Aam Aadmi Party swept to power in Delhi upon an election platform that contained explicit guarantees towards protecting the rights of minorities and, specifically, the rights of the transgender community. In Part One, we argued that there is an urgent moral need for the AAP to act upon its guarantee by decriminalising homosexuality within the National Capital Region, and thereby protecting the LGBT community from the relentless discrimination that it suffers from today. In this part, we contend that the AAP’s victory vests in it the legal and constitutional authority to bring about this change.

When an AAP member of parliament raised the issue of Section 377 in the Lok Sabha, he was informed that since the matter was sub judice before the Supreme Court, no action would be taken upon it by Parliament. Since a curative petition on the subject remains pending before the Court, technically the issue remains sub judice. The role of the Supreme Court, however, is to rule upon the constitutionality of Section 377. That does not stand in the way of the central – or state – parliaments from legislating a change into the Indian Penal Code. Indeed, in its judgment in Koushal vs Naz, the Supreme Court, while re-instating Section 377, expressly invited the parliament to change it via legislation, if it so desired. With its overwhelming majority in the Delhi Assembly, the AAP is now in a position to accept the Court’s invitation.

Constitutional power

As the single ruling party, the AAP has the constitutional power to make laws for the territory of Delhi. The source of this is Article 239AA of the Indian Constitution, which was inserted via an amendment, in 1991. This Article changed Delhi’s status from a “Union Territory” to the “National Capital Territory” and invested it with a legislative assembly, which was granted the power to make laws. Subject to a few exceptions, the assembly may legislate upon subjects contained in the State List or the Concurrent List of the Seventh Schedule to the Indian Constitution. Entry One of the Concurrent List (which contains subjects with respect to which both the central and the state government may legislate) refers to “criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution.” The upshot of this is that the Delhi legislative assembly may pass laws upon matters listed in the IPC. One such matter is “carnal intercourse against the order of nature”, presently criminalised under Section 377 of the IPC.

The presence of Section 377, however, raises the following question: to what extent is the AAP constrained by already existing criminal law? What if a state legislature was to pass a law that directly contravened the provisions of the Indian Penal Code, which is a central legislation? For instance, suppose that a state legislature decriminalised theft. More broadly, what would happen in situations where the central and state governments both have the competence to pass a law, but end up passing laws directly opposed to each other? It is here that the doctrine of repugnance steps in.

What does “repugnance” mean? According to the Supreme Court of India, three conditions must be fulfilled for repugnance to arise. First, there must be a “clear and direct inconsistency between the Central and the State Act”; secondly, this inconsistency must be “absolutely irreconcilable”; and thirdly, the inconsistency must “bring the two Acts into direct collision with each other, [so that] a situation is reached where it is impossible to obey one without disobeying the other.” The reason for such a stringent standard is that the Supreme Court will not lightly invalidate a law that is the result of democratic deliberation by the elected representatives of the people.

In this context, Section 377 occupies a peculiar position. As the text reproduced earlier notes, Section 377 does not explicitly criminalise homosexuality, instead proscribing "carnal intercourse against the order of nature".  In its judgment upholding the constitutionality of the Section, the Supreme Court expressly refused to define what acts constitute “carnal intercourse against the order of nature”, holding instead that such a determination would be made on a case to case basis (it remains a different fact that the Section is selectively enforced, both in terms of persecution and prosecution, against members of the LGBT community).

Furthermore, a few months after the decision in Koushal vs Naz, the Supreme Court undermined the foundations of that very judgment in a subsequent case called NALSA vs Union of India, where it upheld and protected the rights of the transgender community. In that case, the Supreme Court noted that free expression of one’s sexual identity was a guaranteed right under the Constitution. The judgments in Koushal and NALSA are in an uneasy tension with each other, and it seems that the only way of reconciling them is by arguing that NALSA removed the criminalisation of mere sexual identity from the ambit of Section 377.

The way out

This should make it clear that homosexuality is not a defined offence under the IPC and that, furthermore, the Supreme Court’s own jurisprudence suggests that it does not fall within the scope of Section 377. So what if the Delhi legislative assembly was to append an Explanation to Section 377? What if this new Explanation would read: “For the removal of doubts, it is clarified that sexual intercourse between consenting adults does not constitute carnal intercourse against the order of nature”? This new Explanation, which specifically decriminalises homosexuality, would not be “clearly and directly inconsistent” with the rest of Section 377, because Section 377 is silent upon the status of homosexuality. There is no collision, and it is entirely possible to obey both Section 377 and its new Explanation.

A little over a year ago, the Aam Aadmi Party issued an official statement expressing disappointment with the judgment of the Supreme Court in Koushal vs Naz. It labeled Section 377 as a violation of human rights, and expressed the hope that Parliament would intervene to repeal this archaic law. The Aam Aadmi Party is now ruling in Delhi. It has the legal and constitutional power to do (for Delhi) exactly what it asked Parliament to do last year. Its own manifesto guarantees the protection of minority communities against marginalisation. We hope that the AAP will fulfil the promise of its manifesto, and take a first step by decriminalising same-sex intercourse between consenting adults.