Postcolonial Proportonality:

Johar, Transformatve Consttutonalism and Same Sex Rights in India

by Sujit Choudhry

to appear in

Philipp Dann, ed., The Global South and Comparatve Consttutonal Law

(OUP, forthcoming)

Acknowledgments: I thank Gautam Bhata, Philipp Dann, Menaka Guruswamy, Madhav

Khosla, and Tarun Khaitan.

A. Introducton: Two Conceptons of Transformatve Consttutonalism

At its incepton, the Indian Consttuton was envisioned as a transformatve

document, in two senses: ant-colonial and cosmopolitan. The Consttuton marked the
culminaton of one of the great natonal independence movements of the 20 th century. It
gave birth to a radically new consttutonal order, that conferred citzenship and politcal
power on the previously disenfranchised living under the yoke of Britsh imperial rule,
created democratcally elected legislatures and accountable executves, and conferred
fundamental rights on citzens that reconfgured their relatonship with public power,
under which they had been hitherto treated as colonial subjects. Citzens were
consttutonally empowered to enforce their fundamental and democratc rights through
the twin mechanisms of judicial review by independent courts and regular, periodic
electons.

But as Madhav Khosla, Pratap Mehta and I have argued, the Indian Consttuton
was also “a cosmopolitan consttuton in its fdelity to the universal principles of liberty,
equality and fraternity”.1 These universal values mandated and framed a vast project of
social, economic and politcal transformaton. Ambedkar argued in the Consttuent
Assembly debates that the Consttuton was transformatve because it conferred on the
state an express mandate to atack social hierarchies, and to redistribute economic and
politcal power away from elites defned by class and caste toward the hitherto politcally
1 Sujit Choudhry, Madhav Khosla & Pratap Bhanu Mehta, “Locatng Indian Consttutonalism” in
Choudhry, Khosla & Mehta, eds., The Oxford Handbook of the Indian Consttuton (Oxford:
Oxford University Press) at 4.

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powerless and economically deprived majority, by legislatng across the whole range of
politcal, economic and social life. This mission fowed from “consttutonal morality” – a
term which Ambedkar introduced into the Indian consttutonal lexicon, to describe and
defend the Consttuton.

The idea of transformatve consttutonalism is part of the grammar of Indian

consttutonal politcs. Arguably, it is also at play in Indian consttutonal doctrine. The
architecture of rights-based adjudicaton in India has converged on an emerging global
template consistng of elements such as jurisdicton, standing, applicaton, rights-
infringement, and remedy. Indian consttutonal jurisprudence has developed this
template in a distnctve way. The Supreme Court of India (SCI) has construed the writ
jurisdicton of the High Court under Artcle 226 broadly, as well as the direct access
jurisdicton of the SCI itself under Artcle 32. The rules of locus standi have been relaxed
beyond the person aggrieved to representatve standing, citzen standing, and litgaton
competence. Artcle 21's right to life has been interpreted broadly to encompass many of
the expressly non-justciable Directve Principles of State Policy under Part IV, giving rise
to a rich jurisprudence of economic and social rights that have consttutonalized much of
administratve law. Consttutonal remedies are aggressive and far-reaching, extending
well into the traditonal legislatve and executve domains of policy design and
implementaton. Indeed, such remedies are frequently issued on a preliminary basis, and
set up a process of judicial oversight of public administraton – in theory pending a
decision on the merits that in reality may never be taken. Taken together, these elements
have vastly enhanced the power of courts to hear, and litgants to bring, challenges to the
consttutonality of vast swathes of government acton or inacton, and for courts to
fashion highly ambitous structural remedies.

The Supreme Court of India (SCI) has yet to artculate an overarching theory that
unites this collecton of partculars under the rubric of transformatve consttutonalism,
in either its ant-colonial or cosmopolitan senses. In this essay, I take up this task, by
wrestling with the SCI’s landmark decision in Johar, where it unanimously struck down
Secton 377 of the Indian Penal Code.2 The idea of transformatve consttutonalism

2 Navtej Singh Johar v. Union of India, Writ Petton (Criminal) No. 76 of 2016 (6 September 2018)
[hereinafer Johar]. There were separate reasons provided by Chief Justce Misra (hereinafer
“Misra Reasons”), and Justces Fali Nariman (hereinafer “Fariman Reasons”), Chandrachud
(hereinafer “Chandrachud Reasons”), and Malhotra.

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fgured centrally in the various opinions, and the closely related concept of consttutonal
morality, given real legal teeth for the frst tme by the Supreme Court. So did another
piece of the global template of rights-protecton – proportonality, which is relatvely new
to Indian consttutonal jurisprudence.

The unifying thread between transformatve consttutonalism and proportonality

in Johar is that the purposes underlying Secton 377 were consttutonally impermissible.
The dual mission of the transformatve consttutonal project defned the scope of
admissible reasons for proportonality analysis. Secton 377 was unconsttutonal on the
cosmopolitan ground that mere social morality was an insufcient reason to limit the right
to engage in harmless, consttutonally protected actvity, the basis on which courts
around the world have struck down parallel provisions. On its own, this reason should
have been sufcient basis to hold the provision unconsttutonal. But the colonial-era
origins of Secton 377 fgured prominently in the submissions and various opinions, as an
additonal reason why it was unconsttutonal. However, Johar does not ofer a fully
worked out argument for why the legal origins of the provision should mater at all. I
shall argue that Secton 377 was also unconsttutonal for the ant-colonial reason that it
was an element of the Imperial consttutonal order in Britsh India in the period afer the
Indian Mutny in 1857 of indirect colonial rule.

