Suresh Koushal v. Naz Foundation

Suresh Koushal v. Naz Foundation directs law’s violence on the body of the Constitution of India. Proclaiming colonial law as constitutional, the Supreme Court negates its role in the making of postcolonial constitutionalism. It departs from the theatres of comparative constitutionalism in the post–colonies, which used Naz to strengthen their battles against Macaulay’s legacies. Today the Supreme Court is cited amongst the infamous precedents of injustice that mark Indian legal history. Dubbed as ADM Jabalpur 2, the judgment declares sexual emergency on LGBT communities. By breathing life into s. 377, the Supreme Court attaches a badge of stigma on the body of Constitution.

Taking a jurispathic turn, the Supreme Court asserts that equality is subservient to scale by claiming that the LGBT community is a “miniscule fraction of the country’s population”. Inventing the category of a miniscule minority, the Supreme Court implies that equality provisions will apply only to numerically preponderant body populations. Thereby, overwriting equality jurisprudence by the insidious politics of numbers. 

Nor does the Supreme Court acknowledge that the law determines who is counted and when. It ignores that law inhibits the production of official records of suicide rates, custodial torture, arrests and illegal detention, forced medicalization, forced marriages, and everyday forms of discrimination of LGBT persons. Nor is reported case law a reliable indicator of the extent and nature of discrimination. For every reported case, there exist scores of unreported cases, especially when social stigma silences formal complaints. Yet, the Supreme Court argues that historic discrimination cannot be read from case law since ‘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 declares that ‘harassment, blackmail or torture’ of LGBT persons is ‘neither mandated by the section nor condoned’ by s. 377 IPC. Surely, the culture of policing, which targets sexual minorities, especially those marked by class, caste, profession or community, gains its very legitimacy from s. 377 IPC. And the reality is that no policeman has been convicted under s. 377 IPC for the rape of any man or transgender person in custody. In other words, the Supreme Court blithely ignores that unwritten precedents of injustice (arrests, illegal detentions, harassment, blackmail or torture) underlie the written precedents of injustice (orders and judgments).

Suresh Koushal v. Naz Foundation scorns at the struggles against social and legal histories of discrimination and humiliation of LGBT persons. The Supreme Court reversing Naz caustically states that:

… 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.

The language of the judgment is barely able to disguise the shudder of disgust that grips the judicial body.

Without ‘hesitation’ or ‘contradiction’, the Supreme Court declares that

… that the orifice of mouth is not, according to nature, meant for sexual or carnal intercourse. Viewing from that aspect, it could be said that this act of putting a male-organ in the mouth of a victim for the purposes of satisfying sexual appetite would be an act of carnal intercourse against the order of nature.

The Supreme Court’s disgust is generalised into a law on who can pleasure whom and how, irrespective of consent.

The judicial understanding of neutrality itself masks the work of power in producing sexed subjects, when the Supreme Court states that

… 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.

By judicial dictate, sex is isolated from sexuality, introducing a foundational misinterpretation of law, love and life.

The Supreme Court notes that ‘the acts which fall within the ambit of the section can only be determined with reference to the act itself and the circumstances in which it is executed’. The court then acknowledges that all the cases cited in its judgment ‘refer to non consensual and markedly coercive situations’ and are distinguished by ‘the keenness of the court in bringing justice to the victims who were either women or children’. And the court wonders whether courts would reach similar conclusions were they to rule ‘in a case of proved consensual intercourse between adults’. Yet, the court holds that ‘section 377 IPC would apply irrespective of age and consent’.

Curiously enough, the judicial anxiety about children and women had been addressed by the legislature at the time of the verdict. The 2013 rape law amendment was cited as a reason not to read down s. 377 IPC. The court ignored that with the enactment of the POCSO Act, there is no need to apply s. 377 in the case of child sexual assault. The child sexual abuse law is gender neutral and covers the sexual acts defined as “unnatural” under s. 377 IPC. Child sexual abuse can no longer be cited as a pretext for retaining s. 377 IPC.

Further, if s. 377 IPC is indeed about protecting adult women, the definition of rape now covers forced “unnatural” sex, under the Criminal Amendment Act, 2013. The only legislative vacuum which s. 377 IPC could putatively address is non-consensual anal or oral sex in marriage, since marital rape is not criminalised, and heterosexual marriage accords husbands sexual impunity. However, the Supreme Court is not anxious about the use of s. 377 IPC to protect wives from forced unnatural sex in marriage, since most of our Judges believe that criminalising marital rape will lead to the breakdown of society.

The Supreme Court is not pained by sexual violence, sexual torture or other forms of sexual violence directed at lesbian women. Nor is the Supreme Court anxious about lack of prosecutions of consensual anal sex or fellatio in heterosexual marriage.

This leaves male rape on men and transgendered persons, which was addressed by the Verma Committee and should be addressed by the legislature in the future. However, the Supreme Court makes its evident that it is not anguished by rape of men or transgendered persons when it dismisses the testimonies of gangrape placed before it as the ignorable experience of a “miniscule” minority. The court is unable to feel pain upon hearing accounts of these rape survivors, because judicial disgust at the survivor’s gender identity or sexual orientation overwhelms the senses of the Justices.

By calling into question, the LGBT community’s claim to rights, the court passes off discrimination as law. Instead of developing a new jurisprudence against the discrimination of the LGBT community, like the judiciary in Nepal, the judgment itself discriminates. The Supreme Court forgets that the Constitution cannot be reduced to narrow readings of legal doctrine, law digests or precedents. Rather, it is a living law, which finds meaning in the poetry and politics of struggles for justice. Today, the body of the Constitution is criminalized, stigmatised and shamed by the jurispathic ruling of the Supreme Court. Through our voices, the Constitution struggles to inscribe equality, justice and the right to life in the minds and souls of our Justices. As Arvind Narrain reminds us, we are the Mathura generation, and it is indefensible that rape is repeatedly used as an excuse to retain s. 377 in the IPC. We must not allow the cynical use of the struggle for rape law reform to pathologize and criminalize queer love and sexuality. And our foremost demand must be the repeal of s. 377 IPC.

Pratiksha Baxi is Faculty at the  Centre for the Study of Law and Governance, Jawaharlal Nehru University. This article was first published at Kafila