Written by Randeep Singh
The Supreme Court of India has upheld section 377 of the Penal Code of India, which characterized homosexual sex as “against the order of nature.” The decision reversed a 2009 ruling of the Delhi High Court which had ruled that the law violated constitutional rights to equality and personal liberty.
To clarify, Section 377 was never abolished by the Delhi High Court: it has remained the law in India, including New Delhi. The Delhi High Court decision was only binding in that Union Territory and no where else in India. The law can only be abolished by Parliament, not by any court, including the Supreme Court of India.
As for the problems with the decision.
First, the Supreme Court’s otherwise correct statement that only Parliament can amend the law, overlooks the historical importance of the Supreme Court of India in upholding the fundamental rights and freedoms of Indians despite the state. The Supreme Court has interpreted rights and freedoms expansively to include the right to education, the right to work with dignity and on behalf of socially disadvantaged including the poor, women and backward castes. It has historically been the Supreme Court of India which has persuaded Parliament to enact socially inclusive laws, not vice-versa.
Second, the Supreme Court held that “a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or trans-genders.” How did the court come to this determination? How many Indians are in the closet? Is not one person enough to challenge a law as unconstitutional? Moreover, the Supreme Court of India has historically upheld the rights of a vulnerable social group from the excesses of more dominant social groups, as it has done in the case of backward classes, the poor and women. Why has it failed to do so now?
Third, the Supreme Court holds that Section 377 criminalizes certain acts and not sexual orientation. Under this logic, Indian homosexuals are not breaking the law so long as they do not engage in sexual intercourse. There is no separation between the act of sex and one’s sexual orientation. Legally prohibited from having sex, India’s homosexuals will have to either think twice before getting intimate with their partners or they will have to go further underground. It is a clear case of discrimination based on sexual orientation.
I’m reminded of the Supreme Court’s decision in 2005 when it refused the appeal of Afzal Guru (who was convicted of the December 2001 attack on the Indian Houses of Parliament). The court ruled that the “collective conscience of the society will only be satisfied” if Afzal received the death sentence. In this case too, the Indian Supreme Court has sought to appease the collective “moral” conscience of society, represented in this case by conservative religious bodies, supported in the recent past by senior leaders of the BJP like the late B.P. Singhal who argued homosexuality was against the ethos of Indian culture.
Section 377 remains law, but change will come eventually. Just before posting this piece, I read that Sonia and Rahul Gandhi have criticized the ruling and that India’s Law Minister has stated the government has not abandoned efforts to make homosexuality legal. The law has changed for other socially disadvantaged groups in the past and the composition of the Supreme Court and Parliament is changing. Legal reasoning is dynamic and new precedents can be set. More than anything, the GLBT community in India, and its supporters locally, nationally and internationally will keep moving forward. The moment hasn’t come yet but the destination beckons.