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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:

  1. 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.
  2. It fails to meet the standards of decision making which is expected from the Supreme Court.
  3. 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

Senior counsel and lawyer to the Naz Foundation, Anand Grover, argued a contrary view in the WSJ today.

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Recommend! +4 Objection! -1 Disagree 2013-12-17 22:57
I have utmost respect for our apex court, but in the fine traditions of the Bar, one can express disappointment by citing the reasons for being disappointed! A list of the reasons, none of which provides any comfort (for the reasons given) provided below:

1. Presumption of constitutional validity (while the presumption is fair, finding S. 377 valid in the face of Arts. 14, 15, 19 and 21 is not);
2. No pleadings re constitutional validity at the HC (the superior courts of record have inherent powers and the power of judicial review – the Court need not limit itself to pleadings; rather, it has the duty to take cognizance of facts. Also, the SC has itself ignored certain facts stated in affidavits that the judgement reproduces in parts e.g. harassment of LGBTs);
3. LGBTs are a different class, so there is no arbitrariness as such. Further, they are a minuscule minority (this is most shocking because Art. 14 was explained in EP Royappa v. State of TN - violation of Art. 14 must be assumed when a law is "arbitrary", “whimsical” or “illogical”. Also, indirectly suggesting that the rights of a minuscule minority need not receive equal attention is disconcerting because we lawyers love the apex court and its protective attitude for one and all);
4. Less than 200 prosecutions in 150 years in terms of reported judgements (even if one ignores unreported cases and harassment by police - because the SC correctly says that harassment by police cannot be a ground to declare S. 377 unconstitutional – by the same token, a small number of prosecutions is not a reason to find S. 377 valid!)
5. The HC relied on foreign jurisprudence (we are a young democracy and there is nothing wrong in relying on foreign jurisprudence – at any rate, it is better than referring to Victorian era jurisprudence re sodomy and buggery that the SC judgement cites, although apparently as obiter).
6. The best reason given by the SC is that the Parliament has chosen to not change the law despite Law Commission’s recommendations and public opinion (this is a fair point, except that judicial review can be used to strike down or read down a law that violates Part III. What the Parliament chooses is irrelevant when a law is hit by the Holy Troika of Arts. 14-19-21).
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Recommend! +4 Objection! -2 Shivendra Singh 2013-12-17 23:12
Sir, I beg to differ with you.

My reasons are as under:

(i) A Bench of three-judges of the SC in Selvi Vs. State of Karnataka in 2010 held that the standard of `substantive due process' is the threshold for examining the validity of all categories of governmental action that tend to infringe upon the idea of 'personal liberty'. The SC was bound by the judgment in Selvi, but chose to not even address such an important aspect.

(ii) After Maneka Gandhi, Sunil Batra & Selvi, it will be incorrect to state that the concept of substantive due process is alien to Indian Constitutitional law.

(iii)It is not about strict scrutiny at all. Justice Singhvi failed to engage with the question whether the differentia that Article 377 seeks to create is intelligible or not. The question of it being reasonable or not has not been addressed by Justice Singhvi at all. That is the BIGGEST flaw of the judgment in my opinion. Justice Vivian Bose's opinion in Anwar Ali Sarkar should be read by all of us (Justice Singhvi included) again!

(iv)You argued that most of the cases, involving “right to privacy” have been challenges to the executive action and not the statute itself. This argument is of no moment. If the techniques of narcoanalysis, serum test etc had been legislatively incorporated into the CrPC, the SC would have still struck it down being violative of the right to privacy under Article 21 in Selvi. Simply because something has not been done in the past cannot be a ground to say that a constitutional challenge will not pass muster. After all, we are interpreting the Constitution!

(v) You said that 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. I agree that we live in a country where honesty is a huge virtue. But Justice Singhvi's constitutional philosophy is quaint. His opinion in Devinder Pal Singh Bhullar is equally perverse. It is sad that very little attention has been paid to it. Being pro-poor or being thorough on executive arbitrariness cannot be a reason to not criticize regressive judgments like Bhullar or Koshal.

Lastly, I agree that media reactions should not be a ground to ascertain the correctness of a judgment. But as a lawyer, I think that Justice Singhvi's judgment is erroneous.
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Recommend! +0 Objection! -0 @ Everyone 2013-12-20 12:05
It is important to underscore that it is not just Justice Singhvi’s error as there was another judge who signed the judgement he authored to indicate he concurs with it in its entirety.
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Recommend! +0 Objection! -0 substantive due process ??? 2013-12-18 09:50
I am surprised to read that India has substantive due process and more so in as much as reliance is placed on decisions in Maneka Gandhi and Selvi.

