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.[1]

Introduction
The Supreme Court of India is highly acclaimed for safeguarding the rights of not only its citizens but also of foreigners. Various provisions of the constitution have been extensively revised from time to time by the supreme court to ensure justice for all.

However, the judgment given in Suresh Kumar Koushal and Another Versus NAZ Foundation was indeed lamentable. The case dealt with a 150-year-old provision that outlawed "carnal intercourse against the order of nature". In the above case, it was decided that Section 377 of the IPC is constitutionally valid and that homosexuality is a criminal offense in India. By doing so it revoked the well-grounded judgment of the Delhi high court in Naz Foundation v NCT.

The Koushal judgment not only lacked legal logic but also empathy. The supreme court more or less invalidated the independence of LGBT individuals from making personal choices about their lives, eliminating their freedom to love.

Major Flaws In Judgement
The vital issues in this case were:

• whether section 377 of the IPC is an infringement of articles 14, 15, and 21 stated in part 3 of the constitution
• whether section 377, to the extent it criminalizes private and consensual sexual activity is violative of the right to privacy enshrined in Article 21(Right to life and personal liberty)
   

If we carefully look at the first issue the question that arises in our minds is whether Articles 14, 15, and 21 of the Constitution prohibit discrimination based on sexual orientation.

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. (Article 14)

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (Article 15)

No person shall be deprived of his life or personal liberty except according to procedure established by law. (Article 21)

The core reasoning given by the supreme court on this issue is as follows:
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 latter 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 offense and prescribe punishment for the same which can be awarded if in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty. Therefore, the High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution.[2]

While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country's population constitutes 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.[3]

Viewpoint Of Article 14 And Article 15

Article 14 allows for class legislation, provided that there is an intelligible differentia between the classes and a rational nexus with the purpose of the legislation. In this case however, it was evident that the legislative intention of punishing unnatural acts had no rational nexus with the categorization between procreative and non-procreative sexual acts.

Simply making legislation without paying attention to the rights of marginalized groups is no categorization in any case. Classification is required to be carried out based on a reasonable nexus, in the absence of which it would be discriminatory and inconsistent with the fundamental right of equality of the LGBT community.

This form of discrimination is merely one example of the many violations the community continues to face in the absence of any positive state action to protect them in light of the equal protection of the law clause. This, in its very essence, is the grossest violation of Article 14.[4]

In reference to Article 15 (discrimination), the supreme court failed to take into account whether the discrimination on the basis of sexual orientation amounts to discrimination on the basis of sex or sexual orientation, since the former, and not the latter, is mentioned in the constitution[5]

The Supreme Court could hardly disguise its disdain when it went on to acknowledge the fact that the LGBT community comprises a miniscule fraction of the country's population. It supported its claim, stating that only 200 cases have been reported in the history of Article 377. But the court lacked to acknowledge the fact that although a community occurs in a minority, it by no means makes its rights illusive. The paramount function of the court is to safeguard vulnerable groups from majoritarian excess.

Viewpoint Of Article 21

The supreme court also stated in its decision that the right to dignity and the right to privacy enshrined in Article 21 of the Indian Constitution, was not infringed by the legislation in question.

It has been provided in the IPC that the act of carnal intercourse between homosexuals is a crime and no one can claim right to commit any crime.

Here the court failed to give regard to the fact that the law derives its powers from the Constitution. Hence the statute would always remain subsidiary to it. The right to privacy and to live with human dignity is bestowed upon individuals by the constitution, therefore the statute cannot take away such a right.

Further, in the case of Maneka Gandhi vs UOI[6], it was held that Article 21 covers not only the sphere of personal liberty but also every little thing which in a manner builds up the sphere of personal liberty.

Therefore, these acts should not be criminalized because Sexual orientation and sexual choices are a matter of one's privacy, and controlling the same through statutes will be an encroachment upon personal liberty as well as an invasion upon the inner morality of the person and is not proper in any manner whatsoever.

Also, in Kharak Singh[7] it was held that there should be a compelling State interest to justify the restriction of fundamental freedom. In this case, the State had shown none.