B. Proportonality, Transformatve Consttutonalism, and Consttutonal Transitons

Proportonality is a consttutonal framework for assessing whether infringements

of rights can be justfable, and is a core component of the global template for rights-
based consttutonal adjudicaton. The legal test for proportonality consists of a number
of components: has the decision been taken for a proper purpose, do the means chosen
further that purpose (suitability or ratonal connecton), do the means chosen infringe the
right as litle as possible (necessity or minimal impairment), and do the salutary efects of
the means outweigh its deleterious efect on the rights-claimant (balancing per se). As
with any global language, proportonality has its natonal dialects that refect diferent
approaches to the interpretaton and interrelatonship of these components, which in
turn have generated and track intramural scholarly debates. For example, as Richard
Stacey has explained, courts are divided over whether infringements of the core of
consttutonal rights can ever be proportonal, whether governments must always use the

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least intrusive means or whether they are owed some deference, and how to structure
the fnal stage of the proportonality test so that it difers from ad hoc balancing.3

The Indian jurisprudence on proportonality is in its earliest stages. The idea that
fundamental rights are not absolute is expressly contemplated by the text of some of the
Fundamental Rights in Part III. Moreover, proportonality has precursors in Indian law,
especially the manifest arbitrariness test for Artcle 14 set out in Maneka Gandhi.4 But it
is only recently that proportonality has been expressly adopted by the SCI, in Anuj Garg5
and Putaswamy.6 It was central to several of the opinions in Johar, where the Court held
that Artcle 377 violated several rights (expression, equality, privacy) and failed to meet
the test of proportonality.

A foundatonal queston for SCI will be the role of proportonality in the broader
Indian consttutonal scheme, in partcular its transformatve character. A similar
queston confronted the Consttutonal Court of South Africa under its post-apartheid
consttutonal order. An answer was provided was by Etenne Mureinik, in a highly
infuental artcle published in 1994.7 Mureinik took as his startng point the postamble to
the South Africa’s 1993 Interim Consttuton, which described that document as a:

historic bridge between a past of a deeply divided society characterized by strife,

confict, untold sufering and injustce, and a future founded on the recogniton of
human rights, democracy and peaceful co-existence and development
opportunites for all South Africans, irrespectve of colour, race, class, belief or
sex.
Mureinik posed the queston of "what [the consttuton] is a bridge from, and what a
bridge to”.8 He answered that it was a bridge from “a culture of authority” to “a culture of
justfcaton”.9 Under a culture of authority, “what Parliament says is law” and “the
leadership given by government rests … on the fear inspired by the force at its
command”.10 By contrast, under a culture of justfcaton, “every exercise of power is

3 Richard Stacey, “The magnetsm of moral reasoning and the principle of proportonality in
comparatve consttutonal adjudicaton”, American Journal of Comparatve Law (forthcoming).
4 Maneka Gandhi vs. Union of India, 1978 AIR 597, 1978 SCR (2) 621.
5 Anuj Garg vs Hotel Associaton of India, (2008) 3 SCC 1.
6 K. S. Putaswamy v. Union of India, Writ Petton (Civil) No. 494 of 2012 (Sup. Ct. India Aug. 24,
2017).
7 Etenne Mureinik, “A Bridge to Where? Introducing the Interim Bill of Rights”, 10 South African
Journal of Human Rights 31 (1994).
8 Ibid. at 31.
9 Ibid. at 32.
10 Ibid. at 32.

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expected to be justfed” and the “leadership given by government rests on the cogency
of the case ofered in defence of its decisions”.11 In summary, “[t]he new order must be a
community built on persuasion, not coercion”.12

Mureinik clearly saw the culture of justfcaton as a core commitment of any

consttutonal order. It yields a theory of judicial review, whereby courts require that
governments in any consttutonal democracy explain and justfy their decisions.
Proportonality is central to such a theory of judicial review. Indeed, Mureinik himself
focused on secton 33 of the Interim Consttuton, the limitatons clause, which he argued
had the efect of making the rights in the Bill of Rights “standards of justfcaton”. 13
Moshe Cohen-Eliya and Iddo Porat draw on Mureinik to build a general consttutonal
theory, whereby the culture of justfcaton requires that governments should provide
substantve justfcaton for all their actons, by which we mean justfcaton in terms of
the ratonality and reasonableness of every acton and the trade-ofs that every acton
necessarily involves.14

But I want to take Mureinik’s argument one step further, as setng out a theory
of judicial review for a transformatve consttuton like South Africa or India’s, which
describes itself as a radical break from a consttutonally illegitmate past. To do so, I link
the concept of a transformatve consttuton to a consttutonal transiton. A
consttutonal transiton, in a purely formal sense, refers to the replacement of one
consttuton by another. But I conceptualize a consttutonal transiton in a more
ambitous way, to refer to a change in the character of the consttutonal regime – for
example, from an autocracy (South Africa) or colony (India) to a consttutonal democracy.
Moreover, for an inital period, such a democracy is a transitonal democracy, as opposed
to a consolidated democracy. Afer a consttutonal transiton, one queston is how the
new consttutonal regime sees itself in relaton to the one it has replaced. A
transformatve consttuton views itself as marking a fundamental break with the
previous consttutonal order, in the manner of a rupture or revoluton, even if there has
been legal contnuity.

11 Ibid. at 32.
12 Ibid. at 32.
13 Cite.
14 Moshe Cohen-Eliya and Iddo Porat, Proportonality and Consttutonal Culture (Cambridge:
Cambridge University Press, 2013).

