In the morning of 11 December, I was
about to write on economic and political issues that
face India in 2014. Then came the Supreme Court’s
judgement on homosexuality. It is such a disgraceful
verdict in law as well as basic principles of rights
and liberties, that it needs elaborating. Pardon me
therefore for moving away from matters of mammon to
those of people.
I suspect that many readers of BusinessWorld and
other business magazine are not especially aware of
the provision of Section 377 of the Indian Penal
Code which was enacted in 1860 and criminalised
homosexuality. Under ‘Unnatural Offences’, Section
377 stated that whoever “voluntarily has carnal
intercourse against the order of nature with any
man, woman or animal, shall be punished with
imprisonment for life, or with imprisonment... for
[a] term which may extend to ten years, and shall
also be liable to fine”.
This provision was overturned by a brilliant
judgement of the Division Bench of Delhi High Court
in 2009, invoking constitutional tenets of
non-discrimination, equality before law and the
right to personal liberty. Naturally, a number of
reactionary groups appealed against this to the
Supreme Court.
On 11 December, after hearing the case, a two-member
bench comprising G.S. Singhvi (who retired that very
day, obviously fatigued by concocting such a
horrendous verdict) and S.J. Mukhopadhyaya set aside
the Delhi High Court’s 2009 judgement which had de-criminalised
gay sex among consenting adults. In the second
decade of the 21st century, the decree is as
shockingly bizarre as it is overtly convenient. Read
on as I refer to an excellent critique, namely ‘The
Unbearable Wrongness of Koushal versus Naz
Foundation’ (http://indconlawphil.wordpress.com/2013/12/11).
Article 14 of the Constitution states “The State
shall not deny to any person equality before the law
or the equal protection of the laws within the
territory of India.” Article 15 states “The State
shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of
birth or any of them.” And Article 21 states that
“No person shall be deprived of his life or personal
liberty except according to procedure established by
law.”
The Delhi High Court judgement used these to
overturn Section 377. It had found no correlation
between homosexuality and AIDS or public health, nor
any issue of public morality. Hence, it argued that
the State had no case for negatively discriminating
against homosexuality under section 377, and that it
contravened Article 14.
It also argued that ‘sexual orientation’ was within
the domain of the word ‘sex’ in Article 15. Here
too, there was no case for bias. And ‘personal
liberty’ under Article 21 encompassed the right to
privacy. Therefore, consenting sexual acts within
the realm of privacy, be these heterosexual or
homosexual, could not be restricted without a
compelling interest of the State — which there was
none. So the High Court judgement freed lesbians,
gays, bisexuals and transgendered people from
criminality.
Until 11 December when the two-member bench argued
in the most disingenuous manner that there was
nothing in Section 377 which was ultra vires of the
Constitution; and then under the convenient guise of
separation of powers stated that since 377 was not
beyond the pale of the Constitution, remedial
action, if any, had to come from the legislature
repealing this section — not the judiciary.
The arguments are bizarre. Two examples prove the
point. The first is in paragraph 42 (pages 82-83),
and I quote: “Those who indulge in carnal
intercourse in the ordinary course and those who
indulge... against the order of nature constitute
different classes and the people falling in the
latter category cannot claim that Section 377
suffers from the vice of arbitrariness and
irrational classification... Therefore, the High
Court was not right in declaring Section 377 IPC
ultra vires Articles 14 and 15 of the Constitution.”
Thus, A and B having a consensually gay sexual
relationship is a wholly different matter from C and
D having a heterosexual one. So distinctive that the
former couple is liable for imprisonment while the
latter can freely enjoy post-coital champagne.
Here’s the other, in paragraph 43: “the Division
Bench of the High Court overlooked that a miniscule
fraction of the country’s population constitute
lesbians, gays, bisexuals or transgenders and in
last more than 150 years less than 200 persons have
been prosecuted (as per the reported orders) for
committing offence under Section 377... [Thus] this
cannot be made sound basis for declaring that
section ultra vires the provisions of Articles 14,
15 and 21 of the Constitution.”
To suggest that 377 is not ultra vires because the
proportion of LGBTs is miniscule and that less than
200 such people have been prosecuted is not a
logical deduction.
A bench hearing a review petition is unlikely to
overturn this order, because Supreme Court judges
rarely turn upon their peers. The BJP has lauded
this nonsense. And in the backdrop of the recent
defeats, can Sonia or Rahul Gandhi stick their necks
out? So, we return to the dark ages. Yet, fight we
must. Happy New Year.
Published: Business World, January 2014