The recriminalisation of humanity

I checked the morning news from India and felt my blood rush through my ears. One had heard about a less than enthusiastic bench, but the headline `Homosexuality illegal: SC´ managed to shock me nonetheless. A large part of humanity was condemned for the victimless crime of not suppressing their sexuality. Section 377 of the Indian Penal Code, 1860 was held to be legal in its undiluted interpretation.

Impactful as the headline was, it was not accurate. Section 377 does not criminalise only homosexuality, but more generally, any “carnal intercourse against the order of nature”. Depending on how one interprets these words, as suggested in the decision, any non-penovaginal, penetrative sexual activity constitutes an offence punishable with incarceration for as many as ten years, even if it is consensual and between adults. But homosexuals are most likely to be the easiest victims of the verdict.

The decision states that it is for the legislature to change the law, and suggests that it would be a case of judicial overreach should Section 377 be struck down as unconstitutional.

A number of `innovative´ arguments were made by the lawyers, which were upheld by the Delhi High Court in its decision of 2 July 2009. For example, it was argued that the drafters of the Constitution had abolished discrimination on the grounds of “sex”, which was a wider expression than “gender” and included sexuality and sexual orientation. That sexuality and sexual orientation was a fundamental facet of one's identity, and its suppression would be in abrogation of one’s right to life and the freedom of expression, and therefore would be unconstitutionally discriminatory. But there was no nationally binding judicial precedent for these propositions, and they could be subjected to debate. Different from many personal opinions including mine, the Supreme Court bench clearly did not find merit in these arguments, and found no constitutional infirmities in Section 377. This may be its prerogative.

But how does one reconcile the Supreme Court’s decision with the right to privacy? There are a number of precedents – many by larger, constitutional benches of Supreme Court and therefore binding on this one – which uphold the right to privacy as fundamental, and therefore guaranteed as inalienable under the Constitution of India as part of one’s right to life and personal liberty [See: Khatrak Singh v. The State of UP, AIR 1963 SC 1295; Gobind v. State of Madhya Pradesh, AIR 1975 SC 1378]. Yet, the bench found no constitutional infirmity in Section 377, which by its very nature requires the breach of one’s privacy – unless individuals are found having sex in public. While the bench did not spell it out in its own words, it quotes other “authorities” to suggest that such an interpretation of the right to privacy would be tantamount to “transplanting [the] western experience in our country”.

Interestingly, the judges themselves look westward in protecting Section 377, which is a 154-year old relic of Victorian law. The judgment cites US Supreme Court Justices Scalia and Thomas’ dissenting opinions in Lawrence v. Texas, 539 US 558 (2003) that the promotion of a majoritarian sexual majority was a legitimate state interest.  

One is at a loss to find any justification for invoking the “judicial overreach” argument. This is clearly a failure of the Supreme Court in carrying out its constitutional duty under Article 32 to protect the fundamental rights of individuals.

It is bewildering that this particular bench should invoke “judicial overreach”. It was the author of this judgment, who had mandated that auctions were the only legal format for allocating natural resource licenses in the 2G spectrum case, when no legislation did. On that occassion, it was under the guise of protecting the fundamental rights of the people, when none were in question [See: Supreme but not infallible].

This may seem like an argument ad hominem, but the approach of the lead judge in the Section 377 case raises a number of concerns. The arguments of this case were concluded in February 2012, and judgment was reserved in the following month. Yet the verdict was issued today, 21 months later and on the last day in office for the judge before he retired. Was it to leave little or no room for a review petition being entertained? Given that there is little political wherewithal for a debate such as this, has the judge attempted to cement in law a personal prejudice? Perhaps not, but it is a concern.

To a large section of society, like me, the answer is straightforward – Section 377 is unconstitutional. There clearly is another section. Given that the Supreme Court must be beyond suspicion, it should form a constitutional bench of at least 13 Justices (Khatrak Singh v. State of UP was decided by a bench of 7 Justices) to reexamine the issue. If not, the world will continue to revolve and in due course it will be Spring again.