The Supreme Court has set aside the Delhi High Court judgment in the Naz Foundation case of 2009 on Section 377 of the Indian Penal Code (IPC) and upheld its Constitutional validity. By doing so it has committed a serious blunder.
It has not only ignored previous and related judgments of the Supreme Court but at the same time, has turned into criminals millions of adults who engage in consensual sex in the privacy of their own homes.
The Delhi High Court had found that to the extent Section 377 criminalises consensual sex between adults in private, it violates Articles 14 (equality and discrimination), 15 (discrimination on the prohibited ground of sex, which includes sexual orientation) and 21 (privacy, dignity and health) of the Constitution.
Section 377 penalises the so-called “unnatural sex” and provides that, “whoever voluntarily has carnal intercourse against the order of nature.” For the British who enacted this law in 1860, sexual intercourse was meant for begetting children. Sex for pleasure was a sin in Victorian morality, which is reflected in this law. Therefore, it was only penile-vaginal sex which was within the ‘order of nature’ and legal. Other sexual practices, involving penile penetration, including penile non-vaginal penetrative sex, was against the order of nature and criminalised. Our courts have also interpreted in this fashion. Section 377 provides for punishment with imprisonment up to 10 years or life and fine for engaging in practices against the ‘order of nature.’
It is important to realise that as is evident from the text of Section 377 itself, it applies to all persons irrespective of their sexual orientation, whether hetero-sexual, lesbian, bisexual, gay, transgender or inter-sex (LGBTI).
However, the law has hardly been used against heterosexuals. As penile non-vaginal sex is associated with the gay community, it is they who have been its target, and by association, the LGBTI communities as a whole. They have been subject to sexual assault, harassment, blackmail and extortion by the police, family members and neighbours. Their private lives are always on the edge of criminality. They are not treated as full citizens in their own country. This is where the Delhi High Court stepped in.
After decades of criminalisation, for the first time, in their personal lives, like every one else in this country, the LGBTI communities became entitled to fundamental rights. This had a positive effect on them. As they tasted freedom, they came out of the closet and started leading normal lives. That is why the high court judgment was seen as path-breaking. But the victory was not only for the LGBTI communities. It was also for the whole country. After the judgment, nobody’s sex lives could be subject to police intrusion. It was one’s private matter.
The Supreme Court has, by its verdict, recriminalised the private lives of all of us, more particularly the LGBTI communities, whose core sexual personalities are penile non-vaginal sexual practices. The judgment, delivered by Justice GS Singhvi, does not even consider the major arguments put forth by those who argued to uphold the HC ruling and the reasoning of the high court itself.
The main challenge to Section 377 was that Article 21 of the Constitution protects the right to privacy of persons in their intimate sexual relations. This was based on the jurisprudence developed by the Supreme Court itself. This argument was not considered at all and constituted a serious error in the judgment. The argument that in Article 15, the expression “sex”, which is a prohibited ground of discrimination, includes sexual orientation or “gender”, and therefore Sec 377 violates Article 15, was also not considered by the Supreme Court.
The argument on Article 14, that the law was used in a discriminatory manner against the LGBTI communities, was not considered properly. It has to be appreciated that discrimination under our Constitution (Article 14) is understood as, `equals can claim equality and need to be treated equally.’ However, discrimination in respect of unequals can be sustained by the State, under the doctrine of classification, on the consideration of two aspects. One, that any distinction of group into two classes (heterosexuals and LGBTI communities) is based on rational and objective grounds. The second is that the distinction has a relationship to the object of the law. The SC considered only the first aspect while the second aspect of argument relating to Article 14 was ignored.
The Supreme Court told the LCBTI communities that they are not entitled to fundamental rights because they are a minuscule minority.’ This was not the contention of any of the parties. The position in Constitutional law is clear that even if one person is discriminated against under the law, the law is liable to be struck down.
The main ground that the apex court has set aside the judgment of the high court is that courts should exercise restraint while striking down a law which is presumed to be Constitutionally valid.’ The first point about judicial restraint is strange. The Supreme Court, the most activist court in the world, is the only court globally that has assumed powers by interpretation to strike down Constitutional amendments.
Not only that, the same court has repeatedly intervened on policy issues (the 2G case) and on relatively trivial issues (the red beacon case). On the second issue, it needs to be noted that in this case, the Delhi Hígh Court had held that the law was partially unconstitutional. The Government of India, which has to defend the Constitutionality of a law, agreed with the high court and did not file an appeal. Therefore, the question of presumption does not arise at all. SC struck down the HC ruling without affording cogent reasoning or logic.
In the present case, the immediate impact of the law is that the private lives of millions of people are criminalised by the judgment. That is why the present judgment will go down in history as a blunder of historic proportions, greater than that of the Emergency.
The government has filed a review petition. Other parties are also going to file them. Mistakes of the Supreme Court can be corrected by review and curative petitions. Hopefully the top court will exercise the jurisdiction of review and curative process.
(The writer, a senior advocate of Supreme Court, is Director of Lawyers Collective and the UN Special Rapporteur on the Right to Health)
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