Is Supreme Court Gay sex verdict progressive?

To be not able to love the one you love is to have your life wrenched away and that too for the lame reasons that it is an offence in law which was made in 1860, it runs counter our customs and baseless argument that it is against the order of nature.

The Supreme Court on December 11, 2013 delivered a devastating verdict by criminalizing the ‘consensual’ sexual acts ‘against the order of nature’ in the case of Suresh Kumar Koushal v. Naz Foundation.

This case was an appeal against the visionary judgment of Delhi High Court which decriminalized homosexuality.

The verdict came as cruel blow to lakhs of homosexuals, many of whom had started living together after the Delhi high court verdict four years ago.

The judgment has been condemned to be a retrograde one both domestically and globally.

Section 377 of Indian Penal Code under challenge seeks to punish with imprisonment for life or for a term up to ten years to any person who voluntarily has “carnal intercourse against the order of nature with any man, woman or animal”.

Over the years, the term “against the order of nature” has been interpreted in a manner that includes all penile-non-vaginal sexual acts.From its inception, it criminalises, without mitigation, every penetrative sexual act between two men.

The effect of this discrimination is profound vilification of LGTB community in India. It gives the police one more excuse to harass, extort and jail law-abiding people whose only 'crime' is that they do not conform to the traditional view of sexuality.

The SC in its verdict has left the matter to the Parliament and has said that “the competent legislature shall be free to consider the desirability and propriety of deleting Section 377”.

This stand of Supreme Court has defeated its own precedent in which the court has not waited for the Parliament to amend the law.
Indian judiciary is renowned for its judicial activism and had recently intervened in many legislative matters.

The verdict has defeated the principle of judicial review which is inscribed in our constitution. The Court has the power to invalidate the law which violates our constitution in one way or the other.

Section 377 violates the right to privacy, autonomy and dignity. In the judgment, the court has brushed aside, almost flippantly, each of the core grounds of challenge against Section 377.

Section 377 has been challenged on the ground of violation of Art 14(right to equality), 15(prohibition on discrimination based on sex and gender) and 21(right to life).

The Art 14 of the Indian Constitution guarantees every one right to equality which is only subject to exception of discrimination based on reasonable classification.

Section 377 is a classic case of discrimination. It has the effect of decreeing all gay men criminals, leading to the persecution of a community purely on the basis of its sexual orientation.

The Court said that the Sec 377 is based on reasonable discrimination between those who indulge in ‘carnal intercourse in the ordinary course’ and those who indulge in ‘carnal intercourse against the order of nature’ Therefore, the people falling in later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. The reasoning given by Court is bizarre and moreover, the court has made no concrete efforts in explaining what constitutes ‘against the order of nature’.

Moreover, discriminating on the ground of sexual orientation violates Art 15 of the Constitution as it was rightly held by the Delhi HC that sexual orientation is analogous to ‘sex’ in Art 15.

Justice Singhvi has held that, “Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts, which if committed, would constitute an offence. Such prohibition regulates sexual conduct regardless of gender identity and orientation." Section 377 violates the right of the person of privacy and living life with dignity. The Supreme Court, after much deliberation on the matter, in Gobind v. State of Madhya Pradesh, recognised that the term “personal liberty” in Article 21 included within its ambit a person’s privacy and it cannot be violated unless there are compelling reasons.

The arguments that the Section 377 would help control the spread of AIDS is completely unfounded since it is based on incorrect and wrong notions. The court also ruled that the impression that moral indignation is a valid basis for overriding an individual’s fundamental rights of dignity and privacy was inherently flawed.

If this verdict is sustained, it would be a blow to LGBT communities in India, who will be denied their foundational liberty.

The Supreme Court, in allowing this perversely illegitimate provision to stand, has abdicated its foundational responsibility and struck a hammer blow against India’s constitutional philosophy.

The court must have taken cognizance of changing social values and reject the moral views prevalent 153 years ago.

The verdict of Delhi HC would have helped to shape equality jurisprudence in just and progressive manner. It was progressive and befitting of any modern, democratic society that recognizes the citizenry's fundamental right to personal liberty and equality.

It made India the 115th country to take the guilt out of homosexuality-which is what makes the Supreme Court's judgment all the more regressive. It brings back a discriminatory law that was created over 150 years ago by our colonial masters.

The ruling Congress Party has declared that it will introduce legislation to overturn the law. It would be foolish to expect that Parliament will resolve the matter soon but yet there is some cause for hope: gay rights, which were hardly even discussed in India four years ago, have finally become a political issue. Amendment to law will give an opportunity to usher India into a new era of enriched civil rights.

Ankita Aggarwal