Consent and Criminality: In the context of Koushal v.

Naz
Many pronounced that the 2009 Delhi HC judgment that essentially decriminalised
homosexuality as indicative of a new era of acceptance of sexual minorities. When this
judgment was overturned by the Supreme Court in Koushal v. Naz in 2013, the outrage from
the LGBT Community and Human Rights activists was immense. It was criticised on the
grounds of being discriminative to homosexuals, and of being a gross violation of
Fundamental as well as basic human rights. This has been the only opinion of the judgment
since then and very little attempt has been made to understand the legal rationale behind it.
While Im personally against S. 377 IPC as it criminalises consensual sodomy, I endorse the
legal arguments laid down in the Koushal judgment. The judgement, to a lay person would
come across as criminalising consensual acts of sodomy between two adults but in actuality it
only reiterates the principle of consent that we as a society have always revered. Of course,
the judiciary could have struck down the law on the basis of unconstitutionality, it instead
chose to tweak it.
What critiques of the judgment do not realise is that by critiquing it, they are inadvertently
saying that the Court is wrong in holding that consensual acts of sodomy would not be
criminal. They should have instead praised it for upholding the principle of consent. This
judgment could have easily been a good precedent for future crusaders of LGBT Rights to
cite and show the Supreme Court that their claim to decriminalise homosexuality is in
consonance with the established legal principle of consent. Sec. 90 and 376 IPC are more
examples of how important consent as a factor is important in determining criminality in
Indian Criminal Law. While the merits of my legal arguments can be questioned, it does not
take away the fact that the LGBT legal movement has come to a temporary halt all because
the legal principle of consent and its connection to criminality was not properly understood.
The only way forward for the LGBT community now would be argue that consent is a
constitutionally recognised principle of determining criminality any other argument would
do more harm to their cause.