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 The queston of how to interpret a transformatve consttuton is, in part, shaped
by the kinds of cases that arise in transitonal democracies. Consttutonal courts would
undoubtedly hear rights-based challenges to decisions of newly elected democratc
governments, actng pursuant to their powers under the new consttutonal order. The
laws at issue would in many cases be the same as those in any consttutonal democracy,
concerning the broad array of functons of a contemporary government. In one respect,
the consttutonal court would truly be discharging a normal functon; a general theory of
judicial review, such as one based on the culture of justfcaton, would be a plausible
candidate for how it should conceive of its role. Nevertheless, conferring on the courts
this role is surely one dimension of what a transformatve consttuton is.

However, in a transitonal democracy, consttutonal courts are likely to hear

challenges to two additonal kinds of laws, that are quite diferent from the legislaton
that are standard fare in consolidated democracies. Apartheid was an integrated regime
of politcal and economic control that concentrated public and private power in the hands
of the white minority. That system was underpinned not just by the Apartheid
consttuton, but also by the entre legal system, including a vast array of legislaton. The
adopton of a new consttuton could not at a stroke repeal those laws in their entrety,
because this would leave a legal vacuum. However, those laws are anathema to the
transformatve consttuton and would almost certainly never be enacted today. So it
was envisioned that the Natonal Assembly and provincial legislatures would engage in a
systematc overhaul of an authoritarian and racist legal system, to upend it root and
branch, as part of a transformatve consttutonal order. The consttuton contnued in
force this entre corpus of legislaton, with no tmeline set for its expiry, in order to
ensure an orderly transiton. Moreover untl repealed, apartheid-era laws contnued to
be enforced and govern legal relatons. This dynamic – of a new consttuton, and old-
regime legislaton that remains in force untl repealed – sets up inevitable consttutonal
challenges.

There is another element of South Africa’s transiton. South Africa had a “pacted
transiton” between the Natonal Party and the African Natonal Congress, like other
post-authoritarian transitons that are negotated by old regime elites and democratc
challengers, as occurred in Spain, Chile, and in many of the former Communist republics
of Eastern and Central Europe. South Africa also bore similarites to post-civil war

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transitons that were concluded by peace agreements – for example, most recently in
Colombia. Such pacts ofen contain measures designed to promote peace that come at
the expense of justce. For example, South Africa’s pact included reciprocal
commitments on transitonal justce, specifcally language in the postamble of the Interim
Consttuton that “amnesty shall be granted in respect of acts, omissions and ofences
associated with politcal objectves and commited in the course of the conficts of the
past.” Although they may be consttutonally mandated, amnestes and other transitonal
justce measures may require compromises with consttutonal principle. For example, an
amnesty may violate the right of victms to example, the right of access to court – as has
been raised extensively under the Inter-American human rights system. Yet amnestes
may be necessary to allow transformatve consttutonalism to get of the ground at all.

What this means is that a consttutonal court in a transitonal democracy,

interpretng a transformatve consttuton, performs three distnct roles. Like courts in
other democracies, it must adjudicate upon standard legislaton that is the bread and
buter of normal politcs. But it is also a court of the transiton, in two ways. It must
reckon with evil laws of the prior regime, against which the transformatve consttuton
defnes itself, but which nonetheless contnue in force. And it must hear challenges to
transitonal justce laws which may confict with victms’ rights, but which are critcal
elements of the politcal bargain that makes the transformatve consttuton possible.

If we maintain with Mureinik that the culture of justfcaton remains central to

transformatve consttutonalism and places proportonality lies at the heart of a theory of
judicial review, then the multple tasks of a consttutonal court in a transitonal
democracy has a radical implicaton – that proportonality analysis under a transformatve
consttuton is not generic, but heterogeneous. The reason is that proportonality, on his
account, is an insttutonalized practce whereby the “leadership given by government
rests on the cogency of the case ofered in defence of its decisions”. 15 It follows that
proportonality analysis requires a governmental interlocutor for the process of
justfcaton, which orients the task of the reviewing court. One dimension of that
conversaton consists of the reasons and evidence for the decision under challenge. But
another dimension is the insttutonal identty of the interlocutor, since an element of
proportonality analysis are questons of insttutonal mission, capacity, and legitmacy,

15 Mureinik, supra note 7 at 32.

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which all go to deference and the standard of review. Within a consttutonal democracy,
the insttutonal interlocutor might vary – the legislature, an expert agency or tribunal,
the politcal executve – but those insttutons are all consttuent elements of a
consttutonal democracy. By contrast, under a transformatve consttuton, the identty
of that interlocutor difers fundamentally across categories of cases. In the frst kind of
case, it is a consttutonal democracy that is a creature of, and is presumed to act in
compliance with, the transformatve consttuton. In the second, it is an old guard who
governed under a system that the transformatve consttuton regards as illegitmate. In
the third, it is a coaliton of old guard and democratzing elites who agreed to a grand
bargain that makes transformatve consttutonalism possible. The queston is how
proportonality analysis operates in each diferent context.

