Manoj Mitta,TNN | Dec 12, 2013, 02.27 AM IST

NEW DELHI: The last time the Supreme Court hit global headlines was in the Novartis case in April when it raised the bar for patents and made a life saving drug more accessible to cancer patients. The reason this time for making waves around the world could not have been worse. Among the repercussions of its ruling on Wednesday in the Section 377 case is that HIV/AIDS patients among LGBT persons may not any longer be able to access public health facilities without running the risk of being harassed or even arrested.While setting aside a 2009 Delhi high court verdict, the Supreme Court put its imprimatur on, what additional solicitor general Indira Jaising described as, the “medieval mindset” of this colonial vintage provision in the 1860 Indian Penal Code. If the mindset were indeed of the medieval age, it might not have been from India. Consider the graphic depiction of homosexuality in the medieval temples at Konark and Khajuraho. Adding to the irony is the coincidence that the Supreme Court restored the blanket ban on homosexuality just when Britain is set to recognize same-sex marriage.

Thanks to the retrograde decision made by the Supreme Court, India will no more be in the category of liberal democracies which decriminalized homosexuality. It was put in that honorable category barely four years ago by the high court, when it read down Section 377 in such a manner that this criminal provision applied only to non-consensual acts of homosexuality. In the high court’s judgment, Section 377 violated the fundamental rights of LGBT persons unless its ambit was confined to non-consensual sex.

By doing away with the device of reading down the provision, the Supreme Court upheld the constitutionality of Section 377 without any qualification. As a corollary, the police can now book gay persons even for consensual sex and they are liable to severe punishment extending to life imprisonment. After all, the provision expressly penalizes whoever “voluntarily has carnal intercourse against the order of nature”. The religious groups, which appealed against the high court decision and claimed that Section 377 was in tune with Indian culture, have had their way in the apex court.

In the tussle between “public morality” and “constitutional morality”, the Supreme Court tilted the balance in favor of the former. The high court had held a contrary view: “Moral indignation, howsoever strong, is not a valid basis for overriding individuals’

fundamental rights of dignity and privacy. In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.” Though this was the heart of the high court verdict, the Supreme Court glossed over the issue of constitutional morality.

Instead, in its parting observation, the Supreme Court passed the buck to Parliament saying it was “free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same”. In effect, the Supreme Court put this highly sensitive matter in the domain of a popularly elected body which is even less likely to place constitutional morality above public morality. The situation that has ensued is reminiscent of the concern expressed by B R Ambedkar in the Constituent Assembly: “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic.”

Rather than giving due regard to constitutional morality, the Supreme Court held that the high court’s perception of homosexuality had been far too influenced by developments in other countries. “In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High

Court has extensively relied upon the judgments of other jurisdictions,” the Supreme Court said. Though these judgments shed light on the plight of sexual minorities, it said that they could not be “applied blindfolded” for deciding the constitutionality of Section 377.

For all the judicial precedents cited by it, the Supreme Court verdict is sketchy on why Section 377 in its pristine form did not violate any of the fundamental rights. On the face of it, Section 377 is so vaguely worded that even a heterosexual act that deviated from “the order of nature” – penile vaginal intercourse – was liable to attract punishment. Yet, all that the Supreme Court explained was that “while analyzing a provision the vagaries of language must be borne in mind and prior application of the law must be considered.” The message was, don’t go by just the language of the provision but by the manner it has been applied.

This is because the apex court accepted the contention of the religious groups that Section 377 had been sparingly used. It said that the high court had “overlooked that a miniscule fraction of the country’s population” constituted LGBT persons and that in 150 years less than 200 persons had been prosecuted for committing the offence. But then those statistics covered only the cases in which judgments had been delivered. They ignore the larger reality of LGBT persons being prone to moral policing, blackmail and other such misuse of Section 377. Indeed, there is much scope to review this surprisingly ill-thought out judgment.

 

 

Enhanced by Zemanta