Getting there

On 11th December 2013, the Supreme Court bench comprising of Justice G. S. Singhvi and Justice S. J. Mukhopadhyay delivered a regressive verdict on the subject of constitutionality of S. 377 of the Indian Penal Code, 1860 by upholding its validity, which criminalizes consensual, adult sexual relations between persons of the same sex. The Supreme Court pronounced its verdict after 21 months, in appeal against the Delhi HC’s 2009 judgment in NAZ Foundation v. Government of NCT & Ors., which famously confirmed the constitutionally-protected rights of LGBT Indians and developed an entire realm of jurisprudence on subjects of minority rights, individual liberty, Constitutional morality, privacy, the State’s burden in satisfying a compelling interest for abridgment of life and liberty, substantive due process and Equality.

To appreciate the Court’s opinion, we shall look at all the subjects explored by it in the following parts:

I)                   Scope of Judicial Review(Pages 46-62):

While the Supreme Court recognizes that it is vested with unqualified and absolute authority to declare a law to be unconstitutional, it puts forward the argument of judicial restraint in deference of the principle of separation of powers to tread cautiously in this case. This is all the more disturbing since the Courts have consistently demonstrated judicial activism in an unbridled trend to protect and promote fundamental rights in relation to the environment, expanding the access to justice, human dignity, employment, hunger, education and reproductive rights, amongst others. The Court cites precedents which precisely give credence to NAZ’s arguments in favour of reading down S. 377 to exclude consensual, sexual relations between same sex persons when it recognizes that changing times and progressive, social mores illuminate later generations to the oppressive nature of our past laws (Anuj Garg, 2008), while confounding the public by not disclosing its reasons for disregarding such compelling arguments.

II)                Analysis on S. 377, IPC 1860 (Pages 62-77):

While the Court opined that it has merely expressed its view on the legal validity of the judgment of the Delhi HC in 2009, and not on the constitutional validity of S. 377 per se, the materials referred to in arriving at such opinion reveals the Court’s homophobia and transphobia, and how it has translated into the verdict in a disingenuous manner. For the purposes of demystifying the legislative history of S. 377, the Court relies on 2 provision of the penal code, one of them on rape (S. 375) and the other being S. 377 for no apparent reason, thus conflating the nature of homosexual and transgender sexual relations with rape. This notion is further exacerbated with extensive reference to precedents on S. 377 from the late 19^th to early 20^th century, which characterize all same-sex sexual relations as violent and “deviant/perverse”, reinforcing fear and loathing against sexual minorities.

The Court’s selective research on the subject overlooks important materials which also inform the social, cultural and legislative history of S. 377, which were held in great regard by the Delhi HC. The Wolfenden Committee Report, 1957 in Britain lead to the abolition of anti-sodomy law in 1967; an integral historical event that the Supreme Court of India couldn’t have inadvertently overlooked but for its apathy towards sexual minorities, given the Victorian-era origin of S. 377. The 172^nd Report of the Law Commission of India (2000) recommended deletion of S. 377 on the precise understanding that it operates to persecute sexual minorities.

By its own admission, the Court expresses that “it is difficult to prepare a list of acts which would be covered by the section”, and nevertheless holds that S. 377 would apply “irrespective of age and consent”. Importantly, it states that S. 377 “does not criminalize a particular people or identity or orientation”, rather punishes certain acts (penile non-vaginal sex). S. 377 returns back in greater rigour as not only does it disregard age and consent of persons engaged in sexual relations, but also applies to heterosexual couples now, which renders all persons at risk of prosecution or harassment by their neighbours and police on suspicion of partaking in “carnal intercourse against the order of nature”.

Hijra activist Laxmi Narayan Tripathi at the Jantar Mantar protests against Supreme Court’s 377 verdict

III)              Apparent deficiency of evidence for Constitutional challenge (Pages 77-79):

The Court expressed skepticism on the authority of the Delhi HC in entertaining the challenge to S. 377 by NAZ Foundation, which issue, in fact, is already settled by the Supreme Court order in 2006 which remanded the matter back to the Delhi HC for “serious considerations”.