C. Johar: Cosmopolitanism and Ant-Colonialism

The issues arising from the interacton of a transformatve consttuton with a

consttutonal transiton have implicatons for the development of Indian consttutonal
doctrine. The reason is that the SCI – perhaps counter-intuitvely – is a consttutonal
court of a transitonal democracy. To be sure, India became independent in 1948, and
the Indian Consttuton came into force nearly seven decades ago, in 1950. The legal
dimensions of Britsh imperial rule are now a part of India’s distant past, and the SCI’s
docket almost entrely has focused on post-Independence legislaton. Nevertheless, the
SCI remains a consttutonal court of a transitonal democracy, because of the way the
Consttuton treats colonial-era law. Under Artcle 372, all colonial-era laws remain in
force indefnitely, untl amended or repealed. Indeed, it is pursuant to Artcle 372 that
Secton 377, frst enacted in 1860 as part of the Indian Penal Code, remained in efect
untl it was struck down by the SCI in 2018.

The queston this raises is how the heterogeneous character of proportonality

doctrine should be operatonalized in this transitonal context, which depends on who the
SCI’s insttutonal interlocutors are. The SCI has three insttutonal interlocutors, in
principle, analogous to those of the Consttutonal Court of South Africa, for the
purposes of its proportonality analysis: pre-Independence Britsh imperial authorites;
post-Independence governments; and arguably, Indian politcians exercising limited
powers under the Government of India Act, 1935 which de facto amounted to a minimal

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form of power-sharing.16 In Johar, the frst and second interlocutors seemed to be at play.
Secton 377 was clearly adopted by Britsh imperial authorites, and that provenance
provided a reason to condemn it on consttutonal grounds. Justce Chandrachud, for
example, argued that LGBT persons did not enjoy the full benefts of Indian
independence, because “Secton 377 has managed to survive for over 158 years,
impervious to both the antcolonial struggle as well as the formaton of a democratc
India”.17 He contnued:

Indian citzens belonging to sexual minorites have waited. They have waited and
watched as their fellow citzens were freed from the Britsh yoke while their
fundamental freedoms remained restrained under an antquated and
anachronistc colonial-era law – forcing them to live in hiding, in fear, and as
second-class citzens.18
But the SCI’s concerns regarding the efects of Secton 377 were also very
contemporary. For example, Justce Chandrachud placed weight on a report of the
Internatonal Commission of Jurists, which reproduced government statstcs that 1279
and 1491 persons were arrested under Secton 377, in 2014 and 2015, respectvely.
These fgures considerably diminished the force of the argument that Secton 377 had
fallen into disuse because there had been very few prosecutons under it, apparently
fewer than 200 persons in the 150 years that the provision was in force. By broadening
the lens from prosecutons to arrests, and highlightng the gross disparity between the
two, Justce Chandrachud butressed the claim that the harms of Secton 377 really arise
from harassment at the hands of law enforcement, and impliedly from the threat of
selectve prosecuton. These are abuses of public power. Juxtaposed against Johar’s
frequent references to social morality (discussed further below), we can take this
argument one step further. Although the SCI only discusses social morality to distnguish
it analytcally from consttutonal morality, it likely does so because it considers there to
be considerable public support for Secton 377, even in the face of the refusal of the
Union government to appeal the decision in Naz Foundaton and defend the provision in
Johar. It is against this backdrop of public support that law enforcement contnues to use
Secton 377. So another interlocutor is a potental parliamentary majority that could be

16 Arudra Barra, “What is ‘Colonial’ about Colonial Laws?”, 31 American University Internatonal
Law Review 137 (2016).
17 Johar, Chandrachud Reasons at para. 14.
18 Johar, Chandrachud Reasons at para. 24.

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mustered in support of enactng such a provision today – for example, as part of an
electoral coaliton with a religiously conservatve element.

Proportonality analysis at the frst stage was central to Johar – i.e., the
requirement that the government has acted for a proper purpose. In most cases, this
threshold queston is almost always answered in the afrmatve, because governments
now rarely ofer express justfcatons for decisions that are facially illegitmate. In Johar,
however, the Court reached the conclusion that the Secton 377 “without any legitmate
state ratonale”.19 It did so on two grounds. Secton 377 was unconsttutonal on the
cosmopolitan gound that mere social morality was an insufcient reason to limit the right
to engage in harmless, consttutonally protected actvity, the basis on which courts
around the world have struck down parallel provisions. In additon, Secton 377 was also
unconsttutonal for the ant-colonial reason that it was an element of the Imperial
consttutonal order in Britsh India in the period of indirect colonial rule afer the Indian
Mutny of 1857.

1. Cosmopolitanism

A central distncton that runs throughout Johar is that between consttutonal

morality and social morality. Chief Justce Misra’s opinion provides the most fully worked
account of this distncton, and an argument for it. He begins with a theory of the Indian
Consttuton, which he defnes as a “transformatve consttutonalism”. 20 The
“revolutonary” mission of the Indian Consttuton is “transforming a medieval,
hierarchical society into a modern, egalitarian democracy”. 21 On his account, the principal
target of consttutonal transformaton is not the state itself, but rather, the vast edifce
of private social and economic relatons – which can be loosely termed social morality.
That mission, it stands to reason, authorizes and empowers the state to engage a project
of transforming social morality, and presumptvely requires courts to defer when
consttutonal challenges to such measures are raised. Conversely, it would also appear
to require that government decisions to entrench, reify and enforce social morality
should be subject to probing consttutonal scrutny.

19 Johar, Nariman Reasons at para. 95.

20 Johar, Misra Reasons at para. 95.
21 Johar, Misra Reasons at para. 95.

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 If social morality is the value system antthetcal to transformatve
consttutonalism, it is to be supplanted with a new value system integral to the
consttutonal project itself – consttutonal morality. The raises the questons of: (a) the
content of consttutonal morality, and (b) the translaton of that concept into
consttutonal doctrine.

