One last flog: the "triple test" is not about importing criteria from Art. 19 to justify restrictions on Art. 21, and that's not what the Maneka Gandhi case says! 
  • What happened to the doctrine of lacunae? If no clear definition can be found in the four corners of the law of India, and justice demands a definition be in place, then surely the precedent from Vishakha v. State of Rajasthan sustains the acceptance of definitions from international conventions, conventions to which we are signatory, or from the law and practice of states also signatory to those same conventions? 
  • And, most importantly, what happened to proving the sine qua non of any derogation: LEGITIMATE STATE INTEREST and PROPORTIONALITY?
This is the great failing of the judgment: it can only be upheld if we accept two propositions -
  • That there is a legitimate State interest in the sexual behaviour of its citizens - and that in and of itself, not merely in ensuring that it is consensual or otherwise not infringing upon the Fundamental Rights of other citizens. 
  • That this interest is so great that restrictions on entirely private behaviour can be considered proportionate - that the State NEEDS to control who can have intercourse with whom, and in what manner. 
Until we are satisfied on both these criteria, a legal provision that restricts the sexual behaviour of citizens is pretty much the equivalent of policing the bedroom, a role better suited for Orwell's Big Brother. Here's what Julia had to say in 1984:
"Unlike Winston, she had grasped the inner meaning of the Party's sexual puritanism. It was not merely that the sex instinct created a world of its own which was outside the Party's control and which therefore had to be destroyed if possible. What was more important was that sexual privation induced hysteria, which was desirable because it could be transformed into war-fever and leader-worship. The way she put it was: "When you make love you're using up energy; and afterwards you feel happy and don't give a damn for anything. They can't bear you to feel like that. They want you to be bursting with energy all the time. All this marching up and down and cheering and waving flags is simply sex gone sour. If you're happy inside yourself, why should you get excited about Big Brother and the Three-Year Plans and the Two Minutes Hate and all the rest of their bloody rot?"

Okay, now I'm definitely going for hyperbole. I'm not actually worried about the surveillance state. I'm trying to point out that the way the Supreme Court has read Sec. 377 shows a disregard for citizens' rights, combined with an odd obsession with controlling their sex lives, normally associated only with fictional totalitarian dystopia, e.g. Fifty Shades Of Grey.

In the current judgment, the court ducks the key question of violation of Fundamental Rights in fact, preferring to pass it on to the legislature - which is, of course, well known for its eagerness and promptitude to give itself a pay raise rectify Constitutional improprieties and infirmities - in flagrante delicto of its most sacred role: that of the guardian of the Constitution and Constitutional Morality.

Really, I think we need the State - all three organs - to stop, take a deep breath, and then repeat after me: What two (or more) adults do in the privacy of their own home - whether it is conversation or copulation - is no concern of ours, unless and until it directly affects other people's rights. We will let them get on with their jobs, and get on with our own.

Sex is good. Control is good. But an obsession with either sex or control is dangerous.

POST-DISCLAIMER: It's really confusing to comment, or even enter the debate, right now. Because there are two trends that bother me. One is of increasing judicial activism, and its implications for the design and implementation of policy. And this judgment at least appears to take a step in the right direction on that count. Still, after reading many pieces on the topic - including this gem - I no longer doubt that this is a case of trading substantive justice for procedural propriety, and abdicating both duty and moral responsibility.

But the second trend is where we - the educated, media-following, active online demographic - are losing respect for the courts; one corollary of trial by media is that we decide whether or not to respect a result based on how much we agree with it. Which can vary widely - witness Kasab, Arushi Talwar, Tejpal, the Delhi gang-rape case with its calls for castration, etc. That's dangerous, because it undermines the very rationale of having a judiciary, and the sanctity of the institution itself, perhaps even more thoroughly than decisions like this one could achieve in and of themselves. (And the recent past notwithstanding, the judiciary is still the best respected of the four pillars of our democracy.)

Some notable exceptions aside, the Supreme Court does not have a poor track record on protecting civil and political rights - it errs on the side of the progressive, and it does tend to correct itself when in error. (How it does on promoting economic, social and cultural rights is less clear, in part because positive rights are secured by being developed and negotiated, not determined or declared - hence the judicial activism debate, howsoever misguided its application here.) So we do need to be particular about expressing our dissent respectfully, and remain committed to following the legal process to its logical conclusion. I hope I've done that in this piece, and I really do wish many of my friends would show more restraint as well. Expressing disagreement is vital, and sarcasm is a great tool, but abuse - for all its seductive eloquence - is not the most fruitful channel of expression.

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