Section 377: The contours of a ruling
A court that does not trust the political class has left it to the legislature to hold up gay rights
On his last day at the Supreme Court, Justice Ganpat Singhvi has issued an astounding verdict that severely undermines civil liberties. The verdict in the Naz case reinstates the outrageous Section 377 of the Indian penal code, which criminalises gay sex. In 2009, Justices Shah and Muralidhar had ruled that the section went against Indian constitution’s provisions of equality and dignity.
That 2009 verdict was, in fact, in line with the constitution, offering the protection of fundamental rights to a group of people who were in a minority and denied their rights in the past. They were denied equal protection under the law, and their dignity was violated, both of which are clear infringements of Article 14 and 21 of the constitution.
Far from being activist, the Delhi high court was being strictly constitutionalist, by affirming the constitution’s letter and intent. In effect, the Supreme Court has now curtailed the power of any court in India to strike down any law on constitutional grounds and altered an excellent judgment that expanded civil liberties in India. The judgment sends India’s civil rights jurisprudence straight into the colonial era—when Indians did not rule India, and it did not have a constitution drafted by Indians.
To suggest that judicial restraint is an important precedent is a diversionary argument. In any case, judicial restraint has hardly been the hallmark of Indian courts, which have developed a fine reputation of activism, particularly with regard to extending protection for fundamental rights.
The judicial remedy now available is the review. But the review would go to the same bench, which can rule against reviewing its own judgment. In Singhvi’s absence, another judge will join Justice Mukhopadhyaya. The application for the review need not be made only by the petitioners; the government itself can do so, since the ministry of home affairs filed an affidavit before the Supreme Court in support of decriminalizing gay sex. And so can President Pranab Mukherjee, using his power of presidential reference.
In fact, the President has just delivered his eulogy for Nelson Mandela, a man who was denied his freedom by unjust laws, and who inspired him. Civil rights struggles should be fresh in his mind. He should recall how South Africa’s post-apartheid constitution not only threw away colonial-era laws that criminalized homosexuality; it made discrimination on grounds of sexual orientation illegal.
If the Supreme Court’s intent is to suggest that legislature should pass laws to overturn Section 377 (and not the court itself), then it shows the court abdicating its responsibility. The court itself does not trust this political class—after all, this Supreme Court ruled that politicians convicted of crimes may not stand for elections and should be disqualified. That provision was meant to protect the rights of freedom fighters, who had often gone to jail for extended periods, during India’s freedom struggle. In Independent India, that provision increasingly became irrelevant, and allowed politicians facing criminal charges to continue to be parliamentarians or legislators. The court did not act with judicial restraint then. And yet, it now entrusts the fragile rights of a minority under attack from religious obscurantists and social busybodies in the hands of the same politicians who have shown no urgency to fix the problem. (A Bharatiya Janata Party spokesman reportedly said: “I don’t talk about such things, Shiva Shiva” and laughed, when a TV network asked him for his reaction.) It is in such a climate that this minority had sought protection from the court, and the court has turned them down.
While the context is vastly different, the effect of the judgment is similar to what happened in the US in the infamous Dred Scott (http://www.pbs.org/wgbh/aia/part4/4h2933.html) case. Scott was a slave who sued for his freedom and that of his wife and two daughters in 1857. While they were slaves, they had lived with his masters in states where slavery was illegal. But the US Supreme Court ruled, 7-2 against Scott, saying neither he nor anyone of African origin could claim US citizenship, and therefore, on procedural grounds, Scott could not bring the case before the federal court. Today, legal scholars in the US consider it a dreadful judgment—it led to outrage in the US, and after the civil war, and the adaptation of the 13th and 14th amendment, the judgment effectively got overturned. Just as Scott was told by a court that it could not help him, and that he’d have no choice but to return to slavery—or, in effect, leave the country—gays and lesbians in India are in effect being told by the Supreme Court that they are less than equal citizens and maybe they should leave the country. Those may not be the judge’s words, but such is its demoralizing effect.
By ‘recriminalizing’ gay sex, the Indian Supreme Court has gone against reason, indeed, against the order of nature, and against the principle of equality and non-discrimination. The Supreme Court is meant to act as a check against perverse and insane majorities which override reason and rights and impose their view on minorities. Legislatures are beholden to people power, which means, the power of those who can shout the loudest. Sometimes, that vociferous lot could represent the majority too; but that’s the surest way to trample any minority’s rights. In a democracy, majority does prevail over minority, but not when the fundamental rights of the minority are at stake.
This is all the more depressing because Indian courts often step beyond their role under judicial restraint. Recent rape trials, including marital rape allegations, have shown judges taking on the role of marriage counsellors, and trying to broker “peace” between couples when the woman seeks to protect her rights. Other trials have shown courts intervening to usurp powers of municipalities, legislatures, bureaucracies, and elected officials to pass directives on prices and subsidies, and even rule on traffic regulations. And now the same court suddenly finds that it can’t act to protect two people who love differently, and if the police harass and arrest them, tough luck, because it was a criminal act during Queen Victoria’s time. Today, the Queen is dead; Britannia allows gay marriage, the US Supreme Court overrules the Defense of Marriage Act, but India’s Supreme Court embraces a disgraceful penal code designed to ensure that the natives must not get restless and do unmentionable stuff. If the judgment of Justices Shah and Muralidhar brought India into the 21st century, the Supreme Court has today pulled the country back 150 years.
The judgment panders to India’s worst constituencies—politicians who snigger while discussing homosexuality in public, and assorted babas who claim they can “cure” people of homosexuality. It is fashionable to decry Indian liberals as Macaulayites, and Indian conservatives as defenders of Indian culture. In fact, the Indian Penal Code owes its origin to Thomas Babington Macaulay, and to that extent, it is India’s conservatives who are the original Macaulayites here, miles away from the liberal, liberated, permissive, and tolerant culture that prevailed in India during its “golden age” they claim to defend but which they do not understand.
The road ahead won’t be easy. If the judicial review does not work, and if President Mukherjee does not seek presidential reference, then there is a remedy possible—a curative petition. But lawyers believe its chances of success are minimal, unless gross injustice can be demonstrated.
That is why if parliamentarians want to do something right in the remaining life of this parliament, they should pass the necessary laws immediately in the winter session of the Lok Sabha and overturn Section 377. The ultimate protector of India’s civil rights has finally pushed us to such a thin wedge.