A furious debate has broken out over the Supreme Court's decision to re-criminalise homosexuality. While gay rights activists and liberal sections of society have slammed the verdict which undid a 2009 Delhi High Court ruling that had decriminalised same-sex physical relationships, there are others who believe the apex court did the right thing, from both the constitutional and the social perspective. It's a complicated issue. But often a complicated subject can be better understood by the process of de-complication. Here one many run into the criticism that ‘oversimplification' is dangerous. But so is over-complication. In the case at hand, it is the latter that is the culprit.
The basic issue here concerns the fundamental rights of an individual who is not a criminal, is no threat to society, has not indulged in anti-social or anti-national acts, and has behaved as perfectly correct as any law-abiding citizen of the country. The issue is not one of moral or cultural or religious values, as it has variously been made out to be; it's of the rights of a law-abiding citizen of this country. Should those rights get compromised merely because the person has a sexual orientation which is not the majoritarian one, and which, by no stretch of imagination, can be termed perverseIJ Should he be made to pay a price for a personal choice which does not harm other members of societyIJ Obviously the answer is ‘no'. But the Supreme Court does not agree.
In upholding the constitutional validity of Section 377 of the Indian Penal Code, a two-judge Bench of the apex court on December 11, effectively held that gay sex was criminal — and by extension, anybody indulging in that, even if involves two consenting adults, is a crime. Simply put, homosexuals are criminals not because they have defrauded, looted, murdered, raped etc, but because they are gays. Given this reality, the argument put forth by supporters of the Supreme Court’s verdict that the law is not going to hound gays unless the police is faced with a complaint, is meaningless. If a homosexual act is a crime, then a gay is a criminal. Whether the law prosecutes him or not, is immaterial. The person lives through life as a criminal in the eyes of the law, because that is what Section 377 makes the gay out to be. It's a life-long stigma, and the homosexuals must always remain ever so grateful to the legal machinery that it does not crack down on them.
This is not how a life of dignity is lived. The actions of a gay who is subjected to Section 377, are lumped with acts of perverse deeds. The Section, which deals with ‘unnatural offences', says: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished…” Thus, two consulting adults engaging in gay sex are as guilty as perverted human beings who indulge in sexual acts with an animal!
The Supreme Court had a historic opportunity to uphold the liberal judgement of the Delhi High Court that was before it for consideration. But the two-judge Bench fell back on so-called popular perceptions and a few case laws to overrule the lower court's remarkable verdict. Since the issue invoked the fundamental rights of an Indian citizen, the judges should have, in the first place, left the matter to a larger Constitution Bench for a decision. Not having done that, Justices GS Singhvi and SK Mukhopadhaya could have still thought out of the box, so to say, on what was surely a path-breaking subject of litigation.
But the Supreme Court limited itself to narrow interpretations and depended on past cases to demonstrate that even fundamentals rights are not absolute. The judged invoked the “issues of bodily integrity and the right to sexual choices” in Suchita Srivastava and Anr versus Chandigarh Administration in the context of Section 3 of the Medical Termination of Pregnancy Act, 1971. The judges pointed out that while a woman has the right to decide on pregnancies and even resort to abortions, there is also a “compelling state interest” in “protecting the life of the prospective child”. In other words, the Justices added, medical termination of pregnancy comes with a caveat.
One fails to understand the relevance of this example here. The check on abortions exists for a variety of reasons, including medical (risk to mother) and gender-related (tendency to do away with the girl child). The two judges also quoted a case of 1998 where the court had held that the “right of privacy is not treated as absolute and is subject to such action as may be lawfully taken…” That line is well-appreciated and accepted, but, pray, what is its connection with the issue at handIJ What larger purpose does the apex court want to achieve by talking of privacy and containing the fundamental rights of homosexualsIJ
The court has given credence to the oft-repeated argument that Section 377 is not discriminatory because hardly any gay has been prosecuted under the provision. The two-judge Bench observed, “While reading down Section 377 of the IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country's population constitute lesbians, gays, bisexuals or transgenders and in the last more than 150 years less than 200 persons have been prosecuted… This cannot be made a sound basis for declaring that Section ultra vires of Articles 14, 15 and 21” (dealing with a range of fundamental rights).
This argument is problematic for two reasons. The first is that the apex court appears to find it perfectly fine to criminalise people on the basis of their sexual (though not perverted) orientation because they happen to be a “miniscule fraction” of our society. The second reason is that since the Section has been rarely invoked meaningfully, nobody should complain. The fact that a regressive provision has not been implemented does not mean that it will never be. Moreover, if a law reflects an archaic mindset, it should go, regardless of the few occasions it has been invoked.
The damage has been done. But it can thankfully be reversed if the political class can get together in this task. An ordinance to negate the apex court's order is one step; a review petition in the Supreme Court to get the matter reconsidered by a larger Bench is another. The final recourse would be a curative petition.
One hopes the apex court had shown the courage on Section 377 that it did on issues like the 2G Spectrum scam, the coal block allocation irregularities, the containment of red beacons on the vehicles of VIPs and the disqualification of convicted lawmakers.