“SC criminalizes gay sex” was the heating topic to debate last day. Today’s newspapers have printed all those outrages and have created further fuss. Political parties are also outraged, and so is Sonia Gandhi, Chairman of the ruling front. She says “I am disappointed that the Supreme Court reversed the previous Delhi high court ruling on the issue of gay rights. We are proud that our culture has always been an inclusive and tolerant one”. Finance Minister of the country even remarked “What we have done is go back in time to 1860 and I’m terribly disappointed, we must explore ways and means in which this judgement can be reversed very quickly. Legislation is one way to reverse it but that may take time.” Congress Vice-President Rahul Gandhi did not keep mum as usual. He also said “”These matters should be left to individuals, as they are matters of personal freedom,”.
My question to all of those outraged, both those who are lauding the judgment for wrong reasons and those who are abusing the judge “Have you read the Judgment? “ (Read it here) I have asked a dozen people today and except one, none has read it. One who is against gay and lesbian sex, lauds SC judgment as a good decision and the one who are pro-gay-lesbian rights drags Vishnu and Shiva to the debate to establish that Indian culture includes gays and lesbians? Both these extremes responses come from the people who have not read the judgment and they are not likely to read it too.
What is my stand on LGBT community and rights? I have no particular stand on LGBT community. They are humans and should have the rights enjoyed by every other humans. My religion, i.e. Hinduism neither prescribes nor proscribes the homosexual behaviour. The issue before the honourable Supreme court was not whether homosexual behaviour is crime or not, but it was whether the Section 377 of the code is unconstitutional? Since the HC had held the section unconstitutional, the question before SC also was whether the HC‘s decision is right?
Supreme Court on Homosexuality
Most of those who are disappointed with SC judgment yesterday are those who thought that SC has called Homosexuality immoral. But as far as I read the judgment, I could not find SC taking a stand on the issue. At one point, it even says “Section 377 IPC does not criminalize a particular people or identity or orientation”.
SC on constitutionality of Section 377 IPC
The real issue before SC, as I said earlier, is not about the morality of homosexual behaviour, but whether the relevant section of the penal code is unconstitutional or not. Another issue is whether the Court can read it down (strike it down)? These questions are answered not on the basis of sexual morality, but on the basis of precedents before the court.
Article 13 and Section 377
I will reproduce the relevant part of the judgment to let you read why SC does not think that Section 377 violates Right to equality? For those who has no patience to read it fully should read the sentences bolded.
31. From the above noted judgments, the following principles can be culled out: (i) The High Court and Supreme Court of India are empowered to declare as void any law, whether enacted prior to the enactment of the Constitution or after. Such power can be exercised to the extent of inconsistency with the Constitution/contravention of Part III. (ii) There is a presumption of constitutionality in favour of all laws, including pre-Constitutional laws as the Parliament, in its capacity as the representative of the people, is deemed to act for the benefit of the people in light of their needs and the constraints of the Constitution. (iii) The doctrine of severability seeks to ensure that only that portion of the law which is unconstitutional is so declared and the remainder is saved. This doctrine should be applied keeping in mind the scheme and purpose of the law and the intention of the Legislature and should be avoided where the two portions are inextricably mixed with one another. (iv) The court can resort to reading down a law in order to save it from being rendered unconstitutional. But while doing so, it cannot change the essence of the law and create a new law which in its opinion is more desirable.
32. Applying the afore-stated principles to the case in hand, we deem it proper to observe that while the High Court and this Court are empowered to review the constitutionality of Section 377 IPC and strike it down to the extent of its inconsistency with the Constitution, self-restraint must be exercised and the analysis must be guided by the presumption of constitutionality. After the adoption of the IPC in 1950, around 30 amendments have been made to the statute, the most recent being in 2013 which specifically deals with sexual offences, a category to which Section 377 IPC belongs. The 172nd Law Commission Report specifically recommended deletion of that section and the issue has repeatedly come up for debate. However, the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India, has not thought it proper to delete the provision. Such a conclusion is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in the law. While this does not make the law immune from constitutional challenge, it must nonetheless guide our understanding of character, scope, ambit and import.
33. It is, therefore, apposite to say that unless a clear constitutional violation is proved, this Court is not empowered to strike down a law merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose and its need.
So the court is of the view that only if there is a constitutional violation by a law, the court is empowered to strike it down. Then Supreme Court answers whether the section is hit by article 14,15 and 21.
Article 14,15 and Section 377
The Supreme Court does not elaborate much on this aspect, but only says the following
“What Section 377 does is merely to define the particular offence and prescribe punishment for the same which can be awarded if in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty”
Article 21 and Section377
The following observations are made by SC regarding the question whether Section 377 of IPC violates Article 21 of the constitution
51. Respondent No.1 attacked Section 377 IPC on the ground that the same has been used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community. In our opinion, this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section. It might be a relevant factor for the Legislature to consider while judging the desirability of amending Section 377 IPC. The law in this regard has been discussed and clarified succinctly in Sushil Kumar Sharma v. Union of India and Ors. (2005) 6 SCC 281 as follows: “11. It is well settled that mere possibility of abuse of a provision of law does not per se invalidate legislation”
52. In 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. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.
54. We hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.
56. While parting with the case, we would like to make it clear that this Court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity. 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.
After going through the judgment, what I understand is that.
- SC has not criminalized any community or any sexual behaviour.
- SC has only said that the right and duty to legislate lies with legislature, not with the Judiciary.
- There are only a few convictions under Section 377 and most of them are for forced unnatural sex.
- SC has only pronounced on constitutionality of Section 377 and not on the moral question of homosexuality.
Following are my doubts, which I request you to clear.
- Why has not legislature yet amended the Law?
- Why should SC take up the job of legislature?
- Why is this sudden hue and cry about Section 377 which was not there till a decade ago? Were there no homosexuals then?