First and foremost, in neither of these cases any of the statutory provisions were invalidated, much less invalided on grounds of substantive due process.

Further, Maneka only lays down that there must be a procedure for any administrative action, which must be just and fair. It does not say that the procedure can be invalidated on the ground that it does not meet due process of law. On the contrary the test continues to be what Article 21 provides i.e. "procedure established by law". In fact those who say that Maneka established due procedure in India must read the last few paragraphs where the Supreme Court declared the action of the Government of India on the ground that post-decisional hearing was provided to Maneka Gandhi. So after giving all the lecture on what and how of procedure, no relief was in fact given to the petitioner. A typical case of operation successful patient dead.

Also, Selvi does not lay down any new law. It only reinforces a constitutional right against self-incrimination. In that case as well no law was declared as invalid. Only the procedure followed by the police for interrogation was declared as contrary to constitutional stipulations.

In this background where is the question of testing the correctness of Naz judgment on 'substantive due process'. This is specially when Naz concerned with challenge to validity of a statutory provision. So far in this country there is not even a single statutory provision which has been declared as invalid on ground of substantive due process. There may be situations where statutes contrary to fundamental rights are declared as invalid.
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Recommend! +1 Objection! -0 What is SBP, btw? 2013-12-18 11:12
See, E.P. Royappa v. State of Tamil Nadu, 1974 4 SCC 3 - "from a positivistic point of view, equality is antithetic to arbitrariness”; “where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14."

See, Maneka Gandhi v. Union of India, 1978 - "equality is a dynamic concept with many aspects and dimensions”; it “must not be subjected to a narrow, pedantic or lexicographic approach”; “an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence”.

Introduction of Arbitrary Principle = Introduction of Substantive Due Process.

See, Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 - this “new dimension” of Article 14. "strikes at arbitrariness in State action and ensure fairness and equality of treatment"
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Recommend! +1 Objection! -0 SBP!!! 2013-12-18 12:48
arbitratiness is removed if there exists a procedure established by law. therefore EP Royappa and Maneka both are satisfied if there is a procedure and it is followed properly. however this is not substantive due process. it is only procedural due process.

substantive due process implies a statute being held invalid. has EP Royappa or Maneka or for that matter any other judgment of SC ever held a statute invalid on ground that it violates substantive due process? No.

Read Abhinav Chandrachud's book "Due Process of law" where he admits that substantive due process is yet to find feet in India.
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Recommend! +0 Objection! -0 Substantive Due Process 2013-12-18 14:44
The instances where the SC has employed substantive due process are:

A. Mithu Vs. State of Punjab, AIR 1983 SC 473 to hold that Section 303 of the IPC was unconstitutional.

B. Air India Vs. Nargesh Mirza, AIR 1981 SC 1829, the Supreme Court held that any arbitrary or unreasonable action or provision made by the State cannot be upheld.

c. Mardia Chemicals Vs. Union of India, (2004) 4 SCC 311 where the Court held that Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 in so far as it required the borrower to deposit 75% of the amount claimed in the notice with the Debts Recovery Tribunal
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Recommend! +3 Objection! -0 Rishabh 2013-12-18 17:32
What the author seeks to achieve with this article is to explain that the judgement is not founded in bad law. Any Justices of the Supreme Court have the legal acumen and experience to give judgements that are sound in law. Legal acumen is only a tool to further policy objectives. The entire debate surrounds the values on which this judgement was based on, that these values are regressive and the legal precedent used to justify the judgement are cherry picked.

I think it will be a bigger offence to the involved judges and the SC at large if we have to defend their legal acumen.
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Recommend! +2 Objection! -0 Law Student 2013-12-18 23:38
I think by actually discussing substantive due process we are falling into the trap set out by the author.

Proposition: Wearing turbans in India is illegal.

Now it could be argued that this only punishes conduct, does not punish any class of people - of course it does not even create classes for equality to be tested !

But the fact remains that if a provision has a disparate impact such that it affects one group unequally because it is known that such group engages in the conduct more than others - it is treating equals unequally!

On the privacy argument - the law itself can be challenged as a violation of privacy. Please read Gobind v MP where the provision which authorized surveillance was challenged and struck down.
Further, there is no compelling state interest and public morality is not a defense.
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Recommend! +1 Objection! -0 Guest 2013-12-19 11:04
Please re-read Gobind v. M.P. No provision was struck down.

