Why the Section 377 case raises questions beyond LGBTQ rights

Bar & Bench July 16 2018

Abishek Jebaraj

The Supreme Court of India will soon give its verdict in the challenge to Section 377 of the Indian Penal Code, which among other things, penalizes consensual same-sex relationships between adults.

I have kept abreast of the case’s progress by reading published written arguments of the parties, through social media, and hearing very animated eyewitness testimonies of my colleagues at the Bar.

With that caveat, this article throws up many crucial questions involved in the Section 377 case that reach far beyond the cause being espoused by the LGBTQ community.

Can the legislature enact purely moral penal legislation? Can the Court strike down penal legislation purely on moral grounds? And whose morality do you go by? The judges? Parliament? The Indian majority? The Indian minority?

Professor Michael Sandel popularized a notion that justice boils down to “what’s the right thing to do”? And wherever you stand from left to right, you have to at some level agree with him.  Surely, Parliament wants to do the “right thing” and pass “just laws”. Certainly, the Judiciary wants to rightly strike down “unjust laws”.

Broadly generalizing, the conservative or Judeo-Christian moral framework finds homosexuality reprehensible and the liberal view celebrates same-sex relationships. This moral dichotomy is presently fueling passionate counter arguments before the Supreme Court and true democracy urges us to equally respect people on both sides while being free to disrespect their side.

One option before the Court is to side step this shouting match and say you are entitled to your own moral views, but the state cannot impose its morality on citizens in private. Put differently, why punish people on moral grounds for acts done within a private sphere? Let’s call this “the non-imposition” argument.

The “non-imposition argument” however is not so simple to apply. In Lawrence v. Texas, the US Supreme Court was confronted with a case where a Texas statute penalized gay-sex in private and the “non-imposition” argument came up for discussion.

While the majority opinion upheld the non-imposition argument, Justice Anton Scalia in his dissent tears into the non-imposition argument by holding that the state can regulate morality in the private sphere when it has some bearing on public morality. In support, he cites laws that outlaw prostitution and the private recreational use of heroin.

Justice Scalia’s examples may not all be comparable to gay sex, but I think he does have a point in cautioning the blanket application of the non-imposition argument. Should a Court strike down any law that regulates sexual conduct in private? What if the law prohibited private sexual intercourse between an adult widowed father and his adult daughter? What if the State prohibited sex between four people in private? Is “four people” still private?

There are no easy legal answers to these questions, but we can be certain that democracy will insufficiently protect private or public rights if Courts do not intermittently weigh in on moral issues.

It is therefore absolutely crucial that a Supreme Court in a democracy does three things. Firstly, try to stay out of moral adjudication, because in a purely moral sphere, it’s better to be deferential to Parliament as being truly representative of the majority. A democracy assigns the Court with a primary role of interpreting the Constitution and tasks the legislature with enacting laws under the Constitution.

Secondly, the Court must step into the moral sphere if it has a bearing on the rights of the minority, because the Court has a constitutional obligation to protect the minority.

Thirdly, if it does step into moral questions, to do so in the most neutral and objective way possible. The Court must remember, that in any democracy, the morality of today’s majority could be that of tomorrow’s minority.

So here is what’s at stake in the Supreme Court hearing in the Section 377 case that goes beyond LGBTQ rights: The Supreme Court must decide when it steps into moral questions in legislation and the Court must also decide what process or test it will use in such cases.

It will set a dangerous precedent for the Supreme Court to decide on Section 377 by merely examining if the LGBTQ community has the “right to love” as a subset of their “right to life” under Article 21. It will also set bad precedent if the Supreme Court primarily decides the case by becoming medical experts as to whether the gay gene exists or not. The Court is going to receive volumes and volumes of documents on the right to love and the gay gene and it must pay absolute importance to every word on those pages.

For, it is a fact that the LGBT minority community has suffered discrimination and shameful harassment in India. It is also a fact that many do respect LGBTQ rights but hold traditional marriage on such a high pedestal that they fear a blanket removal of regulating any sexual acts in the private sphere will destroy the traditional institution of marriage.

However, irrespective of where the Court lands on the right to love and the medical evidence, its decision must rest on a process that is most morally neutral, objective and takes a long term view.

One of the ways in ensuring greater objectivity in scrutinizing morally purposed legislation is by examining closely what the State’s public interest is in regulating a particular private moral conduct. You then further examine whether this state’s public interest outweighs the private activity being curtailed. This prevents you from merely upholding the statute on whether you think the private activity is moral or immoral per se.

For example, a law outlawing prostitution is examined by weighing the state’s public interest in preventing the sexual exploitation of minors against the importance of a person’s right to sell private sexual activity as employment. This still involves moral adjudication, but less moral adjudication than simply deciding the validity of the law based on whether prostitution is moral or immoral in itself. The Courts devise these objective tests to ensure neutrality, consistency and objectivity in this process [called “grounds or standards of judicial review” in legal parlance].

My largest concern is that the Indian Supreme Court has failed to devise sufficiently objective tests to adjudicate on morally purposed legislation. Whether the upholding of Section 377 in Suresh Koushal or the upholding of restrictions on cattle trade in Mirzapur Kureshi, there has repeatedly been far too much subjectivity in the Supreme Court’s adjudicatory process.

The present challenge to Section 377 in the Supreme Court ought to rest on competing public and private rights and not merely on whether gay sex in private is moral or immoral. The parties are free to advocate their moral opinions and the judges may be influenced by them, but must not decide solely on it.

As the case soldiers on, the future of protecting our freedoms will hinge on our judges doing more than picking a side in a moral shouting match. If the Supreme Court does not do so, we will only find ourselves more vulnerable to the tyranny of the unelected. We could win the battle and still be floundering as far as the war is concerned.

The author is a Delhi-based advocate and Managing Partner of Isaac & Jacob Advocates.