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