IITB candlelight march and analysis of the SC judgement

– An Opinion Editorial by Nivvedan Senthamil Selvan

Editorial board member Nivvedan S reads through a copy of the court’s judgment and provides a detailed analysis.

In a surprising turn of events and a major blow to LGBT rights in India, the Supreme Court of India struck down the landmark 2009 Delhi High Court judgement which decriminalized homosexuality, terming it “legally unsustainable”. The Delhi High Court had previously ruled the colonial law – Section 377 of the Indian Penal Code which punishes “carnal intercourse against the order of nature” – to be unconstitutional insofar as it criminalizes consensual sexual acts between adults in private. The Supreme Court judgement has created a huge uproar over social media where it was met with condemnation, even by ministers in the Government.

Prima facie the judgement does sound absurd and is popularly seen as regressive and a curtailment of individual rights. However, once the 98-page judgement is read through, the Supreme Court is technically correct in some respects and not completely absurd, though some parts of it definitely are.[pullquote]However, once the 98-page judgement is read through, the Supreme Court is technically correct in some respects and NOT completely absurd, though some parts of it definitely are. [/pullquote]The judgement is perhaps not the most stellar work of the Supreme Court, and there are huge gaps left unfilled especially in the reasoning department. Facts and huge quotes from previous judgements are presented, followed by the conclusion leaving most of the reasoning and analysis to the imagination of the reader. I have taken the liberty here to hypothesise the lines of reasoning that could have led from the presented observations to the conclusion drawn.

Background
In 2009, the Delhi High Court read down the Section 377 of the IPC stating that criminalization of consensual sexual acts in private is in violation of Articles 14 (Right to Equality), Article 15 (Protection against Discrimination) and Article 21 (Right to Life and Dignity) of the Indian Constitution. Around 20 petitioners, majorly religious and conservative groups, filed an appeal to the Supreme Court against the High Court verdict. The Supreme Court verdict makes it explicitly clear that it only examined the constitutionality of Section 377 and not whether the law should or shouldn’t be there. The latter is left up to the legislators.

“I’m not against gay people; I’m just against what they do”
The Supreme Court declares that the section 377 is not in violation of articles 14 and 15 on the basis that it does not discriminate a class of people, but merely criminalises certain acts irrespective of who commits the said act, which sounds very much like – “I’m not against gay people; I’m just against what they do”. In my humble opinion, when you prohibit a certain act that is of great interest to a particular community and not others, it does constitute discrimination against that community. A good analogy would perhaps be a law prohibiting mosques. [pullquote]A good analogy would perhaps be a law prohibiting mosques.[/pullquote] In this case, the Supreme Court would have to take the stand that it is only against the act of building a mosque, irrespective of who builds it and therefore the law is not discriminatory against Muslims. When a law prohibits the interests of a particular community, especially an act that forms the essence of the characteristic defining a community, it is absurd to claim that the law is not discriminatory towards that community.

Misuse of the law and harassment by State Machinery
An argument used by the petitioner for the repeal of 377 was that the law is frequently misused and is constantly used by law enforcement to harass LGBT persons. The Supreme Court makes the observation that harassment is not warranted by the law and misuse on the ground doesn’t render the law itself invalid. I found the Supreme Court’s judgement very justified here.

A miniscule minority
The Supreme Court held that the LGBT population in the country is miniscule and less than 200 prosecutions have happened under the law in 150 years, and therefore there is no sound basis in deeming 377 unconstitutional. Firstly, I find the statement very illogical and secondly, it flies right in the face of minority rights. How does the number of prosecutions relate to the constitutional validity of a law? And, how in the name of all that is good and pure, can the Supreme Court say, “It’s a minuscule minority, so I don’t care”?[pullquote]How in the name of all that is good and pure, can the Supreme Court say, “It’s a minuscule minority, so I don’t care”?[/pullquote]

Jurisdictional Relevance
The Supreme Court holds that the Delhi High Court used judgements from foreign jurisdictions to make a case that 377 is unconstitutional. However, they cannot be applied blindfolded in the Indian jurisdiction. This, to me, seems a very reasonable thing to hold.

“Hey! I’m not convinced!”
The Supreme Court reviewed whether the right to Life and Dignity is violated by Section 377, specifically the facets of the right to privacy, the right to bodily autonomy and the right to health. A major premise of the Supreme Court’s conclusion here seems to stem from the presumption of constitutionality – which is to say that a law enacted by legislators is presumed to be constitutional, unless and otherwise proved. The burden of proof falls on those who challenge the constitutionality. The Supreme Court holds that the right to privacy and bodily autonomy can be infringed upon when there is considerable state interest. In the case of the right to bodily autonomy, the court quotes abortion laws where abortions are regulated since the state has considerable interest in preserving the life of the unborn child. However, the court in no way justifies the state interest that Section 377 holds.[pullquote]The court in no way justifies the state interest that Section 377 holds[/pullquote] Personally, I don’t see what possible interest the state could have in the way consenting adults bang in private, justified enough to infringe on their privacy and bodily autonomy – however, the problem is that the burden to prove that there is no state interest rests on the petitioners and the Supreme Court doesn’t seem convinced by their arguments.

The Delhi high court held that Section 377 violates the right to health which is a crucial component of the right to life, by hampering the HIV/AIDS prevention efforts among the LGBT community. Here again, the court wasn’t satisfied with the supporting facts and statistics provided by Naz Foundation and other NGOs working on HIV/AIDS prevention.

I have two problems with this part of the Supreme Court judgement. Firstly, the court seems to have a ridiculously high bar for proof to the point that it seems to be just unconvinced without reason. Secondly, although I’m not sure how burden of proof works here, it seems more logical that, when a lower court has already deemed something unconstitutional, the higher court should prove otherwise instead of just stating “Hey! I’m not convinced!”

A matter of Concern to every citizen
Besides the above arguments as to why I believe the Supreme Court was in error, I have an irrational, desperate need for 377 to be unconstitutional because if the constitution can allow the law to dictate the manner in which two consenting adults may and may not have sex, I would lose all faith in the Indian Constitution and by extension, the country itself. It’s not about gay people and it’s not even about Section 377, but it is about the draconian way in which the court has interpreted our constitution.
And that is why every Indian Citizen should be concerned about this judgement.