Violation Of The Right To Health

The right to health is an intrinsic component of the Right to life under Article 21. The States are obliged to ensure the availability and accessibility of health services, information, education facilities, and goods without discrimination, especially to vulnerable and marginalized sections of the population.[8]

In the current case, respondents rightly argued that the presence of section 377 in the IPC impeded the efforts of the Ministry of Health and Family Welfare for the prevention and control of HIV/AIDS in the country. This was said in view of the fact that section 377 promotes an apathetic and stereotypical perception of sexual minorities which ultimately forces them to underground and thus hinders them to take health measures for their benefit. Also, the possibility of contracting HIV through unprotected penile-anal sex is higher than through penile-vaginal sex. hence it becomes even more essential to make homosexuals aware of the risks and the protection measures they could adopt.

Thus, individuals cannot be divested of their right to health merely on the grounds of homosexual acts being unnatural.

Violation Of Right To Dignity

Respondents argued that implementation of section 377 deprived homosexuals of a 'full moral citizenship' (a concept that was developed by the South African Supreme Court). It was asserted that the provision attacked a particular category of individuals by criminalizing sexual acts which are crucial to their sexual identity and therefore are detrimental to their lives.

However, this claim was rejected by the supreme court which in my opinion was unacceptable because, in spite of the absence of a considerable number of genuine prosecutions, this provision served as a weapon for police abuse in the form of detention, questioning, extortion, harassment, forced sex, payment of hush money[9]. Hence depriving LGBT people of their dignity.

Judgment's Discussion On Foreign Law

The judgment talks about the issue of engaging with foreign law towards the end.

Justice Singhvi starts his analysis by stating:
In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 Penal Code, 1860 violates the right to privacy, autonomy, and dignity, the Delhi 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[10]

The first sentence of the paragraph quoted above - so-called rights of LGBT persons is highly outrageous. Justice Singhvi seems to be conveying that lesbian, gay, bisexual, and transgender (LGBT) persons cannot have rights. Certainly, one of the repercussions of Koushal judgement is that LGBT people are divested of their rights which were granted to them as a consequence of Naz judgement.

Justice Singhvi acknowledged the value of foreign law for its ability to shed considerable light on various aspects of the rights and 'plight' of LGBT persons. In spite of this affirmation, he continued to suggest that the judges of the Delhi High Court supported their reasoning by applying foreign judgments in a 'blindfolded' manner.

Here Justice Singhvi ignores that the Delhi High Court confided greatly on in-depth research of provisions concerned with equality, dignity, and privacy and other pertinent precedents to determine that section 377 goes against the Indian Constitution. His conclusion that the thrust of the High Court's reasoning for its verdict holding section 377 unconstitutional was purely based on judgments of foreign cases is highly misleading.

He seems to hold the opinion that subject of decriminalization of homosexuality should be determined only by considering Indian law and Indian conditions. His reference to problems faced in transplanting Western experience in India and wariness against being blinded by foreign law indicates this tendency. However, this interpretation still seems ambiguous.

Conclusion
The Judgement given in Koushal v Naz was indeed one of the instances of legal formalism. In my opinion, every resident of the country has the right to privacy and dignity. The supreme court overturned the judgment of the Delhi high court which I felt was discriminatory as it not only encroached upon the fundamental rights of the LGBT community but was also against constitutional morality.

One should pay heed to the Hart- Devlin debate which established that there must exist a realm of inner morality that should be beyond the control of any legislation. What happens behind closed doors, between two consenting adults should not be the concern of any legislation. Thus, the Court in its judgment have overlooked this concept of inner morality.[11]

India is the world's largest democracy and talking about sexual activities is considered a social taboo.

The community cannot be forced to change its opinion but by legalizing the right to sexuality for all, both homo and heterosexual, we can take the very first step towards a more equal and accepting society.

End-Notes:

1. Naz Foundation v. Govt. (NCT of Delhi), (2016) 15 SCC 619, ¶130
2. Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, ¶ 65
3. Ibid 2, ¶ 66
4. D.D. Basu, Introduction to the Constitution of India, 84 (9th ed. 2008).
5. Andrew Koppelman, Why Discrimination Against Gay Men and Lesbians is Sex Discrimination, 69 Nyu L. Rev. 197 (1994); Leslie Green, Sex-Neutral Marriage, 64 Current Legal Problems 1-21 (2011).
6. Maneka Gandhi v. Union of India, (1978) 1 SCC 248
7. Kharak Singh v. State of U.P., (1964) 1 SCR 332
8. Ibid 2, ¶ 25.15
9. Ibid 2, ¶ 3
10. Ibid 2, ¶ 77
11. Shourajeet Chakravarty, A Plight of Rights from Wrong: Story of the Thirds, 6 NULJ 37, page 44 (2017)