Shukla: SC aterial errorShukla: SC aterial errorJindal Global Law School (JGLS) senior research associate Surabhi Shukla argues that the Supreme Court made a serious error in its judgment, which would pave the way for a review petition of the judgment.

On 11 December, 2013, the Supreme Court reinstated section 377 of the Indian Penal Code. This decision of the Supreme Court deals a huge blow to the LGBT movement within the country.

However, an analysis of the judgment reveals that the Supreme Court has committed a serious error in overlooking the vast amount of evidence presented before it while arriving at the decision.

The Supreme Court stated that the Naz Foundation had not “laid factual foundation to support its challenge.” It further noted that they “miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the State agencies toward sexual minorities…” and since “in [the] last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC… this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.”

Not only is this assertion of the Supreme Court contrary to the lived experiences of the LGBT people, it is also contrary to its own findings in the earlier part of the judgment. Earlier in its judgment, the Supreme Court acknowledges that multiple affidavits had been produced in the Delhi High Court which establish various incidents of abuse of LGBT people.

The Supreme Court also acknowledges the Human Rights Watch Report which documents police abuse of HIV/AIDS workers. Finally, it also notes that case of Jayalakshmi v. State in which the Madras High Court had provided compensation to the family of a transgender individual who was tortured and killed in jail because of their gender identity. The Supreme Court also looked at instances of police abuse of LGBT people in Delhi, Chennai, Goa, Aligarh, Lucknow and Bangalore and scholarly work on the issue by various academicians.

As this decision has been rendered by the Supreme Court of India, it sets the law of the land unless the Parliament brings in a legislation to amend section 377. Does this mean that the society should hang in homophobic limbo until our leaders change the law?

Article 137 of the Constitution of India gives the Supreme Court the power to review any judgment made by it. The Supreme Court has recently (August, 2013) stated in the case of Kamlesh Verma v. Mayawatithat a review of a Supreme Court decision is possible when there is a “material error, manifest on the face of the order, [which] undermines its soundness or results in miscarriage of justice.” Here, the Supreme Court also stated that the conclusion arrived at after appreciating the evidence can also be assailed if there is an error apparent on the face of the record.

Here there is clear case of an error apparent on the face of the record. The court has in the face of many affidavits, case law and scholarly work, arrived at the conclusion that Naz Foundation has “miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the State agencies toward sexual minorities…”

This results in a grave miscarriage of justice as it forms the basis of the Court deciding that there is not sufficient (if I may) discrimination against the LGBT people and in turn concluding that section 377 does not suffer from any Constitutional infirmity. This finding has the potential to set the LGBT movement back by many years and to vindicate the prevalent homophobia in the country.

In a time when Nepal, Pakistan, Thailand, Bangladesh- all our neighbours are moving forward in the direction of granting more rights to the LGBT community, the highest court of our land has snatched away rights granted by the Delhi High Court four years ago. If diminishing of human status in society and snatching away of civil rights of an entire community is not miscarriage of justice, nothing is.

The way to move forward is to file a review of this decision in the Supreme Court. A correct appreciation of the evidence would pave the way for the court to reach the conclusion that the LGBT population faces grave discrimination and abuse and would lead to the striking down of section 377.

Surabhi Shukla is a Senior Research Associate at the Jindal Global Law School (JGLS) Sonepat, and also works at the Centre for Health Law, Ethics and Technology, which conducts research on sexuality, law and health related matters

experts & views

Click to show 15 comments
at your own risk
By reading the comments you agree that they are the (often anonymous) personal views and opinions of readers, which may be biased and unreliable, and for which Legally India therefore has no liability. If you believe a comment is inappropriate, please click 'Report to LI' below the comment and we will review it as soon as practicable.
refresh Filter out low-rated comments. Show all comments. Sort chronologically
Like +8 Object -10 Yawn! 12 Dec 13, 20:49  controversial
People have too much time on their hand these days.
Reply Report to LI
Like +7 Object -4 Bravo 13 Dec 13, 00:02
Great article. Much better than the ones doing the rounds in random blogs these days.
Reply Report to LI
Like +0 Object -0 Yeh bhi 16 Dec 13, 16:13
Reply Report to LI
Like +3 Object -6 Guest 13 Dec 13, 10:23
Go Surabhi! Please tell them to change the byline below your pic?
Reply Report to LI
Like +9 Object -6 Reviewer 13 Dec 13, 13:52  controversial
Bogus work. Please make constructive arguments.
Reply Report to LI
Like +10 Object -2 Anonymous 13 Dec 13, 19:37  interesting
@ Kian @Prachi

Where is the quality control? Anyone who wants to promote themselves can write anything?