Let us frst consider its content. At the core of consttutonal morality, for Chief
Justce Misra, is that “[t]he society as a whole or even a minuscule part … may aspire and
prefer diferent things for themselves”.22 The outer boundary of “such a freedom to be
diferent” is that it not violate the “fundamental rights of any other citzen”. 23
Consttutonal morality “urges the organs of the State to maintain such a heterogeneous
fbre in the society”, and “to curb any propensity or proclivity of popular sentment or
majoritarianism”.24 Consttutonal morality can “not be equated with the popular
sentment prevalent at a partcular point in tme”. 25

This is a thoroughly modern and cosmopolitan approach to the basis of legitmate

public authority. But what does this mean in concrete legal terms? Consider this passage
from Chief Justce Misra’s reasons:

While testng the consttutonal validity of impugned provision of law, if a

consttutonal court is of the view that the impugned provision falls foul to the
precept of consttutonal morality, then the said provision has to be declared as
unconsttutonal for the pure and simple reason that the consttutonal courts
exist to uphold the Consttuton.26
Chief Justce Misra could be read suggestng that consttutonal morality is a free-
standing ground of consttutonal review, rooted in the idea that that the role of the
courts is to ensure that “consttutonal morality prevails over social morality”. 27 However,
there is nothing in the text or practce of the Indian Consttuton that supports this view.
Indeed, even the basic structure doctrine is textually anchored in Artcle 368. A more
plausible reading views consttutonal morality – in partcular, the imperatve that “the
organs of the State … preserve the heterogenous nature of the society and to curb any
atempt by the majority to usurp the rights and freedoms of a smaller or miniscule secton

22 Johar, Misra Reasons at para. 115.

23 Johar, Misra Reasons at para. 115.
24 Johar, Misra Reasons at para. 116.
25 Johar, Misra Reasons at para. 116.
26 Johar, Misra Reasons at para. 124.
27 Johar, Misra Reasons at para. 121.

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of the populace” 28
– as a principle of consttutonal interpretaton underlying both the
delineaton of the scope of Part III’s Fundamental Rights and the applicaton of
proportonality. Johar posits that consttutonal morality supplies both the justfcaton
for the entrenchment of consttutonal rights, and restricts the permissible purposes for
proportonality limitng such rights. Governments cannot restrict rights for the very
reasons that the Consttuton guarantees these rights to individuals.

Ronald Dworkin ofered a famous account of such a theory of consttutonal

rights.29 Indeed, since he did so in the context of Lord Devlin’s critcism of the Wolfenden
Report, which had recommended the decriminalizaton of anal intercourse in the United
Kingdom, his views therefore merit careful atenton in coming to grips with Johar.
Dworkin begins with the problem of moral disagreement among individuals about what
rights people have. His core claim is that some reasons that may be ofered for a positon
“will be excluded by general criteria stpulatng sorts of reasons which do not count” –
i.e., they are inadmissibile, and as a threshold mater have no weight at all. One such
reason is prejudice against homosexuals, which is inadmissible for the following reason:

If I tell you that homosexuals are morally inferior because they do not have
heterosexual desires … you would reject that reason as showing one type of
prejudice. Prejudices, in general, are postures of judgment that take into account
consideratons our conventons exclude. … Our conventons stpulate some
ground rules of moral judgment which obtain even part from such special
contexts, the most important of which is that a man must not be held morally
inferior on the basis of some physical, racial or other characteristc he cannot help
having. Thus, a man whose moral judgments … are based on his belief that any
member of these classes automatcally deserves less respect, without regard to
anything be himself has done, is said to be prejudiced against that group.30
Dworkin then applies this framework for moral disagreement to the legitmate basis for
the asserton of the state’s coercive power, to reason that “prejudices … do not justfy
restrictng another’s freedom”.31 This positon holds “[e]ven if it is true that most men
think homosexuality an abominable vice and cannot tolerate its presence”. 32 The reason
is the distncton between conventonal morality in the “anthropological” or descriptve
sense, and in the “discriminatory” or normatve sense, with only the later is admissible as a

28 Johar, Misra Reasons at para. 253v.

29 Ronald M. Dworkin, “Lord Devlin and the Enforcement of Morals”, 75 Yale Law Journal 986
(1965-66).
30 Ibid. at 996.
31 Ibid. at 1001.
32 Ibid. at 1000.

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justfcaton by the state. These two conceptons of a moral positon correspond exactly
to social and consttutonal morality, as Chief Justce Misra uses those terms.

In his critque of Devlin, Dworkin did not spell out the argument for why
individuals should have any rights at all. But elsewhere, he rooted the specifc rights that
individuals have an underlying right to equal respect and concern. 33 This has a crucial
doctrinal implicaton – that the same reasons that justfy the entrenchment of
consttutonal rights also operate to circumscribe the kinds of consideratons that can
legitmately count to limit such rights. This is the most plausible reading of Johar. It
follows that if consttutonal morality requires that we guarantee to everyone “a freedom
to be diferent”, the state cannot justfy the limitaton of that freedom simply for the
purpose of eradicatng or diminishing diference – what Chief Justce Misra refers to as
“majority percepton or view”.34 Since that was the only possible purpose for Secton 377,
he concluded it “does not meet the criteria of proportonality”.35

