Dhananjay Mahapatra,TNN | Dec 12, 2013,
The bench of Justices Singhvi and S J Mukhopadhaya reversed the Delhi HC’s 2009 verdict and held that the 150-year-old Section 377, criminalizing gay sex, “does not suffer from the vice of unconstitutionality”. The judgment would turn the clock back, and was being viewed in India and globally as a retrograde step. The possibility of police harassment of homosexuals could no longer be ruled out.
The bench said: “In the light of plain meaning and legislative history of the section, we hold that Section 377 IPC would apply irrespective of age and consent.” It added that the section does not discriminate any group with a particular sexual preference, a stand that was diametrically opposite to that by the Delhi HC.
“It is relevant to mention here 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,” Justices Singhvi said.
A crowd of gay activists, quite a few of whom were in advocate’s uniform, had waited inside a packed Court room No.1 in expectation of a positive verdict. At 10.30 am, Justice G S Singhvi, for whom it was the last day in office, sat with Chief Justice P Sathasivam (as is the tradition of honouring a judge on his last day).Three minutes later, Singhvi finished reading the concluding part of the 98-page judgment, and pronounced that the SC was overturning the HC verdict. Smiles turned into despair. A few of the activists cried loudly.
Mukhopadhaya said, adding “the said section does not suffer from any constitutional infirmity”. However, a clarification followed. The judges said, “Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General.”
The AG, G E Vahanvati, had argued that a Group of Ministers, which looked into the issue relating to constitutionality of Section 377 IPC, has recommended that there was no error in the HC order – in other words, the government didn’t have a problem with the decriminalisation of gay sex – but the SC could take a final view.
Vahanvati had also said: “The declaration granted by the high court may not result in deletion of Section 377 IPC from the statute book, but a proviso (exception) would have to be added to clarify that nothing contained therein shall apply to any sexual activity between two consenting adults in private.” He had also stressed that the “court must take cognizance of the changing social values and reject the moral views prevalent in Britain in the 18th century.”
The court said though the Law Commission of Indian in its 172nd report recommended deletion of Section 377 and that the Centre has chosen not to challenge the Delhi HC verdict, “Parliament, which is undisputedly the representative body of the people of India, has not thought it proper to delete the provision.” Parliament has not amended the law either, it added.
Section 377 of the Indian Penal Code, enacted by British 153 years ago in 1860, terms consensual anal sex an “unnatural offence” and provides punishment equivalent to that for the offence of rape under Section 376. It even outlaws oral sex between man and woman, while holding that only penile-vaginal sex was not “against the order of nature”.
It says: “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 of either description for a term which may extend to 10 years, and shall also be liable to fine.” It also explains that “penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
Allowing the appeals against the HC verdict, filed by a host of organizations whose arguments were tinged with religion-guided views, the bench upheld the constitutional validity of Section 377.
On July 2, 2009, the HC division bench of then Chief Justice A P Shah and Justice S Muralidhar had declared “Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21 (right to life), 14 (right to equality), and 15 (non-discrimination on grounds of sex and gender) of the Constitution.”
But the Supreme Court said Naz Foundation, on whose petition the HC had given the ruling, had “miserably failed to furnish particulars of the incidents of discriminatory attitude exhibited by the state agencies towards sexual minorities and consequential denial of basic human rights to them.”
“While reading down Section 377, the division bench of the HC overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or trans-genders and in the last more than 150 years less that 200 persons have been prosecuted for committing offence under Section 377 IPC and this cannot be made a sound basis for declaring the section ultra vires (violative of) the provisions of Articles 14, 15 and 21 of the Constitution,” the apex court said.
This paper has consistently supported the decriminalization of consensual gay sex between adults. We wholeheartedly welcomed the Delhi high court’s decision in 2009 to amend Section 377 of the IPC as 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 of Wednesday all the more regressive. It brings back a discriminatory law that was created over 150 years ago by our colonial masters.
It deals a body blow to the very idea of individual choice. It re-criminalizes homosexuality, which carries a maximum jail sentence of life, and 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 government and our political parties need to correct this injustice. Over the past couple of years, the UPA has time and again criticized the courts for “judicial over-reach” and for invading executive and legislative turf; but such activism is due, at least in part, to our MPs and MLAs not doing their main job, which is to legislate. An amendment of 377 is something Parliament should have done on its own a long time ago; now that the SC has said it’s for the “competent legislature” to take a call, it shouldn’t waste any more time. From an electoral point of view, the LGBT community should be worth wooing for any socially liberal political party, given the ballpark estimate that about 7-13% of India’s adult population is gay. Whichever party moves first will almost certainly have the loyalty of this vote bank; it’ll also be doing the right thing.