"Even if we hold that Article 19(1)(d) guarantees to a citizen a right to privacy in his movement as an emanation from that Article and is itself a fundamental right, the question will arise whether regulation 856 is a law imposing reasonable restriction in public interest on the freedom of movement falling within Article 19 (5); or, even if it be assumed that Article 19(5) does not apply in terms, as the right to privacy of movement cannot be absolute, a law imposing reasonable restriction upon it for compelling interest of State must be upheld as valid."

The turban example is a freedom of religion issue. If tested only under Art. 14 alone, it may very well fail to violate.
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Recommend! +2 Objection! -0 AV 2013-12-19 17:57
Thankfully someone has finally read the Judgment!

Para 38 is exactly the answer to the over-hyper media, which has erroneously stated that the Supreme Court has held gay sex to be illegal.

One may say that the Judgment is not happily worded. But
it does not hold gay sex to necessarily fall within the ambit of section 377, and it leaves it to the Court to deal with specific fact situations.
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Recommend! +0 Objection! -0 Guest 2013-12-19 18:14
Agree. SC has not criminalized homosexuality, contrary to what the media has been trumpeting high and low.
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Recommend! +0 Objection! -1 hahahah.No. 2013-12-19 22:48
Both of you are so wrong its not even funny.
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Recommend! +0 Objection! -0 Law Student 2013-12-21 01:00
Instead what SC has done is let each judge decide what comes under Section 377 and what doesnt.
In effect this a section that is applied arbitrarily each time with the victim having no sense of predictability on what are the contents of the charge.

What the SC judgment has done is overturn DHC judgment - meaning we are in a 2009 era - meaning that 377 stands and gay sex is illegal.
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Recommend! +0 Objection! -0 guest 2013-12-24 00:17
I request you to excuse my ignorance in this instance. Please provide for my enlightenment, the citation of the judgement where it has been ruled that consensual homosexual acts are punishable under 377. Thank you.
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Recommend! +2 Objection! -0 Guest 2013-12-20 00:01
Well, good luck trying to cite this judgement as authority when you prosecute a homosexual under 377.

Also, it's rather strange for homosexuals to go to court asking for 377 to be struck down because the section is 'misused' against them to harass them and because as a matter of public health, addressing HIV issues becomes difficult as aforesaid misuse drives them underground.

In other words, it is the homosexual community itself that puts forth the proposition that what they do constitutes 'carnal intercourse against the order of nature'. So, what does the SC say- that it is apprehensive if the courts would rule the same in case of consensual homosexual acts.

They could have instead pursued any one single act of misuse or harassment by the State and challenged that 377 does not apply to them.

Next you'll have men challenging 498a because it is misused against them.
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Recommend! +1 Objection! -0 Law Student 2013-12-21 00:57
This is getting quite ridiculous.
Are you forgetting that there was also a privacy challenge, along with article 15 ?
The point about misuse has to be seen in light of the fact that a widely worded criminal charge gives uncanalized powers to the police to arrest and harass.
Because everyone who engages in anal sex is then a "suspected criminal" - which has lead to incidents in Bangalore, Lucknow and many others.
And as to your suggestion of one single act, the Delhi HC said exactly this - that it does not apply to them.
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Recommend! +0 Objection! -0 guest 2013-12-21 10:21
So has the SC - that it would be unlikely to apply to cases of consensual homosexual acts. It may have served the cause better to have taken proper legal action in the cases in bangalore, lucknow etc for proper interpretation of 377 qua consensual homosexual acts. 377 is rightly worded widely. There can be myriad circumstances - acts of cruelty and perversion, where it may require to be invoked. It is noteworthy that the appellants were unable to cite instances where the courts have actually interpreted 377 to be applicable to consensual homosexual acts. Certainly, it is far fetched to contend all consensual homosexual acts will be up for court scrutiny. The main ground for asking 377 to be struck down, still boils down to misuse, and arguments of privacy have been made in relation to that.
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Recommend! +0 Objection! -0 Law Student 2013-12-22 00:03
So according to you, the gay community should be first mistreated and then go to court - and leave it to the whims of the judge to decide whether they "deserve" protection. If it was declared that 377 does not include consensual penetration it would have amounted to pre-emptive protection of the minorities and protected the community was in delhi till the SC ruled.
But ofcourse your anwar ali sarkar equality notions do not accommodate for pre emptive protection or disparate impact...
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Recommend! +0 Objection! -0 Law Student 2013-12-22 00:05
And if it was unlikely that it will not apply, then why didnt they state that it doesnt apply once and for all.
Does the predictability of the law mean nothing ?
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