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7 creative (legal) reasons the Supreme Court found not to strike down Section #377

Banning 377 would be too foreign, argued SC
Banning 377 would be too foreign, argued SC
Legally India has culled seven main reasons from the 98 page judgment in the Section 377 case, explaining why the Supreme Court decided that a lower court was wrong to repeal the law effectively banning homosexual intercourse.

Around four years ago the Naz Foundation NGO, through its lawyer Anand Grover, had approached the Delhi high court, arguing that it was difficult to help HIV infected homosexual men when their sexuality was criminalised and they were subjected to intimidation by police.

On 2 July 2009 the Delhi high court bench headed by Justice AP Shah repealed Section 377 of the Indian Penal Code 1860, boldly declaring that the law:

insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21 [Right to Protection of Life and Personal Liberty], 14 [Right to Equality before Law] and 15 [Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth] of the Constitution. We hold that sexual orientation is a ground analogous to sex, and that discrimination on sexual orientation is not permitted under Article 15.

Today, a Supreme Court bench of justices GS Singhvi (on the day of his retirement) and SJ Mukhopadhaya was of the view that the Delhi high court had overstepped its mark into the domain of the legislature.

Shortly after the judgment a number of religious groups and activists appealed to the Supreme Court and arguments were made again. Today the apex court bench observed in the appeal that even if the Delhi HC petitioners had sufficiently proved instances of state abuse of section 377, which in its opinion they hadn’t, this would have no bearing on whether section 377 was constitutional.

The judgment ruffled feathers on social media by using language such as “so-called rights [of LGBTs]” and referencing a judgment that differentiated “female sex workers” from “normal human beings”.

However, outside of more emotive arguments of fundamental rights, the Supreme Court based its decision around seven broad and more technical legal points:
[View full judgment on Scribd]

1. What can we do if Parliament doesn’t?

Repeal of section 377 does not find a place among the 30 odd amendments the parliament has recently made to the statute. The fact that the “undisputed representative” of the people (read parliament) “has not thought it proper” to delete the provision, should “guide our understanding of character, scope, ambit and import”.

“After the adoption of the IPC in 1950, around 30 amendments have been made to the statute, the most recent being in 2013 which specifically deals with sexual offences, a category to which Section 377 IPC belongs. The 172nd Law Commission Report specifically recommended deletion of that section and the issue has repeatedly come up for debate. However, the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India has not thought it proper to delete the provision. Such a conclusion is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in the law. While this does not make the law immune from constitutional challenge, it must nonetheless guide our understanding of character, scope, ambit and import.”

2. We can’t decide what’s sexually ok

Sexual conduct should be regulated. However, it is difficult to make a list of acts that would fit the bill of such regulated, acceptable conduct, said the apex court. Section 377 makes the job easy by disposing of with the condition of “consent” altogether. So it is good.

“It is difficult to prepare a list of acts which would be covered by the section. Nonetheless in light of the plain meaning and legislative history of the section, we hold that Section 377 IPC would apply irrespective of age and consent. It is relevant to mention here that the Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.”

3. We wanted more evidence being gay is hard

The Naz Foundation failed to show enough instances of abuse of the provision by state authorities. It merely mentioned that it is doing work in the field of HIV/AIDS afflicted homosexuals.

“The writ petition filed by respondent No.1 was singularly laconic inasmuch as except giving brief detail of the work being done by it for HIV prevention targeting MSM community, it miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the State agencies towards sexual minorities and consequential denial of basic human rights to them. Respondent No.1 has also not furnished the particulars of the cases involving harassment and assault from public and public authorities to sexual minorities.”

“State-wise estimated adult HIV prevalence and estimated number of HIV infections as in 2009 has been given. These details are wholly insufficient for recording a finding that homosexuals, gays, etc., are being subjected to discriminatory treatment either by State or its agencies or the society.”

4. The law’s letter says ‘carnal intercourse against nature’ is illegal

Article 14 (right to equality before law) does not apply because heterosexuals have penile-vaginal intercourse and all the others are two separate categories of people.

“A rule of procedure laid down by law comes as much within the purview of Article 14 as any rule of substantive law and it is necessary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination”

“Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. What Section 377 does is merely to define the particular offence and prescribe punishment for the same […]”

5. Just over one reported prosecution per year? That’s not enough!

Hardly 200 persons have been prosecuted in 150 years of Section 377.

“While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.”

6. Misuse by police? Not our problem

Police abuse gay men and women because of Section 377? That’s parliament’s problem, not the courts’!

“The mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section. It might be a relevant factor for the Legislature to consider while judging the desirability of amending Section 377 IPC.”

7. But what about Indian (legal) culture?

The Delhi HC has discounted the Indian context by relying on too much foreign jurisprudence to reach its order.

“In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.”

Photo by Nick Johnson

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