This is a cosmopolitan argument, because it gives no weight to India’s cultural,

historical or politcal context, either with respect to the rights that individuals have under
Part III, or the justfable reasons for limitng them. In additon to providing a coherent
account of Chief Justce Misra’s reasons, it also explains and justfes Johar’s
comparatvism. Johar cited extensively to comparatve jurisprudence, from Belize,
Ecuador, Fiji, Hong Kong, Kenya, Nepal, South Africa, Trinidad and Tobago, the United
States, and the European Court of Human Rights and the United Natons Human Rights
Commitee. This growing body of case-law – to which we must npw add Johar itself –
has found criminal prohibitons on sodomy to be inconsistent with various rights-
protectng instruments. But of course, convergence on a common legal positon is not
necessarily proof of that positon’s rightness or truth. What maters much more are the
substantve reasons ofered by courts to reach their decisions – in partcular, whether
those reasons are cosmopolitan too. Most of these laws were defended on the basis of
social morality. And it is of considerable relevance that the authorites discussed in the
most depth all reached the conclusion that the laws failed the test of proportonality,
because of the lack of a proper purpose (e.g. Lawrence v. Texas36).
33 “Liberalism”, ch. 8 in Ronald Dworkin, A Mater of Principle (Cambridge, MA: Harvard University
Press, 1986).
34 Johar, Misra Reasons at para. 34.
35 Johar, Misra Reasons at para. 247.
36 Lawrence v. Texas, 539 U.S. 558 (2003).

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2. Ant-colonialism

This cosmopolitan argument would have been sufcient to resolve the case.
Moreover, on in its terms, the historical origins of Secton 377 in Britsh imperial rule are
irrelevant. Whether enacted in the 19th or 21st century, the provision would have been
unconsttutonal for the same reason: it breached one or more Fundamental Rights under
Part III, and it could not be justfed on the basis of a proper purpose. However, history
matered to the submissions of the partes. For example, Menaka Guruswamy, appearing
on behalf of the pettoners in the companion case of Pokkuluri, submited that “[i]n a
consttutonal democracy, a statute that protects and furthers the morality of colonial
monarchs in per se arbitrary”.37 Arvind Datar, on behalf of one of the pettoners in Johar,
argued that since Secton 377 “is a colonial law”, it was “wrongfully referred to as
representng the will of the people in Koushal”.38 What work did history do here? One
answer would appear to be straightorward: to pre-empt any reliance, contra Koushal, on
majoritarian preferences as a proper purpose for proportonality analysis. 39 Irrespectve
of whether such an argument is acceptable in principle, it could also be rejected
empirically, on the basis that Secton 377 could not represent the will of the majority.

Arudra Barra provides another answer regarding the possible work that history
does. He recently observed that in contemporary Indian politcs the colonial origins of
laws and policies are a sufcient reason to abolish or amend them. He counters that the
legacy of colonial-era legislaton is complex. On the one hand, there is Secton 377. But
on the other hand, Provincial Ministries led by the Congress Party under the Government
of India Act exercised their executve powers to release politcal prisoners, and the
Provincial Legislatures whose confdence they enjoyed repealed public safety and
emergency legislaton used by Imperial authorites to repress politcal dissent, and
enacted new laws promotng an agenda of agrarian and social reform which contnued in
force afer Independence. He asks:

Were the executve acts of these Ministries and the legislaton passed by the
Provincial Assemblies “colonial”? They were certainly colonial-era acts. … If the
term “colonial” is used not just to designate a historical period, but also to
designate some partcular aspect of that period (defned, for instance, by an
oppositon to the ant-colonial movement), then it is not easy to describe the

37 Writen Submissions on behalf of the pettoners Ankesh Pokkuluri et al. at para. 1.4.
38 Writen Submissions on behalf of pettoner Keshav Suri at para. 6.1.
39 Koushal v. Naz Foundaton, (2014) 1 S.C.C. 1 (India).

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 working of the Act [i.e. the Government of India Act] as either colonial or ant-
colonial. And if the identfcaton of these Acts as colonial is problematc then
their identfcaton post-Independence as colonial contnuites, is surely
problematc as well.40
Instead of condemning laws in terms of their formal consttutonal origin – i.e., their
enactment pursuant to the colonial legal order – he asks:

… surely it is enough to cite the substantve reasons which make them [i.e.
colonial-era laws] unacceptable in the present? … Calling them “colonial” may
provide an additonal rhetorical hef to this atack, but adds litle that is
substantve, for the colonial origins of a law are by themselves analytcally neutral.
… analytcal clarity will be served best if questons and arguments pose in terms of
colonial contnuites are re-framed so as to remove the reference to the colonial,
and focus our atenton on more substantve issues.41
Barra does expressly address the relevance of the colonial-era status of legislaton to its
potentally unconsttutonality. But the logical implicaton of Barra’s argument is that he
would rely solely on cosmopolitan grounds to impugn the consttutonality of Secton 377
– i.e. ant-moralism. He would dismiss reliance on the colonial origins of Secton 377 as a
purely formal argument.

Barra is correct that that the insttutonal fact that Secton 377 was enacted by
Britsh imperial authorites is an insufcient reason to consttutonally condemn it.
However, there is another set of arguments regarding the colonial-era origins of Secton
77 that are distnct from the cosmopolitan objectons to that provision, and which go to
the ant-colonial dimension of transformatve consttutonalism. In his reasons, Justce
Nariman provided a standard historical overview of the origins of Secton 377. This
history begins in 1834, with the establishment of the Indian Law Commission, and the
appointment as Thomas Macaulay as its frst chair. One of Macaulay’s frst projects was
to draf the IPC. The frst draf was submited in 1837. It then went through several
further drafs, prepared and reviewed by a series of enttes and individuals including the
Commission, members of the Legislatve Council of India and Justces of the Supreme
Court at Calcuta, the Court of Directors of the East India Company in London, a Council
or Commitee of the Company, and a Select Commitee. The IPC was enacted in 1860, a
few years afer the 1857 Mutny.

