There’s Room For Review of SC judgment

There’s Room For Review

Manoj Mitta TNN {Thr Times of India dated 12.12.2013]

New Delhi: The last time the Supreme Court hit global headlines was in the Novartis case in April when it raised the bar for patents and made a life-saving drug more accessible to cancer patients. The reason this time for making waves around the world could not have been worse. Among the repercussions of its ruling on Wednesday in the Section 377 case is that HIV/ AIDS patients among LGBT persons may not any longer be able to access public health facilities without running the risk of being harassed or even arrested. 
    While setting aside a 2009 Delhi high court verdict, the SC put its imprimatur on, what additional solicitor general Indira Jaising described as, the “medieval mindset” of this colonial vintage provision in the 1860 Indian Penal Code. If the mindset were indeed of the medieval age, it might not have been from India. Consider the graphic depiction of homosexuality in the medieval temples at Konark and Khajuraho. Adding to the irony is the coincidence that the SC restored the blanket ban on homosexuality just when Britain is set to recognize same-sex marriage. 
    Thanks to the retrograde decision made by the SC, India will no more be in the category of liberal democracies which decriminalized homosexuality. It was put in that honourable category barely four years ago by the high court, when it read down Section 377 in such a manner that this criminal provision applied only to non-consensual acts of homosexuality. In the high court’s judgment, Section 377 violated the fundamental rights of LGBT persons unless its ambit was confined to non-consensual sex. 
    By doing away with the device of reading down the provision, the SC upheld the constitutionality of Section 377 without any qualification. As a corollary, cops can now book gay persons even for consensual sex and they are liable to severe punishment extending to life imprisonment. After all, the provision expressly penalizes whoever “voluntarily has carnal intercourse against the order of nature”. The religious groups, which appealed against the high court decision and claimed that Section 377 was in tune with Indian culture, have had their way in the SC. 
    In the tussle between “public morality” and “constitutional morality”, the SC tilted the balance in favour of the former. The HC had held a contrary view: “Moral indignation, howsoever strong, is not a valid basis for overriding individuals’ fundamental rights of dignity and privacy. In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.” Though this was the heart of the high court verdict, the SC glossed over the issue of constitutional morality. 
    Instead, in its parting observation, the SC passed the buck to Parliament saying it was “free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same”. In effect, the SC put the matter in the domain of an elected body which is even less likely to place constitutional morality above public morality. 
    Rather than giving due regard to constitutional morality, the SC held that the HC’s perception of homosexuality had been influenced by developments in other countries. Though these judgments elsewhere shed light on the plight of sexual minorities, it said that they could not be “applied blindfolded” for deciding the constitutionality of Section 377. 
    For all the judicial precedents cited by it, the SC verdict is sketchy on why Section 377 in its pristine form did not violate any of the fundamental rights. On the face of it, Section 377 is so vaguely worded that even a heterosexual act that deviated from “the order of nature” – penile vaginal intercourse – was liable to attract punishment. Yet, all that the SC explained was that “while analysing a provision the vagaries of language must be borne in mind and prior application of the law must be considered.” 
    This is because the SC accepted the contention of the religious groups that Section 377 had been sparingly used. It said that the highcourthad“overlookedthata miniscule fraction of the country’s population” constituted LGBT persons and that in 150 years less than 200 persons had been prosecuted for committing the offence. But then those statistics covered only the cases in which judgments had been delivered. They ignore the larger reality of LGBT persons being prone to moral policing, blackmail and other such misuse of Section 377. Indeed, there is much scope to review this surprisingly illthought out judgment. 


IMPLICATIONS OF SC VERDICT 

After 4-yr gap, it recriminalizes homosexuality Even consensual sex between gay persons is criminal Heterosexual acts such as fellatio, anal sex also liable 
    Recent widening of rape definition makes it easier to repeal Sec 377 
    In event of repeal, there’ll be void only in relation to bestiality 377. Unnatural offences | Whoever voluntarily has carnal intercourse against order of nature with man, woman, animal... punished with imprisonment for life 
Explanation | Penetration sufficient to constitute carnal intercourse necessary to offence described here 
SC accepted claim of religious groups that Sec 377 had been sparingly used, that in 150 years less than 200 persons had been prosecuted for committing the offence. But these statistics are only for cases where judgments had been delivered. They ignore the larger reality of LGBT persons being prone to moral policing, blackmail.