Professor Ruthann Robson has a handy review today of the Supreme Court of India’s decision in Koushal v. NAZ Foundation, which “reversed the 2009 decision of the Delhi High Court that §377 of the Indian Penal Code was unconstitutional under the India Constitution and upheld India’s sodomy law as constitutional.”

I have no opinion whatsoever on Indian jurisprudence, and the reasoning of this opinion. What I do find interesting is that the Court goes out of its way to reject citations to international law–including the opinions of the United States Supreme Court.

 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. 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. …

We have grave doubts about the expediency of transplanting Western experience in our country

This could’ve been from a Scalia dissent. In fact, in several spots, the unanimous opinion for the Court mentions Lawrence v. Texas, and rejects the lower court’s reliance on it.

For example:

The High Court discussed the question whether morality can be a ground for imposing restriction on fundamental rights, referred to the judgments in Gobind v. State of Madhya Pradesh and another (1975) 2 SCC 148, Lawrence v. Texas 539 U.S. 558 (2003), Dudgeon v. UK, European Court of Human Rights Application No.7525/1976, Norris v. Republic of Ireland, European Court of Human Rights Application No. 10581/1983, The National Coalition for Gay and Lesbian Equality v. The Minister of Justice, South African Constitutional Court 1999 (1) SA 6, the words of Dr. Ambedkar quoting Grotius while moving the Draft Constitution, Granville Austin in his treatise “The Indian Constitution – Cornerstone of A Nation”, the Wolfenden Committee Report, 172nd Law Commission of India Report, the address of the Solicitor General of India before United Nations Human Rights Council, the opinion of Justice Michael Kirby, former Judge of the Australian High Court and observed.

Further, a supporter of the sodomy law actually cited the dissents of Justices Scalia and Thomas in Lawrence in support of its validity, combined with a general presumption of constitutionality.

Shri Huzefa Ahmadi submitted that the right to sexual orientation can always be restricted on the principles of morality and health. He referred to the constitutional assembly debates on Article 15 to show that the inclusion of sexual orientation in the term ‘sex’ was not contemplated by the founding fathers. Shri Ahmadi also referred to the dissenting opinion given by Justice Scalia and Justice Thomas in Lawrence v. Texas wherein it was stated that promotion of majoritarian sexual morality was a legitimate state interest. Shri Ahmadi stressed that Courts, by their very nature, should not undertake the task of legislating. He submitted that the Delhi High Court was not clear if it was severing the law, or reading it down. He argued that if the language of the section was plain, there was no possibility of severing or reading it down. He further argued that, irrespective of the Union Government’s stand, so long as the law stands on the statute book, there was a constitutional presumption in its favour.

Arguably, Windsor rejected this proposition.

The Court even referenced an amicus brief filed in Lawrence!

Infact the American Psychiatry Association and American Psychological Association filed an amicus brief in Lawrence v. Texas demonstrating the harm from and the groundlessness of the criminalisation of same sex sexual acts

And, for reasons I don’t completely understand, Justice Field’s decision in Munn v. Illinois (huh?) is cited:

“We have already extracted a passage from the judgment of Field J. in Munn v. Illinois (1877) 94 U.S. 113, where the learned Judge pointed out that ‘life’ in the 5th and 14th Amendments of the U.S. Constitution corresponding to Article 21 means not merely the right to the continuance of a person’s animal existence, but a right to the possession of each of his organs-his arms and legs etc. We do not entertain any doubt that the word ‘life’ in Article 21 bears the same signification. Is then the word ‘personal liberty’ to be construed as excluding from its purview an invasion on the part of the police of the sanctity of a man’s home and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire necessity for human existence even as an animal ? It might not be in appropriate to refer here to the words of the preamble to the Constitution that it is designed to “assure the dignity of the individual” and therefore of those cherished human value as the means of ensuring his full development and evolution. We are referring to these objectives of the framers merely to draw attention to the concepts underlying the Constitution which would point to such vital words as ‘personal liberty’ having to be construed in a reasonable manner and to be attributed that sense which would promote and achieve those objectives and by no means to stretch the meaning of the phrase to square with any preconceived notions or doctrinaire Constitutional theories.”

I wish our Supreme Court would cite Justice Field!