Supreme Court verdict on gay sex: The struggle continues

I was staring at my twitter feed at 10.30 am this morning, and I was actually all ready to celebrate the Supreme Court, using the powers vested in it under article 32 of the constitution of India, read down section 377 of the Indian Penal Code (IPC), criminalising “carnal intercourse against the order of nature” in line with the judgement of the Delhi High Court in 2009, thus ending a long struggle for securing the right to alternate sexuality in India.

By 10.45 am, I was in tears.

In 1860, thanks to Lord Macaulay and friends, all sexual intercourse which is “against the order of nature” – in effect, penetrative sex that does not involve a penis entering a vagina – was made punishable with up to 10 years of imprisonment. 140 years or so later, the Naz Foundation filed a petition before the Delhi High Court challenging the constitutionality of section 377, insofar as it dealt with consensual sex between adults.

The Delhi High Court, in 2003, rejected the petition on technical grounds for want of locus standi. The Supreme Court overturned this, and though hopes were not high when the case went back to the Delhi High Court, in 2009 Justice AP Shah delivered a stunning verdict reading down section 377 to decriminalise consensual acts of sex between adults in private. A few religious groups decided to take the matter to the Supreme Court, and in the midst of public outcry (and confusion as to whether the ruling applied only in Delhi or all over the country) there was yet another wonder – the Union of India did not oppose the ruling of the Delhi High Court.

It is true that the judiciary cannot take over the role of the legislature, but it is equally true that when legislature violates fundamental rights, the Supreme Court has to step in. It has re-looked at laws on several occasions before, and has discussed provisions of the IPC with regard to constitutionality as well – be it the constitutionality of a “mandatory death sentence” in section 303 of the IPC (Mithu Singh, 1983) or the right to commit suicide (P. Rathinam 1994, overturned in Gian Kaur, 1996). The challenge to section 377 was steeped in fundamental rights violations – it violated article 14 and 15 which ensures equality before law, it violated the right to freedom of expression under article 19, and most of all, criminalisation of one’s sexuality violated the right to life enshrined in article 21.

I initially thought it was worth waiting for the copy of the judgement before commenting, but then again, regardless of what the judgement says, the position is inevitably this: the Supreme Court has held section 377 of the IPC to be entirely constitutional, because if they did not, then they would have had to accept the prayers of the petitioners, thanks to article 32 of the Indian Constitution.

32. Remedies for enforcement of rights conferred by this Part:
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution

In short, when your rights are taken away, it is the Supreme Court that has the powers to step in and make sure you get them.

A lot has been said about whether “judicial activism” is a good thing – frankly speaking, it is entirely undesirable that the task of framing the law be entrusted to one or two persons, however qualified they may be as judges, who have not been elected by democratic processes. Of course, elected representatives should be the ones to do this.

The paradox is, however, that lawmakers have and always will push for issues that concern groups of people who can be identified – on the basis of sex, caste, religion, economic strata, etc. Women come out on the streets and protest about rape laws and the government swoops into action, and the law is amended.

Identification of one’s self as homosexual is problematic in India because sexual conduct associated with being homosexual is illegal. To identify oneself as homosexual is akin to an extrajudicial confession of sorts, displaying intention to commit a cognisable offence, or at the very least, marking one’s self as a target for observation. Therefore, it is cruel to expect affected persons to reach out to lawmakers in public spaces and subject themselves to further violations of their fundamental rights.

Similar issues can be found while advocating for the rights of persons with psychosocial disabilities – the ever-looming threat of involuntary institutionalisation deters so many from being vocal about the deprivations of their fundamental rights, and thus, the group becomes invisible. In such situations, where to identify oneself as being victimised by a law is difficult, the judiciary must step in to hear those that are, in a way, disenfranchised, and give them their rights back.  That is, to my mind, the entire purpose of article 32 of the constitution.

I am not saying only affected persons should speak up against section 377 and consequently, this ruling of the Supreme Court – the existence of such a law on the statute books as well as the implication of the judgement impacts us all. For example, as someone working in disability policy, it sets a terrible precedent for the reasons mentioned above, and hits the entire question of the freedom to make personal choices, as well as the freedom to be. And you don’t have to be an activist or homosexual to be worried – consensual sex between “straight” couples which isn’t about a penis entering a vagina also invites prosecution.

The struggle must continue, to the Supreme Court in a review petition, and to make this an election issue. Responses to the latter on twitter were mostly amused voices asking whether there was a “vote bank” – well we can never really know, can we?
 
 
Amba Salelkar is a lawyer, who moved into disability law and policy after six years in criminal litigation. She works with the Inclusive Planet Centre for Disability and Policy. She tweets at @mumbaicentral