Frankly, the comments in the posts are far more interesting... I usually skip the articles and head straight to the comments.
Reply Report to LI
Like +5 Object -1 Abhishek Sharma 13 Dec 13, 22:44
A very poorly analyzed article. The author seems to be missing as to what is meant by "Error Apparent on The Face of The Record". Before posing as a research scholar, the author needs to clearly know the ambit of review. A review is not an appeal in disguise. A possible another interpretation or re-appreciation of materials on record is too no ground. Every second person around is fashionably making arguments in favour of or against the alleged rights. First go and see those people who were opposing Delhi High Court Judgment. The High Court Judgment was in fact very poor in merits. It came out with imaginary interpretations. Allowing such interpretations (particularly casus omissus) to survive was another threat to rule of law.
Reply Report to LI
Like +7 Object -0 Diaz 14 Dec 13, 21:07  interesting
There are many reasons why the judgment can be criticised but this "analysis" by Shukla is a very sketchy job. In fact it is these kind of bad attacks that make it difficult to sustain a proper objection to the judgment. There are glaring assumptions the author has made such as the possibility that findings on points of fact can be overturned on review which is laughable.

Dear Kian, Please dont publish such poor work unless it is peer reviewed. The quality is like some 4th year projects.
Reply Report to LI
Like +0 Object -0 Skool 21 Dec 13, 23:52
Diaz - An elementary understanding need not be prohibited.
Reply Report to LI
Like +0 Object -0 Guest 15 Dec 13, 14:14
Its all over discussion about carnal intercourse only, but we need to define "order of nature" in sexual context. What exactly is "order of nature "in sexual context. First of all we need to maintain a continual process for preserving our species (Human Species) ,and for that an "order of nature "is determined eternally, where an erect penis needs to penetrate a vagina to ejaculate semen which finally fertilizes an egg to reproduce an offspring . Secondly for an erection of penis there is certain carnal behavior of physical contact like touching ,pressing and kissing are another list for "Order of nature " in sexual context.
Now if this is the "order of nature " mentioned in age old Section 377 ,which is surely relevant in our modern day too. then the "carnal intercourse against the order of nature with any man, woman or animal" must be termed as unnatural offense .
Reply Report to LI
Like +0 Object -0 guest 15 Dec 13, 18:58
Well, is homosexuality against the order of nature? Has the SC ruled that it is? Has the SC implied that it is? Is the issue res integra? Why can't 377 be interpreted to mean it doesn't cover within its ambit consensual homosexual relationship? And so let 377 stand.
Reply Report to LI
Like +0 Object -0 guest 15 Dec 13, 19:56
Also, some high ranking foreign dignitaries including some heads of state are homosexuals. Is the Indian government going to arrest them for offences committed in India? One of the BJP types should file a PIL and get such foreign visitors arrested and pilloried for ruining Indian culture.
Reply Report to LI
Like +0 Object -0 Diaz 16 Dec 13, 03:25
Quoting guest:
Also, some high ranking foreign dignitaries including some heads of state are homosexuals. Is the Indian government going to arrest them for offences committed in India? One of the BJP types should file a PIL and get such foreign visitors arrested and pilloried for ruining Indian culture.

You talk as if dozens of foreign diplomats and dignitaries are homosexuals. Even assuming that they will need to commit an act of intercourse in India for their prosecution under 377. Remember that before writing some gibberish
Reply Report to LI
Like +0 Object -0 guest 16 Dec 13, 11:58
Kindly read and understand what is written before referring to it as gibberish. See the phrase 'for offences committed in India' and 'foreign visitors'. Also, 'foreign dignitaries' does not only mean foreign diplomats. Further, there are a suffcient number of them. Surely, there cannot be a different criminal law for foreigners committing crimes in India? Specially when the crime is allegedly a foreign import?
Reply Report to LI
Like +0 Object -0 Guest 15 Jan 14, 07:49
You may want to read the actual review petitions filed in this case. All of them mention the ground detailed in this article as a ground for review.
Reply Report to LI

refreshSort chronologically Filter out low-rated comments. Show all comments.