Why the SC judgment on Section 377 makes sense

A few mornings ago I woke up with a resolve and did something I had not done in years: I went to the Supreme Court website and downloaded a judgment. After the reading the 92-page long document I am convinced that the Supreme Court has come in for unfair criticism and most of the people dissenting with the judgment don’t really understand what they are protesting against.
The judgment isn’t anti-gay. It can be called regressive in parts but nowhere in the judgment does one find an anti-LGBT stand. In fact a cursory reading of the judgment reveals that gay rights and its social status or discrimination is not the matter being considered at all. If the judgment isn’t about gay rights, then what is it about?

The story begins in 2003 when a little known NGO called Naz Foundation, which works in the field of HIV/AIDS prevention and specifically with Men Who have Sex with Men (MSM), files a PIL in the Delhi High Court. The petition demands that the Section 377 of the IPC be deleted because it was being used to harass MSM, which in turn hampered HIV/AIDS prevention work being done among them. The petitioner alleged that the police have been using the section of the IPC to blackmail, torture, and harass sexual minorities who, with no sexual rights, have no other option but to go underground.

Once the PIL was accepted by the Delhi court, Section 377 starting finding space in the national media. Every HIV/AIDS and gender activist decried the misuse of Section 377 by the State to marginalise the LGBT community. Overnight, a 150-year-old law, rarely invoked, least of all to punish consensual homosexuality, one that has seen about 200 convictions in all this time, turned into a monster that was eating into our social liberties.

Everyone who belonged to the LGBT community was seen as a victim of the draconian Section 377, which over the years became the fulcrum of all discourse on alternate sexuality in India.

What happened next was quite cinematic to say the least: the petitioner, Naz foundation failed to provide any evidence to support its claim of discrimination at the hands of the State: there simply wasn’t any data that conclusively showed that the police were misusing Section 377 and that MSM were subject to high risk.

The Supreme Court called the petition ‘laconic’. “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…”

No matter how one looks at the judgment it is impossible to glance over paragraph number 40 that talks about the lack of evidence. If there is no evidence to show misuse of the law how can one argue for the abolition of the law on the grounds that it is being misused?

To me the real culprit is the petitioner who has tried to gain undue publicity by trying to turn its petition into a national debate on sexual minorities. Thankfully our highest courts retain the good sense that made the creators of our nation repose their full faith in them.

The author is a writer