On the issue of insufficiency of materials on record to illustrate the patent unconstitutionality of S. 377 in targeting homosexual and transgender persons, the Court simply overlooks all the materials appreciated by the Delhi HC in terms of academic studies, surveys, reports, international jurisprudence and personal affidavits from LGBTI community members and healthcare experts that bore testimony to the personal struggles of the people by bringing to light the violence, stigma, discrimination and harassment faced by the community, dispossession by families and societies, sexuality, mental health concerns for persecuted individuals et cetera. The Court also entirely disregarded the data on health presented by NACO, which emphasized on the dire needs for access to healthcare services for sexual minorities, and the success achieved over the years in reducing the prevalence of HIV as a result of advocating an integrationist policy. It maintains a conspiracy of silence on the times and climate around which the original petition came to be filed by NAZ, when organizations working on healthcare for sexual minorities were hounded by the police, and directly contributes to the silencing of material on record presented by the Respondents.

IV)              Article 14 (Equality and Equal Treatment) and Article 15 (Freedom from discrimination) (Pages 79-85):

The judgment does a great disservice to the institution of the Supreme Court and the relevance of the debate on S. 377 by merely explaining away the intelligible differentia in S. 377 as “carnal intercourse in the ordinary course and carnal intercourse against the order of nature” as constituting different classes. The reasonable nexus between such classification of sexual activity with the object sought to be achieved by the penal statute is again explained away merely as ‘crime and punishment’, in that it seeks to criminalize carnal intercourse against the order of nature, regardless of the fact that the comprehension of such sexual activity is riddled with patent ambiguity and arbitrariness.

Again, recognizing the boundless sea of uncertainty and the probability of misuse of law to the detriment of an individual which has impelled the Court in the past to strike down a law or read it down (K.A. Abbas, 1970), especially in light of the Court’s own observation in this case where it characterizes S. 377 as difficult to construe due to its heavy reliance on the circumstances of a case, the Court simply rules against a violation on grounds of Article 14 without precise reasons. An entire repository of jurisprudence on Article 15 argued by NAZ and expounded affirmatively by the Delhi HC is conspicuous by its absence, which in the least affirms the opinion that the Delhi HC’s observation on sexual orientation as an analogous concept to sex under Article 15 still stands.

Pertinent to note is the Court’s characterization of the queer community in vague terms such as a ‘miniscule fraction’ of the population, shrewdly avoiding using the clearest and legal term as is appropriate in cases where dominant-group interests conflict with individuals or secondary groups: minority. The Court does not once express recognition of LGBTI persons as a ‘minority’, clearly avoiding the trigger of minority-rights jurisprudence well expounded in NAZ (2009) and Anuj Garg (2007). The verdict and the Supreme Court stand as morally and intellectually dishonest in this light.

V)                Article 21 (Right to Life and Liberty) & International Jurisprudence (Pages 85-97):

The Court recognizes that substantive due process has been read into Article 21 of the Constitution by way of Maneka Gandhi, which mandates that the State shall satisfy its burden of demonstrating a compelling State-interest before it can invade into and curtail individual rights, but despite this observation the Court fails to recognize that criminalization of ‘penile non-vaginal sex’ serves no compelling State-interest and is in violation of the right to due process of law.

The Court also makes disturbing remarks about disregarding foreign jurisprudence for applicability in India when it came to appreciating international developments on LGBTI-rights, ignoring that the fundamental Right to Privacy has been culled out from reading foreign jurisprudence into Article 21 of the Constitution of India, right from Kharak Singh (1964), Gobind (1975), Maneka Gandhi (1978) and upto Selvi (2010). The Court’s duplicity is illustrated by its attempt to co-opt the large body of Indian jurisprudence developed to serve human rights of all persons, by emphasizing adverse observations disproportionately to defend its position on S. 377. This is evidenced by clear non-application of judicial thought to Gobind which affirmed that the privacy of the home is sought to be protected by State-intrusion to allow individuals their freedom of expression, howsoever diverse they maybe, which is appropriately applicable to sexual minorities.

The Court defends S. 377 on the grounds that the legislative intent doesn’t sanction persecution of LGBT persons, and misuse by law enforcement agencies does not invite any challenge to the constitutionality of the law itself. This analysis is in direct violation of the Supreme Courts’ own observation in R.C. Cooper (1970) which held that regardless of legislative intent (criminalization of penile non-vaginal sex), if a law directly and inevitably has an adverse effect on a domain it does not intend to regulate (sexual orientation, privacy, public health), the law must be struck down as violative of the Constitution for abridgment of fundamental rights.

Article 21 of the Constitution has been consistently read affirmatively to privilege and expand on the idea of liberty, not its curtailment. Fundamentally, the Court errs in forsaking its duty to protect fundamental rights of its people by creating a wall of hyper-technicality, isolating itself further from the people it is meant to protect and serve.