I had gate crashed at a Harvard seminar way back in 2000 where Attorney General Sorabjee ducked an audience question on what is now the most infamous provision of our penal code after 420 and 302. He parried the student’s query on law reform to remove the Victorian section 377 criminalising what is antiseptically termed “non penile-vaginal” intercourse by saying that getting a change through Parliament would be difficult, through court perhaps. Now the Supreme Court has dodged the ball and has done so in a spectacularly disappointing manner.
From a Court, which has been at the forefront of passing orders on every matter from red lights to black politicians — a sudden shyness. Its prognosis: This mess is best left to Parliament to sort out. Not since the dark days of the Emergency when the SC fell in line in the Habeas Corpus case to hold that Indira Gandhi could even suspend the right to life, has it let down the cause of personal liberty as much as it has done in the Naz Foundation Case on 11.12.2013.
Religion and morality have again won the day when essentially the only issue before the SC was one of personal liberty, privacy, dignity and access to the constitutionally guaranteed rights to life and equal protection of the laws. The High Court had not legalised gay sex, much less recognised gay relationships. Decriminalisation is very different from legal recognition. Even after the High Court decision, the sexual minorities continue to face discrimination in matters of marriage, recognition of domestic relationships, rights of adoption, inheritance etc.
It had been argued that such a provision was discriminatory and was misused by the state machinery (read the moral police) to intimidate and extort from the gay community. Such a situation also discouraged this vulnerable population from accessing important interventions such as condom distribution, safe sex counselling — essential to battle the spreading HIV/AIDS epidemic. However, the argument that trumped all others was that such a provision was an affront to the dignity of gay people as, by its very existence on the statute book, it stigmatised an entire people without any constitutional basis.
The High Court had “read down” (given a meaning so that the whole law need not be struck down) section 377 to make consensual non “penile-vaginal sex” between two adults within confines of a private space no longer a crime. The court, in a well-researched judgement, had noted several precedents from other countries to rule that punishment of such sexual activity had no constitutional sanction. The court had taken care to exclude forced sexual acts or even consensual sexual acts involving minors or any sexual activity in the public sphere.
In the Supreme Court, the appellants had argued that such a judgement would affect the very institution of marriage and destablise society by encouraging “unnatural” behaviour having no religious sanction. It is interesting how attacks on personal liberty unite fundamentalists of all communities (BP Singhal of the BJP, the All India Muslim Personal Law Board and the Utkal Christian Council).
While mercifully, the top Court steered clear of the morality and religion debate in its 98 page verdict, the spectacular lack of perspective was stamped all over it.
Here are the key conclusions:
(a) Poring through from Macaulay (the colonial framer of our penal code) to sodomy cases from 1817, the SC concludes that “orifice of mouth is not, according to nature, meant for sexual or carnal intercourse”. (For the layman: Oral Sex is unnatural)
(b) Case Law does not help in deciding what would be “unnatural sex” and it would have to be decided on a case-to-case basis. Though the Delhi High Court had excluded non-consensual and minor sex, the SC examined cases relating to forced oral sex with a child, sex with a bullock through the nose and “thrusting the male organ between the thighs”, buggery with murder and a man inserting his genital organ into the mouth of a six-year-old girl! The Court concludes “it was difficult to prepare a list of acts which would be covered by the section”. How difficult would it be to say that all sexual acts between two consenting adults in private confines stand excluded? Would the moral police be standing in the bedroom with a check list of permissible acts, monitoring the sexual action?
(c) Section 377 does not criminalise a particular identity or orientation, it only identifies certain acts. Such “prohibition regulates sexual conduct regardless of gender identity and orientation”.
Such implication betrays even a basic understanding of “formal equality” and “substantive equality”. It is like the court saying “The Ritz hotel is open to the rich and poor alike” or “Rich and poor are both welcome to sleep on the pavement”. None can deny that while formally the section is sex neutral, in effect, it targets one and only one sexual minority.
(d) Only a “miniscule fraction” were gays, with only 200 reported orders in 150 years and this cannot be a “sound basis” for declaring the law invalid. This logic is also astounding. The whole purpose of the Constitutional Court is to insulate each and every citizen from the tyranny of numbers. That is why the Constitution entrusts the courts and not the khaps, with protecting our fundamental rights.
(e) Merely because police can misuse a law, it cannot make the law bad.
(f) Laws and cases decided by other countries cannot be “applied blindfoldedly (sic)” to India. Interesting defence of a law that was applied “blindfoldedly” from across the seas.
(g) Parliament is free to amend the law. Court in the past has not hesitated to set out guidelines to address parliamentary inaction. Vishakha’s sexual harassment code, vigilance guidelines in the Vineet Narain case, Delhi Pollution, Haj Committee, police reforms in the DK Basu case, the list is endless. In this case, the Delhi Government and the Central government, through the Attorney General, had said that the High Court judgement was fine!
In a nation where making salt without taxes became the symbol of our liberation struggle, it is sad that the SC failed to appreciate the symbolism — it may be that there have been only 200 cases and many involving bullocks and little girls, but this case was never about one section or one conviction or even one community. “We the People” were on test — and we flunked miserably!
The writer is an advocate practising in the Supreme Court and the Delhi High Court