BackSection 377: India turns back the clock
The Indian judiciary's sudden coyness is inexplicable
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When one of my closest friends told his father, then a Supreme Court judge, that he was gay, there was celebration at home. The father had spent his career and life upholding the Constitution, standing up for truth, justice and the principle of equality. His son was now coming out as gay. It was an act of incredible courage and honesty and he decided it was worthy of celebration.
I met my friend, who happens to be a lawyer, on the day the Supreme Court decided to recriminalize Section 377 four years after the Delhi high court decriminalized it. He was crestfallen. Somebody else who was also present scoffed: “What are you upset about? You are part of the elite. Nobody is going to arrest you." The point, he replied, was not whether he was going to be arrested or harassed as so many gay people in this country are. The point was that India’s highest court was denying him the right to lead an honest life.
I’m not going to get into the debate on whether homosexuality is against the cultural ethos of this country or not. I don’t care whether it has sanction in religion or not. It doesn’t bother me that the Supreme Court’s 11 December verdict makes us look regressive and silly in the eyes of the world. These are irrelevant questions.
To me the only questions that matter are these:
First, how do we now view the Supreme Court as an upholder of human rights? And whose rights are these anyway? Who do they apply to? Do minorities, including sexual minorities, have lesser rights in our country?
The Indian Constitution proclaims equality and freedom from discrimination for all our citizens, regardless of gender, religion, caste or sexual orientation. In 1860, our British rulers enacted Section 377 that makes “carnal intercourse against the nature" illegal. The Constitution did not exist. And independent India was a dream whose time had not yet come.
Over 150 years later, the world has changed. The idea that human rights must embrace every last citizen now finds global appeal. In India, that idea now resonates among womens’ groups, Dalit groups and other minority groups that are battling entrenched interests. Lesbians, homosexuals, transgenders and bisexuals are not asking for special rights. They merely seek their right to equality to not be criminalized for being who they are.
Second, what is section 377 and how do we define this notion of what is “against the order of nature"?
If the idea of sex in its pure, utilitarian concept is procreation, then any sex for pleasure goes against the order of nature. Section 377, far from being a section that mitigates against homosexual men—though admittedly it is used against them—strikes against every Indian who does not practise sex purely for procreation. Oral sex is against the order of nature. And so is birth control.
Various courts in India have grappled with this question of what is unnatural. In 1934, the Lahore high court ruled that “carnal intercourse with a bullock through nose" attracts penalties under 377. Fair enough. But we also have a 1968 Gujarat high court order that ruled that the “act of putting a male-organ in the mouth of a victim for the purposes of satisfying sexual appetite" was against the order of nature. And in 1969, the Kerala high court found that “committing intercourse between the thighs" is against the order of nature.
Third, what consenting adults do in private is their business. The public interest litigation filed by Naz Foundation, an NGO that works in the area of HIV/AIDS prevention and intervention, was based on this fact and on the fact that criminalizing these private acts between consenting adults was in violation of the principle of equality guaranteed by our Constitution.
In 2009, the Delhi high court upheld this argument and for the past four years, gay men, like my good friend, have lived safe in the knowledge that they are not breaking the law, that there is no contradiction between being gay and remaining good, upright citizens.
Now, a two-judge Supreme Court bench hearing an appeal brought by a Delhi-based astrologer has reversed that principle. In the guise of separation of powers and with the use of such grandiose terms as “judicial over-reach" the judgement places what is essentially a Constitutional question back to Parliament. It asks the legislature to rule on a law that was never framed by it and has no democratic legitimacy in India. It expects the peoples’ representatives, motivated by serving the will of the majority, to step in for minority rights. It deprives every citizen the right to appeal before the highest court, asking for its intervention when fundamental rights are abused or suspended. If the Supreme Court will not step in, who will? The judiciary’s sudden coyness is inexplicable. After all, in the recent past it has not hesitated to rule on a range of subjects from the criminalization of politics to the use of red beacon lights on their cars by “VIPs".
But in the four years since the high court judgement, one thing has changed and it is the conversation. The voices against the Supreme Court verdict have emerged strong and loud—and not just from the gay, lesbian and transgender community. A host of Congress leaders, led by United Progressive Alliance chairperson Sonia Gandhi, have reacted against the “archaic and regressive law" that criminalizes gay sex. Attorney general Goolam E. Vahanvati has clarified that the government had not filed an appeal against the high court judgement. The Aam Aadmi Party has asked for a review of the judgement. The Bharatiya Janata Party has backed the Supreme Court decision after initially saying it will elaborate on its views after the government calls for an all-party meeting.
Justice G.S. Singhvi, one of the two Supreme Court judges, had before him a historic opportunity to throw out an outdated law and uphold the values of justice and liberty on which the 2009 high court judgement was based. On the day he demitted office, he chose, however, to reverse that verdict, setting the clock back in a fight for equality and dignity for all.
In April 1976, a five-judge Supreme Court bench delivered what is regarded as its blackest judgement: striking down habeas corpus in A.D.M. Jabalpur versus Shukla . The lone dissenter, justice H.R. Khanna remarked: “Judges are not there simply to decide cases, but to decide them as they think they should be decided."
On 11.12.13, two judges of the Supreme Court by their verdict brought back memories of April 1976. The tragedy was that this time there was no dissenting voice.
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