The Supreme Court’s 377 Decision: Anti-minority Subjectivity and Unintelligible Conclusions

Yesterday, the Supreme Court of India re-criminalized same-sex intercourse under Section 377 of the Indian Penal Code,1860. Four years ago, the Delhi High Court in Naz Foundation vs. Government of NCT declared that Section 377 was unconstitutional as applied to consensual private homosexual intercourse. The High Court’s judgment rested on several fundamental rights guaranteed by the Indian Constitution including equality, right to privacy, and personal liberty (Articles 14, 15 and 21). The Government of India refused to appeal the High Court’s decision stating that the Government did not disagree with the High Court’s Judgment. However, religious groups and individuals (such as Joint Action Council Kannur and Shri B.P. Singhal) appealed..The Supreme Court’s judgment (which can be read here) has re-instated Section 377. The Court, conducted by a two-member bench of Justice G.S. Singhvi and Justice Sudhansu Mukhopadhaya, found that all laws (both pre and post the establishment of the Indian Constitution) are entitled to a presumption of constitutionality and noted that declaring a law unconstitutional is the last resort of the Supreme Court. In addition, the Court found that the petitioner had failed to provide sufficient evidence supporting the finding that Section 377 suffered from a “constitutional infirmity”. Citing the limited power of the Supreme Court to adjudicate questions of constitutionality alone, the Court concluded that the Delhi High Court had breached its narrow judicial authority and that the High Court’s decision would be set aside. The Supreme Court ended its nearly 100 page judgment by directing persons unsatisfied with the decision to seek respite from the Parliament; as, according to the Court, the separation of powers principle and the Court’s limited constitutional authority had disqualified the judiciary from this task. For a court that has chosen to provide judgment on numerous other public policy issues and has consistently maintained a reputation of judicial activism, such deferment reeks of prejudice and selective judicial activism..Although the Supreme Court implies that its ruling is inevitable and merely a question of judicial authority, there are points of subjective anti-minority sentiment and unintelligible legal arguments within the Court’s decision. First, the Supreme Court denies that the Section 377 is unconstitutionally vague and arbitrary yet, the Court is incapable of delineating the acts violative of 377, itself..Second, the Court wrongly establishes that a law cannot be ultra vires (outside the Constitution) if it impacts only a few hundred people. According to the Court, less than 200 persons have been prosecuted under Section 377 and their prosecutions “cannot be a sound basis for declaring it [Section 377] ultra vires”. Nowhere in India’s history of constitutional jurisprudence has it stated that there is a minimum required number of persons’ whose fundamental rights must be abridged in order to establish unconstitutionality. If we were to accept the Court’s line of argument, we must also accept that these “miniscule” number of person’s constitutional rights are in some way less meaningful (or possibly meaningless) than the Court’s hypothetical threshold number of persons whose rights apparently matter..Third, the Supreme Court’s decision interprets Article 21 of India’s Constitution narrowly in the case of harassment of LGBTI persons. The Court acknowledges the consistent harassment and infringement on the daily lives of LBGTI persons through the misuse of Section 377. According to Article 21 of the India’s Constitution “no persons shall be deprived of his life or personal liberty”. Consistent harassment by police authorities, an arm of the Government itself, on the basis of one’s own personal sexuality is clearly a deprivation of personal liberty. Yet, the Court wholly disregards these unconstitutional effects of Section 377 stating “this treatment is neither mandated by the section nor condoned by it”. The judgment calls into question what rights, then, are protected by Articles 14 and 21 for LGBTI persons..Fourth, the Court states that the petitioner “miserably failed” to furnish documentation of Section 377’s discriminatory impact on LGBTI persons. However, an even cursory glance through the quantitative data and qualitative interviews submitted to the Court show rampant abuse of Section 377 by law enforcement officers—often leading to verbal, physical and sexual harassment of LGBTI persons. In fact, the Supreme Court itself states several pages later within its own decision that “the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section”. Fifth, the Court superficially notes that Section 377 does not criminalize “a particular people or identity or orientation” yet, the Supreme Court surprisingly adopts the stance that those who have sex against the “order of nature” (namely, LGBTI persons) and those who do not, “constitute different classes” of people—the people falling in the latter category (namely, LGBTI persons) “cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification”..Thus, it is no great leap to conclude that the Supreme Court, itself, understands Section 377 to differentially impact the sexual rights of persons depending on what “class” of persons (LGBTI or non-LGBTI) they belong to. How, such an allotment of unequal rights on the basis of sexual orientation can pass constitutional scrutiny in light of Article 14’s guarantee that the “the State shall not deny to any person equality before the law” is perplexing to say the least. This is a question the Supreme Court neglected to answer..Although the Delhi High Court’s decision is set aside and its holdings stripped of their judicial authority, its dicta nevertheless retains emotional potency:.“It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.”.The Supreme Court’s anti-minority decision represents a clear step backwards on the road towards LGBTI equal rights and recognition in India. This journey will continue in the Parliament or maybe in the Court itself through a review process. It is imperative that our Parliamentarians and the Supreme Court judges rise up to the occasion; not to afford favors or to express biases (either for or against LGBTI persons), but to defend the fundamental rights guaranteed by India’s Constitution..Dipika Jain and Kimberly Rhoten, Associate Professor and Research Fellow at the Center for Health Law, Ethics and Technology, Jindal Global Law School..(The views and opinions expressed in this article are those of the authors and do not necessarily reflect the policy or position of Bar & Bench)