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