40 Barra, supra note 16 at 146 (italics in original).

41 Id. at 169.

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 For Justce Nariman, the purpose of Secton 377 was to impose a Victorian
concepton of sexual morality on India. While Secton 377 prohibited “unnatural
ofences”, which it defned as “intercourse against the order of nature” – moral in tone –
Justce Nariman noted that Macaulay’s original draf defned the prohibited conduct as
touching “for the purpose of gratfying unnatural lust”, which clearly expressed a moral
judgment on the conduct in queston “in this most prudish of all periods of English
history”.42 Justce Chandrachud provided supportng evidence, in the form of an
explanatory note from Macaulay to the 1837 draf in which he described the prohibited
conduct in the earlier provision as “revoltng”, and justfed the omission of an explanaton
for the provision in order to prevent a “public discussion” which would injure “the morals
of the community”.43

However, this is a reductve account of Secton 377 that wrenches it from the
broader politcal project of which it was a part. Mahmood Mamdani provides the larger
context.44 The 1857 Mutny was a watershed between two models of imperial
governance in India. Over the century of the East India Company’s rule, from 1757 to
1857, the strategy of imperial governance was direct rule. This was a universalist,
“civilizing mission spearheaded by liberal Utlitarians and Christan evangelists”, whose
core elements were “to abolish the Moghul court and to impose Britsh laws and
technology—along with Christanity—on India”, along with the promoton of free markets,
in the service of liberal modernity. The Mutny led Imperial authorites to conclude that
this strategy had uterly failed. Afer 1857, Imperial strategy shifed dramatcally, to
indirect rule, rooted in the protecton of culture, custom and traditon. One part of this
strategy included “setng limits on the operaton of the market thereby protectng the
village community from moneylenders, agricultural subcastes from trading castes, and the
landlord’s estate from division and fragmentaton”. Another dimension was the creaton
of the religious personal codes, one for each community, defended “in the language of
cultural diference and cosmopolitan tolerance”. The census was a crucial politcal device
that enabled imperial authorites to categorize and classify colonial subjects, principally
on the basis of caste and religion, which served as the basis for the distributon of

42 Johar, Nariman Reasons at para. 18.

43 Johar, Chandrachud Reasons at para. 21.
44 Mahmood Mamdani, Defne and Rule: Natve as Politcal Identty (Cambridge, MA: Harvard
University Press, 2012).

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politcal and economic power, in the form of separate electoral rolls for Muslims and
Hindus, and reservatons. Although ratonalized as a form of minority rights protecton,
categorizaton and classifcaton became a technology of Imperial control.

Against the backdrop of the profound shif in imperial governance in India in

1857, the IPC presents a historical puzzle, because of the sharp disjuncton between its
framing and tming. As Karuna Mantena acutely observes,45 on the one hand:

t h e Indian Penal Code, unlike later substantve codes, was not a work of
consolidaton or digest, that is, it did not take current English law and systematze,
simplify, and ratonalize it. Rather, it was a self-conscious atempt to construct a
code de novo, based upon frst principles, taking inspiraton from other systematc
codes, notably the French Code Penal and Livingston's code for Louisiana. In this
respect, the Indian Penal Code may be the closest to anything like a pure
philosophical code to be enacted in the nineteenth century.
The IPC was the quintessental Benthamite instrument of the civilizing mission. But on
the other hand, adopton of the IPC in 1860 “sits uneasily with the post-Mutny
distancing from ambitous projects for the modernizaton and assimilaton of Indian
society”. Mantena argues that the proponents of indirect rule – chiefy Henry Maine –
justfed the IPC on the basis that it during the period of direct rule, the common law
courts had displaced or rigidifed customary law, which rendered it irreparable. The IPC
was the only soluton.

However, Secton 377, stands apart from the rest of the IPC and is on all fours
with other group-diferentated laws, because it targets sexual actvity engaged in
disproportonately by a group, defned by sexual orientaton. Moreover, it was eventually
deployed as a tool of indirect rule. The critcal link was the Criminal Tribes Act, 1871. The
Criminal Tribes Act, and its relatonship to Secton 377, were previously discussed by the
SCI in NALSA,46 and only passing reference was made to those passages in Johar.47 The
relevant history is set out in the writen submissions of Voices Against 377. 48 The Act
authorized the colonial authorites to designate as a “criminal tribe” a tribe or class of
persons “addicted to the systematc commission of non-bailable ofences”, through the
ascripton of a caste-like status. Members of criminal tribes were presumed to be born

45 Karuna Mantena, Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism (Princeton:
Princeton University Press, 2010).
46 NALSA vs. Union of India, (2014) 5 SCC 438.
47 Johar, Nariman Reasons at paras. 49 and 55.
48 Johar, Nariman Reasons at paras. 42 to 50.

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criminal, and were subject to the most extensive system of control, including registraton,
setlement and resetlement, and detenton. In 1897, the Act was amended to
encompass eunuchs within its ambit. The amendments established a statutory
connecton between Secton 377 and the Act, by requiring local ofcials to maintain a
registry of all eunuchs “reasonably suspected … of commitng ofences under Secton
377 of the Indian Penal Code”. The combined efect of these provisions was to create a
status ofence, making any eunuch an unapprehended felon.

