The overwhelming majority of column inches spilled since yesterday’s historic about-turn by the Indian judicial system, were highly critical of the effect of the Supreme Court’s decision to uphold the constitutional validity of section 377 criminalising homosexual intercourse. Arguments were vociferous, both from a moral perspective and on jurisprudential and legal grounds (and incidentally featured a lot of alums of India’s first national law school).
While Legally India yesterday outlined 7 creative (legal) reasons the Supreme Court found not to strike down Section #377, very few columns and opinions were found in the media and online supporting the Supreme Court’s reasoning.
We’ve collated some of the best (and only ones respectively) from both sides.
Against SC’s 377 call
NLU Delhi assistant professor Aparna Chandra (and NLSIU Bangalore grad) raised some strong legal rebuttals to the Supreme Court’s reasoning behind upholding the constitutionality of the IPC’s Section 377 in its judgement re-criminalising gay sex yesterday, at Law and Other Things.
According to her the court got it wrong:
- In excluding the application of Article 14 (right to equality). While the court has classified LGBTs as different from heterosexuals having penile-vaginal intercourse, it has ignored that such classification needed to be linked to the object of Section 377. The court is silent on object.
- The court has glossed over application of Article 15 (which prohibits distinction on sexuality) be mere linking its non-application to the non-application of Article 14. It has not separately dealt with Article 15.
- The argument that only a “miniscule fraction” (200 prosecutions in 150 years) were affected is a “travesty” since Article 14 is meant for the protection of even that miniscule fraction
- The court cites a judgement stating that a law infringing on fundamental rights can only be upheld in the event of a compelling state interest in it. But the court cites no compelling state interest in the existence of Section 377
- On the point that state abuse cannot decide the vires of a law, Chandra writes: “By completely discounting the lived experiences of persons subject to this law, the Court regards facial neutrality as enough to shield a law from a challenge of discrimination. This reasoning betrays complete ignorance of how social context, norms and mores shape and influence the quotidian applications of any law, such that even well-intentioned laws (which this is not) can have the most deleterious impact.”
- On the court’s point that Section 377 is penalising “acts” and not a class of persons, Chandra argues that the court has ignored that the sexuality of a person is a part of their being
- The court is misguided in making a distinction between a law’s “legality” and its “legitimacy”. “Contrary to the Supreme Court’s understanding, Koushal is not a judgment about a minuscule minority, but about the constitutional commitments of a billion plus people,” she writes.
Some others in opposition
Fellow NLSIU graduate and current Yale LLM Gautam Bhatia argues in Outlook that “every once in a way, the highest Court in the land delivers a judgment that is both constitutionally preposterous, and morally egregious”, adding that Kaushal v Naz should end “upon the rubbish-heap of constitutional history”.
And Lawrence Liang, another NLS grad and Alternative Law Forum co-founder, provides advocate Siddharth Narain's strong analysis in Kafila, citing plenty of authority, of why he dissents with the Supreme Court’s reasoning, concluding: “The Indian Supreme Court has betrayed the values that the Delhi High Court judgment stood for – dignity, liberty, equality, non-discrimination, inclusiveness and constitutional morality.”
Centre for Policy Research president Pratap Bhanu Mehta simplifies the argument in the Express, saying that without the need to “throw about articles” and look into statutory history, it can be easily said that this was a case for letting go of judicial restraint in favour of protection of fundamental rights against the “Victorian” relic Section 377. “The court also displayed a howlingly limited moral imagination,” he added.
Harini Calamur stressed, in DNA that the Delhi high court’s reading down of Section 377 was the “only possible correct decision”. “On being asked about the contribution of natives to literature, [Lord Macualay’s] response was: ‘A single shelf of a good European library is worth the whole native literature of India and Arabia.’ It is this man’s pronouncements on sex and sexuality that have been upheld by the highest court in India,” she writes.
In the Supreme Court’s corner
For leaders of different religious groups, however, yesterday was a rare event where they found common ground to unite on, in support of homophobia, reported the DNA.
Former additional solicitor general of India KN Bhat, lawyer Prameela Nesargi support the technical correctness of yesterday’s judgment, talking to IBN Live.
A 2009 paper in the NUJS Law Review by the college’s former vice chancellor Prof MP Singh, argued for the constitutionality of section 377 (years before the Supreme Court delivered its verdict, obviously, and without making any value judgments about homosexuality). Singh concluded, after 20-odd pages of dense reasoning:
As stated in the beginning I have tried to examine the existing constitutional position vis-à-vis Section 377 of IPC without making any value judgments or taking sides. As I find it, the constitutional interpretation in Naz Foundation is not in line with the interpretation of the Constitution as established by the Supreme Court. As some of the issues decided in Naz Foundation conflict with large bench decisions of the Supreme Court up to seven judges, the Naz Foundation interpretation could be upheld as per practice and precedent of the Court only by a bench of not less than nine judges.
Towards the end I have also tried to suggest with some difficulty the possibility of reading down Section 377 by making it non-applicable to “consensual sexual acts between adults in private”.
As the matter is pending before the Supreme Court and the Supreme Court has enormous powers to devise appropriate procedures and remedies according to the requirement of each case instead of availing of the option of strong review of either upholding or invalidating Section 377 it could also exercise a weak form of review by asking the Parliament to re-examine Section 377 in the light of new developments in law as already suggested by the Law Commission. Though, of course, such a review assumes unconstitutionality of Section 377, the Supreme Court could do it without arriving at such a conclusion.
[Hat tip to Abhinav Shrivastava on Facebook for pointing out Singh’s paper]