By: Parveen Kaswan (Follow for more updates)
Today I saw some comments on latest Supreme court’s verdict on Gay relations, as many progressives are disappointed with the judgement. They are right on their stand but it is good to understand the matter in a better way and not simply putting whole onus on Judiciary. The case was about the right of freedom of people involved in the case. It was started in 2001 when NGO fighting for gay rights, Naz Foundation, files PIL in Delhi High Court seeking legalisation of gay sex among consenting adults. The stand of central government always fluctuated, since it doesn’t have a clear stand till now. In 2009 Delhi High court ruled that section 377 of Indian Penal Code, 1861 which criminalize the same sex relations in India is void. Court observed:
“The impugned provision in Section 377 IPC criminalises the acts of sexual minorities particularly men who have sex with men and gay men. It disproportionately impacts them solely on the basis of their sexual orientation. The provision runs counter to the constitutional values and the notion of human dignity which is considered to be the cornerstone of our Constitution. Section 377 IPC in its application to sexual acts of consenting adults in privacy discriminates a section of people solely on the ground of their sexual orientation which is analogous to prohibited ground of sex. A provision of law branding one section of people as criminal based wholly on the State’s moral disapproval of that class goes counter to the equality guaranteed under Articles 14 and 15 under any standard of review…”
We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By ‘adult’ we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.”
But people are missing something very important here, that in our constitutional system, where freedom is provided but at the same time it is not absolute at all. Article 19(1)a talks about freedom of speech and expression and in next section under Article 19(2) it puts :
“Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”
Here under this clause government can make any law to counter the acts for maintaining ” public order, decency or morality”, and it is so obvious by looking at these words that the issue is so abstract. These words ‘decency and morality’ are so sweeping that one can debate on them according to their subjective and personal moral perceptions. And these arguments based on personal assumptions doesn’t hold water at all. Even the interesting part is government was never consistent in its stand, as on Sept 26, 2008 Centre said in court that gay sex is immoral and a reflection of a perverse mind and its decriminalisation would lead to moral degradation of society. In November 2009, Government in its written submission before the HC says judiciary should refrain from interfering in the issue as it is basically for Parliament to decide.
Now the catch here is honourable Supreme Court has declared section 377 valid only because of current constitutional framework and stand of some religious groups, based on their moral perception, and also said a very important thing that “Parliament must take up legislation and it’s not for courts to decide”. Now just dig the case little bit more – SC has merely ‘checked the correctness’ of the HC order, of March 27,2012, on ‘decriminalising gay sex’ and has evaluated the HC judgement on its consistency with the Article 14,15 and 21 and IPC Section 377.
So here the case is majorly not about recognizing their rights, as most of the people perceive but about decriminalizing the un-natural sex (according to the law), because court can not recognize the rights it simply can protect them. Now take an example to understand what I mean by this – assume that SC has made sec377 void, now can these people avail the schemes available to all other couples or can they now adopt children. Not at all !! Because for that you need to realize that we need a change in definition of couples, and say in Hindu Marriage Act, 1955 – which court can not do at all. To understand how recognition matters take another example(though little different) – Under Article 29(1) of fundamental rights, it says “Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same”, here rights of citizens are recognized but at the same time it is not available to the foreigners (as it is clearly written- citizen). So in short foreigners can not approach court under Article 29(1) and court can not protect their rights here. Now under article 25(1), it says “Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion”. And now all can approach court for protecting their right to profess religion because it talks about all ‘persons’ which includes foreigners also, that is how recognition of rights matter.
And we can have hundreds of such examples to understand this. Now what it could have changed if sec377 is no more applicable , un-natural sex no more a crime. But do you know about even a single case where somebody had prosecuted under section 377 of IPC (after independence). I do believe in non-discrimination and recognition of their rights because here issue is about their self-esteem. But here I am trying to put – recognition can not be done by courts as we need a lot of change in such definitions and court can not do that simply because it doesn’t have power as it is executive’s prerogative. In the same way it is done in many countries, if homosexual couples can enjoy schemes which are available to others then only because states have passed the laws for recognizing their rights, not the courts (no-where) but now they are protected by courts.
But now problem is the same, Government doesn’t want to do this at their own because simply they don’t want to go against fundamentalists but at the same time to look progressive they are favouring decriminalization of Section 377 by Court (currently).
Government knows that according to current legal & constitutional complexities SC will not do that simply because it is the duty of Parliament to legislate and to amend the Section 377. The court has observed that “Section 377 suffers from no constitutional impunity”, and above all it is the duty of Parliament to discuss this important issue and amend the 1861 law according to the current time. But here the debatable issue can be that Supreme Court has changed its earlier stand where it always interpreted the constitution in a very progressive manner and now this time it is very strict in its constitutional interpretation.
Though intentions of the people are correct and demand is about their fundamental rights but I think the answer lies somewhere else. An issue which has a very less legal implications but more societal implications should be addressed by the Parliament, which works according to the general public’s mandate. How a court can tell what is good and bad for the society though it can talk about legality of the issue. I am here not denying the role of SC as protector of Fundamental Rights but just looking things from a broader perspective. It is for the people to decide what they want in their society and in a democratic system it can be done by legislatures only.
In some people’s observation SC should have upheld the Delhi high court’s verdict because parliament will never do that, then they should consider that even parliament can reverse the court’s verdict back also. Because do remember Centre has earlier said in court that gay sex is immoral and a reflection of a perverse mind and its decriminalisation would lead to moral degradation of society. Shah Bano Case is a real example, where issue was about society, SC worked to uphold the law and apparently legislatures reversed it and made the court’s decision void. Here the question is not about a single person but it is about 25 lakh, a large section is involved, definitely a serious debate is required at both inside and outside the parliament. As said by Ayn Rand,” Individual is the smallest minority” and for each individual his/her right matters but still you need to realize, there are more people in India who are opposing such radical ethical shifts than the people who are proposing them.
Let me make it very clear, today in India no major political party except CPI favours homosexuality. Even there are people who are are affiliated with various parties and do say that they are fine with it, but it can not be taken as the official party stand. No party has officially declared it and all parties consider such opinions as personal. Say if Rahul Gandhi or Sonia Gandhi comes out in public and says that the rights of these people should be protected and they should live their life freely, ideologically it is great but politically it doesn’t make any sense. As the official stand of congress is still not clear and we can not expect any clear stand also. The interesting part is if congress wants to make it legal they don’t need anybody’s support as they can do it by a simple amendment and not even a constitutional amendment. As simple majority is enough to make a section of parliamentary law void (there are three types of laws based on Acts – Constitutional, Parliamentary and Executive, here IPC is a Parliamentary Act which needs only simple majority for amendment) and congress has a majority in both houses. But here they are utilizing the political ignorance of common people.
Though I do believe SC should have interpreted in a more liberal view but I think keeping in mind the broader societal concern it has believed in parliament’s role and saved itself from the so called ‘Judicial Overreach’. So in conclusion the answer doesn’t lies in the Supreme Court but in the Parliament and it can be answered by an amendment by a simple majority and further recognition of their rights by progressive legislation. There should be a debate on the issue and parliament should consider amending/scrapping the act and also should recognize their rights – right of equality above all. Now these people should work to mobilize support in their favor and pressurize parliament to act.