What are the contemporary consttutonal implicatons, if any, of the Criminal

Tribes Act? Voices Against 377 argued that Secton 377 imposed on LGBT persons the
same harm as persons who were subject to the Criminal Tribes Act – that is, they were
unapprehended felons under a status ofence. Along similar lines, I have argued that at
the root the decision of the Delhi High Court in Naz Foundaton was the analogy between
untouchability and sexual orientaton, based on the historical experience under the
Criminal Tribes Act.49 My argument on that occasion was that the treatment which LGBT
persons experience today is similar in kind to that which “untouchables” experience, and
which prompted the adopton of Artcle 17 (which abolishes untouchability). But Johar
allows us to take this argument one step further to the origins of Secton 377 itself.
Secton 377 was legally conscripted into service for the imperial strategy indirect rule,
through classifcaton and control, through the Criminal Tribes Act. It therefore came to
serve a consttutonal functon under the colonial legal order. It was indelibly and forever
tainted by that role.

India’s independence – culminatng in 1950 with the Indian Consttuton – marked

the end of the colonial consttutonal order and its replacement with an entrely new one.
This was one dimension of India’s transformatve consttutonalism. Artcle 395 repealed
the key statutes of that order, chiefy the Government of India Act, 1935. In additon, we
can infer from Artcle 395, and from the consttutonal scheme as a whole, that any
surviving colonial-era statute with the purpose of the maintenance of the Imperial system
of indirect rule was per se unconsttutonal. Artcle 372 does not change this positon. It
is simply a technical provision to ensure legal contnuity; it has no bearing, either way, on

49 Sujit Choudhry, “How To Do Comparatve Consttutonal Law in India: Naz Foundaton, Same
Sex Rights, and Dialogical Interpretaton” in Sunil Khilnani, Vikram Raghavan & Arun
Thiruvengadam, eds., Comparatve Consttutonalism in South Asia (New Delhi: Oxford University
Press, 2012) 45.

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the consttutonality of colonial-era laws – a point made by Justce Nariman. 50 On the
ant-colonial account, the unconsttutonality of Secton 377 lies not in its impositon of
morality – social, Victorian or otherwise. Rather, its unconsttutonality lies in its use as a
tool for the maintenance of colonial politcal power and dominaton.

This is a functonal argument that allows us, for contemporary consttutonal

purposes, to diferentate among the mass of colonial-era legislaton that remains in force
pursuant to Artcle 372, while nonetheless recognizing the special and distnct
consttutonal wrong of colonialism in a sovereign democratc republic. This critcism
would not apply to reform legislaton that lay the groundwork for post-Independence
economic and social transformaton, enacted by the Provincial Assemblies pursuant to
the Government of India Act. Those laws were not designed to perpetuate colonial rule --
incorporatng Rohit De’s insight that it is analytcally useful to distnguish between the
actons of the earlier and late colonial state in India, as opposed to tarring them with the
same natonalist brush.51

This critcism would also be inapplicable to the Imperial enactments that codifed
the Indian private law of contract and property. Now to be sure, as Shyam Balganesh has
persuasively demonstrated, the Indian Transfer of Property Act did serve Imperial interests.
It did so by withdrawing power from Indian courts, whose judicial creatvity “ran the risk
of undermining the control that the Britsh administraton had by this tme very ably
established in India, much of it through complex land revenue schemes, tenancy reform
initatves, and governance policies.” 52 But there is a way to distnguish among colonial-
era laws that served Imperial interests, through an analog to the basic structure doctrine.
The queston to be posed in each case is whether a colonial-era law that served Imperial
interests was core or basic to the post-1857 consttutonal order of indirect control. If it
did, its very purpose is unconsttutonal, and is excluded by implicaton from the Indian
consttutonal scheme – a fatal faw at the threshold stage of proportonality analysis.

D. Conclusion

50 Johar, Nariman Reasons at para. 90.

51 Rohit De, A People’s Consttuton: The Everyday Life of Law in the Indian Republic (Princeton:
Princeton University Press, 2018).
52 Shyamkrishna Balganesh, “Codifying the Common Law of Property in India: Crystallizaton and
Standardizaton as Strategies of Constraint”, 63 American Journal of Comparatve Law 33 at 43
(2015).

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 Here is the broader lesson of Johar and the Indian case. The idea of
transformatve consttutonalism means two things. First, it implies a radical renovaton
in the acceptable grounds for the legitmate exercise of public power. These grounds are
common to all consttutonal democracies, and what is transformatve about a
transformatve consttuton is that categorically rules out much of what had hitherto been
acceptable under an authoritarian or colonial regime. If we imagine judicial review in any
consttutonal democracy as requiring government to provide reasons to justfy all
exercises of public powers, and for the doctrine of proportonality to provide the
framework for courts to assess those reasons, there is now a single standard of
justfcaton, with a single insttutonal interlocutor for the court. The cosmopolitan ant-
moralism of Johar is an illustratve example.

But transformatve consttutons must also reckon with the messy and ragged
legal legacies of the past in the present, that difer sharply from the image of
consttutonal revoluton. In partcular, they must reconcile the contnuites of the laws
of the old regime that prevent a legal vacuum, and the compromises of consttutonal
principle that make the transformatve consttuton possible, with the foundatonal
commitment of the new consttutonal order to never again repeat the injustces of the
past. Any laws which were integral to the maintenance of colonial dominaton and
control are anathema to the new consttutonal order. Johar’s condemnaton of Secton
377 as an instrument of indirect rule is a case in point.

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