THE SUPREME COURT BY SETTING ASIDE THE verdict of the Delhi High Court in the Naz Foundation (India) Trust case of 2009 has not only gone against the grain of its own jurisprudence on Fundamental Rights but committed a grave error. In one stroke, it has turned millions of adults in this country who engage in consensual sex in the privacy of their own homes into criminals. The High Court had held that Section 377 of the Indian Penal Code (IPC) violated Articles 14 (equality before law), 15 (prohibition on discrimination on grounds of sex, which includes sexual orientation, religion, race, caste) and 21 (protection of life and personal liberty) of the Constitution to the extent that it criminalises consensual sex between adults in private.
Until the Mughal period, not only was there a plurality of sexualities in Indian society but, more importantly, sexual practices were not criminalised. Section 377, which was introduced in 1860, penalises “unnatural sex” and provides that “whoever voluntarily has carnal intercourse against the order of nature” shall be punished with imprisonment for life, or with imprisonment of either description for a term that may extend up to 10 years, and shall be liable to fine. The explanation states that penetration is sufficient to constitute the offence. The British imposed the then prevailing Victorian sexual mores on Indian soil. Sexual intercourse for the British meant activities that resulted in begetting children and not those meant to derive pleasure. Thus, only penile vaginal sex was considered within the order of nature and penile non-vaginal penetrative sex was against the order of nature. That is how the law has been interpreted by the courts in India for the past 150 years.
It is important to realise that the text of the law does not target the lesbian, gay, transgender, bisexual or intersex (LGBTI) communities directly. Indeed, under the law even a heterosexual couple is liable for imprisonment for engaging, with mutual consent, in penile non-vaginal sex, including penile oral or penile anal sex, in the privacy of their bedrooms.
But the law has hardly been enforced against heterosexuals. The police, family members, neighbours and associates have resorted to sexual assault, harassment, blackmail and extortion of the members of the LGBTI communities. They have been treated virtually as criminals as their sexual behaviour is associated with penile non-vaginal sex. Criminalisation of their personal lives perpetuated prejudice and discrimination, which, in turn diminished their sense of self and self-worth and resulted in their alienation from society. They did not see themselves as full citizens, that is, citizens with all the rights guaranteed in the Constitution. They had to hide the core of their personality to survive. They were relegated to a ghetto in their minds.
It is in this context that the Delhi High Court judgment assumes enormous significance. The court held that consensual sex between two adults in private would not be covered by Section 377. To that extent it “read down” Section 377. For the first time, in their personal lives, the LGBTI communities became entitled to the Fundamental Rights of equality, liberty, privacy, dignity and health.
Not only did the High Court decriminalise the lives of the LGBTI communities, its verdict had a positive effect on them. As the breath of Fundamental Rights wafted into their lives, they came out of their closets and started leading normal lives. No wonder, the High Court judgment has been heralded the world over as path-breaking. But the victory was for all. The state could not any more intrude into the private sphere of two consenting individuals who engage in sexual intercourse.
The Supreme Court’s December 11, 2013, verdict has negated that freedom. It has snatched from everyone of us, and in particular the LGBTI communities, the Fundamental Rights. What, if at all, is the rationale behind the Supreme Court’s verdict?
Unfortunately, the judgment delivered by Justice G.S. Singhvi not only lacks sound reason and logic but it does not even consider the major arguments put forth by those who argued for upholding the High Court’s ruling.
The primary constitutional challenge to Section 377 was based on the interpretation by the Supreme Court itself, namely, that Article 21 protects the right to privacy. It was contended and accepted by the High Court and a large number of superior courts in common law jurisdictions that this right includes intimate sexual relationships between two consenting adults in private. This argument is not considered at all by the Supreme Court, and this is a serious error in the judgment.
Neither is the argument that the expression “sex” in Article 15 includes sexual orientation or “gender”, and, therefore, Section 377 violates Article 15, which found favour with the High Court, considered by the Supreme Court. This is another error.
The argument regarding Article 14 that the law was used in a discriminatory manner against the LGBTI communities also received only a cursory examination from the Supreme Court. It needs to be understood that discrimination under the Constitution (under Article 14) is different from the everyday understanding of it. Basically, equals can claim equality and need to be treated equally. However, discrimination in respect of unequals can be sustained by the state, under the doctrine of classification, on the consideration of two aspects. One, that any distinction of group into two classes (here heterosexuals and LGBTI communities) is based on rational and objective grounds. The second is that the distinction has a relationship to the object of the law. Surprisingly, while the first aspect is considered by the Supreme Court when it holds that there is a rational distinction between carnal intercourse within the order of nature and that against the order of nature, the second aspect, that of the argument regarding Article 14, is simply ignored. This is yet another serious error.
