Wednesday, July 08, 2009

India's Lawrence

Frank Pasquale

As the Obama administration continually disappoints gay rights supporters, many are looking abroad for some good news. The Naz Foundation case issued by the Delhi High Court in India, striking down colonial-era bans on sodomy, is intriguing on many levels. I have only skimmed its 105 pages, but I wanted to post some reactions from Arthur Leonard, Nan Hunter, and Vikram Raghavan.

Hunter notes that the "In briefs before the court, different agencies within the government split on whether to defend the law," and it is not clear whether the Delhi High Court ruling will be appealed. Leonard translates the decision into terms familiar to American constitutional lawyers:

The court finds that [Section 377 of the Indian Penal Code] invades privacy rights that have become well established under the Indian constitution in other spheres, and also that it discriminates on the basis of sexual orientation, a form of discrimination that the court finds is forbidden by analogy to other kinds of discrimination that have been found to violate the equality requirements of the Constitution. In other words, this case finds, in effect, both substantive due process and equal protection violations, going one step further than the US Supreme Court went in Lawrence v. Texas (2003).

The case relied on both Lawrence and a number of other leading cases on gay rights. Raghavan argues that the extensive reliance on foreign precedents exemplifies an enlightened cosmopolitanism, but obscures the ultimate basis of the opinion:

The case is among a handful of decisions in which judges rely on foreign precedents to actually shape an imaginative domestic outcome. References to Hong Kong, Fiji, and Nepal decisions in Naz Foundation are particularly important because they remind the reader that gay rights aren’t some luxurious western construct. The dates of many citations reveal that the bench continued to research the case long after it had been reserved for judgment.

Yet, precisely because it includes so much material, Naz Foundation is like an over-decked Christmas tree with decorations obscuring virtually every bit of green. In some parts, the decision seems like the work of magpies: no shred of information seems to be too obscure for inclusion in its great kitchen sink of ideas. It is surely the Indian first case to actually cite a webcast!

Raghavan also interprets the High Court's decision in a manner that brings to mind the antisubjugation rationale offered for our own equal protection clause:

Naz Foundation is an emphatic reiteration of the vision of our Republic’s Founders to establish a just, inclusive, and tolerant India. Mindful of the bitter and shameful legacies of our history, our Founders were especially unwilling to countenance any form of social exclusion. This is evident in, among other things, Article 17’s unprecedented constitutional prohibition on “untouchability” -- a term deliberately left undefined in the Constitution. Naz Foundation extends the command of Article 17 to abolish new avatars of disability based on sexual identity or orientation.

Naz Foundation also appears to herald a revival of substantive due process in the subcontinent:

If Naz Foundation remains undisturbed or is affirmed by the Supreme Court, it will be only third time -- by my reckoning -- that an Indian court has used substantive due process to discover a new civil and political right (privacy) and invalidate a statute for transgressing that right. The only other decisions to use substantive due process in this manner are Mithu, where the Supreme Court struck down Section 303 of the Penal Code, which prescribed a mandatory death sentence for a life convict who commits murder and Canara Bank, where the Court invalidated an Andhra Pradesh revenue statute that compromised confidential banking information. Rathinam, in which the Court invalidated criminal sanctions under Section 309 of the Penal Code for suicide attempts, also used substantive due process reasoning. But, as we all know, Rathinam was subsequently overruled by a constitution bench in Gian Kaur.

The Canara Bank case reminds me of the dark side of "fundamental rights." I don't necessarily see the connection between financial privacy and the right to life or love, but I suppose on some libertarian understandings of rights, money, sex, and death are inextricably intertwined.

I have only one cavil with Raghavan. He praises Naz Foundation for offering "a strictly secular approach in adjudicating constitutional claims" and "wisely avoid[ing] any reference to religious or moral dimensions" of the controversy. Following Martha Nussbaum, I believe that Hinduism and other religious traditions in India have within them the seeds of a more tolerant and inclusive outlook on gay rights. Nussbaum worries that secularists like Nehru neglected “the cultivation of liberal religion and the emotional bases of a respectful pluralistic society,” leaving a vaccum that religious extremists could fill with a “public culture of exclusion and hate.” If a decision like Naz is to become a fixture of the Indian constitutional landscape, it may well need to be supported by an overlapping consensus of secular and religious rationales for mutual respect.

Regardless of our disagreement on that point, I find Raghavan's series of three posts on the case fascinating, and highly recommend it to anyone interested in an introduction to Indian constitutional principles.

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