Advocate-on-record Amit Gupta puts forward the unfashionable opinion that, although Justice GS Singhvi’s judgment in the section 377 gay sex case was not perfect and unpopular, he did in fact get the law right.
The severe criticism of the Supreme Court’s judgment on constitutionality of Section 377 of the IPC raises a serious issue as to whether the judicial decision making ought to be guided by legal principles or prospective media trial? It would be a dangerous trend if the guiding factor for a Court to decide on constitutional matters were to be the criticism it may attract from liberals.
The judgment has been criticized on the ground that:
- It is regressive and a step backwards towards the LGBT (Lesbian, Gay, Bisexual and Transgender) equal rights and recognition. The Court should have taken a liberal view and legitimized homosexuality.
- It fails to meet the standards of decision making which is expected from the Supreme Court.
- It is legally wrong. Section 377 to the extent that it forbids sexual act of two consenting adults of the same gender is unconstitutional.
Regressive or judicial?
The first criticism suggests that there the Supreme Court ought to have taken only one view, i.e., to uphold the High Court judgment. This criticism fails to accept that a Court is free to uphold the view of either of the parties litigating before it. After having willingly subjected the issue to the judiciary, it is unusual, that one of the parties were so sure about the view that the Court ought to have taken.
This criticism also blurs the role of judiciary and the legislature. If allowing same sex intercourse is moral, legal, progressive and widely acceptable then it is the job of the legislature to amend the law. The changing notions of morality and sex, cannot by themselves be grounds for declaring a provision unconstitutional.
Weak analysis; Loose ends
The second criticism, though, is justified. After reserving the judgment for over 21 months, it was expected that the judgment would be more exhaustive. The judgment does not discuss the judicial developments in other parts of the world. A better analysis was certainly required.
It also contains invariably long extracts of the earlier reported judgments, without fully discussing the propositions. There is a contradiction, when the Supreme Court mentions that no incidents of discriminatory attitude exhibited by state agencies towards sexual minorities and consequential denial of basic human rights to them have been specifically stated, whereas the high court has extensively relied on the same.
Para 43 of the judgment, treats with disdain the population of gays, lesbians, bisexuals or transgenders and was certainly uncalled for since ultimately those figures have no bearing while adjudicating on the validity of the Section. On a bare reading of the judgment, it appears that there are several loose ends left to be tied.
Lawrence vs Texas: Substantive due process
The main issue is, however, whether the Supreme Court has completely overlooked the Constitution and legal principles. Some critics have gone to the extent of stating that the court has abdicated its judicial function or has shown non-application of mind.
The criticism completely ignores few fundamental principles that evolved by our judiciary time to time. The courts presume any law to be validly enacted. Once it is presumed, the burden shifts on the party challenging the provision. The critics, however, argue the converse. The Indian Courts have never accepted the ‘strict scrutiny’ test, which has been used in the US in affirmative action cases. Even in Lawrence vs Texas, the US Supreme Court did not strike down the sodomy law in the State of Texas, by applying the test of ‘strict scrutiny’.
In Lawrence vs Texas, the sodomy law was struck down since it was held that it violates substantive due process guaranteed under the Fourteenth Amendment of the US Constitution. It was held that the law did not further any legitimate state interest which can justify its intrusion into the personal and private life of the individual. Substantive Due Process allows the courts to test as to whether the enacted law is as such just, fair and reasonable.
In contrast, Article 14 of our Constitution does not recognise any concept of substantive due process. Article 14 has two limbs: the state is not to deny to any person (i) “equality before law” or (ii) “the equal protection of the laws.” The second limb implies protection of equal laws for all similarly situated persons.
In this perspective, challenge to Section 377 is unfounded.
No such process here
First, it does not classify individuals into different categories. The criminality is attached to the act of “carnal intercourse against the order of nature”. Such an act is criminal irrespective of the sexual tendencies of the person concerned. Thus, even a consensual heterosexual act which does not involve penile – vaginal intercourse is criminal.
Second, even if it is assumed that the section does create classification amongst persons, the court is correct to the extent it states in Para 42 that those who indulge in carnal intercourse in the ordinary course and those who do it against the order of nature constitute different class. Before the SC, the Union of India justified the classification on grounds of (a) strong societal disapproval and (b) health concerns.
A declaration from the court that sexual intercourse, apart from penile – vaginal intercourse is also an acceptable practice, is a concept borne out of “substantive due process”, which has also not been accepted by the Indian courts.
It is asking the court to give a moral opinion or a value judgment on the issue.
Sex not equal to sexual orientation
The SC judgment does not carry any discussion on Article 15 of our Constitution, according to which no citizen should be discriminated only on the grounds of “sex”. The SC clubs Article 14 and 15 together.
However, once it is understood that the Article criminalises the act and is applicable to both males and females, the argument of discrimination on grounds of Article 15 fails. Even the High Court did not hold that the section resulted in discriminatory behaviour because of sex of a person. Instead, the High Court equated “sexual orientation” to “sex.”
If the logic of the High Court were carried further, then denying marriage to same sex couple or any kind of restriction whatsoever on same sex couples, would also be unconstitutional.
Right to privacy: Executive only
The argument that Section 377 violates “right to privacy” overlooks a basic principle. Article 21 states that no one can be deprived of his life or personal liberty except “according to procedure established by law.” Certainly, it is a matter of one’s personal choice and preference to have sexual intercourse either penile – vaginal or otherwise. Such a choice ought to be respected.
However, as pointed out by Professor MP Singh, in an article in NUJS Law Review, any state action would amount to infringement of right to privacy, if not backed by a competent law. In the present case, it is not the state action, which was being challenged, but the law itself. Most of the cases, involving “right to privacy” have been challenges to the executive action and not the statute itself.
The SC is correct to the extent that Section 377 does not mandate perpetrate harassment, blackmail and torture on certain persons. Furthermore, the proposition that merely because a law can be subjected to abuse or misuse, has also never been a ground to hold it unconstitutional is correct and unassailable.
LGBT window open
It is also not the case that the judgment leaves no window open for LGBT community. Para 38 of the judgment clearly provides the way ahead. While extensively dealing with the reported judgments, it has been held that in all the cases where the accused have been prosecuted on an offence under Section 377 IPC, there has been non-consensual and markedly coercive situations and the keenness of the Court in bringing justice to the victims who are either women or children cannot be discounted while analyzing the manner in which the section has been interpreted.
The judges clearly stated that they “are apprehensive of whether the Court would rule similarly in a case of proved consensual intercourse between the adults”.
Last, those who have appeared in Justice Singhvi’s court would vouch for his credentials, thoroughness, and his views on executive arbitrariness, environment, land acquisition and poor in general.
Amongst lawyers, it was perceived that he would take a conservative approach on the issue. Maybe for him, Section 377 does not merit the attention that it currently does. Even globally the issue attracts fierce debate.
However, on a proper analysis, the SC judgment is in line with the judicially evolved principles and the Constitution. It is doubtful if the judgment, even with all its current flaws, would have been so severely criticised if it had upheld the High Court judgment.
But it would be a sad day if media reactions become a factor in judicial decision making even on constitutional issues.
Amit Gupta is a Supreme Court advocate on record and partner at Delhi firm Mitter & Mitter & Co