The Supreme Court refuses to accept the argument that the law is directed against the LGBTI communities. First, it does not recognise the LGBTI communities at all as it refers to them as the “so-called LGBTI communities”. This is surprising as the whole world has been using the term LGBTI for decades. Is it a lack of sensitivity towards the marginalised communities or pure disdain? Second, the court finds that the misuse of the law (presumably against the LGBTI communities) is not a ground to strike down the law. It is obvious that the court appreciates that there are such communities as the LGBTI, though it does not recognise them as such. But it does not notice that misuse is inherent in the law, which in effect is directed against the LGBTI communities. The so-called “unnatural sex” forms the core of their private sexual lives. More surprising is that the Supreme Court tells the LGBTI communities that they are not entitled to Fundamental Rights because they are a minuscule minority. If anything characterises India, it is the proliferation of minority communities, including the most obvious ones such as the different sects of Hindus, Jains, Sikhs, Buddhists, Muslims, Christians, not to talk of Parsis and a host of other communities, a large number of non-religious minorities, all minuscule by Indian standards. Can we tell them that they are not entitled to Fundamental Rights because they are a small minority? It is not argued by any one of the parties. What is surprising is that this has come from the Supreme Court itself. The clear and unambiguous position in constitutional law is that even if one person is discriminated against under the law, the law is liable to be struck down.
The Supreme Court has maintained that there are only 200-odd reported judgments on Section 377 in the past 150 years. The implication is that these are not many. The Supreme Court does not notice, and this is self-evident, that the reported cases of the High Court and the Supreme Court are a fraction of the cases prosecuted in the Magistrate’s or Sessions courts and are not taken to the higher courts. In turn, what are prosecuted in the lower courts are a fraction of the cases that do not go to court.
The Supreme Court finds that there is no material brought on record to show how the misuse occurs. The argument is surprising as is evident from the judgment itself. The High Court judgment relies on and quotes from the wealth of material brought on record. This finds mention in the Supreme Court judgment.
The Supreme Court finds that the 200 or so reported cases do not support the case of the original petitioners as they relate to non-consensual sex. First, the Supreme Court ignores that some of them relate to consensual sex. Second, it finds that the law is applicable irrespective of consent. Thus, consensual sex is covered. This issue, as pointed out earlier, is not dealt with at all.
The main ground on which the Supreme Court has set aside the High Court verdict is that a law is presumed to be constitutionally valid and that courts should exercise restraint when striking down a law.
In this case, the High Court had held that the law was partially unconstitutional. The Government of India, which has to defend the constitutionality of a law, agreed with the High Court and did not file an appeal. In the circumstances, the question of presumption does not arise at all.
The Supreme Court’s observation that the High Court should have exercised restraint is strange, coming as it does from a court that is one of the most activist courts in the world. The Supreme Court of India is the only court in the world that has assumed powers by interpretation to strike down constitutional amendments. Not only that, it has repeatedly intervened on policy issues (such as the 2G spectrum scam case) and on relatively trivial issues (such as in the “lal bathi” case restricting the privilege of using the red beacons on government vehicles to only high dignitaries).
As a superior court, it is the duty of the Supreme Court to test the validity of any law on a constitutional basis. And if it finds that the law is unconstitutional, it is its duty to strike it down, unless it can read it down. It has set aside the judgment of the High Court without affording cogent reasoning or logic. It has not dealt with the arguments of the persons supporting the High Court judgment.
The writer Vikram Seth has drawn a parallel to the present case with ADM Jabalpur (infamously known as the Emergency case, or the Habeas Corpus case). I beg to differ. In ADM Jabalpur, the Supreme Court said that in an Emergency, when Fundamental Rights are suspended, it cannot come to the aid a person whose life may be arbitrarily deprived. However, in that case the Supreme Court only declared the law. It did not have any immediate impact on the real lives of people. Pertinently, in that case, the judges who decided the case ultimately accepted their mistake.
In the present case, the immediate impact of the law is that the private lives of millions of people are criminalised by the judgment. That is why the present judgment will go down in history as a blunder of historic proportions, greater than that of the Emergency case. Mistakes of the Supreme Court can be corrected by review and curative petitions. Hopefully, the Supreme Court will exercise the jurisdiction of review and curative process.
Anand Grover is a Senior Advocate practising in the Supreme Court of India, Director of the Lawyers Collective, and United Nations Special Rapporteur on the Right to Health. He and his team were the lawyers for the petitioner, Naz Foundation (India) Trust, in the Delhi High Court and Supreme Court proceedings.
